By John Fester and Law Clerk Jared Costanzo

 February 22, 2019

 On January 25, 2019, the Illinois Supreme Court held in Rosenbach v. Six Flags Entertainment Corp. that a plaintiff can allege a violation of rights under the state’s Biometric Information Protection Act (BIPA) without tangible harm. This is a departure from prior court precedent, which held that “standing” typically requires a plaintiff to plead actual harm or damage as part of their request for court intervention. For example, in Spokeo, Inc. v. Robins, the US Supreme Court held that bare allegations of statutory violation are not enough to satisfy standing requirements, rather concrete injury-in-fact had to be established.

BIPA was enacted in 2008 for the purpose of regulating the “collection, use, safeguarding, handling, storage, retention, and destruction of biometric identifiers and information.” While BIPA generally covers only private entities, private entities that work with public school districts are subject to the Act. BIPA is enforced through private rights of action, enabling future litigants to sue entities for violating BIPA. Under BIPA, plaintiffs could potentially recover $1,000 or more per violation from entities that negligently violate the Act, or $5,000 per violation for intentional or reckless violations of the Act. Vendor contracts should be reviewed to ensure this potential liability is not shifted to the school district.

In Rosenbach, the plaintiff was fingerprinted in connection with his purchase of a season pass for Six Flags Theme Park. Six Flags sold repeat-entry passes since 2014, and used a fingerprinting process when issuing those passes. The plaintiff alleged that Six Flags had collected her minor son’s fingerprint during a school fieldtrip, without first informing her or her son of the purpose of the collection or the length of time the biometric data would be maintained. Neither the mother or teenage son signed any written release regarding the collection of fingerprints.

Six Flags moved to dismiss the lawsuit, asserting that while the theme park did collect the bio-scan fingerprint, the plaintiff had not suffered an actual or threatened injury and therefore lacked standing to sue. The Illinois Supreme Court held that injury or adverse effect does not need to be alleged for standing purposes. Simply put, the violation of BIPA, in itself, is sufficient to support plaintiff’s statutory cause of action. The plaintiff is not required to suffer from tangible harm to file suit.

The court’s ruling in Rosenbach will likely impact school districts. In Illinois, some schools collect biometric data to enable students to pay for lunch using just their fingerprint. To limit the risk under BIPA, school districts should include in third party contracts language that requires any private entity that intends to collect student biometric data to first obtain written consent and to provide notice to the legal guardians of students. School districts should also note the Illinois school code requires schools to obtain written consent from the student’s parent or guardian prior to the collection of biometric data. Further, all student biometric data must be destroyed upon 30 days after the discontinuation of use.

Should your school district need assistance in dealing with any of these issues, we welcome you to contact your attorney at Scariano, Himes and Petrarca, Chtd.

  Tags:  Students


By John Fester


March 6, 2018

            In response to the recent mass-shooting in Parkland, Florida, there have been national calls for students to engage in some sort of activity on March 14 to protest gun violence in schools.  The activity most frequently referenced, and the one that requires forethought from the school district, is a student walkout.  We have advised many of our clients on their specific plans and responses to student walkouts, but as March 14 approaches, we offer the following points to help our clients walk the line between allowing students a means of expression, while maintaining student safety and the ability to regulate campus speech.

 Walkouts during class time are different than black armbands.  Many people commenting on student walkouts speak of the students’ “right” to protest by walking out of class.  However, the Supreme Court has made clear that non-disruptive protest speech by students during the school day is protected by the First Amendment.  The Court has never held that primary and secondary school students have a right to leave class to assemble for protest activities.  Unlike the black armbands that became famous from the Tinker v. Des Moines case, student walkouts during class time can be regulated.

 Encourage alternative activities, alternative times, or alternative locations.  It is entirely understandable that students want to take this opportunity to let it be known that they are concerned about gun violence.  However, walking out of class is far from the only way to express that concern.  Several of our clients have been meeting (mostly at the middle- and high school levels) with student leaders to discuss what options for student activity would be most impactful, and least disruptive.  Remember that students generally have the right to peaceably assemble before and after school for expressive purposes.  If an assembly is what is desired, the school district could encourage moving the time of assembly so walking out of class is unnecessary.  A school could also run a modified class schedule on March 14 to allow a brief period of time (many student groups are looking at 17 minutes to honor the 17 Parkland victims) for assembly within the school day. 

 Many school districts have expressed concern with the outdoor aspect of any walkout.  There are many concerns associated with students milling about outside on March 14, including copycat actions, keeping students on campus, regulating parents and others who may want to enter campus before or during any walkout, etc.  To that end, some clients are encouraging students intent on walking out of class to assemble in a gymnasium or other area for safety purposes.  If an outdoor assembly seems inevitable, school districts should coordinate security with local law enforcement and have a plan for deploying administrators, teachers and other staff members to keep students from leaving a pre-determined assembly area.

 Communicate with Parents

 Once you have a plan for regulating student walkouts or other mass actions, make sure parents understand the approach and the rationale.  For example, if you intend to close the campus during a student walkout, make sure parents are aware so they do not arrive only to be turned away.  Also communicate how any walkout will be addressed.  We are not hearing too many clients interested in disciplining students for a brief walkout, but some school districts will be directing teachers to continue teaching during any walkout and will be recording an unexcused absence for students who do walkout.  Recording the unexcused absence is primarily to avoid setting a precedent that students may walk out of class without consequence.  Remember that the next time a mass walkout occurs, the school district may disagree that the issue was worthy of such action.  An alternative might be to establish a “one walkout” rule that excuses a student’s first walkout, but gives consequences for subsequent actions.  Make sure that parents and students are told ahead of time what to expect if a student walks out during class time.  Your websites, automated message systems and PTO’s are good vehicles for getting the word out.

 Avoid Viewpoint Discrimination and Remember Staff are not Students

 Some people view the planned walkouts as favoring gun regulation, as opposed to simply protesting gun violence.  As a result, some students may use the walkout to assemble in favor of gun rights or the Second Amendment.  School districts should avoid “taking sides” by showing favoritism to one student assembly over another.  Assuming the student groups are following school rules, are not violent or otherwise disruptive, school officials should be neutral in terms of supervising students who choose to walk out.

 Finally, some clients have heard teachers expressing an intent to participate in any student walkout.  Your staff should be reminded that during working hours, they are being paid to instruct, supervise and otherwise support students consistent with their professional duties.  In advance of March 14, school districts should clearly communicate expectations to staff members in terms of the performance of their duties before, during and after any walkout or other protest activity.  Staff members should not be promoting any students walking out of class.  If staff members wish to engage in expressive activity, we recommend school officials meet with the appropriate union officials to discuss options for staff to have their voices heard on this issue.

 This is intended to be a general overview of issues associated with student walkouts and is not intended to address every issue that may arise.  If you have specific questions regarding student protests, please call your attorney at Scariano, Himes and Petrarca.



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.



September 2, 2016

             As school districts begin a new school year, Scariano, Himes and Petrarca, Chtd. is pleased to provide the following summary of some of the new laws that may affect your district’s operations. To access our recent eBlackboard on the Local Government Travel Expense Control Act, which was approved by Governor Rauner on July 22, 2016, please click here.  If you have any questions or concerns about the following, please contact your attorney at Scariano, Himes and Petrarca, Chtd. 

Student Residency Procedures

 Public Act 99-0670 

            This amendment to the School Code makes several significant changes to the process by which school districts adjudicate student residency matters. As of January 1, 2017:

 1. The school district’s initial determination that the student is a non-resident must detail the specific reasons why the school district arrived at that determination.

 2. If a hearing is requested, at least 3 calendar days before the hearing, both parties must submit to each other all written evidence, testimony, and a list of witnesses. The hearing notice sent by the school district must notify the person requesting the hearing that if the above is not disclosed in time, it will be barred at the hearing unless the other party consents.

 3. Extends the deadline for a school board to decide residency matters to 30 calendar days (from 15) after the conclusion of the hearing.

4. Gives the person who enrolled the student the ability to petition the regional superintendent for review of the board’s decision regarding the student’s residency and details the procedures governing that review.

 Open Meetings Act and Transparency of IMRF Retirement Payments

 Public Act 99-0646

             This law requires school boards to discuss, and disclose, at a minimum, the following at an open meeting before making a “disclosable payment” to IMRF employees (a payment that would increase the employee’s reportable monthly earnings by at least 6%, and is made between a year and 90 days before the employee retires) who began participation in IMRF before January 1, 2011, and are not subject to a collective bargaining agreement: (1) the employee’s name; (2) the purpose and amount of the increase or payment; (3) the employee’s retirement date; (4) the effect of the payment upon the employee’s expected retirement annuity; and (5) the effect of the payment upon the liability of the employer to the Article 7 fund.

FOIA – Noncompliance and Associated Fees and Presumptions

 Public Act 99-0586 

            This Public Act makes the following changes to the Freedom of Information Act effective January 1, 2017:

 1. If a requester seeks relief in circuit court after a request is denied, there will be an automatic presumption that the school district willfully and intentionally failed to comply with FOIA if: (1) the Attorney General’s Public Access Counselor (“PAC”) issued a binding opinion regarding the request; (2) the school district does not seek administrative review of the PAC’s opinion within 35 days of being served with the PAC’s opinion; and   (3) the school district does not comply with the PAC’s opinion within 35 days of being served with the PAC’s opinion.

 2. The school district can rebut the presumption in #1 above by showing that it is making a good faith effort to comply with the PAC’s opinion, but compliance was not possible within the 35-day time frame.

 3. If a requester seeks relief in circuit court after a request is denied, and the court determines that the school district willfully and intentionally failed to comply with FOIA, or acted in bad faith, an additional penalty of $1,000.00 (on top of any civil penalties assessed per occurrence of bad faith or willful non-compliance) may be imposed for each day non-compliance continues if: (1) the school district fails to comply with the court’s order after 30 days; (2) the court’s order is not on appeal or stayed; and (3) the court does  not allow additional time for compliance with the court order. 

Speech Rights of Student Journalists Act

 Public Act 099-0678 

            Effective July 29, 2016, public high school students who gather, compile, write, edit, photograph, record, or prepare information for dissemination in school-sponsored media have the right to exercise freedom of speech and press in school-sponsored media, regardless of whether the media is supported financially by the school district or produced in conjunction with a class. The Act prohibits prior restraint of material prepared for official school publications unless the speech is: (1) libelous, slanderous, or obscene; (2) constitutes an unwarranted invasion of privacy; (3) violates federal or State law; or (4) incites students to commit an unlawful act, to violate policies of the school district, or to materially and substantially disrupt the orderly operation of the school. The Act places the burden on school officials to show justification without undue delay prior to limiting the student speech that is in question, and provides civil and criminal immunity to school districts, employees, and parents/guardians for student expression, except in cases of willful or wanton misconduct. 

Prevailing Wage Resolutions

Senate Bill 2964 (vetoed) 

            Senate Bill 2964’s most significant amendment to the Prevailing Wage Act would have required the locally approved prevailing wage to be no less than the rate for similar work performed under collective bargaining agreements in the area so long as those agreements covered at least 30 percent of workers on the project. However, on July 22, 2016, Governor Rauner issued an amendatory veto, which returns the bill to the House and Senate. Both houses can vote to either accept the Governor’s proposed amendments with a simple majority, or with at least 60% of the vote in both houses, override the Governor’s amendatory veto. Unless either of those actions happen, SB 2964 is dead. 

School Construction Projects and Zoning Compliance

Public Act 99-0890 

            Boards of education are now required to comply with any valid local government zoning ordinance or resolution that applies where the pertinent part of the school district is located. This law amends the Counties Code, Township Code, and Illinois Municipal Code and requires counties, townships, and municipalities to make reasonable efforts to streamline the zoning application and review processes for school boards and minimize the administrative burdens involved in the zoning review process. This includes requiring counties, townships, and municipalities to reduce application fees and other costs, limiting the number of times a school board must amend site plans, and reduce the number of copies that need to be submitted to each body of local government during the zoning review process.  

Amendment to the School Breakfast and Lunch Program Act

 Public Act 99-0850 

            This law requires school boards to provide “breakfast after the bell” (i.e. breakfast in class, grab and go breakfast, and second-chance breakfast) to students in each school building: (1) in which at least 70% of students qualify for free or reduced-price lunches based upon the previous year’s October NSLP claim; or (2) in which at least 70% of students are low-income based upon the Fall Housing Data from the previous year (for schools that do not participate in the NSLP). The effective date of the law is January 1, 2017. However, the program would not need to be implemented until the first school day of the 2017/2018 school year. 

            There is a “safe-haven” for school districts who are already providing school breakfast effectively to 70% or more of free or reduced-price-eligible students or if expense reimbursement would not cover the costs of implementing a “breakfast after the bell” program. The board must hold a public hearing and pass a resolution if it finds that, pursuant to a cost analysis, the reimbursement would not cover the cost of the program. 

Food Contracts

 Public Act 99-0552 

            Effective July 15, 2016, school boards are prohibited from entering into a contract to purchase food if the contract terms prohibit the board or school district from donating food to food banks, including, but not limited to, homeless shelters, food pantries, and soup kitchens. 

Insuring School Buses

 Public Act 99-0595 

            Allows the Illinois Vehicle Code’s minimum insurance requirement for school buses of $2,000,000 to be satisfied by either: (1) a $2,000,000 combined single limit primary commercial automobile policy; or (2) a $1,000,000 primary commercial automobile policy and a minimum $5,000,000 excess or umbrella liability policy. 

Prohibition of Employers’ Access to Employees’ and Applicants’ Online Accounts

 Public Act 99-0610 

            Effective January 1, 2017, the Right to Privacy in the Workplace Act will be amended to prohibit employers or prospective employers from requiring or coercing any employee or applicant for employment to: (1) provide their username, password, or any other information that would allow the employer or prospective employer to gain access to the employee’s or applicant’s personal online account; (2) access the employee’s or applicant’s personal online account in the presence of the employer or prospective employer; (3) invite the employer to join a group affiliated with any personal online account of the employee or applicant; and (4) join an online account established by the employer or add the employer to the employee’s or applicant’s list of contacts that enable the contacts to access the employee’s or applicant’s personal online account. The amendments also prohibit employers from retaliating against employees who refuse to do any of the above.

             The amendments also carve out several “safe havens” for employers who may, under certain circumstances, need to screen, access, or gather content from employees’ or applicants’ personal online accounts. 

Withdrawal from Special Education Joint Agreements (Elementary Schools)

 Public Act 99-0729 

            This law amends the School Code immediately to allow elementary school districts (maintaining grades up to and including the 8th grade) to withdraw from special education joint agreements subject to various, specific conditions.

ADA Training During Teacher Institute Days

 Public Act 99-0616 

            Beginning with the 2016-2017 school year, teacher institute days must include, at least once every 2 years, professional development on the subject of the Americans with Disabilities Act as it pertains to the school environment.

Interfund Transfers

 Public Act 99-0713 

            In a previous eBlackboard, we told you that Section 17-2A of the School Code granted boards of education the authority to transfer money between the Educational, Operations and Maintenance and Transportation Funds for any reason, but that authority would expire on June 30, 2016. Through Public Act 99-0713, the legislature has extended the authority for the transfers under Section 17-2A to June 30, 2019. In addition, Section 17-2.11(j), which grants boards of education the authority to transfer surplus life safety tax revenue and interest to the Operations and Maintenance Fund, was similarly extended. Both types of transfers require notices, hearings and resolutions. 

Monthly Reports of Concussions from High Schools

 Public Act 99-0831 

            This law immediately requires the IHSA to mandate its member schools that employ certified athletic trainers to complete a monthly report on concussions suffered by its student-athletes during a school-sponsored activity or event. This mandate requires the reporting to take place immediately during the months of the 2016-2017 school year. The law provides immunity to IHSA-member high schools from civil and criminal liability that could result from reporting the required information, except for willful or wanton misconduct. The law also gives the IHSA the authority to “take action” against a member school if the member school fails to adhere to its reporting requirements. 

Epi-Pen Administration

 Public Act 99-0711 

            We previously reported on amendments to the School Code that affected epinephrine administration in schools. This law further amends those School Code provisions to add school buses to the list of locations where asthma medication and epinephrine auto-injectors (better known as Epi-Pens) can be carried and administered. Additionally, if a school district’s independently-contracted transportation provider maintains a supply of undesignated Epi-Pens, the amendments require those school districts to send a report to ISBE detailing how many undesignated Epi-Pens are in the transportation contractor’s supply. Recall that “undesignated” Epi-Pens are prescribed in the name of a school district instead of a particular student.    

Charter School Authorizations and Renewals

 Public Act 99-0840 

            This law amends the Charter Schools Law to provide that initial charters granted on or after January 1, 2017 shall be for 5 school years. Additionally, charters granted on or after the bill’s effective date may be renewed by a local board for incremental periods not to exceed 10 school years, and not to exceed 5 school years if renewed by the Charter Schools Commission.

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


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.


September 10, 2015

 By Darcee C. Williams and Anthony Scariano III

On August 24, 2015, Governor Rauner signed Senate Bill 100 into law (Public Act 99-0456) making significant changes to how school districts discipline students beginning in the 2016- 2017 school year.  Senate Bill 100 amends various sections of the School Code as follows: 

             1.         Parent-teacher advisory committees: Parent-teacher advisory committees are required to establish policy guidelines on bullying prevention as set forth in section 27-23.7 of the School Code (in addition to guidelines on student discipline and school searches). Similarly, school boards and their parent-teacher advisory committees are nowrequired to conduct an annual review of student discipline policies, the implementation of those policies, and any other factors related to the safety of their schools, students, and staff.

             2.         Relationships with law enforcement: School districts are encouraged to create memoranda of understanding with local law enforcement agencies that clearly define law enforcement’s role in schools in accordance with section 10-22.6 of the School Code (referring to the permissible relationship between local law enforcement and schools with respect to conducting searches).

             3.         Written decisions to expel:  A board’s written expulsion decision must detail the specific reasons why removing the student from the learning environment is in the best interest of the school. The expulsion decision must also include a rationale as to the specific duration of the expulsion.

             4.         Written decisions to suspend: A board’s or superintendent’s written suspension decision must detail the specific act of gross disobedience or misconduct resulting in the suspension. The decision also must include a rationale as to the specific duration of the suspension.

             5.         Excluding a student from school as a method of discipline (out-of-school suspensions and expulsions): School officials are required to limit the number of school exclusions “to the greatest extent practicable, and it is recommended that they use them only for legitimate educational purposes.” Non-exclusionary discipline should be considered prior to using school exclusions as methods of discipline.

             6.         Zero-tolerance policies: School districts are prohibited from instituting zero tolerance policies that require suspensions or expulsions for particular behaviors unless otherwise required by Federal law or the School Code, such as the School Code’s requirement that a student who brings a firearm to school shall be expelled for a period of not less than one year (105 ILCS 5/10-22).

             7.         Out-of-school suspensions for 3 days or less: School districts may impose out of school suspensions for 3 days or less only if the student’s continuing presence in school would “pose a threat to school safety or a disruption to other students’ learning opportunities.” Determining such threats shall be done on a case-by-case basis by a school board or its designee. Officials are required to make all reasonable efforts to resolve such threats, address such disruptions, and minimize the length of suspensions “to the greatest extent practicable.”

             8.         Out-of-school suspensions that last longer than 3 days, expulsions, and disciplinary removals to alternative schools: A school district may impose out of school suspensions that lasts longer than 3 days, expulsions and disciplinary removals to alternative schools only if other appropriate and available behavioral and disciplinary interventions have been exhausted and the student’s continuing presence in school would either: (i) pose a threat to the safety of other students, staff, or members of the school community; or (ii) substantially disrupt, impede, or interfere with the operation of the school (which should also be determined on a case-by-case bases by school officials). School officials are tasked with determining whether “appropriate and available behavioral and disciplinary interventions have been exhausted” before removing the student from school.  Like out-of-school suspensions for 3 days or less, school officials are required to make all reasonable efforts to resolve threats, address disruptions, and minimize the length of exclusions “to the greatest extent practicable.” Written suspension or expulsion decisions must include documentation explaining whether other interventions were attempted or whether it was determined that there were no other appropriate and available interventions.

             9.         The provision of “appropriate and available” support services: For students who are suspended out-of-school for longer than 4 school days, a school district must provide “appropriate and available” support services. School officials are tasked with determining what constitutes “appropriate and available” support services. Written suspension decisions must include documentation explaining whether such services are to be provided or whether it was determined that there are no such appropriate and available services. It is within the discretion of the school district to refer expelled students to such services. Districts must have policies that address the facilitation of re-engaging students who are suspended out-of-school, expelled, or returning from an alternative school setting.

             10.       Make up work: School districts must create a policy by which suspended students, including those who are suspended from school buses and do not have alternate transportation to school, have the opportunity to make up work for equivalent academic credit. Parents/guardians are responsible for notifying the school of a lack of alternate transportation.

             11.       Professional development: Schools are required to “make reasonable efforts” to provide ongoing professional development to teachers, administrators, school board members, SRO’s and staff on the adverse consequences of school exclusion and justice-system involvement, effective classroom management strategies, culturally responsive discipline, and developmentally appropriate disciplinary methods that promote positive and healthy school climates.

            12.       Dropping out: Officials are prohibited from advising or encouraging students to drop out voluntarily due to behavioral or academic difficulties.

             13.       Fines/Fees: Students may not be issued a monetary fine or fee as a disciplinary consequence. However, requiring a student to provide restitution for lost, stolen, or damaged property is not prohibited.

 Although the new law does not become effective until September 15, 2016, school districts should begin preparing to amend their policies, procedures and practices with regard to student discipline.  If you have any questions regarding Senate Bill 100 or its implementation at your district, please do not hesitate to contact us. 



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  and  notify  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.


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.


 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

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

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.


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. After  determining  that  District  214’s  waiver  application  was  in  compliance  with  all  applicable  School  Code 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.


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 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.


 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.