By: John E. Fester and Parker R. Himes
August 29, 2019
On August 23, 2019, Governor Pritzker signed Senate Bill 456, which substantially alters schools’ rights and responsibilities regarding student sexual abuse investigations. The legislation is effective immediately.
For schools in counties with a Children’s Advocacy Center, allegations of student sexual abuse reported to the Department of Children and Family Services (“DCFS”) or law enforcement must be referred to the local Children’s Advocacy Center. In this context, an “alleged incident of sexual abuse” is limited to abuse alleged to have been perpetrated by school personnel, including a school vendor or volunteer, whether on or off school grounds and regardless of whether it occurred during a school activity. Children’s Advocacy Center staff must, following the referral, coordinate the investigation of the allegations and facilitate communication between the investigating agencies and the school personnel involved in investigating the complaint.
Schools are now generally prohibited from interviewing an alleged victim during a DCFS or law enforcement investigation. The law makes clear, however, that schools may request information from the alleged victim or his or her parent or guardian to ensure the safety and well-being of the alleged victim at school during the authorities’ investigation. If asked by DCFS or law enforcement investigators, schools must share any evidence the school has gathered pertaining to the allegations, as permitted by federal and State student record confidentiality laws.
Should DCFS or law enforcement investigators determine for any reason that they will not conduct an interview of the alleged victim, they must notify school officials as soon as that determination is made. Further, if the investigators do not conduct the interview within fifteen days of the opening of the investigation, schools may notify the authorities that they intend to interview the student. The authorities then have another ten days after the notification to conduct the interview. If the authorities do not interview the student victim within the extra ten-day period, schools may conduct their own interview.
Schools’ ability to view electronic recordings of the authorities’ interview is also limited by the new law. In order to view the recordings, schools must receive approval from the investigators and the Children’s Advocacy Center and the informed consent of the alleged victim, if thirteen years of age or older, or the child’s parent or guardian. Whenever possible, viewing of the recording of the interview should be conducted in lieu of additional interviews with the alleged victim. If a school district determines that an interview with the child is necessary, a child advocate must be made available to the student and may be present during the student’s interview. Unless the prior interview conducted by authorities was seriously deficient, or unless the district is not allowed to view the video of the interview, it is unlikely independent interviews will be conducted.
Finally, DCFS and law enforcement must notify the school when the investigation is complete or has been suspended. The notification must include information on the outcome of the investigation.
Review of Investigation Policies
Every two years, school districts must review all existing policies and procedures concerning sexual abuse investigations to ensure consistency with the proposed requirements detailed above.
Negligent Failure to Report Child Abuse or Neglect
The legislation also calls for the State Superintendent to initiate proceedings to suspend or revoke an educator’s license who has negligently failed to report suspected child abuse or neglect. Negligent failure to report joins willful failure to report as a cause for license suspension or revocation under the School Code. The law requires a school employee to report instances where he or she personally observes an instance of child abuse or neglect or reasonably believes, in his or her professional capacity, that the instance constitutes an act of child abuse or neglect. Negligent failure to report occurs when the school employee, without willful intent, fails to immediately report or cause a report to be made to DCFS of suspected abuse or neglect.
Non-licensed school employees could be immediately dismissed upon a determination that the non- licensed employee has willfully or negligently failed to report an instance of suspected child abuse or neglect.
Mandatory Annual Review of Materials by Mandated Reporters
Schools are now required to ensure that their mandated reporters review the State Board of Education’s materials and materials developed by DCFS at least once annually.
Review of Criminal Databases and Child Welfare Agency Findings
All employees must be checked every five years against both the Statewide Sex Offender Database and the Murderer and Violent Offender Against Youth Database. Schools must continue checking applicants for employment against both databases. Schools must also perform database reviews for student teachers.
Further, as a condition of employment, school boards must consider whether an applicant has been issued an indicated finding of abuse or neglect of a child by DCFS under the Abused and Neglected Child Reporting Act or by a child welfare agency of another jurisdiction.
Upon receiving a record of a School Code Section 21B-80 disqualifying conviction of a license holder, or finding the record during a review of the criminal databases, superintendents must, within fifteen days, notify the State Superintendent of Education. Should the State Superintendent receive the record of conviction or finding of child abuse within six months after the initial grant of or renewal of an educator’s license, the license may be rescinded without formal revocation proceedings.
Additions to Disqualifying Convictions Under Section 21B-80
Additional convictions are added to the School Code that prevent a person from working in a public school district, including: 1) involuntary sexual servitude of a minor; 2) solicitation to meet a child; 3) incest; 4) aggravated battery; 5) aggravated domestic battery; 6) street gang recruitment of a minor; 7) hate crimes; 8) genital mutilation; 9) inducement to commit suicide; and 10) sexual conduct or sexual contact with an animal.
Suspension of License Upon Charge of Offense Listed in Section 21B-80
When a license holder or license applicant is charged with an offense listed among the disqualifying offenses in Section 21B-80, the State Superintendent must immediately suspend the license or deny the application until the charges are adjudicated by the courts. Upon acquittal, the license or application would be immediately reinstated.
Protection of Student Witnesses in Dismissal Hearings
In teacher dismissal hearings involving sexual abuse or severe physical abuse of a student or person under the age of eighteen, hearing officers are required to make alternative hearing procedures to protect the child. Alternative hearing procedures could include: 1) testimony made via a telecommunication device in a location other than the hearing room and outside the physical presence of the teacher and other participants; 2) testimony outside the physical presence of the teacher; or 3) non-public testimony. Parties to the hearing are permitted to ask all relevant questions and follow-up questions. All questions, however, must exclude evidence of the witness’s sexual behavior or predisposition, unless the evidence is offered to prove someone other than the teacher engaged in the conduct at issue.
Modification to Personnel Records Review Act
The four-year limit on disclosure of records of disciplinary action under the Personnel Records Review Act no longer applies to information related to incidents or attempted incidents of sexual abuse or severe physical abuse.
Scariano, Himes & Petrarca stands ready to assist school boards in addressing these important revisions to the School Code.