Changes to Illinois School Law Regarding Discipline – Effective September 15, 2016, By Sharon Falen, J.D.

Law concept - Law book with a wooden judges gavel on table in a courtroom or law enforcement office

Signed into law in August 2015, Senate Bill 100 amends the School Code and becomes effective on September 15, 2016.  On or before that time, every elementary and secondary school, whether a public or charter school, must comply with the new law.  The law applies equally to general and special education curriculum.  First, as part of the parent-teacher advisory committee, school boards must ensure that the committee addresses school discipline, including such topics as student searches in school and bullying prevention.  Of significance, the law also establishes that school districts must cooperate with local law enforcement agencies in establishing a reciprocal reporting system between the district and the agency for students who have committed criminal offenses.  School are encouraged to create a “memoranda of understanding” on the role of law enforcement agencies in school so that interaction with the police is clear.

Additionally, the law establishes heightened accountability for schools regarding suspensions and expulsions.  Most notably, zero tolerance policies are now banned.  Zero tolerance policies existed to give administrators authority to suspend or expel a student for a particular behavior and, in fact, required such consequences without regard to any mitigating factors or the particular circumstance or student.  Under the new law, the school must state the specific reason for expulsion and the particular reason for the duration of the expulsion from school.  Out-of-school suspensions and expulsions should be limited “to the greatest extent practicable,” and the law recommends that out-of-school suspensions and expulsions are used for legitimate educational purposes only.  More specifically, out of school suspensions less than three days may be used only if the student’s presence in school would pose a threat to safety or a disruption to the learning of other students.  Out-of-school suspensions greater than three days, all expulsions, and all disciplinary removals to alternate schools may be used only under the following circumstances:  (1) if other appropriate behavioral and disciplinary interventions have been exhausted and (2) if the student’s continued presence in the school would pose a safety threat or would substantially disrupt the school’s operation.  It is important to note that school personnel must document whether other interventions were attempted and whether it was determined that no other interventions for the individual student were available.  Finally, students who receive a suspension lasting longer than four days must be provided appropriate support services during the period of their expulsion.

Other provisions of the law include the obligations that school districts must create a policy to re-engage students into the school and academic curriculum upon their return and that school districts must create a policy for make-up academic work for credit.  The necessity of having make-up work available extends to those students who are suspended from the school bus and have no alternate form of transportation to school.  Further, school districts are required to make reasonable efforts to provide ongoing professional development to all staff concerning the negative consequences of “school exclusion and justice-system involvement, effective classroom management strategies, culturally responsive discipline, and developmentally appropriate disciplinary methods.”  The law also prohibits school officials from encouraging students to drop out because of behavioral or academic difficulties and prohibits fines as a consequence for student conduct problems.

To read the full text of the Public Act 099-0456, see http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=099-0456.

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Ten Ideas for Starting the School Year Off for Students with IEPs

  1. Assess priorities. Are the issues and concerns the same as they were when the IEP was written?
    1. Has there been a change over the summer?
    2. Are there recent evaluations that should be considered?
    3. Changes in medication, behavior, family structure?
    4. If the answer is yes to any of the questions, you should let the school know and request a meeting.
    5. Are the goals still relevant or do they need to be revised?
    6. Do you understand what will be measured by the IEP goals?
  2. Agree on a communication plan early in the school year including how you will be notified if things aren’t working.
    1. Agree on frequency. (e.g. weekly)
    2. Who will be responsible for communicating with you?
    3. What do you need to know? (e.g. long term projects, missing homework)
    4. What are the guidelines for communication?
    5. If something is urgent pick up the phone.
  3. Understand what the homework expectations will be each night and what the grade level expectations are as well as those for your child.
    1. Homework should not consume every waking hour once a child is home.
    2. Families should not be expected to re-teach or do all the work that needs to be done in school.
    3. Homework is supposed to center around what a student can do independently.
    4. Don’t wait until things are off track before asking for a meeting to address homework.
  4. What tools does your child need to be successful?
    1. Assistive Technology?
    2. Assignment Notebook?
    3. Are these tools being utilized with consistency by the team?
  5. Progress
    1. How will progress be monitored?
    2. How often?
    3. Who is responsible for monitoring?
  6. Standardized Tests
    1. Is there an agreement regarding the accommodations that need to be in place?
    2. What tests will the student be taking?
  7. Are behavioral concerns impacting the child at home and at school?
    1. What are they? Behavior isn’t simply acting out behavior.
    2. Watch for depression, anxiety and withdrawal.
    3. Do we need a Behavior Intervention Plan?
  8. Related Services
    1. Is my student receiving the related services such as speech and occupational therapy as agreed to in the IEP?
    2. Are these services provided in a group, individually or with the entire class?
  9. Evaluations
    1. Will my child be evaluated this year?
    2. When was the most recent evaluation?
    3. Was it a comprehensive evaluation in all areas of suspected disability?
    4. Is an evaluation needed at this time?
  10. Transition planning. (Begins at age 14.5 in Illinois)
    1. Is the IEP focused on what skills my child needs to learn for life after high school?
    2. What are those skills?
    3. What are the priorities for each year?
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Summary of Dear Colleague Letter-November 16, 2016, By Attorney Sharon Falen

Magnifying glass in hand isolated on white background

On November 16, 2015, the United States Department of Education issued a “Dear Colleague Letter” in an effort to clarify for states and local educational agencies their obligations under the Individual with Disabilities Education Act (IDEA). In summary, the Letter reminds school districts of the intention under which the Act was created, namely to ensure that every student with a disability receives meaningful access to an education on par with the state’s academic standards for all children. In other words, a student’s individualized education plan must be aligned with the statewide and districtwide “academic content standards” for the grade in which he or she is enrolled. This means that the IEP goals for students with disabilities should aim for progress within the same curriculum as that of non-disabled children.

The Letter noted that, as a rule of thumb, an IEP that focuses on ensuring that a child is involved in the general education curriculum will be aligned with the state’s standards. Nevertheless, schools must not lose sight of individualized decision-making in the IEP process. The Letter stressed that a child’s specific disability must always be “an essential consideration” in drafting annual goals. What needs to be determined is how the student will achieve success in higher education, careers, and independent living though services, supplementary aides, modifications, and other supports specific to that child’s disability. The Letter reminds districts that progress must be evaluated, and among the factors to consider are prior rates of growth and progress towards grade-level proficiency.

The Letter notes that a limited exception exists for students with significant cognitive disabilities; IEPs for these students may be measured against “alternative academic achievement standards.” For those students whose present levels of achievement fall significantly below the grade in which they are enrolled, goals should be “ambitions but achievable” in an effort to close the gap.

Finally, the Letter presents an example of how an IEP might be implemented effectively. It is important to note that this process is specific to each student and is data-driven. Specialized instruction should assist the students with IEPs in reaching levels of performance and knowledge expected at their grade level.

Read the Letter here

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Equality in Education: The Denial of FAPE as a Result of a Systemic Breakdown

Shadows and white stripe form a not-equal-to sign.

I started my practice on the North Shore of Chicago for a number of reasons. The most important one was that I lived in one of the suburbs, was a single mother with no family to count on, and the school systems were and are among the best in the state. When I first began representing families in the early years on a pro-bono basis, I was struck by the level of inequality at every level for those students in the city of Chicago and less affluent suburbs. During the first year, I filed a request for a due process hearing and along with alleging the violations of the IDEA and state law, I asserted that the district was in violation of the Supreme Court ruling in Brown v. the Board of Education. The hearing officer dismissed my claim regarding the separate but unequal reasoning indicating that this wasn’t a due process issue. In this segregated school in Chicago where my client attended there were no white students, the school had few resources, and the answer to all my requests were we don’t have that or we don’t do that. The requests for additional speech, specialized reading instruction, and social work services were ones that would have been provided in the suburban districts  without the need for an attorney and would be readily available.

On that day, arriving at the school on the west side, I couldn’t find an entrance. There were no outside doorknobs or handles. The students were locked in their classrooms from the inside and there were few pictures or any of the colorful bulletin boards that are found in schools. The school was quiet – too quiet. That picture was not unique in certain areas of the city. The resources were concentrated on the North Side where children had active if not affluent parents who advocated for them. This was the case in many of the suburbs where I worked now and then. It is unfortunate that this picture has changed little since I began my practice. Parents without resources, both financial and otherwise, are left to their own devices with limited ability to access the services for their children. Most parents who come to me are overwhelmed. They have access to the internet and often have a network of other parents who are savvy and clear about what their child needs. They also have the funds to consult with an attorney. It is easy to forget that this isn’t the case for thousands of parents who are left out of the discussion and the system. When they are told this is all we have, they frequently go away from a meeting assuming that this is all the school an offer.

There are pockets of people who are trying to do better but accessing these resources can be daunting in a large school system for most parents. Knowing who to call and what to say matter greatly.

Resources:

Family Resource Center. frcd.org

Jewish Child & Family Services (JCFS).  www.jcfs.org

The James B. MORAN CENTER for Youth Advocacy. moran-center.org

Equip for Equality. equipforequality.org

Chicago Public Schools Office of Diverse Learners Supports and Services. CPS.edu

ISBE IEP facilitation. www.isbe.state.il.us

 

 

 

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Restraint and Seclusion in Schools-Guest post by Attorney Sharon Falen of The Child & Family Law Center

Rear View of a Sad Silhouette Young Boy Sitting on the Floor Against Black Background with Copy Space.

Illinois has been recognized as one of the model states in school discipline reform, but there is much to know about this issue. This article offers a brief summary of the two major means of controlling behavior in the classroom: seclusion and restraint. Seclusion is removing a student, often in the form of an “isolated time out,” which is defined as confinement of an individual in a time-out room or other closed space. Restraint involves the use of physical force to restrain a student’s movement without harm. It is important to note that each board of education has an obligation to adopt policies and procedures for these behavioral interventions in relation to students with disabilities specifically.

Seclusion is permitted only to prevent physical harm or to maintain an orderly environment. “Time outs” must take place in a space large enough for at least two people, with no harmful objects or other materials present. The law requires that a supervising adult maintain visual monitoring and ability to communicate with the student at all times. Seclusion must end within 30 minutes at most.

Illinois limits restraints to address immediate threats of harm to self or others. It is noteworthy that profanity and verbal disrespect alone do not constitute immediate threats of harm. Additionally, no mechanical or chemical restraint, i.e. other than one’s physical body, may be used to restrain the student. If the student uses sign language, absent likelihood of harm, the student must be allowed to have hands-free communication for brief periods of time.

Training in conflict de-escalation and proper methods of physical restraint is required for districts that permit the use of isolated time outs and/or restraints, and the school district must document and evaluate every instance that either method is employed by staff.

One of the most significant takeaways for parents and child advocates is that both means of behavioral intervention should be used only as a means of maintaining a safe and orderly enfironment. The law makes clear that seclusion and restraint are meant for school discipline in this sense but should not be used as individual “punishment” for any child. Additionally, school districts must notify parents within 24 hours after either seclusion or restraint is used. A written notification is required, and the law requires that the notice includes the child’s name, date and description of the incident, and contact person.

For a more in-depth discussion of this issue, refer to the U.S. Department of Education summary table and other authorities. You may contact our office, as well, for further information or if you need legal consultation or representation with any school discipline matter.

Sources:

Butler, Jessica. How Safe is the Schoolhouse? July 25,2015

http://www.autcom.org/pdf/HowSafeSchoolhouse.pdf

U.S. Department of Education. Restraint and Seculsion: Resource Document. Summary of Seclusion and Restraint Statutes, Regulations, Policies and Guidance, by State and Territory: Information as Reported to the Regional Comprehensive Centers and Gathered from Other Sources, Washington, D.C. 2010.

http://www2.ed.gov/policy/seclusion/seclusion-state-summary.html

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Autism Reflections – A Twenty Year Retrospective

Go to webinar Micki PhotoTwenty-one years ago, I started this practice and the next phase of my life. In the previous decades, it was estimated that 4-5 children in 10,000 suffered from an autism spectrum disorder. My first due process case and appeal involved a  young child with autism. (T.H. v. Palatine). At that time, autism was relatively rare and the subject of many myths and few resources for treatment. Fortunately, my clients were resourceful and did their homework. They were one of the first families I knew who began an intensive Applied Behavior Analysis program of intervention. The schools refused to provide or fund ABA. Insurance funding was non-existent and parents were struggling in the dark. Many families gravitated toward any program that offered some glimmer of hope for intervention and even cure. Autism was not yet a household work or the subject of fundraisers and schools designed specifically for that population. Families hired lawyers like myself to fight for services in the schools.

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In my naivety, I assumed that autism would remain a rare and devastating diagnosis, not yet knowing that much of the ensuing twenty years in my practice would be an ever expanding and dominating interface with children and families impacted by autism. Today, 1 in 68 children are diagnosed with autism spectrum disorders. The good news is that early intervention is more readily available and insurance companies in Illinois are covering ABA and other interventions. Many of those young and hopeful parents didn’t find a cure for autism. They shouldered on with children who became teenagers and then young adults. The rare disorder had become an epidemic. Those same families who came to my office with preschool children now had young adults who needed help just as desperately as they did years before. The struggle continues. There are far fewer resources for adults than there are for children still in school. Parents are fighting alone, caring for young adults at home, often in isolation. Wealthier families cobble together their own programs that require full time dedication and expertise not available to most families.

Detailed and accurate illustration of map of Illinois

This is the new fight. Many parents are leaving Illinois as their children age into the adult system since there is little reason for hope here given the status of adult services and the train wreck in the state government. I tell parents who come to my office with teenagers or even younger children to begin thinking ahead about what comes next. No one will step in to create a plan. There is help available but parents must drive the fight just as they did for ABA and research based interventions. Most of the parents I work with have been fighting to get appropriate services for years. There is some advice that I hope to impart after this two decade journey. It is based on experience and realism.

  • No one will do this for you.
  • Special Education should be directed toward what comes next. The whole point of special education services is that there be an outcome oriented process directed toward independent living, education and employment. A transition plan is not having a place in your parents’ basement.
  • You need to start early.
  • You must press your school district to gear their programming and planning toward transition. Ask this question at every meeting.
  • Write your legislators.
  • Organize.
  • Don’t give up.
  • Take care of  yourself. This is tough to do but necessary.

On a positive note, I am thankful everyday for all the families who have come to my office and their faith in me and their courage. I am also grateful for all the people and professional colleagues who I have met who have dedicated their careers to helping children and families affected by autism. They have made me laugh, cry and made my work meaningful. They have made me a better me a better person and attorney.

Resources:

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New Laws that Impact Special Education

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Specific Learning Disability: Dyslexia. This section defines dyslexia and provides that it is one of the several disorders included as a specific learning disability. This statute requires that  students suspected of having dyslexia or who have been identified as dyslexic be referred for a case study evaluation.

Independent Educational Evaluation: The prior law required that schools send notice of an IEP meeting within ten days if the IEE was at public expense or within ten days of parental request if the IEE was at parental expense. Under the new version, the school must send notice of an IEP meeting within ten days of receipt of an IEE, regardless of whether it was conducted at public or parental expense.

Mediation: This section now provides that the agreement of the parties to use mediation triggers “stay put”. If mediation is unsuccessful, parents have an additional ten days to request a due process hearing to continue to invoke stay put. Practice Note: Both parties must agree to mediation. If they don’t, the stay put is not in effect. If there is any doubt, the parents should file for due process. Mediation may still be an option.

Developing the IEP: The new statues requires that an IEP shall be implemented no later than ten school days after provision of a prior written notice. The section adds that if the new IEP is developed within less than ten school days remaining in the school year, it shall be implemented by the beginning of the next school year (or ESY if provided for in the IEP).

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Progress: How much is enough?

Measuring Progress or Improvement Concept. Two different tape measuring progress word with chalk with metric system and imperial units, flat design. Various way of measuring progress management.

Parents are often surprised to learn that the school district’s obligation to a student with a disability is not to maximize the student’s potential. This is one of the central questions in most cases in our offices. What parent would say they want only the basic education for their child and a little progress is good enough? That is the inherent tension between parents and school districts in special education.

A recent Fourth Circuit case , O.S. by Michael S. and Amy S. v. Fairfax County School Bd. 66 IDELR 151 (4th Circuit 2015) held that a child with a seizure disorder during kindergarten and first grade years was not denied a free, appropriate, public education since he received “some educational benefit.” This case addresses the issue that is a split among the Circuit Courts about whether the Individuals with Disabilities Education Act (IDEA) requires “some educational benefit” or a “meaningful educational benefit.” The Court cited the seminal case of Board of Education vs. Hendrick Hudson Central School District vs. Rowley (U.S. 1982) which stated that meaningful simply means more than trivial.

Since this was a statutory interpretation challenge to IDEA, the U.S. Circuit Court for the Fourth Circuit reviewed the District of Court’s decision de novo. In determining whether IDEA requires a meaningful educational benefit to the student, the court held that the controlling law was decided in United States v. Rowley. In that case, the Supreme Court found that while IDEA requires meaningful access to a “free and appropriate public education,” it only requires that the access be tailored to give the student some educational benefit. Despite this precedent, O.S. argued that 1997 and 2004 amendments to IDEA changed this standard. Relying on the restructured preamble indicating that Congress wanted to focus on providing higher expectations for students with special needs, as well as a decision by the 9th Circuit, O.S. argued that Congress changed the standard to require meaning for benefit to the student, not just meaning for access. The Fourth Circuit was not persuaded and held if Congress meant to deviate from Supreme Court precedent it would have done so expressly. The court further stated that the educational benefit required was already determined to be meaningful under the current Rowley standard and that the school need only meet this standard when tailoring a student’s access to a free and appropriate public education.

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Every Student Succeeds Act

Three cheerful young primary school children indicating they know the answer with hands raised in class

In early December of 2015, Congress, in a bi-partisan vote, replaced the No Child Left Behind Act with the new law, Every Child Succeeds Act (“ESSA”) which is the latest reauthorization of the Elementary and Secondary Education Act of 1965.

The following is not intended to be an exhaustive list of all the provisions in the new law but provides a summary of key elements that may impact our clients:

  • Transfers authority for accountability, educator evaluations and school improvements from the federal government to the states and local districts.
  • Ensures that states are able to choose their challenging academic standards in reading and math aligned to higher education in the state without interference from the federal government. The federal government may not mandate or incentivize states to adapt or maintain any particular set of standards, including Common Core.
  • Requires consultation with school psychologists and other specialized instructional personal in the development of state and local plans.
  • Recognizes school based mental health services as an evidence-based whole-school improvement and targeted intervention strategy.
  • Authorizes significant investments for states and districts to implement; comprehensive school mental health services, efforts to improve school climate and school safety, strategies to reduce bullying and harassment, and activities to improve collaboration between school, family and community.

For Children with Disabilities

  • Ensures access to the general education curriculum.
  • Ensures access to accommodations on assessments.
  • Ensures Concepts of Universal Design for Learning.
  • Insures provisions that requires local educational agencies to provide evidence based learning in schools with consistently under-performing subgroups.
  • Requires states in Title 1 plans to outline how they will improve conditions for learning including reducing incidents of bullying and harassment in schools, overuse of discipline practices and reduce the use of aversive behavioral interventions (such as restraints and seclusion).
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Illinois School Discipline Reform Law: Effective September, 2016

Discipline Reform:

Dunce

Governor Rauner signed into law dramatic reforms in school discipline. The intent of the law is to use suspensions and expulsions as a last resort.

Illinois has one of the widest disparities between black and white students in the country, according to the Department of Education’s Office of Civil Rights. In the 2012-2013 school year, Chicago Public Schools issued 32 out of school suspensions for every 100 black students, compared to just 5 for every 100 white students. (Voices of Youth in Chicago Education).

Hopefully, the law will have the effect of excluding fewer students from schools.

Summary of the New Act:

  1. Schools must adopt student discipline policies consistent with the Act and review them annually.
  2. School districts must limit the number and duration of suspensions to the greatest extent possible. (Suspensions and expulsions are a last resort, rather than the first response.)
  3. The bill provides struggling students with academic and behavioral supports, and promotes fairness by holding public schools and charter schools to the same standards.
  4. Schools must not advise or encourage students to drop out of school due to behavioral or academic challenges.
  5. Schools must create a policy for suspended students, including those students who have been suspended from the bus and do not have alternate transportation, to make up any missed work for equivalent academic credit.
  6. Schools are encouraged to create memoranda of understanding with local law enforcement agencies to define the role of law enforcement within the school.

Suspension Time Lines:

Suspension of 1-3 Days

  • In the written decision, the school must explain (1) the specific act of gross disobedience or misconduct; and (2) the rationale for the specific duration of the suspension.
  • Suspension of three days or less may be used only if the student’s attendance presents a threat to safety or a disruption to other student’s learning opportunities.
  • Students must be provided an opportunity to make up any missed work for equivalent academic credit.

Suspension of 4 days

  • The same as above, however, schools must also document whether other behavioral and disciplinary measure have been exhausted AND
  • The student’s presence in the school poses a threat to the safety of other students, staff or school community, OR
  • Substantially disrupts the operation of the school

Suspension of 5-19 days

  • The same as above with the additional condition.
  • Document whether the appropriate and available support services are to be provided or whether it was determined that there are no appropriate and available services for the student.
  • Students who are suspended must be provided an opportunity to make up any missed work for equivalent academic credit.

Expulsions

  • Detail the specific reasons why removing the student from school is in the school district’s best interest.
  • Provide a rationale for the duration of the time for the expulsion.
  • Document whether other interventions were attempted.
  • Schools may expel a student only if other appropriate and available behavioral interventions have been exhausted and if the student’s attendance at the school poses a threat to the safety of other students, staff of school community, or the student substantially disrupts the operation of the school.
  • A school may refer expelled students to appropriate and available support services during the time the student is expelled.
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