Special needs students often pay price in efforts to strengthen school safety

It was nearing 8:30 p.m. on October 24 when Jessica Davis called the police, searching for her missing teenage son.

“They had no answers for me,” Davis said. 

After multiple calls to the school and the police department, she only knew a few things for certain: Jaden, who was attending Duval County Public Schools at the time of his disappearance, climbed on the bus that morning but never made it home —​ and that no one, including the school her son attended, would answer her questions. 

Four days later, when Jaden, who had already been diagnosed with ADHD, was discharged from a mental health holding facility where he was sent from school, Davis got her answer: Her son had been “Baker Acted.”  

How the Baker Act comes into play

The Florida Mental Health Act of 1971, commonly known as the “Baker Act,” allows for minors with a suspected illness to be involuntarily admitted to a mental health facility and examined if a law enforcement officer or other official decides the student poses an immediate threat to themselves or others. 

The statute has proven useful to treat children or adults who show suicidal, homicidal or other aggressive behaviors, like pulling a knife, that could result in bodily injury. 

But increasingly, schools in Florida are using the statute against special needs students —​ especially those with behavioral or developmental disabilities —​ without parental consent. And it’s happening during incidents that parents, lawyers and advocates believe could instead have been de-escalated through proper intervention. 

Up until the recent passage of the Marjory Stoneman Douglas High School Public Safety Act, criteria under the Baker Act prevented students with disabilities from being involuntarily held at mental health facilities under the 1971 statute if they had family members or friends who could intervene and help prevent any threat of substantial harm.

Stephen Talmadge, a Baker Act attorney and psychologist, said children in the cases he sees are often just having “temper tantrums.” Other times, the statute is invoked against students on the autism spectrum after they are triggered by surroundings or interactions. 

Children with autism face challenges with social skills, repetitive behaviors, or speech and nonverbal communication because of their disability. Other behavioral and developmental disabilities also come with symptoms that can be exacerbated if educators and staff aren’t adequately trained to address their needs.

Jaden’s IEP, in fact, suggests the school was already aware of some teachers who did not “know how to handle him when he gets distracted,” and that “instead of finding productive ways to help, they can escalate the situation.” 

Many cases also involve the statute being used as a disciplinary tool for students or their parents, according to lawyers. Lynn Ambert, whose son is high-functioning but autistic, reported being threatened with the Baker Act if she failed to pick up her child from school after a “bad day” or otherwise help school officials get her son’s behavior under control. 

Invocations on the rise

Numbers from The Baker Act Reporting Center at the University of South Florida agency paint a stark picture.

Out of 32,475 involuntary Baker Act examinations of minors below the age of 18 between July 2015 and June 2016, 22% were initiated in a school setting. That’s approximately 7,145 examinations prompted in Florida schools over the course of a year. 

Two years later, from July 2017 to June 2018, there were 36,078 reported incidents of involuntary examinations of minors —​ an increase of over 3,600 cases. 

In that period alone, 21 identified minors were Baker Acted more than 10 times each, contributing to a total of 285 examinations at mental health facilities —​​ but only 189 were included in the clinical record review, according to data from the Florida Department of Children and Families. Of those, about 22% of repeated examinations were initiated in a school setting, and most minors who were repeatedly subjected to the Baker Act were diagnosed with ADD and Oppositional Defiant Disorder. 

Involuntary examinations under the Baker Act for children come in seasonal waves, according to the center’s data covering a 17-year period. Spikes occur during school sessions, with steep drops in incidents over summer and winter breaks. 

And after every mass school shooting, regardless of location, the steadily increasing numbers spike some more. 

While the correlation between shootings and Baker Act incidents doesn’t necessarily mean causation, it does tell a story. 

New law creates legal complications

When lawmakers released the draft of Marjory Stoneman Douglas Public School Safety Act, advocate Laurie Anspach said she was concerned. 

“When I saw the draft, I said, ‘Forget it, you know exactly what’s going to happen,’” said Anspach, who has run a Baker Act hotline for over a decade. 

She was afraid the state’s passage of the legislation, which was enacted almost immediately in response to the 2018 shooting in Parkland and trumps The Baker Act, would adversely affect students with special needs.  

“And it did,” Anspach said. 

Advocates and lawyers remain concerned the legislation, which requires school officials to begin crisis intervention and follow safety protocols immediately after perceiving a threat, makes them more likely to invoke the Baker Act to avoid potential liability under the more recent law. 

“Everybody is afraid of not catching the next potential shooter,” said Kimberley Spire-Oh, who spoke to Education Dive in her capacity as a special needs attorney. She also works closely with the Florida Department of Education. “So [schools are] going far over on the other side and doing threat assessment, arresting and Baker Acting students who are saying inappropriate things as a result of their disability.“

Anspach says it has made her job as an advocate much harder.

Whether a special needs student can win a Baker Act lawsuit depends increasingly on whether school officials perceived the student as a credible threat to school safety under the Marjory Stoneman law. 

And with recent school shootings making officials hyperaware of potential threats, those previously guaranteed loopholes afforded to special needs students have become more of a coin toss. 

Limits to data collection, lack of resources

Despite various reports and lawsuits, there remains a lack of real-time reporting on the issue, consistent data collection and transparency. For how often students are Baker Acted in school, the Florida Department of Education said it doesn’t collect data on the number or nature of the incidents.

In some cases, parents report not being allowed to see their children for days at a time, being given very little knowledge about their well-being and whereabouts, and not having any details about what precipitated the Baker Act’s invocation. 

At the root of the problem, according to a task force report released by Florida’s Office of Substance Abuse and Mental Health in November 2017, is limited availability of and access to continued mental health services and supports, including access to school-based mental health services. 

In fact, in the past few years, Florida’s spending on securing schools has far outpaced its spending on mental health services. 

Following the Parkland shooting and the passage of the Marjory Stoneman law, the amount allocated for safe schools has nearly tripled the amount from $64.5 million in fiscal 2017 to $180 million in fiscal 2019. As a result of the act, school resource officers are now required in every school building. 

Allocations for mental health services following the shooting have been significantly less in comparison  —​ ​ $69.2 million in fiscal 2018 and $75 million in fiscal 2019. And student-to-counselor ratios still remain well over the suggested number of 250:1.

The lack of mental health resources and disability training is not unique to Florida. A recent study found while school leaders want to provide increased services for students with disabilities, they don’t have adequate resources to do so.

And institutionalizing students with disabilities without parental consent, some experts say, is similar (if not an exaggerated version of) restraint and seclusion practices that disproportionately affect students of color and students with disabilities nationwide. 

While some states —​ most recently Ohio —​ are taking steps to curb these practices, the numbers still remain alarming to many and could even be underreported, according to the U.S. Department of Education’s Office for Civil Rights.

“It’s been years of crying out and no one to turn to,” Davis said.

The Florida Department of Education and Duval County Public Schools did not respond to Education Dive’s request for comment.