School Law Briefing A Publication of Ancel,
Glink, Diamond, Bush, DiCianni & Krafthefer, P.C.
Number 2--November 1996
To view this edition in PDF format, click here.
Courts Continue toDefine Districts’ Discretion
Case Law Update
School Board Workshop
Legislative Update:
Student Expulsions | Transfer
Students | School Searches | Student Residency | Drug
Use by Student Athletes | Residency of Principals
| Student Promotion to Higher Grades | Teachers Convicted of Murder | School
Uniforms | Summer School | EEO-5
Report | Family and Medical Leave Act Proposed
Amendment
Courts Continue
to Define Districts’ Discretion
The tension between the discretionary authority
vested in school boards by the School Code and their duty to bargain with
unions under the Illinois Educational Labor Relations Act (“Act”)
has recently been the source of considerable litigation. Last year, in Board
of Education of Rockford Dist. No. 205 v. IELRB, 165 Ill.2d 80 (1995), the
Illinois Supreme Court held that an arbitration award ordering the recision
of a notice to remedy would usurp the District’s sole authority under
Sections 10-22.4 and 24-12 of the School Code to determine appropriate cause
for dismissal and/or notices to remedy. Because Section 10(b) of the Act
holds such a provision unlawful, the arbitration award was equally infirm,
and the District was within its rights to refuse to comply with the award.
Since Rockford, the courts
have had occasion to further define the line of separation between the School
Code and the Act. In Midwest Central Unit Sch. Dist. 191 v. IELRB,
277 Ill.App.3d 440 (1st Dist. 1995), a second-year probationary teacher
was notified of her non-renewal based upon her persistent failure “to
manifest an open mind and willingness to support administrative initiatives,”
and her failure to meet standards expected by the District regarding team
building. The Union grieved the action, claiming that the teacher’s
non-renewal violated the contract’s just cause provision. The arbitrator
granted the grievance and reinstated the teacher for a third probationary
year. The District refused to comply with the arbitrator’s order.
The Midwest Central court found that, under Section 24-11 of the School
Code, the school board has the sole duty and power to appoint teachers and
to grant tenure. These powers are discretionary, and cannot be delegated
or limited by a collective bargaining agreement. By ordering the teacher
reinstated, the arbitrator had usurped the authority specifically and exclusively
reserved for the school board under the School Code. The court reasoned
that the arbitrator’s award was in direct conflict with Section 24-11
of the School Code, and was therefore invalid for all the same reasons as
in Rockford. Accordingly, the District had not committed any unfair labor
practice by refusing to comply with the arbitration award.
More recently, in Granite City Comm. Unit Sch. Dist. No. 9 v. Illinois
Educational Labor Relations Bd. and Granite City Federation of Teachers,
Local 743, IFT/AFT, 279 Ill.App.3d 439, (4th Dist. 1996), a teacher
received a disciplinary suspension without pay. The Union grieved the suspension,
and the District resisted arbitration based on Rockford. The Appellate Court
disagreed with the District, holding that the School Code is silent on the
issue of disciplinary suspensions. Accordingly, an arbitrator’s ruling
either affirming or reversing the suspension would not be in conflict with
Sections 24-12 or 10-22.4 of the School Code, and the District was obligated
to participate in the arbitration.
Based on these court rulings, school boards can be assured that their
decisions to dismiss teachers, issue notices to remedy or grant/withhold
tenure are within their express statutory powers, and are outside the scope
of bargainable matters. However, actions which are not specifically provided
for in the Code, such as disciplinary suspensions, will most likely fall
within the collective bargaining relationship. We will keep our friends
advised of further judicial or legislative developments in this area.
Return to Table of Contents
Case Law
Update
School Gymnasiums:
Educational or Recreational?
A recent Illinois Appellate Court decision involving a student injured
in a school gymnasium has determined that governmental immunity depends
more upon how a school facility is used than the school’s ownership
of it.
In Ozuk v. River Grove Bd. of Educ., 281 Ill.App.3d 239 (1st Dist.
1996), a 13-year-old, 6’1" male student filed a premises liability
action against the River Grove Board of Education. The student sought damages
for injuries he sustained when he slipped and fell in the school gymnasium.
He claimed that he fell while running laps in gym class because he had to
run under volleyball nets and because the floor was defective.
The School District moved to dismiss the complaint under Section 3-106
of the Tort Immunity Act which provides:
Neither a local public entity nor a public employee is liable for
an injury where the liability is based on the existence of a condition
of any public property intended or permitted to be used for recreational
purposes, including, but not limited to parks, playgrounds, open areas,
buildings or other enclosed recreational facilities, unless such local
entity or public employee is guilty of willful and wanton conduct proximately
causing such injury. (Emphasis added.)
The injured student argued that the school gymnasium was educational,
not recreational, in nature, and therefore, that the school district was
not immune from liability.
If the student was correct, then the school district could be held liable
under Section 3-102 of the Tort Immunity Act, which provides that public
entities are liable when an individual is injured who has used the facilities
in a reasonably foreseeable manner and is injured by an unsafe condition,
when the public entity knew about the condition and knew that it was not
reasonably safe.
The Illinois Appellate Court agreed with the student and held that gym
class was educational, not recreational. In so holding, the court referred
to the definitions of recreation and physical education in Webster’s
Third New International Dictionary. The court held that “compulsory
physical education and recreation have different aims: whereas the former
seeks to instruct, the latter aspires merely to amuse. Accordingly, although
some students may enjoy gym class, it cannot be said to be recreation.”
However, the court went on to hold that public property may have more
than one intended use. The Appellate Court held that “if the school
gymnasium was encouraged, intended, or permitted to be used for recess,
extracurricular events, or other recreational, non-compulsory activities,
then Section 3-106 would apply, provided that the recreational use was more
than incidental.” The Appellate Court then remanded the case to the
Circuit Court for a finding of whether the gymnasium was used only for compulsory
physical education.
Therefore, under Ozuk, if a school gymnasium is regularly used for recreational
purposes such as extracurricular activities and dances, a plaintiff suing
a school district for damages resulting from an injury in gym class will
not be able to sustain a claim of mere negligence against the District.
Rather, the plaintiff will have to prove wilful and wanton misconduct on
the part of the school district. School boards should review their current
uses of buildings to determine whether they can benefit from Ozuk’s
protections.
Return to Table of Contents
School Board
Workshop
School Board Policies: Avoiding the Pitfalls
You have all
heard the stories recently in the news—the young boy suspended for
kissing a classmate, the girl expelled for taking a Midol pill in school,
the group of upstanding high school students expelled for bringing alcohol
to the homecoming dance, and the young girl disciplined after bringing a
knife to school to cut her chicken during lunch.
What are school boards to
do? After all, the sexual harassment policy says that students will be disciplined
for sexual harassment, the drug-free schools policy clearly states that
students shall be expelled or suspended if drugs or alcohol are taken during
school or to school activities, and the zero-tolerance weapon policy says
that students who bring knives to schools must be expelled.
School boards are increasingly faced with these and similar issues in
part because they have lengthy board policies covering more areas than ever
before. School boards know that they must follow their policies, but can
exceptions be made? If they make an exception for one student, will that
open the door for further exceptions and even liability when they apply
their policy to one student and not another?
Boards of education have the unenviable job of sorting all these issues
out. To help our school board friends in this difficult task, we have supplied
the following suggested checklist which school boards can follow when deciding
whether or not to apply a board policy to a particular student.
1. Contact your legal counsel.
Nobody enjoys spending money on legal fees. However, this advice, when followed,
will likely save you money in the long run and will certainly save you headaches
and sleepless nights spent wondering what to do when faced with a sticky
situation. Besides, it is always helpful to bounce a question off of people
who are knowledgeable in the area and have likely faced the question before.
School district lawyers can make your job easier; let them help you.
2. Ensure that you have well written policies.
Board policy books do not win awards by the pound. Concise but well drafted
policies generally work best and are easier to understand and apply. The
policies should be broad enough to cover most situations, but specific enough
to let the students, parents, and employees know the consequences of their
actions. Don’t hesitate to use your lawyers and their expertise to
ensure that your policies conform with statutory and constitutional standards.
3. Apply the policies on a case-by-case basis.
This is an important rule, and is one that is often forgotten. Let’s
take the instance of student expulsions. When you expel a student, the findings
of the board, or hearing officer, as the case may be, should be full of
details, details, and more details. A lengthy record will show a court on
review that you took the action you did after much consideration and that
your decision to expel the student was not made lightly.
The same holds true for any board action; consider the facts of each
situation you are faced with on a case-by-case basis. Be sure to make findings
that are directly related to the unique facts of each case.
4. Don’t let exceptions to the policies become
the rule.
What is the use of a book full of policies if you aren’t going to apply
them? The general rule is to be as consistent as possible when applying
your policies.
5. Don’t be afraid to make exceptions when
they are called for.
It’s a delicate balance, deciding whether or not to make an exception
to a policy. This type of decision goes with the territory and is one of
the hallmarks of being a board member. Almost every policy will have an
“escape clause,” allowing a board to act in its discretion when
applying the policy. Even the Illinois statute regarding gun and weapon-free
schools allows for an exception. The statute provides that students who
bring weapons to school or school activities “shall be expelled for
a period of not less than one year, except that the expulsion period may
be modified by the board on a case by case basis.” (105 ILCS 5/10-22.6).
This type of language is an example of how the Illinois Legislature allows
school boards to use their discretion.
6. Make sure you apply your policies as they
are written.
School boards get into lots of trouble when they start creating and revising
policies as they go. Apply your policies as they are written. If the policy
says that students shall not bring pagers to school and you catch a kid
with a cellular phone—don’t apply the pager policy to him because
it’s the closest thing you can find. Call your lawyers, have them draft
a cellular phone policy, adopt it, and then apply it. In legal jargon, this
is called due process: the students have to know what they cannot do before
you punish them for doing it.
The above checklist is merely a suggested approach to policy development
and usage. We hope it will prompt further discussion during your board meetings
about how to apply policies and what you should consider when you want to
make exceptions to them. With any luck, we won’t hear any stories on
the nightly news about your school district.
Return to Table of Contents
Legislative
Update:
Student Expulsions | Transfer
Students | School Searches | Student
Residency | Drug Use by Student Athletes
| Residency of Principals | Student
Promotion to Higher Grades | Teachers Convicted
of Murder | School Uniforms | Summer School | EEO-5 Report
| Family and Medical Leave Act Proposed Amendment
The Illinois Legislature
has been hard at work this past session drafting numerous amendments and
additions to the Illinois School Code. You will be happy to note that the
changes are almost exclusively pro-school districts. For example, the new
search and seizure provision of the School Code gives school districts more
authority than ever to search through students’ lockers, desks, and
school parking lots. Also, school districts may now expel students for up
to two calendar years.
In addition, the Illinois Legislature has finally put to rest some issues
that have been plaguing school districts for years. It has added an entirely
new section of the School Code regarding how a school district must determine
the residency of its students. The Illinois Legislature has also amended
the School Code to give school districts more authority and discretion in
adopting dress codes.
Student Expulsions
(105 ILCS 5/10-22.6(d))
Student discipline remains at the forefront of legislative priorities.
This section of the School Code has been amended numerous times over the
past few years, no doubt owing to an increased perception that our schools
are not safe. It is certainly true that school districts are increasingly
faced with difficult discipline issues and that there are now more instances
of students bringing weapons to school than in recent years.
As of August 6, 1996, school districts may expel students for definite
periods of time, not to exceed two calendar years. Previously, school districts
could expel students for two school years.
In addition, school districts may now include a more detailed definition
of “weapon” in their gun-free schools or zero-tolerance weapon
policies thanks to this amendment. The federal Gun-Free Schools Act of 1994
currently defines the term “weapon” as a firearm only; not included
in this definition are knives, billy clubs, brass knuckles, etc. This was
a frustrating limitation for school districts faced with incidences of students
bringing weapons to school. The Legislature amended the School Code to define
the term “weapon” much more broadly. The School Code now reads:
The term “weapon” means possession, use, control, or transfer
of any object which may be used to cause bodily harm, including, but not
limited to, a weapon as defined by Section 921 of Title 18, United States
Code . . . knives, guns, fire arms, rifles, shot guns, brass knuckles, billy
clubs, or “look-alikes” thereof. Such items as baseball bats,
pipes, bottles, locks, sticks, pencils, and pens may be considered weapons
if used or attempted to be used to cause bodily harm.
You will note that the law previously stated that a student could be
expelled only for bringing a weapon to school. The law now provides that
students can be expelled for possessing, using, controlling, or transferring
any object which may cause bodily harm not only at school, but at all school-sponsored
activities and events, or at any activities or events which bear a reasonable
relationship to school.
The Illinois Legislature should be commended for making this change.
School district officials and members of the legal community were baffled
at the previously narrow definition of the term “weapon.” School
districts were constantly faced with situations where students brought other
types of weapons to school, such as knives. Especially troubling for school
districts, the Illinois Appellate Court in Washington v. Smith, 248 Ill.App.3d
534, held that a student could not be expelled for possessing an ice pick
at school because she did not “brandish” the ice pick or threaten
anyone with it. This case now has limited effect.
Return to Legislative Update Contents
Transfer Students
(105 ILCS 5/2-3.13a)
In addition to the sweeping changes regarding student expulsions, the
Illinois Legislature also added a new section to the School Code, effective
August 9, 1996, regarding students who transfer from public schools from
which they had been suspended or expelled.
Section 5/2-3.13(a) now provides that when a student has been suspended
or expelled for (1) knowingly possessing a weapon in a school building or
on school grounds; (2) for knowingly possessing, selling, or delivering
in a school building or on school grounds a controlled substance or cannabis;
or (3) for battering a staff member of the school, these students shall
not be permitted to attend class in a new public school into which they
are transferring until they have served the entire period of their suspension
or expulsion.
Previously, students who had been expelled for the above reasons often
attempted to re-enroll in a neighboring district and escape their expulsion
or suspension. The law now provides that the records of students expelled
or suspended for the above reasons shall indicate the date and duration
of the suspension or expulsion.
Please note that this section regarding transfer students currently defines
“weapon” under the old definition, which only includes firearms.
The more expansive definition of “weapon,” including knives, brass
knuckles, baseball bats, etc., is not included in this section of the School
Code.
This apparent oversight means that if a student brings a knife to school,
the knife is found, and the student is expelled, if the student moves and
seeks to transfer to your school, you must accept him as a new student and
allow him to attend classes immediately. As always, we will follow the law
in this area and will let you know if and when this section is amended to
comport with the more all-encompassing definition of “weapon”
that was discussed earlier. However, for the time being, it is important
for you to keep this distinction in mind.
Return to Legislative Update Contents
School Searches
(105 ILCS 5/10-22.6(e))
In the event that the above amendments to the School Code did not move
you, this one will. The Illinois Legislature added a new section to the
School Code providing for school searches and seizures. As most of you are
well aware, school searches could previously be conducted without search
warrants only when there were reasonable grounds for suspecting that the
search of a particular student would turn up evidence that the student was
violating the law or school rules.
The School Code now provides that school authorities may inspect and
search all areas of a school, including lockers, desks, and parking lots,
and may search through all personal effects left in those places by students
(1) without notice, (2) without consent of the student, and (3) without
search warrants.
The new statute also provides that local law enforcement officers may
assist with such searches and may use specially-trained dogs. All evidence
may be seized and turned over to law enforcement authorities. The statute
also provides that school districts may take immediate disciplinary action
against students who are found to be in possession of illegal contraband.
The General Assembly specifically stated in the statute that “students
have no reasonable expectation of privacy in these places and areas or in
their personal effects left in these places and areas.”
Keep in mind that the search and seizure of items that are carried by
students and are located on their bodies is not provided for in the statute.
Reasonable suspicion should exist before school district officials or law
enforcement officers search personal effects located on the bodies of students.
Section 10/20.14 of the Illinois School Code was also amended to provide
that school boards must establish and maintain a parent-teacher advisory
committee to develop guidelines regarding pupil discipline, including school
searches. School boards are also encouraged to annually review their pupil
discipline policy and all other factors that are related to the safety of
their schools, pupils, and staff.
Return to Legislative Update Contents
Student Residency
(105 ILCS 5/10-20.12b)
The Illinois legislature has finally shed some light on the issue of
student residency. Previously, the Illinois School Code simply provided
that school districts must charge non-resident students tuition. The School
Code did not define what “resident student” meant.
A line of Illinois cases did establish that children presumptively reside
in the school district where their parents reside. This presumption could
be rebutted by showing either (1) relinquishment of control and custody
of the child by the parents; and (2) the primary reason for the parental
relinquishment of custody and control must not be for the purpose of the
child’s attending a public school in another district.
The new statute is similar to the common law rules regarding student
residency that were established in Illinois cases during the past century,
but provides a clearer view of exactly what “residency” means.
The new section of the School Code, effective January 1, 1997, defines “residence”
and “legal custody.” As of that date, the statute will provide
that the “residence” of a person who has legal custody of a pupil
is deemed to be the residence of the pupil.
The Illinois Legislature defines “legal custody” as custody
exercised by a natural or adoptive parent, custody granted by order of court,
custody exercised under a statutory short-term guardianship, custody exercised
by an adult caretaker relative, or custody exercised by an adult who can
demonstrate that he or she has assumed and exercises legal responsibility
for the student and provides the student with a regular, fixed, night-time
abode.
Under the new statute, legal custody cannot be changed solely to allow
a student to have access to an educational program. The amendment exempts
homeless children and children placed in foster homes.
The new statute provides a hearing procedure by which parents and guardians
can dispute a school board’s findings regarding residency. Importantly,
the statute provides that any person who knowingly enrolls or attempts to
enroll a student on a tuition-free basis when the student is a non-resident
of the district shall be guilty of a Class C misdemeanor.
Return to Legislative Update Contents
Drug Use by
Student Athletes
(720 ILCS 5/12-4.9)
The Illinois Legislature has recognized that the use of drugs such as
steroids is becoming more commonplace among child athletes who are trying
to gain or lose weight. Accordingly, the Legislature passed a new section
to the Illinois Criminal Code providing for the new crime of drug-induced
infliction of aggravated battery to a child athlete.
The statute, effective January 1, 1997, prohibits individuals from distributing
drugs to athletes under the age of 18 for the purpose of quick weight gain
or weight loss. The statute also prohibits individuals from encouraging
the ingestion of such drugs. The first violation of this statute is a Class
A misdemeanor; a second or subsequent violation is a Class 4 felony.
Residency of
Principals
(105 ILCS 5/10-21.4a)
This section of the Illinois School Code regarding the duties of principals
was amended, effective August 9, 1996. It now provides that residency within
a school district may not be a condition of a principal’s employment
or continued employment, unless residency within a school district is made
an express condition of the principal’s employment at the time he or
she is hired.
This section of the School Code applies both to principals hired before
and after the effective date of this amendment. The statute also states
that residency in a school district shall not be considered in determining
the compensation of a principal or the assignment or transfer of a principal
to another school within a district.
Return to Legislative Update Contents
Student Promotion
to Higher Grades
(105 ILCS 5/10-20.9a)
This section of the School Code provides that teachers have the responsibility
for determining grades and other evaluations of students within the grading
policy of the school district.
Section (b) was added, effective August 6, 1996, to provide that school
districts are discouraged from promoting students to the next higher grade
level based upon any reason not related to the academic performance of the
student. In other words, school districts may not promote students based
upon age or any other social reasons.
School boards are allowed to adopt and enforce policies regarding student
promotion that are necessary to ensure that the students meet local educational
goals and objectives and that they can perform at the expected grade level
prior to their promotion.
Teachers Convicted
of Murder
(105 ILCS 5/10-21.9)
Just in case there was any doubt, the Legislature has now prohibited
school boards from hiring any person who has been convicted of committing
or attempting to commit first-degree murder. This amendment became effective
on August 6, 1996. As you already know, school boards are authorized to
conduct criminal background investigations under this section of the School
Code.
School Uniforms
(105 ILCS 5/10-22.25b)
The School Code previously provided that school boards could adopt school
uniforms or dress code policies. Effective August 6, 1996, this section
of the School Code was greatly expanded. This section now provides that
school boards may adopt uniform or dress code policies that are necessary
to maintain the orderly process of school function or prevent the endangerment
of student health or safety.
The statute provides that all students, including transfer students,
must be allowed to attend school without uniforms during a reasonable period
of time to enable the students to acquire the school uniforms or otherwise
comply with the dress code policy. School uniform policies must include
criteria and procedures by which school boards will accommodate the needs
of students from indigent families.
Importantly, this section of the School Code provides that if parents
object on religious grounds to the dress code policy, the student in question
shall not be required to comply with the policy. Thus, students whose parents
object on religious grounds have an automatic waiver to the dress code policy.
For those of you with dress code policies that have not found favor with
the community, you can expect to see religious objections to the dress code
in the coming year. The statute simply provides that parents need only present
a signed statement to the school board detailing the grounds for their objection.
Once this is done, the board must exempt the child or children from the
dress code. In other words, the board is not given any discretion, even
in cases where the religious exemption seems to be concocted by the parents
as an attempt to get around the dress code.
Return to Legislative Update Contents
Summer School
(105 ILCS 5/10-22.33b)
This new section of the Illinois School Code provides that school districts
may require certain students to attend summer school, effective August 6,
1996. School districts may conduct high-quality summer school programs for
resident students who have been identified as being academically at risk
in critical subject areas such as language arts (reading and writing) and
mathematics. Such summer school programs are open to all students who will
be entering any of the school district’s grades for the next school
term and who have not been identified as disabled under Article 14 of the
Illinois School Code.
These summer school programs must be designed to raise the level of achievement
and improve opportunities for success for those students who are required
to attend. School districts must notify parents before the end of the school
year that their child is required to attend summer school.
EEO-5 Report
School districts now have one less form to fill out. The Equal Employment
Opportunity Commission (EEOC) amended sub-part M of 29 CFR part 1602, effective
July 29, 1996, by discontinuing the EEO-5 Report Form 168B for individual
schools and annexes.
The EEOC took this action in an effort to reduce the reporting burden
on school districts and to streamline the collection of information. Elementary
and secondary public school systems and districts have been required to
submit EEO-5 Reports to the EEOC since 1974. The purpose behind the EEO-5
Report is to monitor the sex, race, and ethnicity of school district employees.
School districts must submit EEO-5 Reports bi-annually in even numbered
years.
Two types of EEO-5 Reports have been used: EEOC Form 168A which covers
the entire public school system or district; and EEOC Form 168B, which covers
each individual school and annex within the system or district.
School districts are still required to file EEOC Form 168A covering the
entire school system or district.
Family and
Medical Leave Act Proposed Amendment
Both the United States Senate and House of Representatives introduced
bills that would amend the Family and Medical Leave Act of 1993 to allow
employees to take parental involvement leave to participate in or attend
the educational activities and extracurricular activities of their children.
The 104th Congress failed to take action on the bills, however. Therefore,
the proposed amendments are essentially dead. However, when the 105th Congress
session convenes at the end of January, 1997, it may take the proposed amendment
up again.
While this amendment was not passed and is not new law, it is interesting
to note that Congress was willing to entertain such educational leave and
may indicate a precursor for things to come. We will update you regarding
the status of this proposed amendment.
Return to Legislative Update Contents
Return to Table of Contents
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School Law Briefing is published periodically by Ancel,
Glink, Diamond, Bush, DiCianni & Krafthefer, P.C., as a service to our public
education clients and friends. It is intended to provide timely information
of interest, but it is not a substitute for legal advice. Be sure to consult
with an attorney before taking action based on the contents. We welcome
comments and questions. Permission to reproduce is granted provided credit
is given to Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C., School
Law Briefing.
Editor: Timothy E. Guare; Design: Douglas
M. Doty
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