Legislators weigh in on potential special session over new student restraint law

A person holds a sign that reads "counselors > cops"
Madi Bergh, 18, (right) and Britney Chino, 19, both of Eagan, Minn., listen to speakers during a march calling on Minnesota school districts to end contracts with local police departments.
Christine T. Nguyen | MPR News 2020

Gov. Tim Walz says he wants to clear up a law about school resource officers’ use of force and restraining students in schools and he’s not ruling out a special legislative session to do so.

House Minority Leader Lisa Demuth, R-Cold Spring, and House Speaker Melissa Hortman, DFL-Brooklyn Park, were guests on Morning Edition to share their parties’ thoughts on the law and the Legislature convening.

The following is a transcription of the conversations, lightly edited for clarity. To listen in full, click on the player above.

How confident are you Gov. Walz will call a special session on this issue?

House Minority Leader Demuth: You know, when the SRO issue raised to a level of concern before kids were heading back to school, we were very concerned about the language. On Sunday, in an interview, I heard Gov. Walz say that he was considering a special session we had asked for a week ago today [Wednesday]. I am very encouraged by his little bit of change and more openness to really address the issue and get this fixed for Minnesota students and school staff and make schools just a safer place for all Minnesotans.

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New language was added to an existing state law on corporal punishment in schools. Was there a need to clarify the current law?

I don’t believe that there was a need to make the changes that happened in this last legislative session. School resource officers have been in schools that have chosen to have that service there for years. And there has never been a concern in Minnesota that is raised to the point of this change.

As I talked to different chiefs of police and law enforcement officers — even school superintendents — the important thing is when a concerning situation raises to the level of needing an intervention, we need to make sure that the de-escalation tools that law enforcement is trained in can be used if needed.

The important thing to recognize is this change in law doesn’t just affect school resource officers, but it also affects any school employee, an agent of the school, or someone contracted with that school. And so it's very, very broad, almost a solution in search of a problem.

Attorney General Ellison says that the law is clear. It says that these officers can’t use prone restraints. For many folks, that does not sound unreasonable. What is so confusing about the language?

In the last paragraph of the Attorney General’s opinion, he also said that this is best clarified by the legislature. That is why we’re asking for a special session to go back and get this language clarified.

But it does talk about any holds or pressure on the chest, torso or neck; we don’t want kids unsafe. But if there is a potential incident that could create bodily harm to that student to another student or in the school we need to have the ability for those right there to be able to maybe pull that student back.

Are Republicans open to altering the law rather than repealing it entirely?

I know there has been language talked about. I haven’t seen that specific language. We wanted to make sure last week when we came out and asked the governor for a special session and had a press conference that we weren’t just coming and raising concern, but that we would also have a potential solution. Of course, the bill that you saw last week was to repeal that portion of the law. We are open to looking at any language that is going to fix this issue.

The governor seems to suggest there is a solution short of a special session. Do you agree?

I don’t think that this issue can be fixed without a special session. This would require a change to the law that he had signed in at the end of this last legislative session. The only way in my mind to fix this is to bring us back into a special session. Fix that law both in the House and the Senate and send it to the governor for his signature.

Does this open the door if a special session is called to look at other issues like the marijuana legalization law?

Anytime a special session is called I would say yes, we could look at other things. The Democrats control the schedule and what gets brought up. What I will tell you though, as important as some fixes to the legalization of cannabis are for our party and you saw that earlier this summer, this is different. This to me could potentially be a single-item special session that would fix the issue at hand.

So I’m not saying if we get called back in those special sessions, that the Republicans are going to bring up everything. We should have had this fixed before students went back to school and we are really calling on the governor and looking forward to him calling a special session to let us see that language and get a fix for Minnesota schools.

Did you expect this kind of reaction to the law?

House Speaker Hortman: No, we didn’t. This restriction on prone restraints and other forms of physical holding that restrict breathing was actually passed by the House in 2021. And it was in the bills that were introduced on Feb. 6, and March 7, in the House in the Senate. And so we didn’t hear anything through this session through that there were eight different hearings in the house and a similar number in the Senate and then a couple of floor debates. And it wasn’t raised as an issue at all, either in 2021, when we passed in the House — the restriction on prone restraints.

I think that the Attorney General’s opinion makes really clear the two simple changes that we made. One of the changes that we made was to say that as a form of discipline, schools shouldn’t use prone restraints, and then also that they shouldn’t inflict any form of physical holding that restricts or impairs our pupils’ ability to breathe, restricts or impairs a pupils ability to communicate distress, and places pressure or weight on a pupils head, throat, neck, chest, lungs, sternum, diaphragm back or abdomen or result in straddling pupils torsos.

The reason we did that is that is the standard for children with disabilities. It was a change in law that was made in 2015, after the Star Tribune ran a story, detailing instances where children with disabilities were being subjected to excessive forms of discipline and the nature of physical restraints, and exclusionary discipline.

So the thinking behind the change this year was that that standard should apply to all students in a post-George Floyd Floyd environment. This standard that we had applied to children with disabilities on a bipartisan basis and 2015 should be extended to all students.

Why do you think Republicans and a number of law enforcement officers are worried and don’t accept Attorney General Ellison’s interpretation of this law?

Well, the initial focus was really on the language around prone restraints, and the physical holds that would restrict breathing or a pupil’s ability to communicate distress. And in more recent days, the focus has shifted to the reasonable force statute. I think the Attorney General’s opinion does address that. But it’s not the primary topic that the opinion addresses.

If possible, a supplemental attorney general opinion focusing on the reasonable force statute could be helpful, in that the opinion he’s already drafted says the legislature did not change the reasonable force standard for preventing bodily harm or death to another.

Schools are still permitted to use reasonable force in order to prevent bodily harm or death. And bodily harm is actually a pretty low standard — it’s any physical pain or injury and it’s any impairment of physical condition. So a child who’s throwing trays in the lunchroom could be restrained under the existing reasonable force standard.

This bill was introduced back in 2021 and lawmakers had a very fast pace last session. Might have this been caught had the bill gone through a few more committees?

I don’t think so because this language was read out loud. It was discussed in the education committees. The cities, the school districts, police officers, the sheriffs and the chiefs all have lobbyists who follow the legislation.

Mistakes are made, right. People don’t always catch everything. There are a lot of things going on in different rooms at the legislature. But this policy was in the administration’s proposals in 2019. So it’s been out there for quite a while.

I think that when we look at the reasonable force statute, the one that applies to schools already makes clear that there’s only one standard in the state for law enforcement officers, but it’s a couple of subdivisions away from the language on unreasonable force. So right now, it’s 171 words away. Could we put it closer? That’s a possibility. Or could we have an additional attorney general opinion that focuses on the language in our education statutes that makes clear law enforcement officers are governed by a different statute? Those are questions we’re looking into.

Given that the governor seems to have softened his stance a bit on calling a special session, do you want him to do that? Because there could be an issue with focusing a special session due to GOP concerns over the marijuana law.

Well, the typical way we do a special session in a non-pandemic environment is it’s pre-agreed. So I could see us having a special session if we are able to find language that law enforcement cities, school districts, the governor’s office and legislators agree to, and that there’s an agreement, the duration and the scope of this special session.

That’s how we’ve handled it when we do a natural disaster. We’ve had special sessions for floods and fires and tornadoes. They’re very constrained and there’s an agreement ahead of time of exactly the language that is passed.

What are the odds of actually having the governor call a special session?

I think it’s too early to say that because this conversation has been developing over the month of August. Initially, the complaints we were hearing was word about the pronoun restraint language, and where we prohibited breathing by a pupil or their ability to communicate distress, and that's in a corporal punishment statute. And we seem to have resolved the issues in a corporal punishment statute.

We’ve focused now on the reasonable force statute. So it’s my hope that in further discussions about the reasonable force statute, we will get to the same understanding that we've been able it seems to accomplish about prone restraints.

However, you know, we're open to to continuing the conversation to see if there is a way to add additional language, again, to make the statute more clear, because as the Attorney General has stated, the legislature did not change the types of reasonable force that school staff can use to prevent bodily injury.