School Law Briefing A Publication of Ancel,
Glink, Diamond, Bush, DiCianni & Krafthefer, P.C.
Number 3--Spring 1997
To view this edition in PDF format, click here.
Reciprocal Reporting: What Can
the Police Be Told?
Legislative Update
School Board Workshop: Student Residency
Hearings
Case Law Update
Reciprocal Reporting:
What Can the Police Be Told?
The Illinois Attorney General has recently determined that
the reciprocal reporting of criminal offenses committed by students is not
simply limited to reporting delinquent students. Instead, the Attorney General
found that school districts can report to the police any suspected criminal
activities committed by students.
Section 5/10-20.14 of the Illinois School Code provides that school boards
must establish parent-teacher advisory committees to develop guidelines
concerning student discipline. This section further requires that the committees
develop reciprocal reporting systems with local law enforcement agencies
to exchange information about criminal offenses committed by students.
The Illinois Attorney General found that the statute allows not only
for the reciprocal reporting of criminal offenses that students are found
guilty of, but also of criminal offenses they are simply accused of. The
Attorney General stated that the intent of the statute was to encourage
the sharing of information between school officials and the police “without
regard to whether the student had been arrested or detained or whether any
charge or petition had been filed in court.”
The Attorney General correctly identified the more difficult question: What
information can properly be shared under a reciprocal reporting agreement?
He decided that school districts and the police have different responsibilities.
Relying in part on the Illinois School Student Records Act, the Attorney
General found that school districts can report “any alleged or suspected
criminal acts to the police.” He reasoned that documents and other
information concerning criminal offenses committed by students were not
considered confidential under the Illinois School Student Records Act, which
generally requires parental consent before the disclosure of student records. However, the Attorney General found that the police were somewhat restricted
in what information they could pass on to school districts. He found that
the police could only report on the following criminal activities: (1) the
unlawful use of weapons, (2) violations of the Illinois Controlled Substances
Act, (3) violations of the Cannabis Control Act, and (4) forcible felonies,
including murder, criminal sexual assault, robbery, arson, and kidnapping.
The Attorney General found that the police are governed by the Juvenile
Court Act, which specifically says that they can release only the above
information to school districts.
School districts should use this Attorney General opinion to their advantage
since the opinion clarifies what information school districts can give to
the police under reciprocal reporting agreements. For this reason, take
a minute to review your reciprocal reporting agreements concerning student
criminal offenses and revise them if necessary to provide that you have
broad authority to report suspected student criminal activity to your local
police.
Return to Table of Contents
Legislative
Update
Literally hundreds of proposed legislative bills concerning
schools have been filed with the Illinois General Assembly for consideration
in the current session. It is our practice to hold off discussing these
proposed bills until they are passed, since the vast majority will either
not be enacted into law or will be substantially rewritten. The Legislature
will be considering these proposed bills in the coming months, and we will
keep you apprised of their status.
We can, however, report to
you that Public Act 89-698 was enacted into law, effective January 14, 1997.
This Public Act contains a number of amendments to the Illinois School Code,
including changes to sections concerning student transfers after expulsion,
student residency for special education students, and the powers of the
Illinois State Board of Education with regard to private schools.
Powers and Duties of the Illinois State
Board of Education
(105 ILCS 5/1A-4)
Prior to the recent amendment, the Illinois State Board of Education was
responsible for the educational policies and guidelines for all Illinois
schools, both public and private. The amended statute now provides that
the Illinois State Board of Education is responsible only for the educational
policies and guidelines in public, not private, schools.
Scholastic Records of Transferring Students
(105 ILCS 5/2-3.13a)
As we reported to you in our November issue of School Law Briefing, the
Illinois Legislature made numerous revisions to the student expulsion and
student transfer provisions of the School Code. One of these amendments
concerned the transfer of records for students who had been suspended or
expelled for (1) knowingly possessing a weapon in a school building or on
school grounds; (2) knowingly possessing, selling, or delivering in a school
building or on school grounds a controlled substance or cannabis; or (3)
battering a staff member of the school. The School Code requires that students
who are suspended or expelled for these offenses must not be permitted to
attend school in another district until the students have served the entire
period of their suspensions or expulsions.
However, the recent amendment modified this section by providing that these
students can be allowed to transfer into the Department of Corrections school
district during the pendency of their suspensions or expulsions.
Residency of Special Education Students
(105 ILCS 5/14-1.11)
This amendment applies only to students receiving special education and
related services. This section of the School Code describes how school districts
must make residency determinations for special education students.
Prior to the amendment, this section provided that in cases of divorced
parents who both retained legal guardianship or custody, the resident district
was the district in which the parent lived who claimed the child as a dependent
on his or her federal income tax return.
This section now provides that a special education student’s resident
district is the district in which the parent lives who provides the student
with a “primary regular fixed night-time abode” provided that
“the election of resident district may be made only one time per school
year.”
Be certain to pass this information to your administrators since this
amendment will significantly affect how you determine the residency of special
education students whose parents are joint custodians. You would also be
well advised to revise your special education student residency policies
accordingly.
Return to Table of ContentsSchool Board
Workshop:
As we reported in
the November 1996 issue of School Law Briefing, the Illinois Legislature
added a new section to the Illinois School Code effective January 1, 1997,
regarding student residency. One important element of this new statute is
a detailed hearing procedure.
Prior to the passage of the new statute, Illinois cases provided that
boards of education had to afford students some measure of due process when
students were denied tuition-free enrollment:
[I]t cannot be questioned that the Illinois School Code conferred
upon plaintiff an interest in attending a school on a tuition-free basis
and that the retention of such a benefit is protected by the requirements
of due process of law.
Kraut v. Rachford, 51 Ill.App.3d 206, 213 (1977).
In the absence of a clear and concise statute, however, school districts
were without guidance about the practical elements of student residency
hearings. For example, it was unclear whether students whose residency was
questioned after they were already enrolled could continue to attend school
and whether they could be charged tuition for that period of time.
Fortunately, the new statute provides detailed hearing procedures in
the event that a board of education determines that a student is a non-resident
of the district. First, the board must notify the person who enrolled the
student of the amount of tuition due. Within 10 days, the person who enrolled
the student may request a hearing in writing to challenge the residency
decision. The board of education must conduct a hearing between 10 and 20
days after the notice of the hearing is given. The board of education may
conduct the hearing itself or it may appoint a hearing officer to conduct
the hearing. The person who enrolled the student has the burden of proving
the residency of the student.
If the hearing is conducted by a hearing officer, a written report of
his or her findings must be sent to the parties. Within five (5) days of
receiving these findings, the person who enrolled the student may file written
objections with the school board. Within 15 days after the conclusion of
the hearing (whether conducted by the board itself or a hearing officer),
the board of education must decide whether or not the student is a bona
fide resident of the district. The school board must send a copy of its
decision to the person who enrolled the student. This decision of the school
board is final.
The statute further provides that during the residency hearing, the student
in question must be allowed to attend school tuition-free. We believe that
this right does not come to a new student who has been denied enrollment
on residency grounds. We read the statute as giving a new and important
right to a student who, for whatever reason, has already been enrolled and
whose school year would be disrupted if he or she were required to leave
after having enrolled in classes.
If the board affirms its decision that the student is a non-resident, the
board may charge the parent/guardian tuition for the student’s prior
attendance and the school board must refuse to permit the pupil to continue
attending school unless tuition is paid.
Keep in mind that the statute does not apply to homeless children, children
placed in the custody of the Department of Children and Family Services
(DCFS), students who become non-residents during a school term (who are
entitled to attend school within the school district for the remainder of
the term tuition-free), or special education students.
A student residency policy should be contained in your board policy manual.
Current student residency policies should be revised to ensure that they
comport with the new law. A well-written student residency policy will come
in handy when the next inevitable student residency case arises.
Return to Table of Contents
Case Law Update
Certification of School Nurses
Brady v. Board of Education of Palatine Community Consolidated
School District 15, 672 N.E.2d 810 (1st Dist. 1996)
School nurses and other health-care aides who perform professional nursing
services and are employed by Illinois school districts must possess school
service personnel certificates and are thus entitled to all applicable benefits,
compensation, and working conditions.
The Illinois School Code provides that boards of education have the authority
to:
employ a registered professional nurse and define the duties of the
school nurse within the guidelines of rules and regulations promulgated
by the State Board of Education. Any nurse first employed on or after July
1, 1976 must be certificated under Section 21-25 of this Act.
Despite the fact that the statute mandates that all nurses obtain certificates
from the Illinois State Board of Education, some school districts employ
school nurses or aides who do not hold such certificates. The reasoning
behind this is that nurses do not need certificates if they do not perform
any teaching duties and are not normally present in the classroom.
The Illinois Appellate Court finally shed some light on this issue in
the case of Brady v. Board of Education of Palatine Community Consolidated
School District 15. In Brady, prior to the 1990-91 school year, the Palatine
School District employed six school nurses, all of whom held certificates
from the Illinois State Board of Education. Beginning in 1990, the school
district began replacing these certificated school nurses with “health-aides.”
The “health-aides” were registered nurses, but they did not possess
school personnel certificates. Three taxpayers filed a lawsuit, alleging
that the school district violated the law by replacing the certificated
school nurses.
All of us probably know why the school district chose to replace the
certificated school nurses with “health-aides.” As the appellate
court aptly pointed out, certificated school nurses are much more expensive
to employ because they are “entitled to all the rights and privileges
granted holders of a valid teaching certificate, including teacher benefits,
compensation and working conditions.” 105 ILCS 5/21-25. “Health
aides” are not entitled to these privileges.
The school district argued that the “health-aides” performed
no teaching duties; thus they were not required to be certificated. However,
the Appellate Court held that the statute was clear and unambiguous; it
provides that “any nurse...must be certificated.” When the language
of a statute is clear and unambiguous, there is no need for interpretation
by a court of law: “[b]ecause the statute is clear in its terms, it
is not within our purview to investigate the legislature’s intent or
purpose.”
The Brady court cited to a 1986 Illinois Appellate Court case wherein the
court held that the very purpose behind the statute requiring school nurses
to be certificated is:
to provide nurses with some degree of job stability free from arbitrary
hiring and firing, to attract nurses of high capabilities, and to provide
for the retention of qualified nurses.
Implications for school districts...
All school nurses must hold school service personnel certificates from
the Illinois State Board of Education, regardless of the time spent in classrooms
and their job title. The Illinois School Code and its implementing regulations
clearly state this. However, school districts can request a waiver of this
School Code and Administrative Code requirement. You will recall that on
February 27, 1995, the Illinois Legislature authorized school districts
to petition the Illinois State Board of Education for waivers or modifications
of certain School Code mandates and Administrative rules (see section 5/2-3.25g
of the Illinois School Code).
The State Board of Education has granted waivers of the School Code and
Administrative Code sections regarding the certification of school nurses
11 times since March of 1996. (Source: ISBE Reports on Waiver of School
Code Mandates, dated April 19, 1996 and September 27, 1996.)
Keep in mind that the Brady case may impact how the Illinois State Board
of Education and General Assembly handle future requests for waivers of
the school nurse certification requirements. If the issue of school nurse
certification is one your school district is facing, your legal counsel
is in the best position to advise you as to the appropriate course of action.
Unlawful Search of Student
People of the State of Illinois v. Parker, 672 N.E.2d
813 (1st Dist. 1996)
Seizure of a student carrying a gun who turned to leave school building
after seeing a metal detector was not based on reasonable suspicion. The
student could have been leaving school grounds for any number of appropriate
reasons.
It is not often that we report on criminal cases; however, this interesting
Illinois case caught our attention. On April 12, 1995, a 16-year-old Bogan
High School (Chicago) student entered school. He saw that students were
lined up to walk through a metal detector, and he turned around to leave
the building. A Chicago police officer stopped him and told him that he
would have to walk through the metal detector. The student responded by
raising his shirt and showing the police officer a gun in his pants. The
student then told the police officer that “someone put this gun on
me.”
The police officer retrieved the gun and arrested the student on the
charge of unlawful use of a weapon. The case does not indicate whether the
student was disciplined by the school.
The trial court granted the student’s motion to quash his arrest
and suppress evidence. The appellate court upheld the decision of the trial
court, finding that the detention constituted an unreasonable seizure under
the Fourth Amendment to the United States Constitution. The court reasoned
that:
The only reason the officer had for stopping defendant was because
defendant entered the building, looked in the general area of the metal
detectors and turned around to leave.
* * *
Once he stepped inside the school, defendant, for whatever reason,
decided he was not going to stay in the building. While exercising his right
to go another way, defendant was stopped by an officer in front of all the
other students.
* * *
We agree with the trial court which stated that: “the defendant
could have, even — if there were no signs, if there was no metal detector,
he could have just turned around and gone home for any number of reasons,
being sick, forgot something, forgot his lunch, forgot his books, forgot
his homework or what have you.”
The Appellate Court affirmed the trial court’s dismissal of the
case. Clearly, the legality of the search of a student depends on the reasonableness
of the search under the circumstances. Whether a search is reasonable will
depend largely on the particular facts of each case.
Keep in mind that this case involved the search of a student’s person
or body. Such searches are generally considered more intrusive than searches
of lockers, desks, etc.
Implications for school districts...
Your goal is to keep weapons out of schools. Fortunately, school district
personnel need not learn criminal law to accomplish this. However, you must
keep in mind that students cannot be searched or detained without restriction.
In the November issue of School Law Briefing, we reported that sections
5/10-22.6(d) and 5/10-22.6(e) of the Illinois School Code had been amended
to broadly define the term “weapon” to include even sticks, pencils
and pens. The new statute also allows more comprehensive school searches
to be conducted. One way that school districts can combat the presence of
weapons in schools is to implement comprehensive search and seizure policies
and weapon-free schools policies that comport with the new provisions of
the Illinois School Code.
School Funding in Illinois
Committee For Educational Rights v. Edgar, 672 N.E.2d
1178 (Ill. 1996)
The question of how the State of Illinois funds its public schools was
considered “outside the sphere of the judicial function.” The
court held that the Illinois Legislature was the only entity authorized
to determine how Illinois schools should be funded.
As most of you are probably well aware, the Illinois Supreme Court has
declined to enter the debate regarding school funding in Illinois. The Supreme
Court affirmed the dismissal of plaintiff’s complaint, concluding that
“the question of whether the educational institutions and services
in Illinois are ‘high quality’ is outside the sphere of the judicial
function.”
A number of school districts, parents, and students in the State of Illinois
sued Governor Jim Edgar and the Illinois State Board of Education, alleging
that school funding in Illinois violated the Illinois Constitution.
The crux of plaintiffs’ argument was that “wealthy” school
districts (those with high levels of assessed value per student) are able
to raise more money per pupil for use in schools than “poor” school
districts (those with low levels of assessed value per student). The court
discussed at length how the State of Illinois finances its schools.
Plaintiffs alleged that Illinois’ system of school finance violated
section 1 of article X of the Illinois Constitution, which provides in part:
A fundamental goal of the People of the State is the educational development
of all persons to the limits of their capacities. The State shall provide
for an efficient system of high quality public educational institutions
and services.... The State has the primary responsibility for financing
the system of public education.
First of all, plaintiffs argued that the State does not provide an “efficient”
system of education since there are such vast disparities in the level of
funding because of various taxable property amounts.
Second, plaintiffs argued that education in certain Illinois school districts
is not of “high quality,” again on the basis that funding inequities
exist between school districts.
The court noted that plaintiffs did not argue for absolute uniformity
or equal spending per student throughout Illinois. Plaintiffs did argue,
however, that property wealth should be considered “educationally irrelevant”
and that school financing should be based on other more relevant factors.
The Court held that the disparities in funding did not make education in
Illinois “inefficient.”
The Court ultimately held that the question of what constituted a “high
quality” education could not be decided by the courts; it was a matter
to be left to the Legislature and the people of Illinois to decide. The
dissenting judge accused the majority of side-stepping the issue:
The majority fears “legislating” in the field of public education....
Out of fear of entering a “political thicket” [citation omitted],
the majority completely abdicates its constitutional duty to interpret the
Illinois Constitution.
A correlation exists between educational resources and educational quality
or opportunity. Lesser educational resources, below a certain level, results
in lower educational quality or opportunity. These propositions form the
premise upon which the Illinois public school funding scheme is based.
Implications for school districts...
Changes in the way that Illinois schools are funded will significantly
impact your school district. Since the Illinois courts will not address
the school funding issue, we must wait and see what, if anything, the Illinois
Legislature is going to do. Both the Senate and the House have drafted bills
that address school funding. Rest assured, we will be tracking these bills
and will update you periodically on their status.
Prior Restraint of Religious Material
Muller v. Jefferson Lighthouse School, 98 F.3d 1530 (7th
Cir. 1996)
Student was properly restrained from giving invitations to his classmates
seeking their attendance at a religious function. The school had an appropriate
“prior restraint” policy in place which it correctly applied.
A fourth grade Wisconsin school student, Andrew, asked his teachers if
he could hand out invitations to his classmates concerning a religious meeting
to be held at his church. The principal told him that he could not hand
out the invitations. The teachers and the principal thought that Andrew
wanted to pass the invitations out during class, although Andrew’s
parents asserted that the invitations would have been distributed during
non-instructional times.
Three months after he asked to pass out the invitations, Andrew’s
parents filed a lawsuit against the school district alleging that Andrew’s
free speech, free exercise of religion, and equal protection rights had
been violated. The Muller court embarked on a detailed discussion of what
free speech rights that students, particularly elementary school students,
possess. The court noted that age is a critical factor in student speech
cases, since elementary school children:
are just beginning to acquire the means of expression [citation omitted].
Grammar schools are more about learning, including learning to sit still
and be polite, than about robust debate.
The Seventh Circuit held that the school was a nonpublic forum; the school
did not open its facilities for “indiscriminate use by the general
public.” Speech in nonpublic forums can be more regulated than speech
in public forums. For this reason, the court found that students attending
the school were subject to reasonable restrictions of their speech.
The school district had a policy in place requiring publications without
school sponsorship to be viewed by the principal 24 hours before distribution.
This is called “prior restraint” and is routinely held to be constitutional
in a nonpublic forum as long as it is reasonable. The court held:
Prior restraint in the public school context, and especially where
elementary schools are concerned, can be an important tool in preserving
a proper educational environment.... Where public school children are involved
there is no practical way to protect students from materials that can disrupt
the educational environment or even severely traumatize a child without
some form of prior restraint.
It is important to note that the court did not rest its decision on the
fact that the invitations Andrew wished to pass out were for a religious
function. In fact, the court specifically found that speech cannot be suppressed
solely because it is religious in nature. The school district’s policy
of “prior restraint” applied to both religious and non-religious
material. Had the policy simply dealt with religious material, then the
court would likely not have upheld the school district’s prior restraint
policy.
Implications for school districts...
This is an important decision for Illinois school districts because it
was decided by the Seventh Circuit Court of Appeals, the federal court that
hears appeals from the States of Illinois, Wisconsin, and Indiana. The decision
is also very well written and provides a very detailed discussion of the
state of the law.
School personnel often hesitate to restrict student speech, both oral and
written, because they are not sure what authority they have to do so. This
case stands for the proposition that school district personnel can review
non-school sponsored materials before the materials are passed out. School
district personnel can also prevent the distribution of such materials to
students. It is an opinion worth reading if you are currently dealing with
these issues in your school district.
Return to Table of Contents
Firm News
Robert W. Rolek would like to welcome
new school districts who have retained him and the firm for various corporate
and special assignment work. A hearty welcome for those using our services
this past year include Big Hollow School District No. 38, Lake Villa Community
Consolidated School District No. 41, Grant Community High School District
No. 124, Lake Forest School District No. 67, and Round Lake Area School
District No. 116.
Stewart H. Diamond gave a speech on
March 6, 1997, to the Illinois Association of School Business Officials
on the topic of governmental self-insurance pooling. This law firm represents
a large number of Illinois governmental self-insurance pools, and we wrote
the contract and by-laws document for the first school self-insurance pool
in Illinois.
Robert K. Bush spoke at the 1996 Association
of School Business Officials International (ASBO) annual meeting held in
November. His topic was “Issues and Recent Developments of Benefits
Statutes,” which included a discussion of workers’ compensation
law, the Americans With Disabilities Act, and the Family Medical Leave Act.
Alan and Darcy co-authored an article for the Illinois Association of
School Board’s Journal entitled “New Law Helps in Residency Cases,”
published in the March/April 1997 issue.
Return to Table of Contents
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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