School Discipline: Suspensions & Expulsions of Non-Disabled Students
A study conducted by the Illinois Criminal Justice Information Authority regarding balanced and restorative justice (“BARJ”) revealed that according to the Illinois State Board of Education (“ISBE”), between 1991 and 2007, Illinois public school suspension rates increased 56 percent and expulsion rates more than doubled. The same study noted that in Chicago Public Schools (“CPS”), 77 percent of school arrests were of black students, when they constituted 50 percent of the CPS student population. The increase in suspensions and expulsions, and its disproportionate usage based on race, can mostly be attributed to the increasing trend towards zero tolerance policies that are not applied consistently to all students. The Gun Free Schools Act of 1994 led to a national zero tolerance policy authorizing expulsion for no less than one academic year for bringing a weapon to school. However, since then school districts have expanded zero tolerance to include nonviolent student misbehavior. School discipline is an area in which school officials have broad discretion. In Illinois, courts have been reluctant to overturn decisions to suspend or expel students. The following is an attempt to review laws and case law related to the suspension or expulsion of non-disabled students.
In Illinois, a suspension is defined as the removal of a student from school for a period of 10 consecutive school days or less for a serious act of misconduct. However, where a student is suspended due to gross disobedience or misconduct on a school bus, the suspension may be more than 10 days in length for safety reasons. Illinois state law does not put an upward limit on the cumulative number of days that a non-disabled student may be suspended during the school year; the only limitation is the maximum of 10 days per suspension.
DEFINITION: Gross disobedience or misconduct that may lead to suspension or expulsion of a student shall include any activity or behavior which might reasonably lead school authorities to forecast substantial disruption or material interference with school activities or which in fact is substantial disruption or material interference with school activities. 105 ILCS 5/10-22.6.
It is important to note that Section 10-22.6 of the Illinois School Code was not intended to be a self-executing regulation of student conduct; rather, it is a “grant of power” to local school boards. Section 10-22.6 does not prohibit specific acts or omissions which may be penalized by suspension, but serves as a guide to school boards, suggesting that to be grounds for suspension or expulsion, the student’s disobedience or misconduct must be “gross”.
The Supreme Court in Goss v. Lopez, 419 U.S. 565 (1975), recognized that, “[s]tudents facing temporary suspension have interests qualifying for protection of the Due Process Clause, and due process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have, and an opportunity to present his side of the story.” In Goss, the Court set out the minimum due process required for the suspension of students from school for 10 days or less, which was subsequently incorporated in 105 ILCS 5/10-22.6(b) by the Illinois legislature. According to Section 10-22.6(b), when a child is suspended from school, the School must immediately provide the parent or guardian with oral or written notice of the suspension, which includes: (1) the reason for the suspension, (2) the length of the suspension, and (3) notice of a parent or guardian’s right to review the school’s decision to suspend their child.
CHECKLIST: A student faced with a suspension must be afforded the following due process:
1. Oral or written notice of the charges and evidence supporting the charges;
2. If the charges are denied, a student must be given an opportunity to explain his version of the events to the suspending school official;
3. The suspension may not exceed 10 days, unless for safety reasons due to misconduct on a school bus;
4. To have his parents/guardian immediately receive a report of the suspension along with a full statement of the reasons for it and a notice of right to review;
5. If a hearing is requested, the parent/guardian may appear and may discuss the suspension with the board or its hearing officer;
6. The school board or hearing officer appointed by it must review the action of the suspending school official;
7. The hearing officer shall report to the board a written summary of the evidence heard at the meeting;
8. Any decision rendered must be based upon the evidence; and
9. With respect to any suspension invoked, the student has a right to be informed of its beginning and ending dates.
10. The Department of Human Services shall be invited to send a representative to consult with the school board at the hearing whenever there is evidence that mental illness may be the cause for the suspension.
105 ILCS 5/10-22.6(b)-(c).
If a child is suspended, a parent or guardian may appeal the suspension by requesting a meeting (or “review”) with school officials. At this review, a parent and his/her child may talk with school officials about the suspension and reasons that the student should not be suspended. A school board official or hearing officer appointed by the school board must review the action of the suspending school official. The hearing officer shall then report to the school board a written summary of the evidence heard at the review. Subsequently, the school board may take action as it finds appropriate. While the reality may be that by the time a review of the suspension is scheduled, the period of the suspension will have already been served by the child, it may nevertheless be important to appeal a child’s suspension. Parents who successfully appeal a suspension can effectually remove that suspension from their child’s school record, ultimately reducing the likelihood that the child will be expelled for subsequent misconduct, and eliminating the stain on the student record that colleges may have considered.
Once it is decided that a student will be suspended by the school board, a parent/guardian may ask for schoolwork for their child during that suspension. The Student Code of Conduct for CPS states that school principals shall make sure that suspended students receive homework assignments during their suspension and that those students’ grades will not be lowered if the work is completed satisfactorily. However, not all districts allow make-up work that can count towards a student’s grade. Parents should check their local school polices for guidance.
An expulsion is defined by the Illinois School Code as a removal of a student from school for gross disobedience or misconduct for a period of time ranging from in excess of 10 days to a definite period of time not to exceed two school years. The Supreme Court in Goss, as previously cited, noted that in the instance of expulsion, more formal due process procedures are required since an expulsion involves more serious consequences than a suspension. The Illinois legislature provides for this increase in the due process required in 105 ILCS 5/10-22.6(a). As a result, in Illinois, a student may be expelled only after his/her parent has been requested to appear at a meeting with the school board, or with a hearing officer appointed by the school board, to discuss their child’s behavior. The request to appear shall be made by registered or certified mail and state the time, place, and purpose of the meeting. The state statute requires the hearing officer to report to the board a written summary of the evidence heard at the hearing, from which the board may take action as it sees fit. It is the non-delegable authority of the school board to make the final decision regarding the expulsion of a student; though, the school board may consider recommendations from administrators and may appoint a hearing officer to conduct the expulsion hearing.
If the student or parent chooses, they may have an attorney represent the student at the expulsion hearing at their own expense. This may help to safeguard the student’s due process rights and guarantee that proper procedures are being effectuated at the hearing. Due process afforded to students facing expulsion does not require the presence of a stenographer at the hearing to provide a transcript, so long as there is some other means to allow for adequate review. Parents/guardians attending the hearing may be well advised to bring their own tape recorders or to retain a court reporter. It should also be noted, that while a school board is considered a public body, student disciplinary hearings are typically closed to the public. If after the hearing, the school board decides to expel the child, that decision may be appealed by filing in state court. A parent/guardian should consult an attorney about how to file such an appeal.
CHECKLIST: Student faced with expulsion must be provided with the following due process:
1. Expulsion shall take place only after the parent/guardian has been requested to appear at a meeting of the school board, or with a hearing officer appointed by it, to discuss the student’s behavior. A student may be suspended from school pending this meeting but must be provided the due process required to support a suspension;
2. Notice of hearing must be sent to the parents/guardian by registered or certified mail stating the time, place and purpose of the hearing;
3. The school board or its appointed hearing officer must provide a full statement of the reason for the proposed expulsion at the hearing and must provide notice of the date on which the proposed expulsion is to become effective;
4. Student is entitled to consult with counsel at the student’s expense (this right is to be distinguished from the right to be represented by counsel at the hearing);
5. Adequate time must be given to prepare a defense;
6. Student must be given an opportunity to call and examine witnesses, to cross-examine opposing witnesses, and introduce evidence; and
7. The decision to expel or not to expel must be made by the school board and must be based upon the evidence presented.
8. The Department of Human Services shall be invited to send a representative to consult with the school board at the hearing whenever there is evidence that mental illness may be the cause for the expulsion.
105 ILCS 5/10-22.6(a) & (c).
Generally, school districts are given much deference in making decisions regarding disciplinary actions. Illinois courts will rarely overturn a school board’s decision to suspend or expel a student. Where no deprivation of a constitutional right was alleged, a school board’s decision to expel or suspend a student will be overturned only if it is “arbitrary, unreasonable, capricious, or oppressive.” In making this determination, Illinois courts will consider the following factors before overturning a school board’s decision: (1) the egregiousness of the student’s conduct, (2) the history or record of the student’s past conduct, (3) the likelihood that such conduct will affect the delivery of educational services to other students, (4) the severity of the punishment, and (5) the interest of the child.
III. Prohibited Behaviors, Zero Tolerance Misconduct and Criminal Penalties
Certain misconduct will not only lead to the automatic expulsion of a student, but may also result in criminal penalties. The following is a review of zero tolerance policies for certain prohibited behaviors on school grounds.
PRACTICAL APPLICATION OF THE LAW: For purposes of this statute, the term “school grounds” includes the real property comprising any school, any conveyance owned, leased, or contracted by a school to transport students to or from school or a school-related activity, or any public way within 1,000 feet of the real property comprising any school. 105 ILCS 5/10-27.1A(d).
Under the Gun-Free Schools Act, a student who brings a weapon to school, any school sponsored activity, or an event that bears a reasonable relationship to school shall be expelled for a period of not less than one year, unless the expulsion period is modified by the superintendent, whose decision may be modified by the school board on a case-by-case basis. Therefore, it is important to note that even under the Gun-Free School Act, there are no requirements for “zero tolerance.” Under Illinois School Code, the school board may expel a student for a definite period of time not to exceed two calendar years, as determined on a case-by-case basis. This type of behavior may also range from Class A misdemeanor to Class X felony for unlawful use of weapons on school grounds.
PRACTICAL APPLICATION OF THE LAW: A “weapon” is defined as a “firearm,” which for the purpose of the School Code, means any gun, rifle, shotgun, or weapon as defined by Section 921 of Title 18 of the United States Code, Section 1.1. of the Firearm Owners Identification Card Act (430 ILCS 65/1.1), or as defined by Section 24-1 of the Criminal Code of 1961 (720 ILCS 5/24-1). For the purposes of the School Code, it also includes a knife, brass knuckles or other knuckle weapon regardless of its composition, a billy club, or any other object if used or attempted to be used to cause bodily harm, including “look alikes” of any firearm. 105 ILCS 5/10-22.6(d)(1)-(2).
While a federal statute does not exist for the automatic expulsion of student who possesses, transfers, or uses drugs on school grounds, such behavior will lead to some form of disciplinary action by the school board and shall be reported to enforcement authorities.
PRACTICAL APPLICATION OF THE LAW: “Drugs” is defined as cannabis as defined in the Cannabis Control Act (720 ILCS 550/3) or narcotic drug as defined in the Controlled Substances Act (720 ILC 570/102).
As with the possession, use, or transfer of a firearm, under Illinois law, the school principal or his/her designee shall immediately notify the local law enforcement agency upon receipt of verbal, written, or electronic notification from any school official, including a teacher, guidance counselor, or support staff, that they observed a person in possession of a firearm or verified an incident involving drugs on school grounds. If the individual possessing the firearm is a student, the principal or his/her designee must also immediately notify that student’s parent or guardian.
IV. Attending Another School During the Term of the Suspension or Expulsion
It is apparent that when a school board expels or suspends a student, that student’s education will be disrupted. However, once a student has been suspended or expelled from school, he or she may have the right to attend another school. Some school districts have adopted policies providing that if a student is suspended or expelled for any reason from any public or private school, in Illinois or elsewhere, the student must complete the entire term of that suspension or expulsion before he/she may be admitted into an Illinois public school district. Where a student has been suspended or expelled for possessing a “weapon”, or for possessing, selling or delivering a controlled substance or cannabis on school grounds, or for battering a staff member of the school, and attempts to transfer into another public school in the same or different district, the student records required to be transferred must include the date and duration of the period of suspension or expulsion. Where the suspension or expulsion is by reason of the above misconduct, the student must not be permitted to attend class in the public school into which he/she is transferring until the expiration of the disciplinary period. However, that school district may approve placement of the student in an alternative school.
A policy such as the one described above, may still allow for the placement of an expelled or suspended student in an alternative school program for the remainder of the suspension or expulsion. An alternative school is intended to educate “disruptive students” in grades 6 through 12, who would otherwise be subject to expulsion or suspension by the school district. Where a school district has an alternative school program, a student may be administratively transferred into the alternative school. However, this administrative transfer may not occur without first providing the student with the requisite due process, as discussed earlier. It should be noted, that not every school district has an alternative school program. Where a student is administratively transferred into an alternative school, appropriate personnel from both the sending school and the alternative school must meet to develop an alternative education plan, and shall invite the parent/guardian of that student to participate in the meeting. The student may also be invited to the meeting. An alternative education plan must include the date when the student may return to his/her regular school, specific academic and behavior plans, and a method for reviewing the student’s progress at the alternative school.
Parents should check with their school districts regarding the availability of an alternative school program.
V. A Middle Ground
The question that remains unanswered is whether there is another option besides expulsion that is less exclusionary and punitive. The following outlines some disciplinary methods that may serve as a middle ground.
Balanced and Restorative Justice (BARJ)
The Illinois Criminal Justice Information Authority (ICJIA) has long supported the use of balanced and restorative justice (BARJ) philosophies in the Illinois juvenile justice system. Recently, the ICJIA published a guide, entitled Implementing restorative justice: A guide for schools, to assist in the application of restorative justice policies in schools. The three main goals of restorative justice are: accountability, community safety, and competency development. In addition, restorative justice aims to depart from traditional punitive and exclusionary methods of discipline and those that criminalize school misconduct, leading to the “school-to-prison pipeline.” “Restorative discipline combines strict control and strong support of youth, and approaches wrongdoing in a way that is not punitive, neglectful, or permissive.” Restorative justice policies have already been successfully implemented in schools around the world, including in countries such as Canada, the United Kingdom, and Japan.
Restorative discipline polices in schools require the involvement of the victim, which may be a teacher, school staff, or bystander, as well as other students and the school community. Approaches that support restorative justice philosophies and may be implemented in schools include: mentoring, “peacemaking circles,” mediation with a trained mediator, and peer juries. Parents may want to consult their child’s school regarding the use of such restorative justice policies in their schools.
Public Schools in Chicago have implemented the SMART program in place of expulsion on a case-by-case basis. SMART stands for “Saturday Morning Alternative Reach-Out and Teach.” If a child attends a Chicago Public School and is at risk of expulsion, at the hearing a parent may ask that his/her child attend the SMART program instead. Students in this program attend classes for eight consecutive Saturday mornings, where they learn to resolve problems and receive guidance for certain social behaviors, such as drug and alcohol abuse. Additionally, students in this program are committed to completing 20 hours of community service for a non-profit organization. Students enrolled in SMART must attend every class; otherwise, they may be expelled from school. This program has not been made available to incidents involving the possession of firearms, sale of drugs, or acts of violence, including threats. Parents with children in other school districts may consider encouraging their local school board to enforce a similar program.
VI. SCHOOL DISCIPLINE OF DISABLED STUDENTS
According to a report published by the Civil Rights Project at Harvard University, African-American, Latino, and disabled children “bear the brunt of the consequences” of zero tolerance policies. In Texas, special education students represent 10 percent of the school population, yet they account for 20 percent of those expelled from school. In Florida, the implementation of one such zero tolerance policy led to a disabled 14 year-old student being reported to the police by the principal for allegedly stealing $2 from another student; subsequently, that disabled student was held in an adult jail for an unusually long period of time before charges were finally dropped. Under the Individuals with Disabilities Education Act (“IDEA”), Congress set out specific provisions to guide schools in disciplining students with disabilities, affording these students certain due process rights.
If there is a possibility that a student’s misconduct was the result of his/her disability, and that student is not currently in special education, that child may still have the same rights as a child with a disability if the school knew or should have known that the child had a disability before his/her misconduct. Please refer to the Whitted, Cleary & Takiff LLC memorandum entitled “Suspension, Expulsion and Discipline under the IDEA,” for further information regarding school discipline with regards to children with disabilities.
 Ashley, Jessica and Kimberly Burke, “Implementing restorative justice: A guide for schools,” Illinois Criminal Justice Information Authority (ICJIA), 2009.
 Robinson v. Oak Park and River Forest High School, 571 N.E.2d 931, 933 (1st Dist. 1991).
 105 ILCS 5/10-22.6(b).
 Linwood v. Board of Education of City of Peoria, School Dist. No. 150, Peoria County, Ill., 463 F.2d 763, 768 (7th Cir. 1972).
 Goss v. Lopez, 419 U.S. 565, 581 (1975).
 Note: The hearing officer is not permitted to give his/her opinion about what the school board should do.
 Student Code of Conduct for Chicago Public Schools for the 2009-2010 School Year, Section 705.5 (July 22, 2009).
 105 ILCS 5/10-22.6(a).
 Goss at 584.
 105 ILCS 5/10-22.6(a). Note: There have been disputes about the objectivity of hearing officers when a district employee is utilized for this purpose. We recommend appointment of a completely unrelated party.
 See Colquitt v. Rich Township High School District, 699 N.E.2d 1109 (1st Dist. 1998) (where the court upheld the reversal of an expulsion order because the hearing officer had admitted hearsay statements without the student having a right to confront his accusers).
 5 ILCS 120/2.
 Wilson ex rel. Geiger v. Hinsdale Elementary School Dist. 181, 810 N.E.2d 637, 642-43 (2nd Dist. 2004) (where the court affirmed a school board’s decision to expel) (stating that “[t]he punishment imposed on a student must be sufficiently egregious in order to come within the narrow concept of arbitrary or capricious official conduct that justifies the extraordinary intervention by the court in the operation of a public school of this state.”).
 Robinson at 934-35.
 20 U.S.C. 7151 et seq.
 105 ILCS 5/10-22.6(d).
 720 ILCS 5/24-1.
 105 ILCS 5/10-27.1A-1B.
 105 ILCS 5/10-27.1A(b). See also 105 ILCS 127/2.
 105 ILCS 5/2-3.13a. See also 105 ILCS 5/10-22.6(g).
 Note: These rules may not be applicable to disabled students.
 105 ILCS 5/13A-4.
 105 ILCS 5/13A-2.5.
 105 ILCS 5/13A-4.
 ICJIA, supra at 10.
 Id. at 11.
 Note: “Peacemaking circles” bring willing participants together to talk freely about issues and to resolve conflict with the presence of a trained facilitator.
 Morris, Bruce and Donna Wells, “School Safety Issues: Zero Tolerance,” Commonwealth Educational Policy Institute, 2000.
 Cutter, Jane, “Students with disabilities more often expelled,” PSLweb.org, April 30, 2010.
 Martin, Ralph C., “Zero Tolerance Policy,” ABA Juvenile Justice Committee, February 2001.
 See 20 U.S.C. Â§ 1415(k).
 20 U.S.C. Â§ 1415(k)(5).