No Holds Barred: The Use of Restrictive Behavioral Intervention in Missouri Public Schools.

AuthorHawley, Claire

State ex rel. Alsup v. Kanatzar, 588 S.W.3d 187 (Mo. 2019) (en banc).


    While students in public school still retain certain constitutional rights, these rights are not coextensive to those of adults in other settings. (1) This is largely due to the traditional deference in American jurisprudence to school officials on decisions of student discipline. (2) This deference is generally understood to reflect the uniquely difficult nature of student discipline, which involves the delicate balancing of students' constitutional right to a public education with their right to a safe learning environment. (3)

    One area in which school officials are afforded discretion is in the physical restraint of students. (4) For the purposes of this Note, physical restraint is defined as "the use of person-to-person physical contact to restrict the free movement of all or a portion of a student's body." (5) While physical restraint is conceptually similar to seclusion and corporal punishment, there are critical distinctions. (6) When a school official physically restrains a student, s/he is using force for the purposes of controlling a disruptive student who poses an imminent threat to his or her own safety or the safety of others. (7) In doing so, school officials are required to balance the student's right to education and due process with the safety of others. (8) Missouri school officials are left with little guidance from the federal and state governments when making these complex, and often split-second, decisions. (9) The Missouri Department of Elementary and Secondary Education ("MODESE") provides a Model Policy, but it is non-binding upon local school boards. (10) Local school boards have the authority to create their own policy for the use of physical restraints. (11) The lack of reporting requirements limits the collection of data on the use of physical restraint in Missouri public schools, but the most recent federal data from the 2015-16 school year show that 59,217 students were restrained nationwide and at least 1990 in Missouri. (12) The data also demonstrate that physical restraint is employed inequitably and has a disparate impact on students with disabilities and students of color. (13)

    Part II of this Note discusses the facts and holding of State ex rel. Alsup v. Kanatzar, which upheld official immunity for a school official who broke a student's arm while attempting to physically restrain the student. (14) Part III provides legal context for the Kanatzar decision, including the federal government's limited but significant role in school discipline and Missouri's localized and deferential approach to disciplinary issues. Part IV offers an in-depth discussion of the arguments advanced in State ex rel. Alsup v. Kanatzar, the court's reasoning, and its ultimate conclusion that the school official was entitled to official immunity. Finally, Part V addresses the response to Kanatzar, highlighting recent legislative proposals to change legal framework for school discipline in Missouri. Part V concludes with policy recommendations aimed at strengthening protections for Missouri students and limiting the use of physical restraints in public schools.


    The most recent Supreme Court of Missouri case involving the physical restraint of a student, State ex rel. Alsup v. Kanatzar, expanded the official immunity of public school employees for negligence in the employment of physical restraints. (15) This case arose after Israel Mariano, a student at Independence Academy, an alternative school in the Independence School District, brought a negligence action against Carlos Alsup, an in-school suspension teacher, in the teacher's individual capacity. (16) Mariano alleged he sustained a broken arm after Alsup attempted to place him in a physical restraint. (17)

    On the morning of April 28, 2016, Mariano refused to go to school and failed to get on his school bus. (18) Mariano's mother drove him to school herself, calling ahead to Independence Academy to inform them of the situation. (19) When they arrived at Independence Academy, a physical struggle ensued between Mariano and his mother. (20) After Mariano's mother brought him inside the school, Alsup and another staff member "took hold of him." (21) In the course of physically restraining him, Alsup broke Mariano's arm. (22)

    In compliance with state law requiring all local school boards to adopt a written policy for restrictive behavioral interventions, (23) the Independence School District had an established disciplinary policy known as District Board Policy 2770 ("Policy 2770"). (24) Both parties agreed that Policy 2770 fulfills the statutory requirements of Missouri Revised Statute Section 160.263. (25) Under Policy 2770, the Independence School District requires its employees to undergo training from the Crisis Prevention Institute ("CPI"), which "provides training for multiple methods of physically restraining a student." (26) Alsup attended the CPI training program. (27)

    Mariano sued Alsup in the Circuit Court of Jackson County, (28) alleging Alsup was negligent in physically restraining Mariano and therefore liable for his injuries. (29) Alsup filed two motions to dismiss, both of which were overruled. (30) Alsup later filed a motion for summary judgment, arguing he was entitled to official immunity. (31) On August 30, 2018, Judge James F. Kanatzar denied Alsup's motion for summary judgment because Alsup failed to demonstrate there were no genuine issues of material fact. (32) Alsup then sought a writ of prohibition from the Missouri Court of Appeals, Western District, which was denied. (33) On September 24, 2018, Alsup filed a writ of prohibition with the Supreme Court of Missouri, which was preliminarily issued on October 2, 2018. (34) The Supreme Court of Missouri then proceeded to hear arguments on the original remedial writ, with jurisdiction pursuant to Article V, Section 4.1 of the Missouri Constitution. (35)

    The issue presented was "whether the physical restraint technique used by [Alsup] was a discretionary or ministerial act." (36) Mariano argued that Alsup was not entitled to official immunity because of evidence proffered by Mariano's expert witnesses that Alsup performed the restraint techniques improperly. (37) Mariano further argued that the manner in which restraint techniques are performed by school officials is not a discretionary act, but rather "a ministerial act which must be performed in a certain way, once the decision is made to physically restrain the student." (38) Judge Paul C. Wilson, writing for a unanimous majority, held that Alsup was entitled to official immunity because a teacher's duty to physically restrain a student in compliance with the school district's written policy was not a ministerial duty. (39)


    The United States Constitution is silent as to the federal government's duty to educate its citizens, thus public education in the United States has traditionally been left to the state and local governments. (40) However, the federal government does play a limited role in education policy through the United States Department of Education ("DoEd"), Congress, and the federal judiciary. (41) Subpart A provides an overview of federal law as well as actions taken by the federal government regarding student discipline, with a specific focus on the use of physical restraints in public schools. Subpart B encapsulates the relevant actions taken by the Missouri legislature and state educational agency leading up to State ex rel. Alsup v. Kanatzar.

    1. The Federal Government's Role in Education

      During the 1970s, the United States Supreme Court ruled in a number of seminal cases on school discipline and due process. (42) Taken together, these cases stand for the principle that the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings, and the rights of students must be applied in light of the special characteristics of a school environment. (43) These cases and their underlying legal principles are necessary to understand the current state of the law regarding the use of physical force against students in public schools.

      First, in Goss v. Lopez, the Supreme Court held that students facing temporary suspension are afforded sufficient due process if they are provided with an opportunity to have an informal hearing with school administrators before such suspensions. (44) Then, in Horowitz v. Board of Curators, University of Missouri, the Supreme Court considered whether a public university student is constitutionally entitled to a hearing prior to dismissal from school for academic reasons. (45) Ruling against a former medical student, the Court concluded that "the determination whether to dismiss a student for academic reasons requires an expert evaluation of cumulative information and is not readily adapted to the procedural tools of judicial or administrative decisionmaking." (46)

      While these cases show that the constitutional rights of public school students differ significantly from that of adults in non-educational settings, only one directly addressed the use of physical restraint against students: In Ingraham v. Wright, the Supreme Court considered whether a hearing is required before a student can be subjected to corporal punishment by school officials. (47) The fourteen-year-old plaintiff, Leo Ingraham, was forcibly restrained and paddled by a school administrator for allegedly failing to leave the stage of the school auditorium when asked. (48) Ingraham sought medical treatment for a hematoma caused by the paddling. (49) By and through his parents, Ingraham sued, alleging a violation of his Eighth Amendment rights to be free from "cruel and unusual punishment." (50) The Supreme Court disagreed, ruling that the corporal punishment of students could not be considered cruel and unusual under the Eighth...

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