SEVENTH CIRCUIT COURT OF APPEALS UPHOLDS PRELIMINARY INJUNCTION AND RULES AGAINST SCHOOL DISTRICT IN LOCAL TRANSGENDER CASE

 

By James Petrungaro & John Fester

 

June 2, 2017 

            The federal appeals court having jurisdiction over Illinois schools released a unanimous decision by a three-judge panel this week that sends a strong message to school districts about how they should respond to transgender student bathroom access requests. In Whitaker v. Kenosha Unified School District No 1 Board of Education, the Seventh Circuit Court of Appeals ruled in favor of a student’s request for the issuance of a preliminary injunction, requiring the District to allow the transgender male student to use the boys’ restroom, pending a full review of the case at a later date. 

            At issue in the case is the school district’s decision (which the Court referred to as a “policy” despite the absence of a formal written policy on the issue), to deny the transgender male student access to the boys’ restroom. The school district told the student and his parent that it would allow the access only if the student could provide unspecified “legal” and “medical” certifications of being a boy, including proof of having undergone a complete surgical transition (which is not legally allowed for minors).  

         Background.    A basic understanding of the facts of the case are necessary to understand the Court’s decision. As of the ruling, the student was a 17-year old senior named “Ash” who was on the verge of graduation. During his freshman year of high school, Ash began to openly identify as a male, though he was born anatomically female. As a sophomore, he asked that teachers address him as a male. As part of his public transitioning to being a male, he saw a therapist and was diagnosed with Gender Dysphoria and in the summer before his senior year, began hormone replacement therapy. His public transitioning was largely without hostility or disruption and the record indicates that he was generally accepted by his high school community. 

            Toward the end of his sophomore year, Ash asked his school counselor for permission to use the boys’ restroom. The school district denied this request and assigned him to a gender-neutral restroom in the school’s main office, where he was the only student allowed to use that restroom. Ash initially reacted by restricting the intake of liquids to lessen his need to use the restroom and to combat the attention he thought would be drawn to the situation. But that approach aggravated a medical condition, which subjected him to an increased risk of fainting and seizures. During his junior year, Ash was also provided access to two other gender neutral and single-user restrooms. However, Ash used the boys’ restroom, notably without any incidents, disruptions or complaints to the district’s administration, until one day a teacher observed him and reported him to the administration. During the remainder of his junior year, Ash continued to use the boys’ restroom and was counseled several times about violating the District’s directives. 

        Heading into his senior year, Ash filed a federal lawsuit and requested a preliminary injunction to halt the school district’s “policy” prohibiting his use of the boys’ restroom. Ash alleged violations of Title IX and the Equal Protection Clause of the Fourteenth Amendment. For his Title IX claim, Ash argued that he was being unjustifiably discriminated against based upon the basis of his “sex.” For the Equal Protection claim, Ash argued that as a transgendered person, he is a member of a protected classification of individuals and his denial of equal access to the boys restroom was not justified by the school district. 

         In granting Ash’s preliminary injunction, the Court made quick work of finding that the school district’s policy decision subjected Ash to irreparable harm (a mix of physical and emotional injuries) and that Ash lacked other adequate remedies – both prerequisites of an injunction. The bulk of the Court’s analysis turned on whether Ash had viable claims under Title IX of the Civil Rights act of 1964 or the Equal Protection Clause of the U.S. Constitution. 

        Title IX.           The ultimate question in the Title IX claim was whether Congress intended to include transgender students in the statute’s protections against “sex” discrimination. The U.S. Supreme Court has not decided that question, leaving the Seventh Circuit to look to its own precedent and that of other circuits. Recognizing the lack of precedent in the student context and Title IX, the Court relied on its decisions in the employment context under Title VII.  

      First, the Seventh Circuit recognized that in 1984, it ruled in a transgender employment discrimination case that the definition of “sex” should be “given a narrow, traditional interpretation, which would…exclude transsexuals.” But the Court then acknowledged that the U.S. Supreme Court has held that Title VII does protect against “sex stereotyping,” including workplace policies that require employees to conform to certain standards of femininity or masculinity (e.g., sex-based dress codes). This is where the Court’s decision marked a sharp turn in transgender jurisprudence. Under a definition of “sex” that includes “sex stereotyping,” the Court ruled that Title IX does protect against discrimination of transgendered students, stating: “By definition, a transgender individual does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth.”  

        Equal Protection.        The Court then turned its attention to the Equal Protection claim and centered its analysis on whether the restroom decision was an intentional or arbitrary discriminatory decision by the school district. In an equal protection analysis, courts must first determine whether the discriminatory act affected a “protected class.” If so, the judicial scrutiny of the decision becomes elevated and less deference is given to the policymaker. Here, the Court held that the school’s decision was in fact based on “sex,” thus prompting “heightened scrutiny.” Under a “heightened scrutiny” standard, precedent requires the school district to prove that its policy is both “genuine” and “exceedingly persuasive” (as opposed to the lesser standard of merely being “rational”). At every turn, the Court rejected the school district’s claimed justifications, finding:  

  • The district does not treat all boys and girls the same with its segregated restroom policy (as claimed by the school district) because it treated Ash differently than any other student by assigning him to single-user facilities;

  • All privacy arguments raised by the school district for the other students sharing the restroom with Ash were unfounded conjecture (there were no complaints or protests from students);

  • Identifying an individual’s “sex” is not a black and white exercise that can be determined even by reliance on a birth certificate since that marker “does not take into account an individual’s chromosomal makeup, which is also a key component of one’s biological sex.”

  • Restrooms in general are not a purely private place and any student wanting privacy can use a stall.

Notably, the Court wrote:  

A transgender student’s presence in the restroom provides no more of a risk to other student’s privacy rights than the presence of an overly curious student of the same biological sex who decides to sneak glances at his or classmates… [I]f the School District’s concern is that a child will be in the bathroom with another child who does not look anatomically the same, then it would seem that separate bathrooms also would be appropriate for pre-pubescent and post-pubescent children who do not look alike anatomically.  

         Impact on Legal Landscape.   It is first noteworthy that the posture of the case makes the Court’s decision technically less authoritative. The decision is “preliminary” and is officially just a prediction by the Court of how it will rule when the case runs its full course. The Kenosha School District will be given an opportunity put on a more exhaustive factual demonstration to persuade the Court to decide differently before it issues a final decision on the underlying merits. If the parties presented a fairly complete factual record at the time of the preliminary injunction hearing, however, the Court’s decision can reasonably be expected to stand. The practical effect of the decision cannot be understated, however. The Court’s reasoning on the rudimentary “legal” questions of whether transgender students are entitled to the legal protections of Title IX and the Equal Protection Clause are not expected to change absent reversal by the U.S. Supreme Court. Therefore, if a school district denies a transgender student use of the bathroom associated with his or her gender identity, or requires use of a single-occupancy bathroom, this case will almost certainly be followed by federal district judges should the student seek legal relief. School districts can expect transgender advocacy groups to widely publicize this decision, so you may see an increase in bathroom requests from transgender students, or an increase in transgender students no longer “asking” for what may now be considered a right. 

            This case is different than the Fourth Circuit’s decision in Grimm v. Gloucester County School Board. In Grimm, the Fourth Circuit’s transgender-friendly decision was largely rooted in administrative guidance issued by the U.S. Department of Education’s Office of Civil Rights (OCR) under the Obama Administration. After that case worked its way to the U.S. Supreme Court, OCR (then under the Trump Administration) rescinded its guidance and the U.S. Supreme Court remanded the case back down for further proceedings. This Seventh Circuit decision, however, does not rely on OCR’s position – in fact it makes no mention of OCR or the Grimm case at all.   

            The transgender student access issue is a politically charged and emotional matter that only in the last few years has come to the forefront of the school law landscape. Unless and until the Seventh Circuit reverses itself or is reversed by the U.S. Supreme Court, its decision can practically be treated as controlling for school districts in Illinois, Indiana and Wisconsin. Scariano, Himes and Petrarca is prepared to assist you in reviewing your transgender student practices and procedures in light of this significant decision.

 

COURT DENIES PARENTS' ATTEMPT TO HOLD SCHOOL DISTRICT LIABLE FOR FAILING TO PREVENT STUDENT BULLYING

By James Petrungaro

 

November 28, 2016

            In the last few years, we have seen a mounting increase in parent-lawsuits seeking to impose liability against school districts related to student bullying. Typically relying on the bullying provisions that were added to the School Code over the last 10 years, most of those lawsuits included a tort claim that school officials responded to the bullying with willful and wanton disregard. Thanks to the immunity provided in the Tort Immunity Act for the discretionary actions of school administrators, most school districts have found success in defending these tort claims on a motion (or very low settlement) prior to reaching trial. Under that immunity, courts have largely held that so long as the District can demonstrate that it did not recklessly disregard the bullying, and so long as the District implemented some response to the situation within the framework of the District’s bullying policies and procedures, the case should be dismissed.

            As bullying cases have exceedingly been dismissed on the basis of that immunity, parents’ attorneys have adjusted their strategy in choosing which legal claims to file against school districts. That strategy was most recently on display in Mulvey v. Carl Sandburg High School. In Mulvey, parents sought to hold the school district liable for physical and emotional injuries their daughters allegedly sustained as a result of being bullied by teammates on the basketball team.  

           In addition to pleading the typical willful/wanton tort claim found in most bullying lawsuits, the Mulveys also asserted a breach of contract claim. Undoubtedly, the contract claim was an attempt to overcome the application of tort immunity, which is not a defense to a contract claim. The Mulveys argued that the school district’s Parent-Student Handbook and board policy – which collectively prohibit bullying and set forth procedures for investigating bullying claims and disciplining those who commit bullying – created a binding and enforceable contract between the students and the school district.

            The Appellate Court didn’t agree with the parents’ arguments, holding that the handbook and policy didn’t satisfy at least two of the essential elements of a viable contract claim: a promise that was broken by the defendant and consideration from the plaintiff as part of a bargained-for-exchange.  First, the court determined that the policy and handbook lacked a promise by the school district to prevent or eliminate bullying. Second, the court denied the parents’ claim that their daughters’ attendance at school was valid consideration, instead holding that attendance was required by law. As a result, the court dismissed the contract claim. The willful and wanton claim was also dismissed, with the court finding that the tort immunity for discretionary actions applied because the bullying policy necessarily required the exercise of discretion by school officials.

            The Mulvey case underscores that although school officials must meet the demands of the School Code’s anti-bullying provisions by having a well-crafted bullying policy in place and being responsive to bullying claims, so long as school leaders provide a reasonable response to bullying incidents within the framework of the policy, they will generally be free from liability. To ensure that the District’s response to the bullying claim falls within the tort immunity for discretionary actions, we remind you that documentation of the administration’s response to the bullying should be kept as part of the student record.

Tags:  Bullying

Implementation Date of New Concussion Law Extended

December 10, 2015

By Darcee C. Williams

On August 3, 2015, Senate Bill 7 was signed into law (Public Act 99-245) creating the Youth Sports Concussion Safety Act.  The Act adds section 22-80 to the Illinois School Code (105 ILCS 5/22-80) and generally requires concussion education, the appointment of a Concussion Oversight Team to develop return to learn and return to play protocols and requires the Board to develop a written school-specific emergency action plans.  The law also requires certain individuals to undergo concussion training.  A school district must implement the Act if it offers interscholastic athletic activities or interscholastic athletics under the direction of a coach (volunteer or school employee), athletic director, or band leader. 

The new concussion law had an immediate effective date.  However, on November 30, 2015, Governor Rauner signed legislation (Senate Bill 219; Public Act 99-486) into law extending the implementation date of the new concussion law to the beginning of the 2016-2017 school year.  Accordingly, school districts and other affected organizations do not have to scramble to comply with the new concussion law.  Nonetheless, we recommend that school districts begin implementing the law’s requirements in the upcoming months to the extent practicable, including compliance with the law’s training requirements and taking steps toward developing emergency action plans. 

The IASB has developed a Checklist for Youth Sports Concussion Safety Act available on their website.  Implementation guidance is also available from Lurie Children’s Hospital, which supported passage of the new concussion legislation.  Lurie has developed a publication titled Return to Learn after a Concussion:  A Guide for Teachers and School Professionals available on their website.  Lurie also has a free 30-minute online educational module of the content outlined in the Return to Learn Guide.  

Additionally, the American Academy of Pediatrics, the CDC, and the Illinois High School Associationhave useful information on the recognition, response, and prevention of concussions.

At our annual client seminar on March 5, 2016, we will discuss and answer questions regarding the new concussion law.  In the meantime, if you have any questions regarding the new concussion law or would like a copy of Scariano, Himes and Petrarca’s Concussion Policy and Procedures, please contact Darcee Williams or Anthony Scariano.

DEPARTMENT OF EDUCATION FINDS THAT DISTRICT DISCRIMINATED AGAINST TRANSGENDER STUDENT IN PROHIBITING LOCKER ROOM USE

 

November 6, 2015

By A. Lynn Himes and Parker R. Himes

On November 2, the Department of Education’s Office of Civil Rights (“OCR”) concluded that a Chicago-area high school district discriminated against a transgender female student by prohibiting her use of the girls’ locker room.

 The student had been born male but had identified from a young age as female.  During middle school, the student transitioned to living full-time as a female.  Since middle school, the student has presented female appearance, completed legal steps (e.g. obtaining a passport reflecting the gender change), and taken an ongoing course of hormone therapy.

Before enrolling at the high school, the student’s parents communicated extensively with the district to plan her transition to high school.  The district honored the student’s request to be treated as female in all respects except the request to be provided access to the girls’ locker rooms.  Importantly, the district identifies the student by her female name and uses female pronouns, designates her gender as female in its computer system, provides her unlimited access to the girls’ restrooms, and, upon receipt of permission by the IHSA, allows her to participate in girls’ athletics. 

 After multiple conferences with the parents and a tour of the girls’ locker room facilities, the superintendent concluded, however, that it would not be practicable to honor her request to change privately in the locker rooms because the stalls were too few and the students too many.  The superintendent explained that the decision was based not only on the particular student’s rights and needs, but also on the privacy concerns of all students.

OCR’s legal analysis begins with the acknowledgement that the district “has treated [the student] consistent with her gender identity as a girl,” yet, “as a result of the District’s denial of access to the girls’ locker rooms, [the student] has not only received an unequal opportunity to benefit from the school’s educational program, but has also experienced an ongoing sense of isolation and ostracism throughout her high school enrollment at the school.”  Further, “[t]he denial of access has also meant that, in order to satisfy her graduation requirements and receive a high school diploma, [the student] has no other option but to accept being treated differently than other students by the District.”  Based on evidence that the district had installed some privacy curtains in one of its locker rooms, OCR also concluded that the district could accommodate the student by installing privacy curtains in all the locker rooms, something that OCR declared that the district had the financial ability to do.

 While this OCR opinion is technically binding on only the district involved, it likely forecasts how OCR will come down on a similar matter.  Courts across the country, however, have not uniformly followed OCR, resulting in court opinions that come down on either side.  The Firm will be monitoring this issue and will keep you informed of any important developments.

Should you face a similar issue, we urge you to contact an attorney at the Firm so we may help guide you through this novel area of the law.

REQUIRING STUDENTS’ SOCIAL MEDIA PASSWORDS

February 17, 2015

By Justino D. Petrarca and Parker R. Himes

With the adoption of the Right to Privacy in the School Setting Act, which became effective on January 1, 2014, much attention has been focused on the ability of K-12 districts to request or require students to turn over social media passwords.

The new law requires districts to publish notification to parents, either in policy manuals, student handbooks, or the like, that school officials could require a student to disclose his or her social media password when the district reasonably believes the account has evidence of the student’s violation of district policy. The new law merely adds a notification requirement alerting parents and guardians to this possibility.

As a word of caution, there rarely exists a situation where similar information could not be attained through less invasive means. Because the compulsory disclosure of the password implicates Fourth Amendment rights, the password may be compelled only where reasonably necessary.  For example, if a district believes a student’s social media account contains evidence of a violation, the school officials could have the student show them the page on the social media website, instead of requiring the student to turn over his or her password. Given the nature of social media,  it may be possible that other students could volunteer access to the suspect student’s public pages.

Districts should exhaust all reasonable alternatives before attempting to require a student to turn over the password to a social media website.  If your district does believe that requiring a student’s password is necessary, please contact an attorney at the Firm so that we can work with you to find the best way to achieve your goal.

Breaking Down OCR’s Recent Guidance on the Permissibility of Single-Sex Education

December 10, 2014

By Anthony Scariano III

As you may know, the United States Department of Education’s Office of Civil Rights (“OCR”) recently issued general guidance on the acceptability of offering single-sex classes and extracurricular activities in schools that receive federal financial assistance. In its guidance, the OCR reminds educators that Title IX does allow the intentional separation of students by sex in: (1) contact sports in physical education classes; (2) classes or portions of classes that deal primarily with human sexuality; and (3) non-vocational classes and extracurricular activities within a coeducational, non-vocational elementary or secondary school (i.e. the majority of course offerings in traditional K-12 public schools). However, the guidance overwhelmingly focuses on number (3) above; importantly, the criteria that need to be met in order to comply with Title IX when establishing single- sex classes and extracurricular activities.

In order to offer a single-sex class or activity, a school must meet a somewhat demanding two-part justification for doing so before offering the class or activity. First, each single-sex class must be based on an exceedingly persuasive objective to either: (1) improve educational achievement through diverse educational opportunities (the “diversity objective”); or (2) meet the particular, identified educational needs of its students (the “needs objective”). Second, the school must: (1) implement its objective in an evenhanded manner; (2) ensure that student enrollment in the single-sex class or activity is completely voluntary; (3) provide a substantially equal coeducational class in the same subject; and (4) periodically evaluate the class to ensure Title IX compliance.

Regardless of the objective that is asserted as justifying the gender separation, a school must show that the single-sex nature of the class is substantially related to meeting the identified objective. This, the OCR warns, must be directly supported by evidence. Such evidence may include the well-documented success of single-sex classes and activities in schools that are similar in population and setting, and research evidence that proves the effectiveness of single-sex classes and activities in similar circumstances.

Additionally, the OCR issued specific guidance on how to comply with the other aforementioned requirements. For example, the OCR details: (1) how to obtain “voluntary enrollment” in single-sex classes and activities; (2) what factors the OCR will consider when determining if a coeducational class is “substantially equal” to the single-sex class; and (3) how detailed the periodic evaluations must be, how often they must be issued, and to whom.

The OCR’s guidance regarding this issue is quite lengthy. It also provides numerous examples of how to comply with Title IX when offering these single-sex classes or activities. Before your District embarks to provide single-sex educational offerings, both we and the OCR recommend contacting your attorney to discuss the concept and strategize the appropriateness of the offerings. Similarly, if your district already provides single-sex offerings and you would like us to review compliance with Title IX, we stand ready to assist you. Since the OCR strongly recommends articulating a school’s justification for these classes and activities in writing and before offering the class or activity, please do not hesitate to inquire of your attorney at Scariano, Himes and Petrarca to complete this task for you.

New Changes to the Law Affecting Epinephrine Administration in Schools

October 22, 2014

By Anthony Scariano III

Effective August 1, 2014, the Illinois General Assembly amended the School Code to allow school districts to obtain “undesignated epinephrine auto-injectors,” if they wish, for administration on or around school premises. An undesignated epinephrine auto-injector is one that is prescribed in the name of a school district, as opposed to a particular student.  These auto-injectors are commonly known as EpiPens.

A school district, through its school nurse or “trained personnel,” may provide an undesignated auto-injector to:

  • A student for self-administration, as long as the undesignated auto-injector meets the student’s already- existing prescription that is on file with the school; and
  • Any personnel authorized under a student’s individual health care action plan, Illinois Food Allergy Emergency Action Plan and Treatment Authorization Form, or Section 504 Plan, for administration on the student, as long as the undesignated auto-injector meets the student’s prescription on file.
  • School nurses or “trained personnel” may also administer an undesignated auto-injector to any person that they, in good faith, believe is having an anaphylactic reaction.
  • “Trained personnel” must complete annual training (on-line or in person), and must also submit proof of certification in cardio-pulmonary resuscitation and automated external defibrillator operation. The Illinois State Board of Education (“ISBE”) will eventually release training resources on its website.

The law also:

Requires schools to activate the EMS system andnotify certain people whenever epinephrine is administered, whether undesignated or student-specific; and

Requires schools to report certain information about an administration of an undesignated auto-injector to ISBE within three days of an administration.

The importance of legislation that affects the health and well-being of students can never be overstated. Attorneys at Scariano, Himes, and Petrarca are available to assist you as you review policies, procedure, and practices in your school district. Please feel free to contact us if you need any further information regarding the amendments mentioned in this bulletin.

AMENDMENT TO BULLYING LEGISLATION PROVIDES BREATHING ROOM FOR SCHOOL DISTRICTS

July 16, 2014

By Parker R. Himes

At our Administrator’s Workshop last month, we reported on House Bill 5707 and the strict timelines it would impose upon school officials responsible for investigating and responding to bullying complaints. We are pleased to report that a late Floor Amendment has relaxed those timelines to give school officials more flexibility and discretion.  Through the amendment, the General Assembly responded to concerns about the rigid nature of the original timelines and allows school districts more leeway concerning the timing of investigations and reports of instances of bullying.  The Governor signed this bill into law as Public Act 98-0669.

Now, instead of requiring an investigation to be concluded within 10 days of the receipt of a report of bullying, the law calls for districts to make “all reasonable efforts to complete the investigation within 10 days.”  Further, rather than requiring a report to the principal or his designee within 2 days of the receipt of a report of bullying, the principal or designee should receive the report “as soon as possible after the [initial] report is received.”  The provision requiring an investigation to begin within 1 school day of the receipt of a bullying report was also removed from the law. Finally, the provision requiring a report to parents of students involved in bullying incidents within 5 days of the principal or designee receiving a report of bullying was also changed.  Now, school districts must provide those parents “information about the investigation and an opportunity to meet with the principal or school administrator or designee” to discuss the investigation and its results.

Bullying remains a hot topic around the State. Your attorneys at Scariano, Himes and Petrarca continue to monitor this area and will keep you abreast of any new developments. Should you confront a bullying issue in your school district, we recommend contacting an attorney at the Firm so we may help you navigate this complex and ever-changing area of the law.

FEDERAL COURT OF APPEALS UPHOLDS SCHOOL DISTRICT’S REFUSAL TO PERMIT STUDENT DISTRIBUTION OF 2,500 RUBBER FETUS DOLLS

 April 19, 2013

By Parker Himes

In upholding a New Mexico school district’s decision to prohibit a group of students from distributing 2,500 rubber fetus dolls, the United States Court of Appeals for the Tenth Circuit recently considered a classic case of student speech that materially and substantially disrupts the delivery of education, thus permitting school officials to restrain the speech. Further, the Court spelled out the types of procedural safeguards that must accompany a restriction on student expression in the form of a pre-approval policy.

In Taylor v. Roswell Independent School District (2013), the Court upheld the District’s decision to ban a group of students from distributing 2,500 rubber fetus dolls to students in two high schools.  The group of students was part of a religious youth group, Relentless, that advocated its religious beliefs and anti-abortion views on school grounds.  In an attempt to, according to the group, “put God back into the schools,” the students began distributing various items that contained religious messages.  The District permitted the distributions, until the students began to distribute the rubber fetus dolls to all high school students in the lobbies of the two high schools.  Measuring two inches, each fetus doll was designed to represent a human fetus at twelve weeks of gestation.  Included with the doll was a scriptural passage advocating pro-life views.

What followed is a perfect example of the type of disruption that would validate the District’s decision to prohibit the distribution of any (more) dolls. Students began to tear the heads off the dolls and throw them at the walls, ceilings, and each other.  Dolls were used to plug toilets.  Some students covered the dolls in hand sanitizer and lit them on fire.  A few male students removed the heads from the dolls and attached the body to their pants to imitate certain male anatomy.

In upholding the District’s decision to prohibit further distribution of the dolls, the Court noted that “a disruption need not actually materialize.”  Moreover, the Court stated that “[s]chool officials may act to prevent problems as long as the situation ‘might reasonably [lead] authorities to forecast’ substantial disruption.”  Reasonableness of the school’s forecast would “require that it be based on a ‘concrete threat’ of substantial disruption.” Here, the Court found that the number of items being distributed “created strong potential for disruption.”

At issue in this case was also the validity of the District’s policy requiring advanced approval to distribute the symbolic items.  The Court found the policy survived because of sufficient procedural safeguards included in the policy, which required:

  1. distribution requests be approved or denied within five days;
  2. for requests denied, the district was to provide a written explanation of the reasons for any denial; and,
  3. the ability to appeal any denial first to the Superintendent, and then to the board of education.  The Court opined that “the policy imposes substantive constraints on official discretion” and would prevent the District from denying a request based on the content of the expression.

Such safeguards are crucial when crafting a pre-approval policy restricting private student expression.  School districts must ensure that their policies require a written explanation for any denial, a time-frame for decision making, and the right of a student to appeal any decision.   Without these procedural safeguards, the Court indicated that most pre - approval policies would not survive judicial review, as school officials could conceivably deny a request based on the expression’s viewpoint.  If your district finds the need to craft such a pre-approval policy, we urge you to contact an attorney at the Firm to discuss these procedural safeguards.

Judge Strikes Down Temporary Order Granting High-School Senior Fifth Year of IHSA Eligibility Based on His ADHD

February 19, 2013

By Julie E. Lewis

On January 25, 2013, a judge struck down the temporary order that granted a high-school senior a fifth year of eligibility. Judge Leinenweber ruled that Matthew Lyon of Gordon Tech College Prep was ineligible to continue wrestling because he had already done so for four years.  On January 11, 2013, Judge Darrah had granted a temporary order allowing Lyon to continue wrestling, holding that there are instances where student athletes with disabilities must be reasonably accommodated under the Americans with Disabilities Act (“ADA”) by waiving eligibility Illinois High School Association (“IHSA”) rules.  Lyon had been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) in grade school and educated pursuant to an Individualized Education Program (“IEP”) since that time.  He struggled academically and had left his previous high school in California at the mid-year point and then re-enrolled in the same grade upon moving to Illinois.

In his decision, Judge Leinenweber noted that if Lyon had dropped out of school for an entire year, as opposed to leaving his previous high school in California at the mid-year point, Lyon may have been able to wrestle today. That ruling created the possibility that an athlete with a season-ending injury could drop out of high school for a year in order to preserve eligibility. To prevent that from happening, IHSA Executive Director Marty Hickman said the IHSA’s rules will be amended in July so that a student’s four years of eligibility will run like a ticking clock; eligibility will expire four years after a student’s freshman year begins, regardless of how many days he or she spends in a classroom or on a team.

Lyon did have the opportunity to compete one last time in the 14 days between the two rulings. If you have questions in regard to the Americans with Disabilities Act or students with disabilities, please contact a Scariano, Himes & Petrarca attorney.

High-School Senior Granted Fifth Year of IHSA Eligibility Based on His ADHD

January 21, 2013

By Julie E. Lewis

 A recent federal court decision, Lyon v. Illinois High Sch. Ass’n (N.D.Ill. 2013), holds that there are instances where student athletes with disabilities must be reasonably accommodated under the Americans with Disabilities Act (“ADA”) by waiving eligibility rules.  In November 2012, a fifth-year high-school senior requested a waiver from the Illinois High School Association (“IHSA”) to permit him to wrestle after his eight semesters of eligibility had expired.  The student had been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) in grade school and educated pursuant to an Individualized Education Program (“IEP”) since that time.  He struggled academically and had repeated his junior year in 2011-2012.

 The student was ineligible under IHSA Rules providing that a student is only eligible for competition for eight semesters/four years.  The student’s waiver request was denied, and after he exhausted his appeals before the IHSA, he sued in federal court alleging that the IHSA’s failure to accommodate him constituted a violation of the ADA.

 The student sought and received a preliminary injunction from the federal District Court.   Noting the IHSA’s stated purpose to facilitate students’ safe and equal competition in interscholastic activities “which may provide enrichment to the educational experience,” the District Court ruled that waiving the eight-semester/four-year limitation for the wrestler would not have fundamentally changed IHSA rules.  Addressing concerns about a potential competitive advantage for the student, the Court reasoned that because wrestlers are restricted to facing opponents in their weight class, a waiver would not have undermined the IHSA goal of promoting fair competition.  The Court ordered the IHSA to grant the student eligibility to participate in varsity wrestling for the remaining semester of the 2012-2013 season.

 The Court’s decision does not provide a bright-line rule concerning the eligibility of students with disabilities who participate in athletics and do not graduate within the customary eight semesters/four years. The decision, does however, provide some guidance in this area. If you have questions in regard to the Americans with Disabilities Act or students with disabilities, please contact a Scariano, Himes & Petrarca attorney.

Protocols for Reporting Sexual Assault/Abuse

April 12, 2012

By Darcee C. Williams

In 2009, the Lake County Board passed a resolution authorizing and supporting the establishment of a Lake County Sexual Assault Coordinating Council to promote cooperation, coordination and communication between the agencies and individuals investigating and handling sexual assault and sexual abuse cases in Lake County, Illinois.  The Council is comprised of the Lake County State’s Attorney, the Chief Judge of Lake County, the Chairman of the Lake County Board, the Director of the Zacharias Center, the Lake County Regional Superintendent of Schools, the Lake County Sheriff and Scariano, Himes and Petrarca’s, Lynn Himes, among others.  As part of its duties and responsibilities, the Council was charged with developing protocols for dealing with sexual assault and sexual abuse.  To that end, the Council developed Protocols for Reporting Sexual Assault/Abuse for school employees who are approached by students or others with information on sexual assault or abuse.  The protocols are designed to help district employees respond to disclosures appropriately.

The protocols set forth the guidelines for first responders to follow when they receive information regarding sexual assault or abuse.  The protocols also advise what actions must be taken by a particular school district employee, depending on their position, and provide helpful suggestions on handling disclosures and reporting abuse and neglect to DCFS.  Lastly, the protocols provide contact information for Lake County resources available to provide support in situations of sexual abuse/assault.

We recommend that all Lake County school districts follow the Lake County Sexual Assault Coordinating Council’s Protocols for Reporting Sexual Assault/Abuse and publicize the protocols to school district employees.  The Protocols for Reporting Sexual Assault/Abuse are available by clicking here or by contacting the Lake County State’s Attorney’s Office at 847/377-3000 or statesattorney@lakecountyil.gov.

If you have any questions about the protocols, please do not hesitate to contact Lynn Himes at 312/565-3100 or ahimes@edlawyer.com.

Governor Signs Law Concerning Home and Hospital Instruction to Students

July 20, 2011

By Trisha Olson

On July 14, 2011, Governor Pat Quinn signed into law Public Act 97-0123 amending Section 5/14-13.01 of the Illinois School Code concerning home and hospital instruction for students.  Prior to this amending Act, a student received home or hospital instruction when a physician certified that (1) the student had a medical condition causing that student to be unable to attend school for two or more consecutive weeks due to his or her condition, or (2) the student had a medical condition causing “ongoing intermittent” absences – a term that was not previously defined.  If the student had an IEP, in response to ongoing intermittent absences, the student’s IEP team was to consider the need for home or hospital services based upon the student’s condition, the impact on the student’s ability to participate in education, and the anticipated duration or nature of the student’s absence from school.

Effective immediately, the amended Act completely alters the standards for determining home or hospital instruction. Now, a child qualifies for home or hospital instruction when a doctor anticipates that a student will be unable to attend school for two or more consecutive weeks due to a medical condition.

A child also qualifies if a doctor anticipates that a student’s medical condition will cause ongoing intermittent absences. The Act defines the term “ongoing intermittent” absence to mean the student’s medical condition is of such a nature or severity that the student is anticipated to be absent for periods of at least “two days at a time multiple times during the school year totaling at least 10 days or more of absences.”  There is no minimum number of days a student must be absent before he or she qualifies for home or hospital instruction.

Further, home or hospital instruction may begin as soon as the school district receives a doctor’s statement, but not later than five days after receipt of a doctor’s statement.  In practice, the school district should commence home or hospital instruction immediately.

Finally, the amended Act specifies that special education and related services required by a student’s IEP or Section 504 plan must be implemented as part of the student’s home or hospital instruction.  However, IEP and Section 504 teams may modify a student’s receipt of special education and related services during home or hospital instruction.

Given the broad changes required under the amended Act, we anticipate forthcoming amendments to the Illinois Administrative Code and guidance from the Illinois State Board of Education. In the meantime, Illinois school districts will need to review and revise any applicable policies, procedures and internal practices on the delivery of home and hospital instruction, including the qualifications and availability of its home and hospital instructors.

Please do not hesitate to contact Scariano, Himes and Petrarca, Chtd., with any questions about the changes to home and hospital instruction, or other changes made during this legislative season.

COURT UPHOLDS RIGHT OF SCHOOL DISTRICT TO CHARGE FEE FOR DRIVERS EDUCATION COURSE

October 12, 2010

By Adam Dauksas

On September 30, 2010, in the case of Sherman v. Township High School District 214, the Illinois Appellate Court delivered an opinion clarifying the right of school districts to charge fees to offset the cost of education, holding that a $350 driver’s education course fee did not violate the free education clause of the Illinois Constitution.

District 214 submitted a waiver application to ISBE requesting that the General Assembly waive the “reasonable fee, not to exceed $50” limit on driver’s education fees in the School Code.  District 214 claimed that the revenue to be generated by a $350 fee was necessary to help offset the $993 per-student cost of the driver’s education program. AfterdeterminingthatDistrict214’swaiverapplicationwasincompliancewithallapplicableSchoolCode requirements, ISBE submitted the application to the General Assembly.  In turn, the General Assembly granted District 214’s waiver request.   Sherman’s lawsuit claimed,  among other things,  that a $350 fee for the school’s driver’s education course violated the free education clause of the Illinois Constitution.

Regarding the free education claim, the Court concluded that Sherman did not demonstrate that the legislature ever intended for driver’s education to be absolutely free.  The Court stated, “[w]hen [the legislature] talked about tuition-free, they were speaking of book fees, book rentals and PE equipment,” not driver’s education.  Moreover, the Court rationalized that the School Code explicitly provides that a “school district may charge a reasonable fee” for driver’s education courses, thus further illustrating that such courses were never intended to be free.

The Court, however, limited the scope of its ruling by stating that although “driver’s education is not covered by the free education clause, this does not mean that other electives are also excluded.”  Accordingly, the determining factor as to the constitutionality of charging a school fee appears to be whether the fee involves educational services, which must be provided to students for free, or non-educational services and school supplies, for which reasonable charges may properly be assessed.

Factors to review when deciding whether a fee will withstand legal challenge include whether the course is:

  1. required or an elective;
  2. supervised by teaching personnel or non-certified staff; and/or,
  3. originally subject to a fee as declared in the School Code.  The more a fee appears to be associated with primary instruction, as opposed to a charge for a supplemental service, the more likely the fee will be deemed to have violated the state constitution’s free education clause.  Further, nothing in the Court’s opinion impacts a district’s obligation to grant fee waivers as required by the School Code and ISBE regulations.

If you have questions regarding your fee-based programs, or if you need assistance in developing and implementing a policy pertaining to student fees, please do not hesitate to contact Scariano, Himes and Petrarca.

NEW IHSA RESIDENCY BY LAW AFFECTS ELIGIBILITY OF STUDENTS IN MULTIPLE HIGH SCHOOL DISTRICTS

August 17, 2010

By James Petrungaro

School districts with multiple high schools have a new IHSA bylaw to grapple with, aimed at prohibiting intra-district student transfers. Before July 1, 2010, IHSA rules permitted a student to compete for any school located within the school district boundaries in which the student resides. This allowed a student to attend High School A within the District one year and then transfer to High School B the following year, provided High School B was located within the same district.

After receiving complaints that school districts were permitting such intra-district transfers in an apparent attempt to create a sports powerhouse at one particular high school, the IHSA responded with a new residency bylaw, providing, (in pertinent part): 3.031 Public School Students: Students attending public member schools shall be eligible at the public high school in which they enroll, provided: 3.031.1 they reside full time … within the boundaries of the attendance area of the high school they attend is located.

Accordingly, under the rule change, a student violates Bylaw 3.031.1 if he attends High School a one year and then transfers to High School B the next year without actually relocating within the attendance zone of High School B, regardless of the school district’s attendance zone policy. The new bylaw appears to apply equally to entering freshmen who live in High School A’s attendance zone but are permitted to enroll in High School B. Violation of Bylaw 3.031.1 subjects the student to IHSA suspension of up to one year. It is unclear whether a student who violates Bylaw 3.031.1 and serves a one-year suspension is eligible to compete following the suspension if the student does not relocate within the new school’s attendance zone.

The bylaw provides limited exceptions for extraordinary circumstances, court ordered education/assignment plans, sibling preference policies, etc. We have been informed that the IHSA is accepting and encouraging an open dialogue in advance of the competition season from school districts that will be affected by the new bylaw.

Although the fall competition season for some sports is already under way, we are committed to assisting you in avoiding IHSA penalties by obtaining guidance from IHSA specific to your District. Of particular concern is the impact of this new rule on school districts having “buffer zone” enrollment policies. Please contact James Petrungaro at 312-565-3100 ext. 257 or jpetrungaro@edlawyer.com should you desire assistance with the application of this new bylaw.

Student Bullying Legislation

July 22, 2010

By: Adam Dauksas

On June 27, 2010, Governor Pat Quinn signed Senate Bill 3266 into law in an effort to diminish student bullying, and the negative outcomes associated with bullying in schools.  Specifically, the law states that no student may be subjected to bullying: (1) during any school-sponsored education program or activity; (2) while in school, on school property, on school buses or other school vehicles, at designated school bus stops waiting for the school bus, or at school-sponsored or school-sanctioned events or activities; or (3) through the transmission of information from a school computer, a school computer network, or other similar electronic school equipment.

Significantly, this new law also expands the definition of bullying to include the harassment of students through electronic means, including but not limited to, e-mail, social networking websites (e.g. Facebook) and text messaging.  In addition, the bases for student bullying now include actual or perceived sexual orientation.

Moreover, this new law, which amends the School Code, requires all school districts to form and maintain a policy on student bullying that must be filed with the Illinois State Board of Education (“ISBE”).  Each school district must communicate its policy on bullying to students and their parents or guardians on an annual basis, and update that policy every two years.  ISBE will monitor the implementation of policies pertaining to student bullying, and according to ISBE’s General Counsel, may reduce a district’s funding in the event of noncompliance with the law’s requirements.

Finally, this new law also allows districts to educate students about the consequences of gang involvement and provide instruction in gang resistance.

This legislation goes into effect immediately and no reimbursement by the State is required for its implementation by school districts.  If you would like assistance in developing and implementing a policy on student bullying, please do not hesitate to contact Scariano, Himes and Petrarca.

STUDENT STRIP SEARCHES AND THE FOURTH AMENDMENT - AN UPDATE

 June 29, 2009

The U.S. Supreme Court recently decided the case of Safford Unified School District No.1 v. Redding. The Court addressed whether a school district's strip search of a thirteen year-old female student, in response to allegations that the student was distributing non-prescription painkillers at school, was justified.

In an 8-1 vote, the Court decided in favor of the student. The Court stated that the level of intrusion caused by the strip search was not reasonable in light of the nature of the suspicion. At the time of the search, the District was aware that the drugs being sought were common painkillers, and no individual made any allegation that Redding was trafficking large amounts of drugs at school. Further, Redding permitted the administration to search her belongings and outer clothing, and no painkillers or other drugs were found. The Court specifically referenced the embarrassment and humiliation that a student would suffer as a result of a strip search and advised that strip searches should only be conducted in cases where imminent danger was posed to the district's students.

This case reinforces the general guidance that Scariano, Himes and Petrarca, Chtd., has provided in the past as related to strip searches of students. The decision to conduct such a strip search is very serious and school officials can almost always isolate and supervise a student until legal advice can be received on whether the search should go forward. Furthermore, if a school district has a liaison officer on campus, he or she may be the person most qualified to conduct any necessary search.

As with any issue that arises with regard to the investigation of student misconduct, or imposition of student discipline, the attorneys at Scariano, Himes and Petrarca, Chtd., stand ready to assist in the process. We will keep you apprised of any further changes in the law.

Moment of Silence

 June 9, 2009

You should stop observing the moment of silence at your schools. Previously, the order issued by Judge Gettleman in the Sherman case only applied to District 214. However, Sherman's motion to create a defendant class of all Illinois school districts was granted. Subsequently, Judge Gettleman extended his order for preliminary injunction to all Illinois school districts on May 29, 2008. Therefore, all Illinois school districts are prohibited from observing the moment of silence.