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School attorneys discuss NCLB and other issues

School attorneys who are convinced that the federal No Child Left Behind Act of 2001 (NCLB) is not lawful would be smart to set aside such feelings when weighing appeals under the act. Appeals on NCLB administrative rulings "should be made on procedural and implementation errors, not on the law's flaws," said attorney Michael J. Hernandez during a pre-conference seminar on school law.

Hernandez appeared at the 17th annual school law seminar, held Friday, November 21, at the Hyatt Regency Chicago. The event is sponsored by the Illinois Council of School Attorneys, which is affiliated with IASB and the National School Boards Association. The event provided Illinois school attorneys with a chance to discuss key legal issues facing their school clients, including questions on NCLB, student discipline, and special education.

On NCLB, Hernandez told fellow school lawyers that the Illinois State Board of Education appears woefully understaffed to adequately administer the federal law. Thus, he said, errors are likely to crop up in data collection, which may in turn cause schools to be misidentified as failing to make adequate yearly progress.

A miscounted student or two may be enough to cause this, Hernandez warned. School attorneys should be alert to this possibility and should always file "Rule 150 challenges" to contest the integrity of potentially faulty data the first time a school is assigned to the state's list of "failing" schools.

Under state law, Hernandez noted, school districts are entitled to a hearing on the facts before an advisory committee within 30 days after the state receives any written appeal under the state accountability system pertaining to NCLB. After 30 more days the advisory committee must issue its recommendations for action to the State Superintendent of Education. Then the state board of education is required to make a final determination on each appeal.

A subsequent discussion centered on student discipline lessons learned in handling the now-infamous Glenbrook student "powder-puff football" hazing incident that was caught on videotape last spring and replayed countless times on television stations around the world. Thirty-one Glenbrook North High School seniors, most of them females, ultimately were expelled from school for one year for their role in the May 4 hazing at a Northbrook forest preserve, an incident that left five junior girls injured.

Many of the student participants were fortunate not to have been charged with aggravated battery, according to the attorney for Glenbrook schools in the hazing incident, Anthony G. Scariano, of Scariano, Himes and Petrarca, Chtd., Chicago. The one-year expulsions and community service agreements that were ultimately obtained included a provision that the participants could not profit from the hazing or "engage in commercial appropriation of the incident," according to Scariano.

The biggest lesson to be drawn from this outcome, however, is that "schools have authority to govern these rituals," even if they occur away from school property and after school hours, Scariano said. But he added one caveat: schools also "need trained public relations people" to help school boards and administrators deal with the firestorm of press controversy and criticism surrounding such cases. A professional PR firm was hired by the Glenbrook district, Scariano noted, which greatly aided the board in getting out the facts about the incident.

On yet another seminar topic - complying with special education law - a panel of three attorneys advised school lawyers to familiarize themselves with new regulations issued in April 2003 under the federal IDEA law on the subject. School attorneys were also advised to work with ISBE staff to understand the regulations. "Leadership at ISBE is better now than ever" on special education concerns, according to panelist and attorney Merry C. Rhoades, of the law firm of Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., Collinsville.



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