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Illinois School Board Journal
May/June 2003

Student sex offenders: What's a district to do?

by Shayne L. Aldridge and Pamela J. Kennerly

Shayne L. Aldridge is an assistant director and general counsel for the Macon-Piatt Special Education District. He is also an adjunct professor in the Educational Administration Department at Western Illinois University, Macomb. Pamela J. Kennerly is an associate attorney at McCarthy, Callas, Fuhr & Ellison, P.C., in Rock Island and a trained arbitration panelist serving in the 14th Judicial Circuit.

When it comes to protecting students from convicted sex offenders, new registration and notification requirements would seem to help school districts to do just that: protect students. But provisions in the law may complicate the situation when the sex offenders are students themselves.

The Sex Offenders Registration Act [730 ILCS 150/1 et seq.] requires convicted sex offenders to register with the local law enforcement office and, among other things, prohibits offenders from free access to areas where children are usually present. Once registered, the Sex Offender and Child Murderer Community Notification Law requires the local law enforcement agency to post the sex offender's information on the Internet and mandates that school officials and certain community members receive notice of the sex offender's presence in the area.

Are these statutes so far-reaching that they apply to minors judged as juvenile sex offenders? In In re: J.W. [2003 WL 369679 (Ill.)] the Illinois Supreme Court recently held they do.

What are the implications for schools when the sex offender is a minor who must attend school? The Illinois School Code's compulsory attendance requirement conflicts with the state's Criminal Code prohibition against sex offenders being present on school property. Therefore, registration and notification requirements present obstacles for both the school and the minor.

How did school districts end up in this position? And what actions should a district take in order to ensure student safety, while meeting its obligation to provide all students with a high-quality public education?

Juveniles must register

In In re: J.W., the Supreme Court of Illinois upheld a trial court decision that ordered a 12-year-old boy to register as a sex offender after he admitted to committing two counts of aggravated criminal sexual assault. The trial court placed J.W. on five years' probation, required him to register as a sexual offender, ordered that he attend residential treatment, and prohibited him from residing in the city where he committed the sexual assaults. J.W. appealed the order on constitutional grounds, including that the

Registration Act did not apply to him because he was a juvenile.

The Supreme Court said J.W. fell within the definition of a juvenile sex offender and was required to register: " ... we note that a juvenile sex offender is a sex offender, albeit a specific category of sex offender ... juvenile sex offenders therefore are included within the larger category of sex offenders required to register."

But, the Registration Act provides no guidance to school districts regarding sex offenders who must attend school. The triggering event for a school district is notification, but in order for the district to receive notice the juvenile must register.

If juvenile sex offenders are not committed to the Department of Corrections or some other facility, they are compelled to attend school. Schools, however, are usually not equipped to handle sex offenders in the classroom. The Supreme Court's decision puts administrators and school boards in the position of having knowledge of juvenile sex offenders in schools. But, what do we do with them when they come to school? Three aspects of the law govern what happens, but they seem to be at odds.

Compulsory attendance

The School Code requires children between ages 7 and 16 to attend school. Section 5/21-6 specifically provides: "whoever has custody or control of any child between the ages of 7 and 16 years shall cause such child to attend some public school in the district wherein the child resides the entire time it is in session during the regular school term ... ."

The law was intended to protect children from exploitation and child labor. The courts have elevated this protection to the status of a constitutionally protected property right. But, the compulsory attendance provision does not make any exceptions for juvenile sex offenders. Certainly, children must attend school and schools must allow students to access their educational programs. Clearly, those students judged juvenile sex offenders have that right as well.

Two "unofficial" letters from the Attorney General's office state that juvenile sex offenders have the right to attend their resident schools. In a 1998 opinion letter to the state board's General Counsel, the Attorney General's office reasoned that even though the sex offender statutes are silent as to school attendance, the fact that a student is properly enrolled as a student implies that the school administration gave its permission for the student to be present. The Attorney General's office believes having enrolled satisfies the Notification Act's requirement for a sex offender to seek permission to be on school property.

But that letter left open the question of whether schools could simply deny enrollment to a student who was known to be a juvenile sex offender. In 1999, the Attorney General's office responded to that question with another "unofficial" opinion, stating

Section 11-9.3 of the criminal code does not prohibit a school from denying enrollment to a juvenile sex offender, nor does it authorize such a denial.

Instead, the Attorney General's office said, if the juvenile sex offender is a resident of the school district, he or she is entitled to attend school. As a form of protection, the office suggested that the school require the student to make his or her whereabouts known to administrators at all times. This, however, is an unrealistic suggestion.

Notification Law

The Notification Law [730 ILCS 152/120(c)] mandates that the county sheriff (outside Cook County) or the Chicago Police Department (inside Cook County), disclose the names and addresses of sex offenders to the community, including schools and child-care facilities. Section 120(a) indicates that school officials must be aware of the sex offenders in their immediate area.

However, the Notification Law does not specify a timeframe for notification. The school principal is given the responsibility to know all the sex offenders in the school's area. With this responsibility comes the implicit duty to protect students from potential harm. This duty to protect should only be triggered by the sex offender's registration.

Juvenile sex offenders who are required to register would be on the notification list, and the school principal would have the necessary knowledge to plan for student safety. If a student is a juvenile sex offender but is not on the registration or notification lists, presumably the school would not have the information needed to protect students from harm. However, this would not alleviate the school district's duty to protect its students or to have knowledge of all sex offenders in the area.

Illinois Criminal Code

The Criminal Code [720 ILCS 11-9.3, 9.4] prohibits sex offenders from being on or around school property, playgrounds or child-care facilities, and from being transported on school buses, without express permission. The statute allows for juvenile sex offenders to get permission from the superintendent or school board to be on school property.

Yet, the language implies the General Assembly never contemplated a sex offender's school enrollment. The notification to the principal indicates that the sex offender will merely be a visitor to the school, not someone enrolled as a full-time student. If the sex offender will be in the proximity of children, he or she has the duty to remain under the direct supervision of a school official. This section, however, does not define "direct supervision."

Section 11-9.3 also requires the same direct supervision for transporting the student to and from school. This section has unwittingly expanded the school's responsibilities far beyond the classroom and school property.

Burden of the law

What is the school's responsibility for the minor's education, and how should a school administrator handle those students in the school facility? It is against the law for a juvenile sex offender to be on school property without first seeking permission to be present, or without an accompanying parent or guardian. Schools unaware of certain potentially dangerous individuals within their walls would not have the ability to protect students from potential harm.

But the registration and notification requirements place considerable burdens on schools, not the juvenile sex offenders. In reported cases of juvenile sex offenders, their age has ranged from 10 to16 - anywhere from upper elementary to high school. This is also the time when direct school official supervision would be the most difficult for a school.

The statute also does not consider that the sex offender would be unable to fully understand the responsibility to get permission to be on school property, or to be under the direct supervision of school officials.

By their nature, school children are immature. While their actions can approximate those of an adult, essentially their reasoning ability is not fully developed. Practically, most juvenile sex offenders without adult intervention are not going to approach the superintendent or school board for permission to attend school.

This does not, however, limit the school's liability should the offender commit a sex crime on the school's property. Moreover, direct school official supervision could mean an adult being at least within the line-of-sight of the sex offender while on school property or on the bus.

These statutes make school districts responsible for knowing and being able to identify sex offenders, for monitoring their facilities for sex offender activity and directly supervising sex offenders if they are in contact with students.

Practical considerations

The issues surrounding compulsory school attendance were not raised in the Supreme Court's decision. In general, however, most minors judged as delinquents, and who are subject to the compulsory attendance law, have school attendance as a condition of their probation or court supervision.

This places a tremendous burden to use a school's scarce resources to educate the sex offender while simultaneously protecting the student population. The only way a school can fulfill both of those duties is for school officials to be made aware of juvenile sex offenders in their buildings. Registration, however, is the triggering event for school notification and its responsibilities.

In an effort to protect students, school officials could look at aspects of the Department of Children and Family Services "Sexual Abuse Program" for guidance. This program uses an individualized written plan for supervising children with sexual behavior problems.

DCFS safety plans for children with sexual behavior problems indicate that DCFS will notify the school on a "need to know" basis only. But who determines if the school needs to know? Presumably, if the child has been judged a juvenile sex offender, registers under the Registration Act and the school is notified according to the Notification Act, school officials have a "need to know." Regardless of whether DCFS is involved or not, school officials should implement a written "safety" plan for the student.

The Criminal Code does not define "under the direct supervision of a school official." That supervision could be as intrusive as an individual adult assigned to escort the student during all times the student is under the school district's control. Or it could be as lenient as daily or weekly check-in visits with an administrator. It could also mean assigned seating on the bus. The school should determine the type and amount of supervision needed on a case-by-case basis, and it should only be as invasive as necessary.

Once school officials decide how the district will supervise the juvenile sex offender, the decision should be in writing, whether DCFS is involved or not. The plan should address how the school will supervise the student in non-structured times, like passing periods, assemblies, in the locker rooms, lunch period, after-school activities and on the bus. It also should include who is involved, the responsibilities of each party, protective measures to be taken and disciplinary consequences for specific behaviors.

The school district also must be aware of the juvenile sex offender's confidentiality rights. When a school district creates a written safety plan for a student, that plan becomes a part of the student's temporary school records and comes under the privacy protections of the Illinois School Student Records Act. Due to the potential for breach of confidentiality, school officials should release the details of the safety plan only to those school employees who are involved with implementing the plan, or have contact or control over the student.

Regardless of the type of supervision, the only way school officials can fulfill their duty is to have knowledge of the juvenile sex offenders in their midst. The Registration Act and Notification Law are in place to make such knowledge available to school officials.

The Supreme Court came to the right conclusion: juveniles must register. The only way a school district can protect all its students, including the juvenile sex offender, is to be fully aware and have notice that a sex offender, whether juvenile or adult, is on school property.