SCHOOL BOARD NEWSBULLETIN - March/April 2011

Brooke R. Whitted, Neal E. Takiff and Shermin S. Ali are attorneys with Whitted, Cleary and Takiff LLC in Northbrook, Illinois.

A study by the Illinois Criminal Justice Information Authority regarding balanced and restorative justice revealed that between 1991 and 2007, according to Illinois State Board of Education statistics, public school suspension rates increased 56 percent and expulsion rates more than doubled in Illinois.

Part of this increase may be attributable to the Gun-Free Schools Act of 1994, which led to a national zero tolerance policy authorizing expulsion for no less than one academic year for bringing a weapon to school. Since then, however, school districts have expanded zero tolerance to include nonviolent student behavior.

Additional ISBE statistics point to zero tolerance policies that possibly are not being applied consistently to all students. While 77 percent of school arrests in Chicago Public Schools were of black students, they constitute just 50 percent of the district’s student population. For the state overall, African American students represented 44 percent of the 2009 expulsions and 45 percent of one-time 2009 suspensions, while making up just 19 percent of the entire state school population.

But school discipline is an area in which school officials have broad discretion. And in Illinois, courts have been reluctant to overturn decisions to suspend or expel students made by school boards.

Just how informed are school board members about their obligations and discretion in terms of suspensions and expulsions?

The information that follows reviews laws and case law related to the suspension and expulsion of non-disabled students, as well as “zero tolerance” and alternative attendance policies. The rules for disabled and special education students are different and are referenced at the end of the article.

In Illinois, a suspension is defined as the removal of a student from school for a period of 10 consecutive days or less for a serious act of misconduct. However, where a student is suspended due to gross disobedience or misconduct on a school bus, the suspension may be more than 10 days in length for safety reasons.

In Illinois, a total of 79,292 students were suspended once during the year; 57,165 were suspended more than once.

State law does not put an upward limit on the cumulative number of days that a non-disabled student may be suspended during the school year; the only limitation is the maximum of 10 days per suspension.

According to the Illinois School Code, “Gross disobedience or misconduct that may lead to suspension or expulsion of a student shall include any activity or behavior which might reasonably lead school authorities to forecast substantial disruption or material interference with school activities or which in fact is substantial disruption or material interference with school activities.” (105 ILCS 5/10-22.6)

It is important to note that the section quoted above was not intended to be a self-executing regulation of student conduct; rather it is a “grant of power” to local school boards. It does not prohibit specific acts or omissions which may be penalized by suspension, but serves as a guide to school boards, suggesting that to be grounds for suspension or expulsion, the student’s disobedience or misconduct must be “gross.”

In Goss v. Lopez (1975), the U.S. Supreme Court recognized that “[s]tudents facing temporary suspension have interests qualifying for protection of the Due Process Clause, and due process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have, and an opportunity to present his side of the story.”

In Goss, the Supreme Court set out the minimum due process required for the suspension of students from school for 10 days or less, which was subsequently incorporated into the Illinois School Code by the legislature.

According to Section 10-22.6(b), when a child is suspended from school, the school must immediately provide the parent or guardian with oral or written notice of the suspension, which includes:

• the reason for the suspension;

• the length of the suspension; and

• notice of the parent or guardian’s right to review the school’s decision to suspend their child.

If a child is suspended, a parent or guardian may appeal the suspension by requesting a meeting (or “review”) with school officials. At this review, the parent and child may talk with school officials about the suspension and reasons that the student should not be suspended.

A school board official, or hearing officer appointed by the school board, must review the action of the suspending school official. A hearing officer is someone qualified by the Illinois State Board of Education and chosen from a list of five potential names provided by ISBE. The hearing officer submits a written summary of the evidence heard at the review to the school board. Subsequently, the school board may take action as it finds appropriate.

While the reality may be that by the time a review of the suspension is scheduled, the period of the suspension will already have been served by the child, it may nevertheless be important to appeal a child’s suspension. Parents who successfully appeal a suspension can effectively remove that suspension from their child’s school record, ultimately reducing the likelihood that the child will be expelled for subsequent misconduct, and eliminating the stain on the student record that colleges may consider.

Once the school board decides a student will be suspended, a parent/guardian may request schoolwork for their child during that suspension. The Student Code of Conduct for Chicago Public Schools states that school principals shall make sure that suspended students receive homework assignments during their suspension and that those students’ grades will not be lowered if the work is completed satisfactorily.

However, not all districts allow make-up work that can count toward a student’s grade. Local board policies should provide guidance in this area.

An expulsion is defined by the Illinois School Code as a removal of a student from school for gross disobedience or misconduct for a period of time ranging from in excess of 10 days to a definite period of time not to exceed two school years.

In 2009, 967 students were expelled from school districts in Illinois.

The Supreme Court in Goss, as previously cited, noted that in the instance of expulsion, more formal due process procedures are required since an expulsion involves more serious consequences than a suspension.

The Illinois legislature provides for this increase in the due process required in 105 ILCS 5/10-22.6(a). As a result, in Illinois, a student may be expelled only after his/her parent has been requested to appear at a meeting with the school board, or with a hearing officer appointed by the school board, to discuss their child’s behavior. Again, a hearing officer is appointed from a list of qualified candidates certified by ISBE. The request to appear shall be made by registered or certified mail and state the time, place and purpose of the meeting.

State statute requires the hearing officer to send a written summary of the evidence heard to the board, from which the board may take action as it sees fit. It is the non-delegable authority of the school board to make the final decision regarding the expulsion of a student. The school board, however, may consider recommendations from administrators.

If the student or parent chooses, they may have an attorney represent the student at the expulsion hearing at their own expense. This may help to safeguard the student’s due process rights and guarantee that proper procedures are being effectuated at the hearing.

Due process afforded students facing expulsion does not require the presence of a stenographer at the hearing to provide a transcript, so long as there is some other means to allow for adequate review. Parents/guardians attending the hearing may bring their own tape recorder or retain a court reporter, if they choose to do so. It should also be noted, that while a school board is considered a public body, student disciplinary hearings are typically closed to the public as one of the allowable exceptions to an open meeting under the Open Meetings Act.

If, after the hearing, the school board decides to expel the child, that decision may be appealed by filing in state court.

Generally, school districts are given broad deference in making decisions regarding disciplinary actions. Illinois courts will rarely overturn a school board’s decision to suspend or expel a student. Where no deprivation of a constitutional right was alleged, a school board’s decision to expel or suspend a student will be overturned only if it is “arbitrary, unreasonable, capricious or oppressive.”

In making this determination, Illinois courts consider the following factors before overturning a school board’s decision:

1) the egregiousness of the student’s conduct,

2) the history or record of the student’s past conduct,

3) the likelihood that such conduct will affect the delivery of educational services to other students,

4) the severity of the punishment, and

5) the interest of the child.

Certain misconduct will not only lead to automatic expulsion of a student, but may also result in criminal penalties. The following is a review of zero tolerance policies for two prohibited behaviors — weapons and drugs — on school grounds:

Weapons : Under the Gun-Free Schools Act, a student who brings a weapon to school, any school-sponsored activity or an event that bears a reasonable relationship to school shall be expelled for a period of not less than one year, unless the expulsion period is modified by the superintendent, whose decision may be modified by the school board on a case-by-case basis.

It is important to note that even under the Gun-Free School Act, there are no requirements for “zero tolerance.” Under the Illinois School Code, the board may expel a student for a definite period of time not to exceed two calendar years, as determined on a case-by-case basis. This type of behavior may also be punished criminally, where charges can range from a Class A misdemeanor to a Class X felony for unlawful use of weapons on school grounds.

Drugs : While a federal statute does not exist for the automatic expulsion of a student who possesses, transfers or uses drugs on school grounds, such behavior will lead to some form of disciplinary action by the school board and shall be reported to enforcement authorities.

As with the possession, use or transfer of a firearm, under Illinois law, the school principal or his/her designee shall immediately notify the local law enforcement agency upon receipt of verbal, written or electronic notification from any school official, including a teacher, guidance counselor or support staff, that they observed a person in possession of a firearm or verified an incident involving drugs on school grounds. If the individual possessing the firearm is a student, the principal or his/her designee must also immediately notify that student’s parent or guardian.

It is apparent that when a school board expels or suspends a student, that student’s education will be disrupted. However, once a student has been suspended or expelled from school, he or she may have the right to attend another school.

Some school districts have adopted policies providing that if a student is suspended or expelled for any reason from any public or private school in Illinois or elsewhere, the student must complete the entire term of that suspension or expulsion before he/she may be admitted into an Illinois public school district.

Where a student has been suspended or expelled for possessing a “weapon” or for possessing, selling or delivering a controlled substance or cannabis on school grounds, or for battering a staff member of the school, and attempts to transfer into another public school in the same or different district, the student records required to be transferred must include the date and duration of the period of suspension and/or expulsion.

Where the suspension or expulsion is by reason of the above misconduct, the student must not be permitted to attend class in the public school into which he/she is transferring until the expiration of the disciplinary period. However, that school district may approve placement of the student in an alternative school.

A policy such as the one described above may still allow for the placement of an expelled or suspended student in an alternative school program for the remainder of the suspension or expulsion. An alternative school is intended to educate “disruptive students” in grades 6 through 12, who would otherwise be subject to expulsion or suspension by the school district.

Where a school district has an alternative school program, a student may be administratively transferred into the alternative school. However, this administrative transfer may not occur without first providing the student with the requisite due process, as discussed earlier.

It should be noted that not every school district has an alternative school program. Where a student is administratively transferred into an alternative school, appropriate personnel from both the sending school and the alternative school must meet to develop an alternative education plan, and shall invite the parent/ guardian of that student to participate in the meeting. The student may also be invited to the meeting. An alternative education plan must include the date when the student may return to his/her regular school, specific academic and behavior plans, and a method for reviewing the student’s progress at the alternative school.

The question that remains unanswered is whether there is another option besides expulsion that is less exclusionary and punitive. The following outlines some disciplinary methods that may serve as a middle ground:

Balanced and restorative justice (BARJ): The Illinois Criminal Justice Information Authority has long supported the use of BARJ philosophies in the Illinois juvenile justice system. Recently, the Authority published a guide, Implementing restorative justice: A guide for schools, to assist in the application of restorative justice policies in schools.

The three main goals of restorative justice are: accountability, community safety and competency development. In addition, restorative justice aims to depart from traditional punitive and exclusionary methods of discipline and those that criminalize school misconduct, leading to the “school-to-prison pipeline.”

Restorative discipline combines strict control and strong support of youth, and approaches wrongdoing in a way that is not punitive, neglectful or permissive. Restorative justice policies have already been successfully implemented in schools around the world, including Canada, the United Kingdom and Japan.

Restorative discipline policies in schools require the involvement of the victim, which may be a teacher, school staff or bystander, as well as other students and the school community. Approaches that support restorative justice philosophies and may be implemented in schools include: mentoring, “peacemaking circles,” mediation with a trained mediator and peer juries. “Peacemaking circles” bring willing participants together to talk freely about issues and to resolve conflict with the presence of a trained facilitator.

SMART programs : Public schools in Chicago have implemented the SMART program in place of expulsion on a case-by-case basis. SMART stands for “Saturday Morning Alternative Reach-Out and Teach.” If a child attends a Chicago Public School and is at risk of expulsion, at the hearing a parent may ask that his/her child attend the SMART program instead.

Students in this program receive guidance for certain social behaviors, such as drug and alcohol abuse. Additionally, students are committed to completing 20 hours of community service for a non-profit organization. Students enrolled in SMART must attend every class; otherwise, they may be expelled from school.

This program has not been made available in incidents involving the possession of firearms, sale of drugs or acts of violence, including threats.

According to a report published by the Civil Rights Project at Harvard University, African-American, Latino and disabled children “bear the brunt of the consequences” of zero tolerance policies. In Texas, special education students represent 10 percent of the school population, yet they account for 20 percent of those expelled from school.

In Florida, the implementation of one such zero tolerance policy led to a disabled 14-year-old student being reported to the police by the principal for allegedly stealing $2 from another student; subsequently, that disabled student was held in an adult jail for an unusually long period of time before charges were finally dropped.

Under the Individuals with Disabilities Education Act (IDEA), Congress set out specific provisions to guide schools in disciplining students with disabilities, affording these students certain due process rights.

If there is a possibility that a student’s misconduct was the result of his/her disability, and that student is not currently in special education, that child may still have the same rights as a child with a disability if the school knew or should have known that the child had a disability before his/her misconduct.

Please refer to the Whitted, Cleary & Takiff LLC memorandum, “Suspension, Expulsion and Discipline under the IDEA” for further information about school discipline with regard to children with disabilities, available online at http://www.wct-law.com/CM/Publications/Publications101.asp.

Jessica Ashley and Kimberly Burke, Implementing restorative justice: A guide for schools, Illinois Criminal Justice Information Authority, 2009

Jane Cutter, “Students with disabilities more often expelled,” PSLweb.org, April 30, 2010

Illinois School Code , 105 ILCS 5/10-22, 5/13A, 5/10-24, 5/10-27, 105 ILCS 120/2

Illinois State Board of Education, End-of-Year Reports: http://www.isbe.state.il.us/research/htmls/eoy_report.htm

Ralph C. Martin, “Zero Tolerance Policy,” ABA Juvenile Justice Committee, February 2010

Bruce Morris and Donna Wells, “School Safety Issues: Zero Tolerance,” Commonwealth Educational Policy Institute, 2000

Student Code of Conduct for Chicago Public Schools for the 2009-10 School Year, Section 705.5, July 22, 2009

Robinson v. Oak Park and River Forest High School, 571 N.E.2d 931, 933 and 934-35, (First District, 1991)

Linwood v. Board of Education of City of Peoria, School District No. 150, Peoria County, Illinois , 463 F.2d. 763, 768, (Seventh Circuit, 1972)

Goss v. Lopez , 419 U.S. 565, 581 and 584 (1975)

Colquitt v. Rich Township High School District, 699 N.E.2d 1109 (First District, 1998)

Wilson ex rel. Geiger v. Hinsdale Elementary School District 181 , 810 N.E. 2d 637, 642-43 (Second District, 2004)

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