Courtney Stillman is an attorney with Hauser Izzo, LLC, Attorneys at Law. She represents school districts throughout the state, primarily with special education and student legal issues.
Public Act 99-456, commonly known as Senate Bill 100, is effective September 15, 2016. By that date, school districts in Illinois must have adopted discipline policies consistent with the Act, which seeks to limit the number and duration of expulsions and out-of-school suspensions.
PA 99-456 adopts the recommendations of the Dear Colleague Letter on Racial Disparities in Student Discipline issued in 2014 jointly by the Department of Justice (DOJ) and the Office for Civil Rights (OCR). This letter warned that an increasing number of students are losing valuable instructional time due to exclusionary discipline. Further, the increasing use of “out-of-school suspensions, expulsions, and referrals to law enforcement authorities creates the potential for significant, negative educational and long-term outcomes, and can contribute to what has been termed the “school to prison pipeline.”
The Dear Colleague Letter expresses concerns that students who are out of school will run the streets, become involved in crime and end up in prison. The DOJ and OCR cite research that exclusion from school does not positively change behavior and opine that school discipline policies should emphasize constructive interventions rather than exclusionary sanctions.
The DOJ and OCR also criticize a disparity in how exclusionary discipline is used. According to the letter, minority students are suspended disproportionately to non-minorities. Black students are three times more likely to be suspended than white students. The Dear Colleague Letter cautions against discrimination in discipline policies and practices. It gives examples of how discipline policies can be implemented in a discriminatory manner or selectively enforced, which leads to disparate impact on minority students, even if the school’s discipline policy is not discriminatory on its face. The letter also condemns zero tolerance policies, suspending students for truancy, and denying students admission to school after police involvement.
The Dear Colleague Letter proposes that school discipline policies be written to accentuate positive behavioral interventions instead of removal and recommends that policies
- Explicitly limit the use of out-of-school suspensions, expulsions, and alternative placements to the most severe disciplinary infractions that threaten school safety or to those circumstances where mandated by federal or state law.
- Provide for individual, tailored intensive services and supports for students reentering the classroom following suspension or expulsion; and
- Provide for alternatives to suspensions.
Amidst troubling statistics in Illinois, PA 99-456 was enacted. According to the UCLA Civil Rights Project, one out of every four black public school students in Illinois was suspended at least once during the 2009-2010 school year, which was the highest rate among 47 states examined by the Project. Statistics provided by Voices of Youth in Chicago Education (VOYCE), indicated that, during the 2012-2013 school year, black students were 30 times more likely to be expelled than their white counterparts were. In response to this alarming data, and with assistance from VOYCE, the Illinois Legislature developed PA 99-456, which also mirrors the sentiments of the federal Dear Colleague Letter. As a result of the Act, 105 ILCS 5/10-22.6(b-5) now reads, “Among the many possible disciplinary interventions and consequences available to school officials, school exclusions, such as out-of-school suspensions and expulsions, are the most serious.”
PA 99-456 proclaims, “School officials shall limit the number and duration of expulsions and suspensions to the greatest extent practicable, and it is recommended that they use them only for legitimate educational purposes.” The legislature reiterates that “To ensure that students are not excluded from school unnecessarily, it is recommended that school officials consider forms of non-exclusionary discipline prior to using out-of-school suspensions or expulsions.”
Schools are required to make reasonable efforts to resolve threats and disruptions to reduce the number of suspensions.
In an attempt to radically reduce exclusionary discipline, PA 99-456 amends the School Code to substantially change the requirements and circumstances in which students may be expelled or suspended from school. This amendment does not change basic requirements of due process or the need to provide parents and students notice of the school’s discipline code, the opportunity for a hearing regarding suspension, the requirement of an expulsion, and other notice requirements.
Expulsions after PA 99-456
Effective September 15, 2016, a student may be expelled from school only if other appropriate and available behavioral and disciplinary interventions have been exhausted; and the student’s continuing presence in school would either:
- Pose a threat to the safety of other students, staff or members of the school community; or
- Substantially disrupt, impede, or interfere with the operation of the school.
If the board of education expels a student, the board must justify the expulsion in its written expulsion decision. The board must detail the specific reasons why removing the student is in the best interest of the school. This would include reasons why the student poses a threat to safety and/or why the student will substantially disrupt, impede, or interfere with the school’s operation. The decision must also include a rationale as to the specific duration of the expulsion. Additionally, the board must document whether other interventions were attempted with the student or whether it was determined that there were no appropriate and available interventions other than the expulsion.
Although zero tolerance policies are no longer permitted, the School Code still provides for expulsion for at least one year for students who bring a weapon to school, any school-sponsored activity or event, or any activity that bears a reasonable relationship to school. However, the School Code continues to provide that either the superintendent and/or the board of education can modify the period of expulsion on a case-by-case basis.
Suspensions after PA 99-456
PA 99-456 distinguishes between suspensions for three days or less and suspensions for longer than three days. Because the Act prohibits zero tolerance policies, the decision to suspend and the length of a suspension must be determined on a case-by-case basis by the Board or its designee.
A student may be suspended out of school for three 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.
A student may be suspended out-of-school for more than three days only if other appropriate and available behavioral and disciplinary interventions have been exhausted and the student’s continuing presence would either:
- Pose a threat to the safety of other students, staff or members of the school community; or
- Substantially disrupt, impede, or interfere with the operation of the school.
Suspensions of more than three days require the same threat/disruption test as expulsions. The Act does not explain the difference between a “threat to school safety” and a “threat to the safety of other students, staff or community members.” Likewise, the distinction between disrupting other students’ learning opportunities versus substantially disrupting the school’s operation is not defined. These distinctions will need to be made by schools on a case-by-case basis.
The written suspension decision must detail
- The student’s specific act of gross disobedience or misconduct resulting in the decision to suspend the student, including why the student poses a threat to safety or a disruption or substantial disruption;
- A rationale as to the specific duration of the suspension; and
- For suspensions of more than three days, whether other interventions were attempted or whether it was determined that there were no appropriate and available interventions as an alternative to the suspension.
The statute does not provide guidance regarding how to determine the duration of a suspension. School administration may want to consider the factors set forth in the Illinois Supreme Court’s 1991 decision in Robinson v. Oak Park and River Forest High School. This includes (1) whether the student has previous violations; (2) the impact of the student’s behavior on the school environment; (3) the impact of the suspension on the student; (4) the age and grade of student; and (5) any mitigating factors, such as who started a fight, versus who defended against it. Although suspension and expulsion decisions must be made on a case-by-case basis, it may be helpful to keep a log of how these exclusions are implemented to ensure there is no disparate impact on certain groups of students.
Assistance for excluded students
In addition to these requirements for suspending a student, PA 99-456 requires school districts to assist suspended students. Districts must create a policy to facilitate the re-engagement of students who are suspended out of school, expelled, or returning from an alternative school setting.
The Act does not provide specific requirements for facilitating the re-engagement of such students. A plan could address what the student must do while he or she is out of school, such as complete academic work, take tests, or enroll in an alternative educational program. A plan might provide for supportive interventions that will be in place upon return to school, such as scheduled meetings with a counselor or other staff, a check-in/check-out system, or a safety plan. The re-engagement plan might also include academic re-engagement strategies, such as the student taking advantage of school tutoring or support programs, to avoid loss of academic credit and progress.
Other potential ways to facilitate a student’s return to school include developing behavior strategies specifically related to the student’s disciplinary infraction; implementing communication strategies for the school, parents, and student; explaining community resources available to the family; and providing ongoing social emotional supports or counseling to the student.
Additionally, districts must create a policy by which suspended students have an opportunity to make up work for full academic credit. This includes students suspended from the school bus who do not have other means of transportation to school. Furthermore, during out-of-school suspensions longer than four school days, a school must provide appropriate and available support services during the period of suspension unless the school determines that there are no such appropriate and available services. “Appropriate and available support services” are not defined in the Act and must be determined by the district.
Other provisions of the Act
In addition to restrictions on out-of-school suspensions and expulsions, the Act provides that monetary fines may not be used as a disciplinary consequence, except as restitution for lost, stolen, or damaged property. A school may not utilize a zero tolerance policy. School administration and staff may not advise or encourage students to drop out of school due to behavioral or academic difficulties. The Act requires school districts make reasonable efforts to provide ongoing professional development on the adverse consequences of school exclusion, justice system involvement, effective classroom strategies, culturally responsive discipline, and developmentally appropriate discipline methods that promote a positive and healthy school climate. Districts’ parent-teacher advisory committees are encouraged to create a memorandum of understanding with local law enforcement agencies that clearly define the agencies’ role in schools.
What are other “appropriate and available interventions”?
The Act does not define “other appropriate and available interventions.” Furthermore, PA 99-456 does not require a district to adopt any particular intervention — or any interventions whatsoever. However, not developing interventions alternate to suspension and expulsion puts a district at risk of challenge by students. Additionally, each school district must submit data to the Illinois State Board of Education (ISBE) annually regarding out-of-school suspensions, expulsions, and alternative school settings; disaggregated by race, gender, age, grade level, English learner, incident type, and discipline duration. See www.isbe.net/research/htmls/eoy_report.htm.
Based on this reporting, beginning in the 2017-2018 school year, ISBE will require districts that rank in the top 20 percent of racial disproportionality, (over-representation of students of color or white; does not include schools that issue fewer than 10 out-of-school suspensions or expulsions during a school year and schools with fewer than 50 white students or 50 students of color enrolled) in out-of-school suspensions and expulsions to submit a plan to ISBE identifying strategies to reduce exclusionary discipline, racial disproportionality, or both. This plan must be approved by the school board and posted on the district’s website. Within one year, a progress report must be submitted to ISBE and posted on the district’s website. This reporting provides an additional incentive to create alternatives to suspension and expulsions.
Some alternatives to suspension may include, but are not limited to
- In-kind restitution : The student helps to restore or improve the school environment by addressing problems caused by the student’s behavior (e.g., repair things damaged) or to improve the school environment generally (e.g., pick up trash, wash lockers). This is as opposed to financial restitution that typically punishes parents instead of students.
- Behavior plan : This is a structured, coordinated behavior support plan based on a hypothesis about the function of the behavior that focuses on increasing desirable behaviors and replacing inappropriate behaviors.
- Behavior contract : Develop a contract that reminds the student to problem solve and includes reinforcing success and consequences for continuing problem behaviors.
- Required short course : The student must watch a video or complete a reading assignment on a topic related to the student’s inappropriate behavior (e.g., anger control, social skills, strategies for conflict, inappropriate language, drug abuse).
- Community service : The student performs supervised community service outside of school hours.
- Counseling : The student is required to receive individual counseling from a trained professional focused on problem solving, anger management, social skills, or the student’s individual problems.
- Parent supervision : Parents are invited to brainstorm ways to provide closer supervision and there is frequent contact and collaboration between the school and parent regarding behavior, incentives, and consequences.
- Loss of privileges (e.g., recess)
- Seizure of contraband
- In-school suspensions : PA 99-456 does not limit suspensions that take place within the school setting.
- Restorative justice : Restorative justice principles seek to make students aware of the impact of their behavior on others, to understand the obligation to take responsibility for their actions, to take steps towards repairing harm caused, and to prevent future harm. Restorative Justice measures include, but are not limited to letters of apology, peer mediation, peer juries, and community service (see page 12 for more information).
Many of these interventions may be part of a school-wide or classroom behavior system.
Implications for special education
The Act applies to both general and special education students and therefore should result in less out-of-school suspensions for all students. This may result in school staff conducting less manifestation determination meetings (required when considering exclusion of special education students for more than 10 cumulative school days). However, the U.S. Department of Education has taken the position that an in-school suspension may count as a day of suspension for purposes of the 10-day manifestation determination rule, if certain conditions are met. These conditions include that the in-school suspended student does not participate in the general education curriculum, does not continue to receive Individualized Education Program (IEP) services, and does not continue to participate with non-disabled students to the same extent as he or she would in his or her current placement.
It will remain important under the Act for school staff to carefully document the interventions tried and proposed in a student’s behavior intervention plan, as these will be important in determining whether there are other appropriate and available interventions. Finally, if a student is receiving IEP services, it is likely that the services will be considered appropriate and available support services, which should be provided if the student is suspended for more than four days.
On August 1, the U.S. Department of Education issued a Dear Colleague Letter on Ensuring Equity and Providing Behavioral Supports to Students with Disabilities. It explained that recent data on suspensions strongly suggests that many children with disabilities may not be receiving appropriate behavioral interventions in their IEPs and cautioned that suspensions may indicate that a student’s IEP does not appropriately address his or her behavioral needs. The letter reiterated that behavioral interventions must be available in all placements and that a student should not be removed to a more restrictive placement unless behavioral interventions in a less restrictive environment have proven insufficient.
In addition to cautioning against the use of suspensions, the DOE also described certain practices that, if used repeatedly, would constitute disciplinary removal, equivalent to a suspension. These measures include repeated office referrals or time outs that cause extended time away from instruction, repeatedly sending a student home from school, repeatedly sending a child home and requiring a risk assessment or other evaluation as a condition to the child’s return to school, and shortened school days.
The Act significantly changes how student discipline is contemplated and implemented. However, much of the language of the Act is vague, specific interventions are not defined or required, and the Act leaves much discretion to school officials. School districts will need to develop practices during the school year to address the purpose and legislative intent of PA 99-456.