The Florida Baker Act
by Ashley Roberts
Recently I had my eyes opened to a travesty I was unaware of, as I do not reside in a state that has a law equivalent to The Baker Act.
While we will be focusing here on Florida's Baker Act, there are other states with similar statutes. It is important for all parents to know and understand their rights, the laws, and what injustices demand action.
"In Florida, more than 37,000 children are “Baker Acted” each year. That is, in this state, we authorize the involuntary arrest, transport, hold, and psychiatric examination of so many children under the Florida Mental Health Act, known as the Baker Act, that it has become a verb. Even worse, Baker Acting has become a “normal” behavioral management tool for far too many Florida classrooms, schools and residential foster care facilities. Children as young as 5 and 6 are handcuffed and forcibly taken by police to psychiatric hospitals, where they legally can be held for up to 72 business hours in conditions that would harm and traumatize even adults.
Still, schools, residential facilities, and police often decide to subject children to this trauma without first notifying the child’s parent or guardian or over their parent’s objections, even when doing so isn’t necessary for the child’s safety. Because of understaffing or the desire to maximize fees, some psychiatric facilities make matters worse by holding overnight and longer than needed these frightened and traumatized children, some of whom they involuntarily sedate."
This reality means that advocates are passionate about not having their children labeled with behavioral issues or "Emotional Disturbance" otherwise known as ED. We've shared some powerful testimonies from advocates of late discussing how the attitude of schools leading with behavior first before looking into what is causing the behavior is so concerning. Please click here for "Behaviors Before Dyslexia" by mother and advocate Lauren Taylor: https://www.thedyslexiainitiative.org/post/behaviors-before-dyslexia.
By leading with behaviors in states that have laws like Florida's Baker Act, when the intelligent children have an emotional reaction to their lack of success, what can happen is that the parents lose access to their child while they are locked in a mental facility, against the parent's will, for up to 72 business hours. Now the trauma of undoing educational damage is now multiplied 1000 fold by institutional trauma that will last a life time.
"In each of these instances, the Baker Act is not only an inappropriate intervention, it is a harmful and often illegal one. No child should be Baker Acted for exhibiting a behavior caused by a developmental disability (like autism), because the Florida legislature explicitly excluded such disabilities from the statute’s criteria and, more importantly, because developmental and intellectual disabilities are not mental illnesses and, therefore, mental health treatment facilities are not equipped to meet their needs."
"Shawn M was just 10 years old when he faced one of the most terrifying experiences of his young life. To this day, Shawn is still afraid, haunted by the day in 2018 that he was taken from his school by a police officer, caged in the back of a police car, driven away from his distraught father, and held overnight without contact with his family in a psychiatric ward with older children — all because he expressed to a teacher some distress over losing a playground game.
Shawn is just one of tens of thousands of children in Florida on whom the Baker Act has been used at school — even though he did not meet the statutory criteria and his parents strenuously objected — in place of appropriate mental and behavioral health care and interventions in the community.
When he was taken and involuntarily committed, Shawn was a fourth-grade student in an Orange County public school. Shawn, who has autism spectrum disorder (ASD), had been placed in a class for children with ASD, with the goal of transitioning him to a general education classroom over time. Because of his autism, Shawn sometimes reacted strongly to situations that might not have generated the same reaction in other children, but his parents and teachers understood how to de-escalate him in those situations. That all changed one day in early 2018 when he was Baker Acted.
That day, he and his friends were playing a game called the “orange touch,” the equivalent of “cooties.” Shawn was touched and it triggered a strong reaction. He became upset and said something that a teacher interpreted as meaning he wanted to hurt himself. But there was no reason to think Shawn genuinely and imminently was going to do actual harm to himself. He had no actionable plan for self-harm, engaged in no self-harming behavior, and he calmed down after his initial outburst. However, instead of contacting Shawn’s parents or a counselor, the school took the drastic step of contacting the local sheriff’s department to take him to a psychiatric facility for involuntary examination and treatment. Even the responding officer wrote in his report that Shawn was “calm and talkative,” but he nonetheless continued to Baker Act Shawn based on his layman’s diagnosis that Shawn wanted to hurt himself because Shawn allegedly made a reference to jumping off of a nonexistent bridge.
Shawn’s dad, Brian, was not contacted until after the school had already taken steps to Baker Act him. When the school finally informed Brian, he raced there as quickly as he could, but it still took him 45 minutes to arrive. To this day, Brian lives with the regret and guilt of being out of Shawn’s immediate reach. When he finally made it to campus, he saw the armed and uniformed sheriff’s deputy already questioning Shawn in the principal’s office. Brian explained to the deputy that Shawn had autism and was not always able to control his emotions, but these kinds of reactions were normal, and he knew how to help Shawn deal with them. He begged the officer to allow him to take his son home, assured them that Shawn wouldn’t try to hurt himself, and that he would stop Shawn and care for him if he tried. But the deputy refused, claiming that the law required him to take Shawn to a facility once the school called, regardless of his father’s ability to care for him appropriately, regardless of his wishes, and regardless of the fact that his son had a known developmental disability that accounted for his behavior."
The anecdotes shared with me by fellow advocates of horrific situations in which children have been placed has kept me awake at night. The most disturbing regarded children who were taken to too full facilities and placed in the adult wings of the hospitals where physical abuses then happened to the children at the hands of other dangerous adult patients with diagnosed history of child and sex abuse.
"Involuntary examinations can be initiated by judges, medical professionals, or law enforcement officers. In schools, however, where at least a quarter of the Baker Acts against children happen, they almost always are initiated by law enforcement officers — often with limited and variable training. The standards of evidence and expertise required for each of these actors to initiate a Baker Act differ significantly, and these standards vary in illogical ways"
Additionally, "Unscrupulous facilities can further maximize the number of days they hold a child and, thereby, maximize their revenue, by filing such a petition (the law permits the facility to petition the court to hold the child for more time) to hold the child for longer, then dropping the petition shortly before the hearing is scheduled. This allows such facilities to detain the child beyond the 72-hour window without judicial review. A recent media analysis found that, using this technique, one facility in the Tampa area holds patients of all ages on average 8.8 days, dropping 86 percent of the petitions it has filed before they are heard. Sadly, this traumatizing practice of holding children for days in psychiatric facilities, without medical justification, parental consent, or judicial review, undermines the original intent of the Baker Act itself — to authorize immediate involuntary examinations for individuals who may need emergency psychiatric attention, not to authorize unchecked involuntary institutionalization for individuals who can receive no benefit from such treatment or confinement."
"From the 2001-2002 fiscal year to the 2018- 2019 fiscal year, the percentage of children who were Baker Acted increased 152.6 percent. This explosion in Baker Act use far outstrips Florida’s population growth. The rate of involuntary psychiatric examinations of children has more than doubled in the past two decades, from 547 to 1,240 Baker Acts per 100,000 children. Children now make up 18% of all people Baker Acted in the state, with wide variations across counties, from 6.24% in Monroe County to an astonishing 48% in Wakulla County. In the 2018-2019 fiscal year, the Baker Act was used against children 37,882 times — a rate of approximately one time for every 86 children, or 1.2%, of all children age 5 and above. And, at least 30% of those children are involuntarily examined more than once over a five-year period. Additionally, the available data suggests that Baker Act use in schools has increased significantly since the Parkland shooting; though, unfortunately, this data is not consistently available from all schools. The Baker Act is also used disproportionately on Black children; 25% of all children who were Baker Acted were Black in 2016-17 (the last year for which race data was reported statewide), despite Black children comprising only 15% of the under-18 population."
“Black students in the District are doubly at risk of both disproportionately high criminal arrest and involuntary psychiatric commitment by police.”
There is no other way around what is happening, then calling it what it really is, and it is abuse. Parents who abuse their children are reviled by society, yet we pass laws that allow our children to be abused. Further, I'm disgusted at the thought that parents are stripped of their parental rights, unable to stop the criminalization and mental and sometimes physical trauma that is inflicted upon their children from being stopped. All parents can to do is try, if they are even allowed, to soothe their handcuffed child knowing they are being taken to hell on Earth and will be returned to them traumatized beyond imagining.
I've written about the pipeline to prison this past October, the link can be found here: https://www.thedyslexiainitiative.org/post/the-school-to-prison-pipeline. What I did not include, because frankly I was unaware, was how laws such as these fuel that transition even further.
So, let me ask the obvious question, how is a child who has been Baker Acted supposed to return to the classroom without complete fear that it won't happen again? The child isn't going to learn any lesson other than complete and utter fear of school, teachers, police, etc., and if the child has challenges such as autism, what guarantee exist that they won't become over stimulated again resulting in the same outcome, just further traumatizing the child? And, if the child has been Baker Acted, how will that fear manifest in their overstimulated, or emotionally wrought brains and emanate?
What is sad to me is once I posted against restraint and seclusion of children within the school environment and the comments were an overwhelming attack on the position I took. In all caps and tons of exclamation marks teachers were demanding to know how they were supposed to discipline children that are out of control that they aren't even allowed to touch. My responses fell on deaf ears but my repeated reply was, what training have you had to deescalate a child and how supportive is your school / district of such trainings? If they're not supportive then have you engaged the parent community to support you and help drive change?
Within my own district I watched a horrifying video of a mentally challenged child who had an IEP that clearly stated that he was allowed to go outside of the building to self soothe and calm down when overstimulated, yet this accommodation was ignored by the resource officer on site and the child was tased 17 times, then arrested. Let that sink in - he was tased 17 times and then arrested. This was one child against multiple police officers. He was a 17 year old boy with the mental capacity of a 4 year old. The officer that did the tasing received a commendation for how he handled the situation. What would have happened if a law like the Baker Act existed in my state? I cannot even fathom such an outcome.
The funny thing is the concept of adolescence is a relatively new concept, originating between 1890 and 1920. Prior to the concept children were viewed as adults and psychologists came out and said that we as a society had to shift away from such a dangerous concept. We know so much more about the development of the brain, challenges that children may live with like learning differences, autism, etc., yet from a scholastic perspective we are demanding our children behave as adults. We treat and judge them as adults, all the while forgetting ourselves what it means to be a child. With ever developing brains and emotions, especially given special circumstances, why would anyone conceive of treating a child in the ways that have become common place under the Baker Act?
It is clear to me this is more about education and training than it is about the children themselves. As it stands the children are victims and parents are powerless to stop their children from being the victims of such negligence and ignorance, because while on the surface it may seem "for the benefit of the child," upon closer examination is the easy button to avoid dealing with a child asking for help.
And, it doesn't matter in what way this is twisted and turned, it is child abuse. Period. #RepealTheBakerAct
Resource for all quotes and graphics: https://www.splcenter.org/sites/default/files/com_special_report_baker_act_costly_and_cruel.pdf?fbclid=IwAR2yxp82jJJcxXiM6QrX_Fv4_3hAXsjAr-FVTRcf-8VzbZ7VgvM1VhNAI4w