When is a seclusion room not a seclusion room? NHCS, FERPA, and the tricky world of student data
Advocates, parents, journalists, and even board members have all asked for more detailed information on New Hanover County Schools’ seclusion practices. District staff say they want to answer questions — but don’t want to run afoul of the Family Educational Rights and Privacy Act, or FERPA.
Over the last year, advocates like Sandy Elyes have been pushing the New Hanover County Schools (NHCS) district to answer tough questions about the use of seclusion. Under state law, seclusion can be used provided the room meets certain legal requirements for students whose behavior makes them dangerous to themselves or others — as well as students whose Individualized Educational Plan (IEP) includes seclusion as a tool to help them calm down, focus, or deal with anxiety.
But critics take a dimmer view of the practice, saying it's a traumatic experience for students. Some advocates have called it tantamount to ‘torture.’
Eyles’ daughter had a profoundly negative experience with seclusion at the Cape Fear Center for Inquiry. The charter school later suspended the use of seclusion rooms, admitting both its physical rooms and the policies around using them failed to meet state standards. Eyles has since been pushing NHCS schools to end the practice as well.
The issue has come to a head during several New Hanover County Board of Education meetings, including one where board member Judy Justice pressed staff to answer why data archived by the U.S. Department of Education’s Office of Civil Rightsshows NHCS disproportionately using seclusion rooms when compared to other districts.
Advocates have also asked to know more about the demographic makeup of the students being secluded. Last month, a Port City Daily reported on the issue, analyzing a public records request for district-wide demographics — and then putting the troubling bottom line right in the headline: Students of color were secluded, restrained 4 times more than white peers in NHCS last year.
But when advocates pushed to know more about specific schools the district said they couldn’t provide that kind of information without violating FERPA, the 1974 federal law that protects student privacy (often seen as a corollary to HIPPA’s protection of patient privacy rights).
Assistant Superintendent Julie Varnam explained the problem happens when you have a low number of students — meaning a higher chance of identifying someone.
“When we look at low numbers of students and we are breaking down and disaggregating that information by other characteristics, so it could be gender, it could be race… and then by school and then whether by there’s a disability or not … then you have too great of a likelihood that you are identifying the individuals,” Varnam said.
Varnam gave the example of state testing reports. When there are more specific data categories, like race, disability status, school, and so on, the denominator — meaning the total number of students that could be represented — shrinks. So, hypothetically, there might be 100 students at a school, with 20 Black students, and 15 students with a disability, but only 2 or 3 Black students with a disability. Varnam said when that number is under 10, the data is scrubbed and replaced with a symbol to protect students’ FERPA rights.
“You don’t get that data,” Varnam said. “Because it would be too easy to potentially identify the student.”
FERPA affords important privacy protections for students. But when applied to the issue of seclusions, it has created some complicated — and frustrating — situations, for advocates and the district alike.
The seclusion room that wasn’t
Take the case of Masonboro Elementary: In the flurry of public records requests over the last several months, Masonboro was revealed to have recently had six seclusion room uses.
That wouldn’t have been exceptional — except that Masonboro doesn’t have a seclusion room.
In response to one PRR, the district replied in early February, “There is not a seclusion room at Masonboro (Parsley) Elementary School. This space was converted to storage approximately four years ago.”
For those who had been following the issue — parents, advocates, and journalists alike — this was, to say the least, confusing.
Initially, the district was hesitant to discuss the issue. Speaking on background, one district employee also said that there was not a seclusion room, but that a variety of incidents — including taking students to courtyards or other areas set apart from other students, had been logged as seclusions. Pushed for clarification, the employee said they couldn’t offer more information without violating FERPA.
Then, this month, things got more confusing after Disability Rights North Carolina (DRNC) visited four schools: Masonboro Elementary, Forest Hills Elementary, the International School at Gregory Elementary, and Holly Shelter Middle School.
In a letter to an attorney representing NHCS, Kristine L. Sullivan, supervising attorney for DRNC, wrote of Masonboro, “Regarding the seclusion room at Masonboro, DRNC recommends that all items except for the mat and laminated cards/de-escalation tools be permanently removed from the room. The administrator who showed us the room stated that the other materials (a basket full of documents, a student desk, and a student chair) stay in the room as long as a staff member is inside the room with the child. If the child becomes aggressive toward staff and therefore they have to leave the room, the items are removed from the space to prevent the child from using them to harm herself or others. However, having the items in the room, particularly the furniture, still presents the student with an opportunity to injure staff or herself before those items can be removed. This also prevents staff from fully engaging in de-escalation with the student (and removing themselves to safety) while simultaneously trying to remove the furniture. Further, if the student is able to sit at the desk and engage in de-escalation activities or work tasks, it is questionable whether she needed to be removed (and/or remain so) from the classroom at all.”
When this letter was shared with the public on Facebook, the reaction was negative — it appeared that NHCS had either misled people or been wrong about the seclusion room at Masonboro. The truth is more complicated.
What’s going on at Masonboro and at NHCS
Varnam clarified that the room DRNC was talking about was not the seclusion room that had been decommissioned and turned into storage four years ago.
As long as the space meets the statutory requirements for a seclusion room, Varnam said, the room can be used for seclusion — even if the room is never identified as a “seclusion room.”
“Any space can be a seclusion space, if it has to be. It doesn't mean that those spaces are identified as seclusion spaces. So with regard to most of the schools, they've had a space that they determined to be a seclusion space, either because they have students that have needed that or they have a program where in the past students have needed it,” Varnam said.
Varnam said that even if the room is not identified as a seclusion room that, if and when a child is secluded there, it must be reported.
Here, Varnam was clear that she couldn’t offer much more information for fear of violating FERPA, specifically for fear of identifying the student who used the room discussed in the DRNC letter.
“I can't share too much information other than to say, in general, when you've got a student experiencing great difficulty with their safety or the safety of others and engaging in behaviors that are dangerous, we have to have a plan. We put a plan in place to support that student. And an appropriate plan would be to help that student prepare to transition into the classroom and have minimal distractions, highly supervised. But if that kid then engages in dangerous behaviors, then step out and allow that student to de-escalate and then re-enter as soon as the behaviors have extinguished, re-enter – that would, by definition of general statute, be a seclusion,” Varnam said.
Varnam said there was no formalized document for the process of identifying these spaces and their use. She said that these seclusions — and the rooms that they occur in — are authorized by the district’s behavior specialists.
“It would go through the behavior specialists that work under the special education director, who works under me,” Varnam said.
In an email, Varnam added, "[s]taff are trained that the additional statutory requirements of seclusion are to also be met. Administrators are to be contacted to be present for seclusion, so the administrator and involved staff will ensure these provisions are intact."
Eyles said she wanted to be clear that she wasn’t attacking teachers who use seclusion rooms. However, she said she was concerned about the disconnect between the district initially saying that Masonboro — and 19 other schools — don’t have seclusion rooms and the fact that, by law, any school could find a room that meets the statutory requirements and use it to legally seclude a child.
“And I think it's really dangerous for parents to think, oh, that will never happen to my kid. Because we don't have a seclusion room. I think parents should really need to understand it can happen to their kid,” Eyles said. “And a big part of this is parent education and parents understanding what seclusion is, when it can be used, who can do it and where it can happen. And that transparency is really important for parents so that they can protect their child.”
Other seclusion data issues
While the issue of FERPA compliance only comes into play when looking at more granular data, there’s been confusion and frustration about high-level data comparisons as well. In particular, the troubling implication of the OCR seclusion data that shows NHCS as having far more seclusions per student than large school systems like Wake or Durham counties.
According to data archived by the OCR, in 2017 NHCS had nearly ten times more seclusions than Durham, despite having at least 7,000 fewer students.
And then there’s the Wake County Public School System (WCPSS), which has over 162,000 students, roughly six times the size of NHCS’s student population — and not a single seclusion in 2017.
WCPSS spokesperson Lisa Luten confirmed the district’s schools do have seclusion rooms, but said there were no public records of when they were installed. Luten also said there was no other public data on seclusion available besides the OCR records.
That said, WCPSS has faced at least two lawsuits for seclusion room use recently. In early 2020, the Wake County Board of Education agreed to pay $450,000 to the family of a disabled student at Southeast Raleigh High School. The family alleged their son was illegally restrained and secluded. And last August, a judge ruled WCS had inappropriately secluded a third-grade student at Scotts Ridge Elementary School at least 24 times.
So is it possible that WCPSS and Durham are underreporting?
Luten said she “checked with our data and accountability department and they have no reason to believe the information from the USDOE is inaccurate.” A spokesperson for Durham said, “Durham Public Schools is following all reporting guidelines related to seclusion rooms.”
The outsized disparities between NHCS and other districts around the state is something Varnam said she’d been looking into, and said DRNC told her they have seen underreporting in their work.
“They definitely said there are districts using seclusion and restraint and not documenting per state and federal law,” Varnam said.
Sullivan confirmed this, specifically referencing the apparent disconnect between WCPSS’s report of zero seclusion events and the lawsuits it has faced for use of seclusion — as well as a statement from WCPSS saying that the school’s behavior program “could not be implemented with fidelity without the use of seclusion and restraint.”
“So there is a question about the accuracy of the data WCPSS submitted to OCR for the 2017-2018 school year, indicating there were no uses of seclusion at all,” Sullivan wrote in an email. “Are staff documenting the use of seclusion correctly? Do they have the right training to identify seclusion and document all uses, not just those required by state law? Or is it the case that WCPSS truly did not use seclusion during the 2017-18 school year (in which case they really need to question the idea that seclusion is “required” for this behavior program)?”
As for the future of seclusion room use at NHCS, Varnamrecently told the Board of Educationthat the district strongly encourages teachers to use other methods first, relying on seclusion as a last resort only. But, ultimately, only the board can decide whether it will continue to allow the practice.