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School Board News Bulletin
June 2000

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Michael D. Johnson appointed new Executive Director

ISBE meeting explores teacher standards, certification, special education rules

Public engagement is focus of national public relations campaign

Local school report cards available on the Web

ISBE to review new teacher certification rules

Park Forest district wins two national honors

THE NATIONAL SCENE

School violence levels low and declining, but fear remains high

Florida voucher program may expand for now, judge rules

Kansas teacher fights for school board seat

Teacher college standards to tighten

Cincinnati school board approves merit pay plan

NEWS FROM IASB

Russell heads IASB publications

IASB requests officer nominations

Five-state project focuses policy on student learning

RESEARCH REPORTS

Dropout rates rise with course requirements

Competition can drive up teacher salaries

Study: E-Rate accomplishing its goal

Most potent anti-drug programs too seldom used

FEDERAL UPDATE

Federal judge upholds Illinois tuition tax credit law

TOOLS FOR SCHOOLS

Religion & public schools website offers guidelines

Violence prevention guide offered by police chiefs

Teacher continuing education resources go online

Multimedia package teaches conflict resolution

Problem gambling curriculum targeted to children

Resources offer health information for schools

WORKSHOPS & MEETINGS

Safe schools workshops slated

Free luncheon forums to explore lawsuit abuses

ISBE to present fall schoolhouse tour

LEGISLATIVE ACTION

Governor signs school-related bills

DEVELOPMENTS IN SCHOOL LAW

Hate speech: A recent case examines when school officials may ban it

Supreme Court will not hear drug-testing case

RECENT MAILINGS FROM IASB

Michael D. Johnson, superintendent of Evergreen Park High School District 231, will become the next executive director of the Illinois Association of School Boards on September 1.

Johnson has been selected by the IASB Board of Directors to succeed Wayne Sampson, who is retiring after 11 years in the position. The Board settled on Johnson to become its CEO at its May 27 meeting following a nationwide search by a committee of the Board. He will join the staff on August 1 to provide a 30-day transition in leadership.

"We are pleased that Michael Johnson has accepted this leadership position and that he will join the Association staff early enough to provide a smooth transition," IASB President Jerry Eiffert said in announcing the Board’s decision. "His extensive credentials as an educator and administrator are impressive. We believe Michael is the right choice to guide the Association and its staff to meet the needs of our membership."

A graduate of Western Illinois University, Johnson also holds a doctorate in school administration from Illinois State University (1988). He began his career in 1973 as a mathematics teacher in Quincy and later served as a principal in Scott-Morgan C.U. District 2, in Bluffs (1977) and in Southern C.U. District 120, in Stronghurst (1977 to 1982). He later served as superintendent of schools in Toluca and Wenona before moving on in 1991 to become superintendent in Evergreen Park, located near Chicago in southern Cook County.

Johnson also has taught education courses at St. Xavier University, in Chicago, and been active with a variety of state and local organizations, including IASB and the Illinois Association of School Administrators. In 1999, he received the Educator of the Year Award from the Illinois Crime Commission.

As chief executive for IASB, Johnson will lead an organization with about 45 staff members and a budget of about $5.8 million. He becomes just the fifth full-time executive director to serve the organization since its founding in 1913. The Association provides a variety of services, leadership programs and advocacy for 868 member school boards.

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The May 17-18 Illinois State Board of Education meeting in Matteson addressed significant issues about standards and certification during three work-study sessions and a plenary meeting.

The first work-study session centered on teacher certification and assessment. A staff member reviewed the Standard Teaching Certificate status and methods under consideration to assess teacher candidates. The state board is weighing the possibility of adopting a portfolio assessment, based upon documentation of classroom work. Two states, Connecticut and North Carolina, currently use this system. Representatives from the Connecticut education department discussed their state’s positive experience with such an assessment.

The next discussion centered on special education rules. This represented the final opportunity for the board to discuss specific recommendations for final rules to be voted on in the plenary session. The board praised a recommendation to lower the caseload of speech-language pathologists from 80 to 60 over three years, despite the lack of speech-language pathology teachers currently available. The board indicated that reducing case loads may mean more speech-language teachers will stay in the field, and, possibly, more candidates will consider the job.

The board’s second work-study session included a priority report on teacher certification and professional development. Staff reported that development of the teacher induction plan is behind schedule.

The board also heard a report on the Lincoln Foundation’s so-called Baldrige criteria, a framework for continuous improvement and quality assurance. ISBE is considering making a commitment to pursue the Baldrige criteria to ensure continuous improvement of its own organization. Experts say the process can fundamentally improve the culture of an organization.

At the plenary session, following public participation, the board voted approval of new special education rules and ISAT "cut" scores for performance levels. The board will continue to review the latter process.

The state board’s third work-study session covered teacher standards and certification categories for specific content areas, as well as NCATE 2000 standards. Mike Long said the teacher standards represent a systemic change, and a higher level of accountability. Long cautioned the board not to worry about cut scores, but to worry, instead, about ensuring teaching effectiveness.

There are major differences between the current system and the proposed one. The state board’s aim is to develop a standards-driven assessment while streamlining the assessment process. Content-area standards have been developed, except in special education, with new standards in the areas of technology, language arts, and special education. The board’s overarching concern is that there must be alignment between standards for teachers and standards for students.

Source: Cynthia S. Woods, IASB staff.

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The National Association of Elementary School Principals (NAESP) is launching a multiyear public engagement campaign, "Our Children—Our Schools—Our Future," with the goal of building broad-based community support for children and schools. The campaign will begin this fall with two projects:

• Heroes Hall of Fame will aim to rekindle America’s community spirit by recognizing people who are positive role models for youth. It will also recognize those responsible for a meaningful legacy within their community, and those whose success can be linked to their K-8 experiences.

• Public service announcements will raise awareness of the value of elementary and middle schools in local communities.

NAESP is providing principals with a video that gives an overview of the initiative and a resource guide with strategies to build support for local schools and engage the local media in highlighting education accomplishments. A total of 22 organizations—including NSBA—have signed on in support of the campaign. For more information phone Diane Jones, Vice President, Pacific Communications, at 202/387-8550.

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Illinois school report cards for 1999 now are available on the Internet by selecting the Report Cards button on the ISBE home page. The ISBE has prepared the report cards in Microsoft Word. Using this program, viewers should be able to view or print the report cards of any public school in the state. Just enter the school’s name, district or town. Visit the ISBE website at http://www.isbe.state.il.us.

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Public comment on proposed state regulations governing teacher certificate renewal has now been analyzed by ISBE staff in preparation for review by a joint subcommittee of ISBE and the State Teacher Certification Board. State Superintendent of Education Max McGee (pictured at right) announced in early June that the ISBE staff had completed this work, which includes staff recommendations for action on each proposed rule that drew public comment. Superintendent McGee also described the upcoming work of the subcommittee and its process and timelines, beginning with a June 14 subcommittee meeting. For further information phone ISBE at 217/782-9560.

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Park Forest-Chicago Heights District 163 recently received a Golden Achievement Award from the National School Public Relations Association (NSPRA) for the district’s Three-Pronged Education Program. Just a few days later the U.S. Department of Education selected the district as a national Blue Ribbon School, one of ten Illinois public schools so honored this year.

NSPRA recognized the district’s programs, including the Board of Education’s education committee meetings as Golden Achievement winning programs. The winning programs were developed by Board President Margaret McDannel, Board Vice-President Carroll McFarland, District Superintendent Elizabeth Reynolds, and two union leaders. The program’s developers aimed to maintain focus on student achievement, nurture new teachers, and engage parents and the community in the education of their children.

The district also won the federal Blue Ribbon Award, which recognizes schools for their excellence in leadership, teaching, curriculum, and other vital areas. Additional Illinois districts whose schools won the Blue Ribbon Award for 2000 were: New Lenox District 122; Township H.S. District 214, Arlington Heights; C. C. District 15, Palatine; Carlinville C.U. District 1; Evergreen Park Elementary District 124; Itasca District 10; Champaign C.U. District 4; Township H.S. District 211, Palatine; and Warren Township H.S. District 121, Gurnee.

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THE NATIONAL SCENE

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School violence levels low and declining, but fear remains high

America’s fear of school violence is unrealistically high considering statistics indicate that violent crime on campuses is not only rare but dwindling. So says a new report titled "School House Hype: Two Years Later." The Justice Policy Institute report also finds fear of schools being sued has led to increases in student suspensions and, in some cases, school purchases of largely superfluous high-tech security equipment.

"Our young people are neither schoolhouse assassins nor the kids on the other side of the yellow tape, weeping over their classmates," according to Vincent Schiraldi, the director of the private, nonprofit institute based in Washington, DC. "They don’t need us to turn their schools into prisons; they need our support to live healthy, happy lives," he stated.

The report, which compiles school crime statistics, policy research, and opinion polling data, shows a 40 percent decline in violent deaths associated with schools. The number of deaths fell from 43 in 1998 to 26 last year—roughly one death for every two million students.

Despite the diminishing rate of school-associated violence, the report says public fear of school shootings remains high. Polls show, for example, that 71 percent of Americans believe a school shooting is quite possible in their community.

As a result, school expulsions and suspensions have reached a record high. Suspensions have increased steadily, rising from the 1.7 million students suspended a few years ago to 3.1 million students in 1997—or 6.8 percent of all students—according to U.S. Education Department statistics cited in the report.

"The nation needs to stop focusing exclusively on kids bringing guns to school, and address the more fundamental questions of how kids got those guns in the first place," the report says.

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Florida voucher program may expand for now, judge rules

The same judge who ruled the Florida voucher program unconstitutional last month now says the program may continue to expand during the appeals process. That means roughly 78,000 students in the state could become eligible for vouchers, the Miami Herald reports. The exact number eligible depends on how many schools are labeled "failing" by the Sunshine State, and how many private schools agree to accept students with vouchers.

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Kansas teacher fights for school board seat

Should a teacher be allowed to serve on the very same school board that employs her? The Kansas Supreme Court will decide that question in a case involving teacher Linda Baker, who was elected to the Topeka board last year. Baker’s elected colleagues filed suit to block her seating, however, claiming Baker’s situation falls under the common law principle of "incompatibility of office." This principle suggests that in certain situations one could not be fair and impartial in fulfilling one’s duties. Statutes in most states specifically prohibit teachers from sitting on a school board that employs them, although Illinois and Kansas statutes apparently do not contain such a prohibition.

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Teacher college standards to tighten

Teacher colleges soon will have to prove that their graduates are good teachers in order to be accredited. The National Council for Accreditation of Teacher Education (NCATE), backed by teachers unions, state school superintendents and other educators has released tough new standards for the nation’s 600 teacher college programs. The U.S. Department of Education recognizes NCATE as the professional accrediting body for teacher preparation in the United States. The new standards, developed over a three-year period by NCATE’s Standards Committee, are available on the World Wide Web at http://www.ncate.org/2000/2000stds.pdf

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Cincinnati school board approves merit pay plan

The school board in Cincinnati, Ohio recently approved a ground-breaking merit pay plan for teachers that could become a statewide model if it proves successful. The unanimously approved plan replaces the district’s seniority-based wage scale. The Cincinnati Federation of Teachers was a partner in the development of the new plan, and the union’s members are expected to approve it in the fall.

The new Cincinnati Teacher Evaluation and Compensation System calls for principals and master teachers to evaluate teachers every five years in 16 areas. The reviews will be used to place teachers into one of five categories. Those in the top category would earn $62,500 annually. The lowest-rated teachers would earn $30,000.

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NEWS FROM IASB

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Russell heads IASB publications

James S. Russell, who has served as managing editor of The Times-Press in Streator for the past 14 years, has joined the IASB staff as director of publications.

In this newly created position, Russell will oversee the Association’s print and electronic communications, including periodicals, books, informational pamphlets and the IASB web site.

"The advent of the Internet and the need to constantly monitor the growing information needs of school boards has put increasing demands on our communications staff," according to Jerry Glaub, deputy executive director for member services who formerly headed the publications department. "Adding Jim Russell to our staff will enable the association to respond more effectively to those demands."

The publications department has been without a separate manager since being combined with field services under the "member services" umbrella in 1996, a change that effectively reduced the size of the publications staff.

Russell grew up in Cleveland and received his undergraduate degree in journalism from Kent State University in 1974. He later served as editor of several Ohio newspapers before moving to Streator in 1986. Under his leadership, The Times-Press has received more than 170 awards from state and regional newspaper organizations.

Russell has taught news writing at Eastern Illinois University and has been active with a variety of state and local organizations, including the Streator Woodland Educational Foundation and the Illinois Press Association. He is a member of the Illinois Press Foundation board of directors.

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IASB requests officer nominations

The 2000 Nominating Committee of the Illinois Association of School Boards (IASB) is now seeking candidates for the offices of president, vice president, and four directors-at-large of the Association.

The following criteria will be used by the committee in considering nominees: 1) leadership experience and general participation in IASB activities, 2) leadership experience on the local school board, 3) involvement with other education-related associations or organizations, 4) other leadership experiences, and 5) special talent or interests of benefit to IASB as currently constituted.

The due date for nominating forms is August 4; candidates will be interviewed in August. A slate of candidates will be presented to the Delegate Assembly meeting in Chicago at the 2000 Joint Annual Conference.

To request the necessary forms, interested candidates should write: IASB, 2921 Baker Drive, Springfield, IL 62703 or phone 217/528-9688, ext. 1102.

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RESEARCH REPORTS

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Dropout rates rise with course requirements

Increasing the number of required high school courses can raise the dropout rate by 3 to 7 percent per year, says a new study conducted at the University of Michigan and at Cornell University. The research report, which will appear in an upcoming edition of the Economics of Education Review, suggests that requiring America’s students to take an additional 2.5 courses during their four years of high school would lead to an additional 26,000 to 65,000 students dropping out.

Source: On Board, New York State School Boards Association, May 1, 2000.

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Competition can drive up teacher salaries

Regions with lots of private and public schools pay higher teacher salaries, according to a study conducted at Ohio University. The study suggests that regional competition from a large number of schools, especially private schools, results in higher teacher paychecks. The result can be as much as $1,000 or more in additional annual salary, the study found. "I have a hunch—and a pretty good one—that the finding probably would hold if you tried to extend it to other states," said study author Richard Vedder, an economics professor at Ohio University. "Ohio is so typical of the nation on every indicator of the study," Vedder said. Source: Office of Research Communications, Ohio University.

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Study: E-Rate accomplishing its goal

The federal e-rate program has had a significant, positive impact on communications systems in school districts, according to the first extensive research into the program. The study looked at large urban school districts in Chicago, Cleveland, Detroit, and Milwaukee and found the e-rate program has yielded enhanced opportunities and important improvements. For example, the study uncovered improvements in network infrastructure and a major expansion of Internet access. Copies of the report, "The E-Rate in America: A Tale of Four Cities," are available at the website at http://www.benton.org/e-rate/e-rate.4cities.pdf.

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Most potent anti-drug programs too seldom used

The three most popular anti-drug programs used by schools are not among those proven to be most effective, according to a new study. In a survey of drug education coordinators in 81 school districts in 11 states, researchers found the most common programs used are Drug Awareness and Resistance Education (D.A.R.E.), Here’s Looking at You, and McGruff’s Drug Prevention and Child Protection.

"These programs may be popular with the public and the schools, but there is little or no data to show that they have been proven to be strong and effective in combating drug use," said Denise Hallfors, the study’s author and research associate professor at the University of North Carolina at Chapel Hill. More effective programs include Reconnecting Youth, Life Skills Training, Project ALERT, Project STAR, Alcohol Misuse Prevention and Project Northland, said Hallfors.

Source: American Association of School Administrators (AASA). For more information, visit the AASA website at http://www.aasa.org/ln/misc/5-20-99drugs.htm.

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TOOLS FOR SCHOOLS

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Religion & public schools website offers guidelines

A redesigned U.S. Department of Education website (http://www.ed.gov/inits/religionandschools) now offers guidelines, publications, and resources on the topics of religious expression in public schools and local church-based support of children’s learning. The site also contains the most recent edition of Religious Expression in Public Schools: A Statement of Principles, and materials to help districts design their own policies on religious expression. The statement of principles document is available online at http://www.ed.gov/MailingLists/EDInfo/msg00029.html

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Violence prevention guide offered by police chiefs

Responding to rare but horrifying incidents of violence in the nation’s schools, the International Association of Chiefs of Police, along with the National Sheriff’s Association and elements of several federal agencies have produced a prevention guidebook. The Guide for Preventing and Responding to School Violence was sent recently to sheriffs and police chiefs across the nation. The new book contains an encouraging message and outlines roles various community leaders can play in violence prevention. It is available online at http://www.theiacp.org (look under "Publications").

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Teacher continuing education resources go online

Designing the best continuing education workshops for teachers is the topic of Form and Substance in Mathematics and Science Professional Development, a brief published by the National Institute for Science Education. It is available online at http://www.nise.org.

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Multimedia package teaches conflict resolution

A multimedia package developed to teach students conflict resolution skills, called Take A Stand, reportedly gives kids workable alternatives to violent behavior in common situations they might encounter. The program includes lesson plans, an instructional CD-ROM and videotape, student workbooks, and other relevant material. Schools can use the program in the classroom or in after-school settings. To learn more, visit the website for the Take A Stand program, online at http://www.takeastand.com or phone 800/421-6999.

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Problem gambling curriculum targeted to children

The North American Training Institute (NATI), has developed a new gambling prevention curriculum for grades 3-8, entitled Kids Don’t Gamble…Wanna Bet? Children are wagering in record numbers, and a recent Harvard Medical School study found youth twice as likely as adults to develop gambling problems. Thus, the new interdisciplinary program aims to help schools offer gambling addiction prevention for all school age groups. The price is $249, including a video, but several Wanna Bet? materials are sold separately. Phone NATI at 888/989-9234.

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Resources offer health information for schools

The School Health Resource Database, developed by NSBA in partnership with the CDC, provides information and technical assistance on physical activity, nutrition, and tobacco-use prevention policies and programs. To request information from the database, contact NSBA by e-mail at schoolhealth@nsba.org or via the Web at http://www.nsba.org/schoolhealth; or by phone at 703/838-6722.

Another resource on the same topic is Fit, Healthy and Ready to Learn: A School Health Policy Guide, developed by the National Association of State Boards of Education and CDC in cooperation with NSBA. It is available from Jim Bogden, NASBE, by e-mail at JimB@nasbe.org; online at http://www.nasbe.org/healthyschools/fithealthy.html or by phone at 703/684-4000.

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WORKSHOPS & MEETINGS

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Safe schools workshops slated

Illinois Attorney General Jim Ryan, the Illinois State Police, the Illinois Emergency Management Agency and the Illinois Principals Association are jointly sponsoring another round of Safe Schools workshops aimed at providing school officials with information to address school emergencies.

The workshops (part 1) offered in the fall of 1999 were repeated recently. The second set of workshops (part 2), emphasizing effective exercises, evaluation of plans and training of school personnel, will be presented in August.

Each of the workshops will run from 8:30 a.m. to 4:30 p.m., with registration beginning at 8 a.m. A registration fee of $30 includes workshop materials, lunch and refreshments. Checks should be made payable to the Illinois Principals Association. Registration must be received ten days prior to the selected workshop.

Information about the workshops can be found on the following IEMA website: http://www.state.il.us/iema/. For more information, contact Gene Felchner at IEMA, 110 E. Adams St., Springfield, IL 62701-1109, or by calling 217/782-2700.

The part 2 workshops—a follow-up to the fall 1999 workshops—will be held:

• August 2, 2000 — Rock Valley Community College, Rockford

• August 3, 2000 — University of Illinois-Chicago

• August 4, 2000 — The Carlisle, Lombard

• August 8, 2000 — Blessing Hospital, Quincy

• August 9, 2000 — Woodruff High School, Peoria

• August 10, 2000 — Southeast High School, Springfield

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Free luncheon forums to explore lawsuit abuses

An Illinois organization created to combat excessive lawsuits has scheduled a series of free luncheon forums featuring local leaders who will describe how lawsuits have harmed them. The Illinois Lawsuit Abuse Watch (I-Law) is offering these one-hour forums. Attendees will receive a list of activities being considered by I-Law (supporting reform legislation, for example, or launching jury education efforts or small business liability seminars). A free deli-style luncheon will be served, and the media will be invited, along with anyone concerned about lawsuits. Forums are scheduled: July 13 in Champaign County, July 19 in Peoria, July 25 in McHenry County, and July 27 in Lake County (locations and times to be announced). For more information, contact I-Law by e-mail at doug@I-Law. org or phone 800/493-5952.

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ISBE to present fall schoolhouse tour

The Illinois State Board of Education (ISBE) has announced a fall tour of local school districts to listen to ideas and suggestions of parents, students, teachers, administrators, and business and community leaders about strengthening education. The tour represents a new opportunity for school and community leaders to make a difference in the lives of their children and communities, while better understanding the ISBE.

The ISBE notes that the agency’s aim is to provide the highest quality service with innovative, improvement-focused assistance to help ensure that all students meet the Illinois Learning Standards. Tour event topics will include: measuring student achievement, learning technologies, school funding and finance accountability, transition from education to careers, and other state board programs and services. Each meeting is intended for everyone in the local community, and is open to all who pre-register or register on-site. Although tour dates and times have not been announced, sites will include: Bloomington, Carlinville, Decatur, Elgin, Freeport, Galesburg, Grayslake, Kankakee, Mt. Vernon, Quincy, Robinson, Taylorville, and Wilmington. For more information, contact ISBE via e-mail at schoolhouse@smtp.isbe.state.il.us or phone 217/782-4321.

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FEDERAL UPDATE

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Federal judge upholds Illinois tuition tax credit law

In a case now under appeal, a federal judge has found Illinois’ tuition tax credits constitutional because the state offers the credits to all parents, not just to those with children in private schools. Judge Thomas Appleton apparently was not swayed by arguments that the credits violate fundamental principles of separation of church and state by permitting public funds to be siphoned off from public schools for nonpublic purposes. Illinois law provides a tax credit equaling up to $500 per family for 25 percent of the cost of public or nonpublic school tuition, and for book and lab fees.

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LEGISLATIVE ACTION

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Governor signs school-related bills

The following bills of major interest to school leaders have been signed into law:

• H.B. 2977 (Bassi, R-Palatine) allows a school board to permit a school employee who is a non-certificated registered professional nurse to administer medication to students at school. Previously only certified school nurses could administer medication. P.A. 91-719.

• H.B. 3881 (Kosel, R-New Lenox) amends the Open Meetings Act to respond to an actual, threatened, or reasonably potential danger to the safety of students, school employees, school staff or school property. P.A. 91-730.

• H.B. 4439 (Hannig, D-Litchfield) provides fiscal year 2001 funding for various state capital projects, including funding for the School Construction Law. P.A. 91-708.

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DEVELOPMENTS IN SCHOOL LAW
by Melinda Selbee

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Hate speech: A recent case examines when school officials may ban it

A positive learning environment is sabotaged by student misconduct. The Illinois General Assembly has recognized this in several laws. School teachers are empowered to maintain order and school boards must adopt student disciplinary policies. The difficult issue for school boards and staff members is how to maintain order. One method recently seized upon is to ban hate speech. While this solution is intuitively attractive, it may result in a constitutional challenge. Indeed, the key impediment to banning hate speech is the First Amendment’s free speech guarantee. A recent U.S. Court of Appeals decision, involving a Kansas school district, gives us some guidance.

Racial tension at the Derby High School concerned school board members. Incidents included hostile confrontations between groups of white and black students and at least one fight during a football game. Some white students wore shirts bearing the Confederate flag, while some black students wore shirts with an "X," denoting the teachings of Malcolm X. "KKK" and racial slurs appeared in graffiti. In response, the school board convened the community – it organized a 350-member task force. The task force recommended that the board adopt a "Racial Harassment and Intimidation" policy. This recommendation was accepted. The policy prohibited racial harassment and intimidation, as well as the "possession of any written material, either printed or handwritten, that is racially divisive or creates ill will or hatred." Among the examples listed was the Confederate flag.

During math class, "TW" drew a Confederate flag and showed it to several classmates. The assistant principal concluded that TW violated the racial harassment and intimidation policy even though TW had not harassed or intimidated anyone — he had merely drawn the Confederate flag at school. The principal suspended TW for three days. TW challenged his suspension, contending that the district violated his right to a meaningful hearing, his right to equal protection, and his right to free speech.

According to TW, the district denied him a "meaningful hearing" as guaranteed by the Fourteenth Amendment — the principal never found that TW intended to harass or intimidate anyone by drawing the Confederate flag. TW was asking the court to impose a mens rea or intent element upon the district’s policy similar to that of criminal statute. The court rejected this argument stating:

[P]ublic schools are not courts of law and their disciplinary policies and procedures do not equate with penal codes. To impose in "countless" disciplinary suspensions a requirement that the suspect student possess a mens rea akin to criminal intent might well require trial-like procedures and proof which could "overwhelm administrative faculties in many places and, by diverting resources, cost more that it would save in educational effectiveness," [citation omitted].

TW also insisted that the district violated his Equal Protection rights—it punished his possession of a Confederate flag while permitting other students to have the Confederate flag in history books. The court made short order of this argument: a district may forbid students during school hours and on school grounds from possessing the Confederate flag outside of school-approved materials as long as the policy is rationally related to a legitimate governmental interest. Here, the district’s legitimate interest is to prevent potentially disruptive student conduct from interfering with the educational process.

The court devoted more time to TW’s free speech argument. The Confederate flag is frequently considered a form of political speech afforded First Amendment protection. However, "[a] school need not tolerate student speech that is inconsistent with its basic educational mission even though the government could not censor similar speech outside school," [citations omitted]. Even though students have First Amendment speech rights in school, school officials must be able to regulate speech that is disruptive, patently offensive, or contrary to legitimate educational concerns.

School officials’ "undifferentiated fear or apprehension" of a disturbance is not enough to overcome a student’s right to freedom of expression. The evidence in this case, however, revealed that based on recent events school officials had reason to believe that the display of the Confederate flag would cause disruption and interference with the educational purpose.

Even though a Tenth Circuit Court of Appeals decision is not binding precedent for Illinois, this case provides significant guidance. School officials have increasingly wanted to prohibit hate speech. This case provides insight into when a federal court may allow a ban on hate speech. A district with a history of disruption involving a protected status, such as race, gender, or religion, may prohibit hate speech itself. Thus, in response to actual incidents of verbal confrontations, a school board may pass a policy prohibiting material or speech that is divisive or creates ill will or hatred.

Most Illinois school districts thankfully do not have a history of student disturbances involving a protected status, such as race, gender, or religion. Absent such a history, a policy banning hate speech will violate the First Amendment. This does not mean that a school district must tolerate intimidating or offensive speech. Such speech is usually accompanied by action, such as harassment or intimidation; the district may punish the student for harassment or intimidation without fear of a free speech challenge. West v. Derby United School District #260, 10th Cir. App., 3/21/2000.

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Supreme Court will not hear drug-testing case

In May, the U.S. Supreme Court denied certiorari in a drug-testing case involving a teacher. The case, decided by the Eleventh Circuit Court of Appeals, provides one possible blueprint for mandating employee drug tests.

Sherry Hearn was a teacher in Savannah. Her employment contract required that she abide by the school board’s policies. Among these policies was a "drug-free workplace policy." The policy required that an employee submit to drug testing when reasonable suspicion exists that the employee violated the drug and alcohol policy. This testing must be conducted within two hours of the incident generating the reasonable suspicion. An employee’s refusal to consent to the drug test is cause for termination. The policy also contained a section on investigations and searches. This section provided that, "[t]he Administration will search any employee’s personal vehicles . . . only with the employee’s consent."

On an April day in 1996, Hearn parked her car in the school’s rear parking lot, unlocked, with its passenger-side window down. On that day, the campus security officer and a Georgia police officer conducted "a drug-lockdown" at her school. The police officer, his drug-sniffing dog, and the campus security officer walked through the rear parking lot. The dog was attracted to Hearn’s vehicle. The police officer let the dog enter the car through the passenger window; the dog alerted the police officer to a scent in the closed ashtray. The campus security officer opened the ashtray and found a partially burned marijuana cigarette. At no time was Hearn’s permission sought to search her car.

When confronted by the principal, Hearn denied knowledge or possession of any marijuana. The police officer read Hearn her Miranda rights, telling her that she would probably be charged with criminal possession of marijuana. The principal told Hearn to take a drug test. Hearn refused. The school board ultimately terminated Hearn’s employment for failing to take the drug test within the two-hour period.

Hearn argued that she could not be terminated for her refusal to submit to the urinalysis because she was under no obligation to take the test. She contended that there was no "reasonable suspicion," as required by the board’s policy, that would trigger a mandatory drug test, because the search of her car was illegal under both the board’s own policy and under the Fourth Amendment.

The district’s policy was clear: a non-consensual search of an employee’s personal vehicle was prohibited. According to Hearn, the district violated its own policy by searching her car without her consent. Thus, she argued, the marijuana cigarette found in her car could not be the basis of "reasonable suspicion" that would trigger a mandatory urinalysis — the fruit of a search in violation of board policy was tainted and could not trigger a mandatory urinalysis.

The court, however, was not persuaded. The search of Hearn’s car was a law enforcement event, not an intra-school event. The police officer was under no obligation to follow the board’s policy of obtaining an employee’s consent prior to searching his or her car. The dog’s alert reaction supplied the police officer with probable cause to search the vehicle. As there is no expectation of privacy in odors, a dog may sniff a car without any underlying reasonable cause to believe that the owner engaged in a criminal act. A dog’s sniff, in other words, is not a search under the Fourth Amendment. Here, the dog’s alert served as probable cause enabling the police officer to immediately search Hearn’s car; the results of the police officer’s search supplied the "reasonable suspicion" that triggered the board policy’s mandatory drug test.

Hearn also alleged that she was being illegally retaliated against for exercising her Fifth Amendment right to remain silent. Recall that the police officer "Mirandized" her. She argued that she had the right to refuse to submit to the urinalysis. However, federal law is very clear that the production of body fluids is non-testimonial and, thus, the Fifth Amendment was not triggered.

One justice dissented on the basis that this was a simple contract action and should have been analyzed in that way. The justice pointed out that Hearn was not a favorite with her employer — she had been very critical of the school board’s policy of campus lockdown searches for drugs, which she likened to police-state tactics. She had a twenty-seven year stellar career, including being awarded the 1994 Teacher of the Year. The marijuana cigarette was still warm when found; Hearn was in her classroom all day. She tested negative on a urinalysis given the next day and she was never charged with a crime. Had she been railroaded or framed?

The dissenting judge makes much of the fact that the school policy was violated when Hearn’s car was searched — the vehicle was searched without her consent. As school officials violated their policy, Hearn, according to the dissenting judge, had the right to refuse submission to a drug test. He warns that,

[I]n the nation’s zealous war on drugs, rights secured by the Fourth Amendment have shrunk . . . this may be the first case to hold that courts will not enforce private contract rights between an employer and employee, hammered out after negotiations to govern the conduct of the parties in areas of privacy, where the employer has a suspicion, no matter how insubstantial, that the employee violated a drug policy. Not only is an outstanding high school teacher a casualty in this episode; so, incidentally, are basic contract principles.

As moving as the dissenting judge’s comments may be, the U.S. Supreme Court refused to hear this case. Thus, this decision provides insight into when a district may require that its staff be drug tested. Here, the circumstances were as follows:

1. The employment contract required staff members to abide by school board policies.

2. The school board’s drug-free workplace policy contained these provisions:

a. Any employee may be drug-tested when objective circumstances reasonably support a suspicion that the employee violated the district drug and alcohol policy.

b. An employee’s refusal to consent to the test is cause for termination.

3. A law enforcement officer accompanied the school security officer during a drug sweep. The police officer was not bound by board policy requiring prior consent before a staff member’s car is searched.

The police officer waited until his drug-sniffing dog reacted before searching the teacher’s car. As there is no expectation of privacy in odors, a dog’s sniff is not a search. Once the dog alerted, however, probable cause existed and the police officer and any accompanying campus security officer could immediately search the car.

The results of a police officer’s search may be used by the school district. A drug screen requirement may be triggered by, among other things, the fruits of a police officer’s search.

Note that even absent a mandatory drug test policy, the same result, i.e. that the teacher was dismissed, would have occurred. The board did not need the drug test mandate — it could have dismissed Hearn for possession of marijuana on campus on the basis of the contraband found during the police officer’s search. Hearn v. Board of Public Education for City of Savannah, (11th Cir. 1999) 191 F.3rd 1329, cert. denied May 15, 2000.

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RECENT MAILINGS FROM IASB

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Not all IASB mailings are sent to all school board members. For speed or economy, some mailings are sent only to the board president or district superintendent. Here is a list of such items mailed recently. For more information about any item, contact your board president or district superintendent or get in touch with IASB.

May 1: Announcement of educational environments exhibits program for the 2000 annual conference, mailed to district superintendents.

May 24: Announcement of release of updated school code book, to board presidents and district superintendents.

May 30: IASB teacher salary study, to board presidents.

June 9: 2000 Joint Annual Conference announcement and publicity mailing, to superintendents.

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