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was first
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7
Student Rights
and Responsibilities
HEIDI A. KATZ
Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd.
Chicago
COLETTE L. McCARTY
Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd.
Decatur
The contribution of Cheryl D. Price to prior editions of this chapter is gratefully
acknowledged.
The authors gratefully acknowledge the contributions of Maryam T. Brotine in the
preparation of this chapter.
©COPYRIGHT 2010 BY IICLE.
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I. [7.1] Introduction
II. Constitutional Rights
A. Students’ First Amendment Rights
1. [7.2] Free Speech and Expressive Conduct
a. [7.3] Schools and Public Forum Concepts
b. [7.4] Limits on Student Freedom of Expression Generally
2. [7.5] The First Amendment and Students’ Off-Campus “Speech” on the Internet
3. [7.6] Use of School Premises for Speech-Related Conduct
a. [7.7] Demonstrations, Other Speech Not School Sponsored
b. [7.8] Distribution of Nonschool Literature
c. [7.9] Student Clubs and the Equal Access Act
4. [7.10] Students’ Free Exercise of Religion
5. [7.11] Regulation of Student Publications
a. [7.12] School-Sponsored Publications
b. [7.13] Nonschool Publications
c. [7.14] Prior Restraint Issues
6. [7.15] Personal Appearance: Dress Codes, Uniform Policies, Etc.
a. [7.16] Ask First: Is Expressive Activity Involved?
b. [7.17] Student Dress That Disrupts
c. [7.18] Student Dress at Odds with the School’s Educational Mission
d. [7.19] School Uniform Policies
B. Fourth Amendment Protection Against Unreasonable Searches and Seizures
1. School Administrative Searches and “Reasonableness” Standards
a. [7.20] New Jersey v. T.L.O. and Two-Part Test in Individualized Suspicion
Cases
b. [7.21] “Reasonableness” of School Searches Not Based on Individualized
Suspicion
2. [7.22] Definition of “Search” for Fourth Amendment Purposes
3. [7.23] Definition of “Seizure” for Fourth Amendment Purposes
4. [7.24] Police Involvement and Potential Effect on Constitutional Standard
5. [7.25] Pertinent Provisions of Illinois School Code and Related Practice Tips
6. Particular Types of Searches
a. Searches of Student’s Person
(1) [7.26] Drug tests
(a) [7.27] Urinalysis
(b) [7.28] Breathalyzers; saliva testing
(2) [7.29] Strip searches
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(3) [7.30] Use of metal detectors
(4) [7.31] Use of dogs
b. Searches of Particular Property
(1) [7.32] Lockers
(2) [7.33] Cars
7. [7.34] Consequences of Unlawful School Searches or Seizures
C. [7.35] Students’ Rights to Equal Protection and Substantive Due Process
III. Title IX Sexual Harassment of Students and Sex Equity in Student Athletics
A. [7.36] Title IX Sexual Harassment and Sex Equity Issues
1. [7.37] Private Right of Action, Remedy for Damages, Liability Standards
2. [7.38] 2001 Office for Civil Rights Revised Guidelines
3. [7.39] Employee-Student Sexual Harassment
a. Illustrative Rulings for Sexual Harassment Plaintiffs
(1) [7.40] Sex-based hostile environment or quid pro quo harassment
(2) [7.41] Who is an “appropriate official” for notice purposes
(3) [7.42] Actual notice requirement met
(4) [7.43] Deliberate indifference demonstrated
b. [7.44] Cases Denying Claims of Sexual Harassment
(1) [7.45] No sex-based hostile environment or quid pro quo harassment
(2) [7.46] No actual notice
(3) [7.47] No deliberate indifference
4. Peer Sexual Harassment Court Decisions
a. [7.48] Federal Courts of Appeal Cases
b. [7.49] Lower Federal Court Cases
B. [7.50] Sex Equity in Athletics
1. [7.51] Federal Regulations
2. [7.52] OCR Policy Interpretation and Three-Part Test
3. [7.53] OCR “Clarifications”
4. [7.54] Caselaw
5. [7.55] Sex Equity and Booster Clubs
C. [7.56] Sex Equity and Marital or Parental Status
D. [7.57] Sex Equity and Single-Sex Classes
IV. Student Records and Privacy Rights
A. [7.58] Generally
B. The Family Educational Rights and Privacy Act of 1974 (FERPA)
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1. [7.59] Overview and Related Law
2. [7.60] Basic Rights Protected by FERPA
3. Scope
a. [7.61] No Private Remedy
b. [7.62] Interface with Public Records Statutes
c. Entities, Records, and Persons Covered by FERPA
(1) [7.63] Agencies or institutions
(2) [7.64] Education records
(3) [7.65] Excluded records
(4) [7.66] Parents and students
4. [7.67] Annual Notice of Rights
5. Inspecting and Reviewing Education Records
a. [7.68] Scope of Right To Inspect and Review
b. [7.69] Waivers of Right To Inspect and Review Records
6. Amendments of and Challenges to Education Records
a. [7.70] Request To Amend
b. [7.71] Hearing upon Denial of Request To Amend
c. [7.72] Statement Placed in Records
7. Right To Prevent Disclosure of Education Records
a. [7.73] Background
b. [7.74] Disclosure of Directory Information
c. [7.75] General Rule: Consent Required To Disclose Non-Directory
Information
d. [7.76] Exceptions to Prior Consent Based on “Educational Interest”
e. [7.77] Health/Safety and Juvenile Justice Exceptions
f. [7.78] Limitations on Re-Disclosure
g. [7.79] Record of Disclosures
8. [7.80] Right To Complain to the FERPA Office
C. The Illinois School Student Records Act (ISSRA)
1. [7.81] Background
2. [7.82] Key Differences Between FERPA and ISSRA
3. Scope of ISSRA
a. [7.83] Schools Governed by ISSRA
b. [7.84] Records
c. [7.85] Parents and Students
4. [7.86] Permanent and Temporary Records
5. [7.87] Right To Be Informed: Written School Policy Required
6. [7.88] Notification of Rights
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7. [7.89] Right To Inspect, Copy, and Review Records
8. Right To Challenge School Student Records
a. [7.90] Hearing Rights and Procedures
b. [7.91] Appeal to Circuit Court
c. [7.92] Filing of Position Statement
V. Other Provisions Concerning Students
A. Student Attendance
1. Age Requirements
a. [7.93] Compulsory Attendance
b. Non-Compulsory Attendance
(1) [7.94] Regular students
(2) [7.95] Adult education
(3) [7.96] Before- and after-school programs
2. Exemptions from Compulsory Public School Attendance
a. General Exemptions
(1) [7.97] Private schools
(2) [7.98] Children physically or mentally unable to attend school
(3) [7.99] Homeschooling
b. [7.100] Limited Exemptions
3. Prerequisites for Attendance
a. [7.101] Identification Documentation for New Students
b. Residency in District
(1) [7.102] Establishing residency
(2) [7.103] Exceptions to residency requirements for homeless and other
students
(3) [7.104] Validity of residency
(4) [7.105] Hearing procedures for residency disputes
(5) [7.106] Tuition for nonresidents
c. [7.107] Part-Time Attendance
d. [7.108] Nondiscrimination
e. [7.109] Fee Waivers
f. [7.110] Immunizations and Physical Examinations
4. Additional Limitations on Enrollment and Reenrollment
a. [7.111] Suspension or Expulsion
b. [7.112] Academic and Attendance Standards for Older Students
c. [7.113] Denial of Reenrollment to Certain Older Students
5. Responses to Absenteeism
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a. [7.114] Parental Notification Calls
b. [7.115] Reporting of Truancy
c. [7.116] Other School District Responses to Truancy
B. Program Requirements
1. [7.117] Required Curriculum In General
2. [7.118] Physical Education
3. [7.119] Driver’s Education
4. [7.120] Bullying Policy Requirement
5. [7.121] Optional Courses
6. [7.122] Recitation of the Pledge
7. [7.123] Dissection Alternative
8. [7.124] Graduation, Promotion, and Grading
C. Student Transportation
1. Students in District Schools
a. [7.125] Free Transportation
b. [7.126] Charges for Transportation
c. [7.127] Special Transportation Provisions for District Students
2. Transportation of Students Not Enrolled in District Schools
a. [7.128] Other Public School Students
b. [7.129] Nonpublic School Students
3. Reimbursements for Transportation
a. [7.130] From State of Illinois to School District
b. [7.131] From State of Illinois to Parents or Custodians
4. [7.132] Specific Mode of Transportation for Specified Interscholastic or SchoolSponsored Activities.
D. Miscellaneous Student Provisions
1. [7.133] Reporting of Child Abuse and Neglect
2. Student Biometric Information
a. [7.134] Biometric Information in General
b. [7.135] Board of Education Policy Requirements
c. [7.136] Refusal To Provide Consent
d. [7.137] Destruction of Biometric Information
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§7.2
I. [7.1] INTRODUCTION
This chapter begins with a survey of the rights and responsibilities of students attending
public schools, i.e., the rights protected by the First, Fourth, and Fourteenth Amendments of the
United States Constitution, in §§7.2 – 7.35 below. The Fourteenth Amendment procedural dueprocess rights of students are addressed in detail in Chapter 8 of this handbook, dealing with
student discipline. Rights guaranteed by the Fourteenth Amendment Equal Protection Clause and
rights related to the interface of public schools and religious schools are covered within the
context of civil rights litigation in Chapter 11 of ILLINOIS SCHOOL LAW: ORGANIZATION,
FINANCE, AND PROPERTY (IICLE, 2010).
Sections 7.36 – 7.57 below discuss statutory and court-developed law on the subject of sex
equity and sexual harassment as they relate to students. Student records and privacy rights are
discussed in §§7.58 – 7.92 below. This chapter concludes with a review of miscellaneous
statutory provisions concerning students in §§7.93 – 7.137 below.
II. CONSTITUTIONAL RIGHTS
A. Students’ First Amendment Rights
1. [7.2] Free Speech and Expressive Conduct
The most quoted adage in school law literature may well be that public school students do not
“shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 21 L.Ed.2d 731, 89
S.Ct. 733, 736 (1969). The Tinker Court held that wearing black armbands to school to protest the
Vietnam War was protected First Amendment conduct “closely akin to ‘pure speech.’ ” Id. Tinker
enshrined the concept that students may not be punished simply for expressing personal views on
school property unless school officials have reason to believe that such expression will be
disruptive, so as to “substantially interfere with the work of the school or impinge upon the rights
of other students.” 89 S.Ct. at 738.
However, in and after Tinker, the Supreme Court has emphasized that the First Amendment
rights of students in public schools are not automatically coextensive with the rights of adults in
other settings. It has sanctioned broader control by school authorities over student expression
when that expression is aired at an official school event, through a school-sponsored medium, or
in a context that otherwise bears the “imprimatur of the school” (Hazelwood School District v.
Kuhlmeier, 484 U.S. 260, 98 L.Ed.2d 592, 108 S.Ct. 562, 570 (1988)), or when the expression is
indecent, vulgar, or inconsistent with the school’s educational mission (Bethel School District No.
403 v. Fraser, 478 U.S. 675, 92 L.Ed.2d 549, 106 S.Ct. 3159 (1986)).
More recently, the Court has held that “a principal may, consistent with the First Amendment,
restrict student speech at a school event, when that speech is reasonably viewed as promoting
illegal drug use.” Morse v. Frederick, 551 U.S. 393, 168 L.Ed.2d 290, 127 S.Ct. 2618, 2625
(2007). In reaching this conclusion, Morse cited the Court’s Fourth Amendment jurisprudence,
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which has recognized that deterring drug use by schoolchildren is an important, if not a
compelling, state interest and the “special characteristics” of the school environment. 127 S.Ct. at
2627.
Hazelwood and many other post-Tinker decisions also focus on whether the school facility or
channel of communication involved may be characterized as a designated or limited public forum
and calibrate constitutional protections by the answer to that inquiry. In such cases, the degree of
control a school district may exercise over expression on its property depends on the nature of the
forum. Good News Club v. Milford Central School, 533 U.S. 98, 150 L.Ed.2d 151, 121 S.Ct.
2093, 2099 (2001).
The procedural stakes of getting these calibrations wrong can be high in civil rights actions
that seek to speedily enjoin alleged violations of student First Amendment rights. The Supreme
Court has held that even temporary loss of First Amendment freedoms constitutes irreparable
injury. Elrod v. Burns, 427 U.S. 347, 49 L.Ed.2d 547, 96 S.Ct. 2673, 2689 – 2690 (1976). That
precept, coupled with a showing of likelihood of success on the merits, gets a civil rights plaintiff
in a free speech case better than halfway to a preliminary injunction under the standard courts
commonly apply to applications for such relief.
a. [7.3] Schools and Public Forum Concepts
Unlike streets, parks, and other forums traditionally used by citizens for purposes of assembly
and political or social discourse, school facilities are deemed to be public forums only when they
have been opened by policy or practice to general use by the public or by a subset of the public.
Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 74 L.Ed.2d 794, 103 S.Ct.
948, 955 n.7 (1983), citing Widmar v. Vincent, 454 U.S. 263, 70 L.Ed.2d 440, 102 S.Ct. 269
(1981).
The Seventh Circuit Court of Appeals has observed that a “school is not presumed to be a
public forum” (May v. Evansville-Vanderburgh School Corp., 787 F.2d 1105, 1118 (7th Cir.
1986)), and has specifically opined that elementary and junior high schools are nonpublic forums
(Muller v. Jefferson Lighthouse School, 98 F.3d 1530, 1539 – 1540 (7th Cir. 1996), cert. denied
117 S.Ct. 1335 (1997); Hedges v. Wauconda Community Unit School District No. 118, 9 F.3d
1295, 1302 (7th Cir. 1993)). See also M.A.L. v. Kinsland, 543 F.3d 841, 847 (6th Cir. 2008)
(concluding hallways of public school are not public forum and citing Muller, supra). Compare
Smith v. Tarrant County College District, No. 4:09-CV-658-Y, 2010 WL 903953 (N.D.Tex. Mar.
15, 2010) (citing cases that suggest that modern public university contains variety of “fora” and
that, typically, generally accessible outdoor campus areas of college are designated public forum).
A public school district that has reserved its facilities for intended school purposes has not
created a public forum and may impose not only reasonable time, place, and manner restrictions
on the speech of students and staff, but also reasonable restrictions on the content of their speech.
Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 98 L.Ed.2d 592, 108 S.Ct. 562, 568
(1988). By way of contrast, in traditional and designated or “limited” public forums, contentbased restrictions on speech will be upheld only if they are needed to serve a compelling state
interest and are narrowly tailored to that end. Perry, supra, 103 S.Ct. at 955.
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§7.3
The Hazelwood Court’s threshold finding that a district-sponsored, faculty-advised
newspaper published by journalism students was a not a public forum figured crucially in its
decision that high school administrators could regulate the paper’s editorial content. School
policy and practice made clear that the newspaper served as part of the educational curriculum,
designed to provide supervised learning experiences. 108 S.Ct. at 569. The Court held that
administrators could exercise control over the newspaper’s style and content as long as their
actions were “reasonably related to legitimate pedagogical concerns.” 108 S.Ct. at 571. In
particular, the school principal could justifiably delete articles on pregnancy and divorce either
because the subject matter was inappropriate for treatment in the school paper or out of concern
for the privacy of the individuals and families reported on in the articles.
Since Hazelwood, the U.S. Supreme Court has handed down three major decisions applying
the public forum concept in school settings. Each decision disapproved the public educational
institution’s challenged action as unconstitutionally abridging free speech rights. In Lamb’s
Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 124 L.Ed.2d 352, 113 S.Ct.
2141, 2145 (1993), the Court found that a district that had opened its facilities to use during
nonschool hours by community groups for a wide variety of social, civic, and recreational
purposes thereby created a limited public forum. Having done so, the district could not turn down
a group that wanted to show a film series on child-rearing from a Christian perspective. The
district’s policy excluding groups that wanted to use the facilities for religious purposes was held
to be impermissible viewpoint discrimination prohibited by the First Amendment Free Speech
Clause.
The second Supreme Court school-related limited public forum case is Rosenberger v. Rector
& Visitors of University of Virginia, 515 U.S. 819, 132 L.Ed.2d 700, 115 S.Ct. 2510, 2525
(1995). In Rosenberger, the university authorized payments from a student activities fund
financed by mandatory student fees to reimburse outside contractors for printing various
publications of independent student groups qualified by the university as “contracted independent
organizations” or CIOs. The university refused to approve payments to a printer for CIO Wide
Awake Publications, invoking a policy guideline that barred funding for religious activity. The
university contended that avoiding First Amendment Establishment Clause violations was a
compelling state interest that justified denying funding to the group’s newspaper, the stated
mission of which was to urge students to practice Christianity and “consider . . . a personal
relationship with Jesus Christ.” 115 S.Ct. at 2515.
The Supreme Court rejected the Establishment Clause argument. Justice Kennedy’s majority
opinion characterized the university’s guideline as impermissible viewpoint discrimination like
that condemned in Lamb’s Chapel, supra, and the publication subsidy as a “governmental
program . . . neutral toward religion.” 115 S.Ct. at 2522. Although the Court acknowledged
“special Establishment Clause dangers where the government makes direct money payments to
sectarian institutions,” it said Rosenberger was not such a case because no public funds flowed
directly to Wide Awake Publications. 115 S.Ct. at 2523. That and the trait of neutrality obviated
Establishment Clause problems, in the majority’s view.
The Supreme Court’s third key precedent on impermissible viewpoint discrimination in
school limited public forums is Good News Club v. Milford Central School, 533 U.S. 98, 150
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L.Ed.2d 151, 121 S.Ct. 2093 (2001). The Court in Good News Club held that the defendant New
York school district infringed on a religious club’s free speech rights when it refused to let the
club hold after-school religious instruction and prayer meetings in an elementary building that the
school board’s facilities use policy made available to district residents for “instruction in any
branch of education, learning or the arts” and for activities “pertaining to the welfare of the
community.” 121 S.Ct. at 2098. The Court equated the Good News Club’s exclusion from the
meeting room “forum,” based on the religious nature of its speech, with the exclusions in Lamb’s
Chapel, supra, and Rosenberger, supra, emphasizing that government cannot shut out speech that
discusses subjects otherwise permissible in a limited public forum on the ground that the speakers
treat the topics from a religious viewpoint. The Court saw “no logical difference” between the
club’s invocation of Christianity and the invocation of teamwork, loyalty, or patriotism by other
forum participants as the foundation for their lessons. 121 S.Ct. at 2102.
For all of this exposition, it has been observed that “[t]he forum nomenclature is not without
confusion.” Christian Legal Society v. Walker, 453 F.3d 853, 866 n.2 (7th Cir. 2006) (public
university with student organization “forum” could not “derecognize” student group based on
group’s violation of nondiscrimination policy). Compare Christian Legal Society Chapter of
University of California v. Kane, 319 Fed.Appx. 645 (9th Cir.) (public university law school
could refuse to recognize plaintiff organization because law school’s “open membership” rule
imposed on all student groups as condition of participating in “forum” that viewpoint was neutral
and reasonable), cert. granted, 130 S.Ct. 795 (2009). Perhaps the Supreme Court’s pending
review of the latter case will provide some “deconfusion” in this area.
b. [7.4] Limits on Student Freedom of Expression Generally
As discussed in §7.2 above, the Supreme Court has held that school authorities may constrain
students’ constitutionally protected expressive activity, but only if they reasonably expect that the
restricted speech or conduct will cause substantial disruption or material interference with the
rights of others. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 21
L.Ed.2d 731, 89 S.Ct. 733, 738 (1969). The Tinker Court recognized that students’ First
Amendment rights must be balanced against school officials’ need to maintain the order requisite
to educational endeavor. However, the Court warned that school officials’ concerns about
disruption must be based on more than an unsubstantiated fear that the speech or other expressive
conduct will spark opposition and that they may not restrict a student’s personal expression
merely “to avoid the discomfort and unpleasantness that always accompany an unpopular
viewpoint.” Id.
The significance of the “disruption” factor in student speech cases can be seen from the many
cases dealing with prohibitions on the display of the Confederate flag at school. Courts generally
acknowledge that this symbol can be seen as conveying a particularized message that qualifies for
First Amendment protection, but that does not end the inquiry in school settings. The decisions go
both ways, depending on the facts of each case and, in particular, whether the district seeking to
ban the Confederate flag has shown a local history of racial conflicts likely to be reignited by
display of the symbol — i.e., to cause Tinker-type material disruption. See, e.g., B.W.A. v.
Farmington R-7 School District, 554 F.3d 734 (8th Cir. 2009) (ban on clothing that depicted
Confederate flag did not violate plaintiff’s First Amendment speech rights when high school
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§7.4
officials could reasonably forecast that any display of Confederate flag would result in substantial
disruption, based on recent racially charged events in school and community), A.M. ex rel.
McAllum v. Cash, 585 F.3d 214 (5th Cir. 2009) (upholding policy that prohibited Confederate
flag displays at high school, as justified by past racial hostility there and likelihood that such
displays would substantially disrupt school activities due to inflammatory meaning associated
with this symbol), and cases cited in these decisions.
The past decade has given rise to another genre of student speech cases, the outcomes of
which often turn on the presence or absence of school disruption under the Tinker standard —
i.e., off-campus student “speech” on the Internet, discussed separately in §7.5 below.
The Supreme Court has articulated another rationale for regulating student speech that does
not depend on a finding of disruptive effect. In Bethel School District No. 403 v. Fraser, 478 U.S.
675, 92 L.Ed.2d 549, 106 S.Ct. 3159 (1986), the Court held that a school may categorically
prohibit lewd, vulgar, or profane expression on school property. Accordingly, it upheld discipline
imposed on Fraser to “disassociate” the school from his indecent remarks during a schoolsponsored assembly for student government candidates and to make the point that vulgar conduct
is contrary to the “fundamental values” of public education. 106 S.Ct. at 3165.
Similarly, in Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 98 L.Ed.2d 592, 108
S.Ct. 562, 571 (1988), the Court did not require school officials to show that publication of the
student newspaper articles censored in that case would have substantially interfered with school
functions or impinged on other students’ rights:
[The Tinker standard for disciplining student expression] need not also be the standard
for determining when a school may refuse to lend its name and resources to the
dissemination of student expression. Instead, we hold that educators do not offend
the First Amendment by exercising editorial control over the style and content of
student speech in school-sponsored expressive activities so long as their actions are
reasonably related to legitimate pedagogical concerns. [Emphasis added.]
See also Morse v. Frederick, 551 U.S. 393, 168 L.Ed.2d 290, 127 S.Ct. 2618 (2007), discussed in
§7.2 above.
In addition to consulting the standards described by the Supreme Court’s Tinker, Bethel,
Hazelwood, and Morse decisions to demark the bounds of students’ rights under the First
Amendment, courts have also relied on the doctrine that a “true threat” is not protected speech
and have sustained disciplinary action for such expression. See Doe v. Pulaski County Special
School District, 306 F.3d 616 (8th Cir. 2002) (en banc), Mardis v. Hannibal Public School
District No. 60, No. 2:08CV63 JCH, 2010 WL 387423 (E.D.Mo. Jan. 25, 2010), and cases cited
therein.
Even when courts have concluded that a student’s communications alluding to violence were
not a true threat and enjoyed a degree of constitutional protection, courts recognizing the safety
and security dilemmas confronting today’s school officials have been receptive to individual
defendants’ qualified immunity arguments. See, e.g., Porter v. Ascension Parish School Board,
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393 F.3d 608 (5th Cir. 2004) (principal could not be said to have acted unreasonably in removing
high school student to alternative placement after his younger brother displayed sketch drawn by
plaintiff at home two years earlier depicting violent siege on high school, and principal was
entitled to qualified immunity on claim that his actions violated student’s First Amendment
rights). Cf. Wilson ex rel. Geiger v. Hinsdale Elementary School District 181, 349 Ill.App.3d 243,
810 N.E.2d 637, 639, 644, 284 Ill.Dec. 847 (2d Dist. 2004) (affirming sixth grader’s expulsion
and refusing to second-guess as capricious judgment call of administrators who had to assess risk
and disruption from student’s distribution of CD he recorded, singing that he was “gonna kill” his
pregnant teacher’s baby; “[t]hreats of violence in school are not permitted, serious or not”).
Lack of constitutional protections for threats aside, it should be noted that Illinois law makes
it a Class 4 felony to knowingly transmit a threat to destroy school property or a threat of
violence, death, or bodily harm directed against individuals at a school or school event. It is a
Class 3 felony to knowingly transmit a false alarm that a bomb or other explosive device is
concealed in a place where its detonation would endanger human life, and a person who makes a
bomb threat, true or false, shall be required to reimburse the governmental unit involved for the
cost of the emergency response. See 720 ILCS 5/26-1.
On the other hand, school antiharassment policies and so-called civility codes purporting to
stifle purely verbal expression of sentiments that might offend some people have come to grief in
the courts, as illustrated by Saxe v. State College Area School District, 240 F.3d 200 (3d Cir.
2001). With the aim of affording all students “a safe, secure, and nurturing school environment,”
the defendant’s antiharassment policy declared disrespect to be “unacceptable behavior which
threatens to disrupt the school environment and well being of the individual.” 240 F.3d at 202.
The policy made “harassment” punishable by sanctions ranging from warning to expulsion and
defined that term broadly to include conduct based on a person’s “actual or perceived race,
religion, color, national origin, gender, sexual orientation, disability, or other personal
characteristics, and which has the purpose or effect of substantially interfering with a student’s
educational performance or creating an intimidating, hostile or offensive environment.” Id. A
parent challenged the policy, asserting that it unconstitutionally abridged the right of his children
as Christians to speak out about “the sinful nature and harmful effects of homosexuality” and
other moral issues. 240 F.3d at 203. The Third Circuit Court of Appeals agreed, stating — in an
opinion written by then-judge and now U.S. Supreme Court Justice Samuel Alito — that although
physically harassing conduct was outside the ambit of the Free Speech Clause, that constitutional
guarantee protected a wide variety of personal speech that some listeners might consider
offensive, including statements that impugned another person’s race, national origin, or religious
beliefs. 240 F.3d at 206. “The Supreme Court has held time and again, both within and outside of
the school context, that the mere fact that someone might take offense at the content of speech is
not sufficient justification for prohibiting it.” 240 F.3d at 215 (citing cases).
See also Justice Alito’s concurrence in Morse, supra, 127 S.Ct. at 2636 (Court’s opinion that
schools can restrict speech advocating illegal drug use “provides no support for any restriction of
speech that can plausibly be interpreted as commenting on any political or social issue”). In
Nuxoll v. Indian Prairie School District #204, 523 F.3d 668 (7th Cir. 2008), the Court weighed
the import of Justice Alito’s Morse concurrence, in considering whether the defendants could
regulate the student plaintiffs’ homosexuality-disparaging social commentary in the form T-shirts
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exhorting peers to “Be Happy, Not Gay.” Judge Posner’s opinion observed that although “a
school can — often it must — protect students from the invasion of their legal rights by other
students[,] . . . people do not have a legal right to prevent criticism of their beliefs or for that
matter their way of life.” 823 N.E.2d at 672. After musing at great length over whether a public
high school may ever lawfully regulate constitutionally protected speech in the interest of
maintaining a “civilized” school climate respectful of individual differences (as the defendant
district’s policy against “derogatory comments” that refer to race, ethnicity, religion, gender,
sexual orientation, or disability sought to do), the Nuxoll court concluded it was “highly
speculative” that the plaintiffs’ T-shirts would have “even a slight tendency” to provoke incidents
of harassment of homosexual students so as to provide a “disruption” justification under Tinker
for banning the message. 823 N.E.2d at 676. Accordingly, it reversed the district court’s denial of
the plaintiff’s request that the district be enjoined from enforcing its policy, and directed entry of
a preliminary injunction to that effect.
Antiharassment speech regulations have also been held inconsistent with the First
Amendment in university settings. See, e.g., Iota Xi Chapter of Sigma Chi Fraternity v. George
Mason University, 993 F.2d 386 (4th Cir. 1993) (unconstitutional to punish fraternity for holding
“ugly woman contest”); UWM Post, Inc. v. Board of Regents of University of Wisconsin System,
774 F.Supp. 1163 (E.D.Wis. 1991).
Finally, court decisions often reflect that “[a]ge is a critical factor in student speech cases.”
Muller v. Jefferson Lighthouse School, 98 F.3d 1530, 1538 (7th Cir. 1996), cited in Brandt v.
Board of Education of City of Chicago, 480 F.3d 460, 466 (7th Cir.) (“[w]e have our doubts
whether the constitutional privilege to engage in protest demonstrations in the name of free
speech extends to eighth graders”), cert. denied, 128 S.Ct. 441 (2007).
Cases highlighted in §§7.5 – 7.19 below further illustrate how courts have resolved student
First Amendment rights issues in particular contexts, applying the principles laid down in Tinker,
Bethel, Hazelwood, and Morse, and “forum analysis” as expounded in Lamb’s Chapel v. Center
Moriches Union Free School District, 508 U.S. 384, 124 L.Ed.2d 352, 113 S.Ct. 2141 (1993),
and Good News Club v. Milford Central School, 533 U.S. 98, 150 L.Ed.2d 151, 121 S.Ct. 2093
(2001). Before turning to them, we offer the following template for analyzing student speech
controversies — with the caveat that the specific facts of each case are critical, and should be
carefully evaluated on an individual basis.
Guide for Analyzing Student First Amendment “Free Speech” Claims
1. Can the “speech” qualify for constitutional protection?
No, if the speech
a. is not intended to convey a particularized message likely to be understood by
people who hear or see it;
b. is obscene, defamatory, or amounts to “fighting words”; or
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c. is a “true threat.”
2. If so, is the protected speech subject to school regulation or discipline?
Yes, if the speech
a. materially and substantially disrupts school or interferes with the rights of others, or can
reasonably be expected to do so (Tinker, supra);
b. occurs at school or a school-related event and is vulgar, lewd, or indecent (Fraser,
supra);
c. is school-sponsored, and the school’s regulation is reasonably related to legitimate
pedagogical concerns (Hazelwood, supra); or
d. occurs at school or a school-related event and can reasonably be understood as promoting
illegal drug use (Morse, supra).
2. [7.5] The First Amendment and Students’ Off-Campus “Speech” on the Internet
The extent to which school officials may discipline or restrict off-campus “speech” by
students on the Internet consistent with the First Amendment has been a growing concern for the
last decade. The U.S. Supreme Court has not yet spoken on whether a school can regulate a
student’s speech that originates at his or her home or otherwise occurs outside the “school gates”
and is not connected to a school-sponsored event but that makes its way onto the campus.
Lower federal courts have generally held that a school may regulate such speech under Tinker
v. Des Moines Independent Community School District, 393 U.S. 503, 21 L.Ed.2d 731, 89 S.Ct.
733 (1969), but only if the speech causes or is reasonably likely to cause a material and
substantial disruption of school activities. Some have expressed the view that (to quote one of
them) “territoriality is not necessarily a useful concept” in determining the scope of school
administrators’ authority, especially now that students routinely “participate in . . . expressive
activity . . . via blog postings, instant messaging, and other forms of electronic communication.”
Doninger v. Niehoff, 527 F.3d 41, 48 – 49 (2d Cir. 2008). However, as many highly fact-specific
controversies of this genre have found their way to the federal courts, they have produced a
welter of precedents reflecting divergent reasoning and less-than-predictable outcomes, as judges
attempt to apply the Supreme Court’s landmark student speech decisions in this setting. The nub
of the problem often is finding a sufficient “nexus” between the off-campus speech and the
school.
The cases are too numerous to reprise here, but two will illustrate the point. Decided by
different panels of the Third Circuit Court of Appeals on the same day, both involved the nowfamiliar paradigm of students creating mock “profiles” of school administrators on
MySpace.com. The separate Third Circuit panels involved reached arguably inconsistent results.
See Layshock v. Hermitage School District, 593 F.3d 249 (3d Cir. 2010); J.S. v. Blue Mountain
School District, 593 F.3d 286 (3d Cir. 2010). The Third Circuit has since vacated the decisions
and consolidated the cases for rehearing en banc.
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Layshock addressed the discipline of then eighth grader Justin Layshock for an unflattering
parody profile of his principal, Eric Trosh, which Justin composed after school on a computer at
his grandmother’s home in December 2005. The profile attributed bogus vulgar answers by Trosh
to survey questions, and contained a photo of him that Justin cadged from the school website.
Some students learned of the profile and accessed it on school computers. Around the time Trosh
became aware of the profile, he found out about several more demeaning profiles of him created
by other students on MySpace.com. Until they could block students from visiting the website
from school, administrators limited students’ use of computers at school to the lab or library
where they could be supervised. Upon ascertaining that Justin was responsible for one of the
profiles, they suspended him for ten days and put him in an alternative school for the rest of the
school year. None of the other students who posted fake profiles were punished. When the
ensuing §1983 action filed by Justin and his parents reached the court of appeals, the Third
Circuit held that the discipline violated Justin’s First Amendment rights. It disagreed with the
defendants’ contention that the speech took place at school because Justin had “entered” school
property (i.e., the district website) to misappropriate Trost’s photo and also rejected the argument
that the profile amounted to on-campus speech because it was “aimed” at the school community
and it was reasonably foreseeable that it would come to the attention of school officials. Noting
that the district had not appealed from the district court’s finding that Justin’s conduct did not
result in any substantial disruption, the Third Circuit affirmed judgment for the plaintiffs on their
First Amendment claim.
In J.S., on the other hand, another Third Circuit panel ruled that the district did not violate the
free speech rights of a middle school student disciplined for creating on her parents’ home
computer a profanity-laced mock profile of her principal, depicting him as a pedophile and sex
addict. The profile did not name the principal but included his photo lifted from the school
website. News of its existence reached and generated a “buzz” throughout the school. The panel
majority was persuaded that it was reasonably foreseeable that the mock profile would have
substantially disrupted the school had not the principal and other administrators taken quick
corrective actions to prevent that from happening: “We simply cannot agree that a principal may
not regulate student speech rising to this level of vulgarity and containing such reckless and
damaging information so as to undermine [his] authority within the school, and potentially arouse
suspicions among the school community about his character.” 593 F.3d at 302.
For yet another example of the accumulating precedent in this area, the reader is referred to
J.C. v. Beverly Hills Unified School District, No. CV 08-03824 SVW (CWx), 2010 WL 1914215
(C.D.Cal. May 6, 2010), the most recently reported such case at this writing. In J.C., the court
considered school officials’ two-day suspension of a high school student for making a video of
her friends engaging in a profane and hurtful group rant about a female classmate while at a local
restaurant and posting it for fellow students to see on YouTube. That website could not be
accessed from school computers, which blocked it by means of a filter. The court found that the
discipline of the plaintiff by school officials for this off-campus “speech” violated her First
Amendment rights: “[A]t most, the record shows that the School had to address the concerns of
an upset parent and a student who temporarily refused to go to class, and that five students missed
some undetermined portion of their classes on May 28, 2008 [while school officials interviewed
them about the incident]. This does not rise to the level of a substantial disruption.” 2010 WL
1914215 at *20.
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3. [7.6] Use of School Premises for Speech-Related Conduct
Even as to protected speech on property that qualifies as a traditional public forum,
government may validly impose place and manner restrictions as long as the restrictions are not
based on the content of the regulated speech, are narrowly tailored to serve a significant
governmental interest, and leave open ample alternative channels for communication of the
information. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 82 L.Ed.2d 221, 104
S.Ct. 3065, 3069 (1984).
A Texas school district’s policy imposing time, place, and manner restrictions on the
distribution of nonschool literature passed constitutional muster, in Morgan v. Plano Independent
School District, 589 F.3d 740 (5th Cir. 2009). Four plaintiff families in Morgan had filed suit
alleging that, under a former policy prohibiting the distribution of religious items at school, their
students had been prevented from handing out at “winter break” classroom parties various
materials including pencils inscribed with “Jesus is the reason for the season” and candy canes
with cards describing their Christian origin. While the suit was pending, the district adopted a
new policy permitting distribution of materials during the 30 minutes before and after school,
recess, and three annual parties. Students could also distribute materials during school hours, but
only passively at designated tables. Middle and secondary school students were also permitted to
distribute materials in hallways during noninstructional time and designated lunch periods. The
new policy contained only narrow limitations on the content of materials that could be
distributed.
The plaintiffs sought to have this policy, like its predecessor, declared invalid. Applying the
time, place, and manner test, the court upheld the new policy as reasonable and facially
constitutional. The regulations were content neutral and furthered the school’s significant
legitimate interest in providing a focused learning environment. The restrictions during and
immediately before instructional periods were intended to enable the start of classes without a
wait for the distribution of materials. Limits on such activity by elementary students in the
hallways and cafeteria were meant to facilitate the movements of students between classes and at
lunch and to reduce littering. The policy also provided ample alternative channels of
communication. 589 F.3d at 747 – 748. See also Nuding v. Board of Education of Cerro Gordo
Community Unit School District No. 100, Piatt County, Illinois, 313 Ill.App.3d 344, 730 N.E.2d
96, 246 Ill.Dec. 416 (4th Dist. 2000) (content-neutral board policy prohibiting conduct intended
to disrupt school functions was reasonable time/place/manner regulation).
a. [7.7] Demonstrations, Other Speech Not School Sponsored
On the rationale of imposing reasonable time, place, and manner rules on expressive activity,
the University of Virginia could prohibit “structures” or an “extended presence” on the lawn in
front of its historic rotunda (a traditional public forum) in order to maintain the landmark’s
architectural integrity. Students Against Apartheid Coalition v. O’Neil, 838 F.2d 735, 736 (4th
Cir. 1988) (upholding rejection of plaintiffs’ proposal to erect symbolic shanties there to protest
university investments in South African corporations).
The First Amendment does not guarantee that protected “speech” activities may be conducted
on school property or through school channels of communication simply because a unit of local
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government owns and controls the desired location or means of communication. However, by
permitting school premises to be used for some expressive purposes, school authorities may
effectively constitute the property a “limited public forum,” with the consequence that the
facilities must then be made generally available for such purposes to student and community
groups. See §7.3 above. Thus, a school career day featuring outside speakers to highlight
education and work opportunities for high school pupils could not exclude speakers from a peace
organization simply because the board of education disagreed with the group’s views on military
careers. Searcey v. Harris, 888 F.2d 1314 (11th Cir. 1989).
Nor may officials of public educational entities curtail the exercise (consistent with
reasonable time, place, and manner restrictions) of protected “symbolic speech” activities by
students on campus, unless they have a reasonable basis to forecast that the activities involved
will materially disrupt the school, college, or university. Cf. Tinker v. Des Moines Independent
Community School District, 393 U.S. 503, 21 L.Ed.2d 731, 89 S.Ct. 733 (1969). In Smith v.
Tarrant County College District, No. 4:09-CV-658-Y, 2010 WL 903953 (N.D.Tex. Mar. 15,
2010), the plaintiff members of Students for Concealed Carry on Campus — a group that
advocates for repeal of laws and rules that prohibit students licensed to carry a concealed firearm
from doing so on college campuses — sought to pass out leaflets in classrooms and hallways and
to wear empty holsters during their normal campus activities to symbolize the fact that they are
unarmed and potentially defenseless against a gunman such as the one at Virginia Tech. Citing
various regulations and potential disciplinary proceedings if they were flouted, college officials
vetoed the empty holster protest on the ground that it could lead to disturbances and disruptions
of the school’s educational goals. The students sued TCC, alleging that the prohibition infringed
their First Amendment rights.
After trial, the court upheld the ban on passing out leaflets in classrooms and adjacent
hallways as warranted to avoid interference with class work but enjoined the defendants from
prohibiting the plaintiffs from wearing empty holsters in TCC classrooms. It found TCC’s
apprehension that disruption could be caused either by other students’ immediate fearful reaction
to the empty holsters, or by the police response to reports of firearms on campus caused by the
empty holsters, to be “mere expectation” insufficient to justify suppressing the protected speech.
Nor, according to the Smith court, did other students’ possible heated opposition to the protest
provide justification; under precedents disapproving the so-called “hecklers’ veto,” the existence
of a hostile audience, standing alone, does not support a denial or punishment for the exercise of
First Amendment rights.
In Illinois, state-supported institutions of higher learning, including public community
colleges, are required to have a “Policy on Demonstrations” to “insur[e] that the civil rights of
others are not infringed and to [establish] a step by step approach to secure the reasonable
operation of university or college activities in case of any disruptive activity.” 110 ILCS 10/1.
b. [7.8] Distribution of Nonschool Literature
Governmental controls on the distribution of literature in a particular location or through
particular channels will be permitted or disallowed in varying degrees, according to the outcome
of the forum analysis discussed in §7.3 above. In a nonpublic forum, the government can enforce
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time, place, and manner restrictions, as well as restrictions preserving the property for the use to
which the forum was lawfully dedicated as long as the regulations are reasonable and content
neutral. Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 74 L.Ed.2d 794,
103 S.Ct. 948 (1983) (upholding rule limiting material that could be placed into interschool mail
system found to be nonpublic forum).
The Seventh Circuit Court of Appeals has determined that a junior high is a nonpublic forum
in which school authorities “may forbid or regulate many kinds of speech,” including distribution
of non-school-sponsored literature. Hedges v. Wauconda Community Unit School District No.
118, 9 F.3d 1295, 1302 (7th Cir. 1993). Nonetheless, school officials could not single out
religious literature for prohibition when they permitted students to hand out other non-schoolsponsored material at school. The Hedges court opined that, at least at the junior high and high
school levels, school districts should address potential Establishment Clause concerns raised by
students’ distribution of religious literature on campus not by banning the speech, but by
disclaiming endorsement and remaining neutral. 9 F.3d at 1299 – 1300.
The Seventh Circuit subsequently upheld elementary school officials’ refusal to permit a
fourth grade student to distribute religious fliers, reasoning that if, as the Hedges court held, a
junior high was a nonpublic forum for such purposes, “[t]he same is true a fortiori of a public
elementary school where, with even younger children, the need for structuring the educational
environment is that much greater.” Muller v. Jefferson Lighthouse School, 98 F.3d 1530, 1539
(7th Cir. 1996), cert. denied, 117 S.Ct. 1335 (1997).
In another situation involving religious expression by a pupil of tender years, the Third
Circuit held that school defendants did not violate a first grader’s free speech rights by declining
to let him hand out pencils bearing a religious message during classroom holiday parties. Walz v.
Egg Harbor Township Board of Education, 342 F.3d 271 (3d Cir. 2003). Reasoning that an
elementary classroom is “not a place for student advocacy,” the Walz court deferred to the
judgment of school personnel regarding speech restrictions reasonably aimed at preserving the
goals of the structured educational activity involved, i.e., teaching social skills and respect for
others in a festive setting. 342 F.3d at 277. However, it held that the student had a right to
distribute the pencils during noninstructional time, such as in hallways and at lunch. Id. See also
Morgan v. Plano Independent School District, 589 F.3d 740 (5th Cir. 2009), discussed in §7.6
above.
Judges typically analyze the rights of college and university students to distribute literature on
campus through a wider lens. See, e.g., Justice For All v. Faulkner, 410 F.3d 760 (5th Cir. 2005),
finding outdoor open areas at the University of Texas to be designated public forums for First
Amendment purposes, applying strict scrutiny to a challenged policy requirement that all printed
materials bear the name of a university-affiliated person or group responsible for their distribution
and invalidating the requirement as an unconstitutional restriction on the plaintiff antiabortion
student group’s right to engage in anonymous speech within such forums. Compare Smith v.
Tarrant County College District, No. 4:09-CV-658-Y, 2010 WL 903953 (N.D.Tex. Mar. 15,
2010) (ban on passing out leaflets in classrooms and adjacent hallways upheld as warranted to
avoid interference with class work).
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c. [7.9] Student Clubs and the Equal Access Act
Congress has provided for the possibility of a “limited open forum” for student clubs in the
public high school setting, pursuant to the Equal Access Act, 20 U.S.C. §4071, et seq. The
Supreme Court has recognized that, although parallel in some respects to the constitutionally
derived public forum access rights discussed in §7.3 above, the limited open forum described by
the Equal Access Act is conceptually distinct. Board of Education of Westside Community
Schools v. Mergens, 496 U.S. 226, 110 L.Ed.2d 191, 110 S.Ct. 2356, 2367 – 2368 (1990).
Under the Equal Access Act, a public secondary school that receives federal funding and
permits “one or more noncurriculum related student groups” to meet on school premises during
“noninstructional time” thereby provides a “limited open forum” for such groups. 20 U.S.C.
§4071(b). A school with a limited open forum for non-curriculum-related student groups may not
discriminate against students who want to conduct meetings at school, based on the religious,
political, philosophical, or other content of the speech at their meetings. 20 U.S.C. §4071(a).
Among provisions elaborating on this basic requirement, the Equal Access Act expressly
acknowledges a school’s power to prohibit meetings that would “materially and substantially
interfere with the orderly conduct of educational activities within the school” (20 U.S.C.
§4071(c)(4)) and states that nothing in the Act limits the authority of the school “to maintain
order and discipline on school premises, [and] to protect the well-being of students and faculty”
(20 U.S.C. §4071(f)).
Key to determining whether a high school does or does not have a limited open forum is the
meaning of “noncurriculum related student group.” The Equal Access Act does not define that
phrase. In Mergens, supra, the Supreme Court interpreted “noncurriculum related student group”
to mean “any student group that does not directly relate to the body of courses offered by the
school.” [Emphasis in original.] 110 S.Ct. at 2366. The Court opined that a group or meeting is
“curriculum related” only if (1) the subject matter of the group is actually taught or will soon be
taught in a regularly offered course, (2) the subject matter of the group concerns the body of
courses as a whole, (3) participation in the group is required for a particular course, or (4)
participation in the group results in academic credit. Id. The Mergens Court then held that the
Equal Access Act obliged defendant Westside High to allow students to meet as a Christian club
for Bible study and prayer because the school was unable to link its scuba, chess, and service
groups to the academic curriculum. It also held that “equal access” for the Christian club
encompassed use of the school newspaper, bulletin boards, and public address system on the
same footing as other non-curriculum-related student groups. 110 S.Ct. at 2370. Finally, the Court
rejected the argument that the Equal Access Act had the primary effect of advancing religion in
violation of the Establishment Clause. 110 S.Ct. at 2371 – 2373.
Although Equal Access Act requirements may be avoided by allowing only curriculumrelated groups to meet, due to the Court’s narrow definition of that term, most high schools have
limited open forums and are subject to Equal Access Act mandates — the contours of which the
courts have continued to describe in the years since Mergens was decided. For example, student
activity periods or lunch periods scheduled during the school day have been held to be
noninstructional time during which religious clubs are entitled to meet if other clubs are permitted
to do so. See Donovan v. Punxsutawney Area School Board, 336 F.3d 211 (3d Cir. 2003);
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Ceniceros v. Board of Trustees of San Diego Unified School District, 106 F.3d 878 (9th Cir.
1997) (both decisions also holding that it does not violate Establishment Clause to allow religious
clubs to meet at these times).
In Hsu v. Roslyn Union Free School District No. 3, 85 F.3d 839, 848 (2d Cir. 1996), the court
held that a Bible club seeking admittance to the school’s Equal Access Act limited open forum
could not be required to remove a clause in its constitution stating that club officers must accept
Jesus Christ as savior, since this “discriminatory” feature was intrinsic to the Christian students’
expressive purpose. Nor could school recognition of the club be conditioned on its complying
with district nondiscrimination policies. (As noted in §7.3 above, the Supreme Court has agreed
to review Christian Legal Society Chapter of University of California v. Kane, 319 Fed.Appx.
645 (9th Cir.), cert. granted, 130 S.Ct. 795 (2009), involving a First Amendment challenge to a
public university law school’s refusal to recognize a student religious group due to the latter’s
noncompliance with the “open membership” rule imposed as a condition of participation in the
school’s “forum” for student organizations.)
Concurring in Mergens, supra, Justice Kennedy remarked that the Equal Access Act might
lead to groups “of a most controversial character [having] access to the student life of high
schools that in the past have given official recognition only to clubs of a more conventional
kind.” 110 S.Ct. at 2376. His observation proved prescient. Until the late 1990s, most court cases
arising under the Equal Access Act related to the equal access rights of student religious groups.
Since then, litigation has also focused on the rights of high school students to form and have
gay/straight alliance-type groups recognized on the same basis as other non-curriculum-related
student clubs when a school has created a limited open forum for such clubs under Equal Access
Act principles. See, e.g., East High Gay/Straight Alliance v. Board of Education of Salt Lake City
School District, 81 F.Supp.2d 1166 (D. Utah 1999), Colin v. Orange Unified School District, 83
F.Supp.2d 1135 (C.D.Cal. 2000), Boyd County High School Gay Straight Alliance v. Board of
Education of Boyd County, 258 F.Supp.2d 667 (E.D.Ky. 2003), Gonzalez v. School Board of
Okeechobee County, 571 F.Supp.2d 1257 (S.D.Fla. 2008), and Gay-Straight Alliance of Yulee
High School v. School Board of Nassau County, 602 F.Supp.2d 1233 (M.D.Fla. 2009), in all of
which the student plaintiffs prevailed in whole or in part on Equal Access Act claims. But see
Caudillo v. Lubbock Independent School District, 311 F.Supp.2d 550, 570 (N.D.Tex. 2004)
(district successfully defended its refusal to deny access to gay-related student group by invoking
Equal Access Act provisions relating to school authority to “maintain order and discipline on
school premises” and “protect the well-being of students”). For a more in-depth discussion of
these cases and the issues they present, the reader may consult Eric W. Schulze’s article entitled
Gay-Related Student Groups and the Equal Access Act, 196 Ed. Law Rep. 369 (2005).
4. [7.10] Students’ Free Exercise of Religion
In light of the frequency with which students’ speech and free exercise rights in regard to
religion are litigated in the school context, the topic of religion in the schools is treated as part of
the civil litigation coverage found in Chapter 11 of IICLE’s ILLINOIS SCHOOL LAW:
ORGANIZATION, FINANCE, AND PROPERTY (2010).
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§7.12
Another useful reference is the U.S. Department of Education’s guidelines on religious
expression in public schools. Originally issued in 1995, these guidelines were revised and
reissued in 1998 and can be accessed at www.ed.gov/Speeches/08-1995/religion.html (case
sensitive). Still a succinct and accurate synopsis of the law in this area, the guidelines can assist
public educational entities in developing policy on matters relating to religious expression.
5. [7.11] Regulation of Student Publications
Under Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 98 L.Ed.2d 592, 108 S.Ct. 562
(1988) (see §7.4 above), school authorities may regulate students’ written expression in a schoolsponsored publication that the facts of the particular case show to be a nonpublic forum and
provided that school officials’ actions reasonably relate to legitimate pedagogical concerns. The
courts apply a more demanding standard in considering regulation of student publications that are
not school sponsored, as discussed further in §7.13 below.
a. [7.12] School-Sponsored Publications
In Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 98 L.Ed.2d 592, 108 S.Ct. 562
(1988), the Court upheld the right of a high school principal to review and cut certain articles
from a school newspaper published as part of the journalism curriculum. One article concerned
student experiences with pregnancy, including references to sexual activity and birth control. The
other treated parental neglect in a divorce situation. The court found that the bases for deletion
cited by the principal — concern for the privacy of pregnant students (alleged to be readily
identifiable from the article) and a lack of reportorial balance in the article on divorce — were
reasonable. 108 S.Ct. at 571 – 572.
The Hazelwood decision rests on several key precepts. The Court began by reiterating that
First Amendment rights of students in public schools are not coextensive with the rights of adults
in other settings. Second, the Court found that the Hazelwood District’s school-sponsored
newspaper was not a “public forum” open for general use by student organizations or other
segments of the public. Instead, it was by both policy and practice a part of the journalism
curriculum, designed to impart particular knowledge and skills. 108 S.Ct. at 570. In that context,
schools “need not tolerate student speech that is inconsistent” with their educational mission. 108
S.Ct. at 567. Thus educators do not offend the First Amendment by “exercising editorial control
over style and content of student speech in school-sponsored activities so long as their actions are
reasonably related to legitimate pedagogical concerns.” 108 S.Ct. at 571. On this rationale,
educators may restrict student journalists’ speech that is “ungrammatical, poorly written,
inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature
audiences,” or otherwise not up to school standards. 108 S.Ct. at 570.
Following Hazelwood, a federal court of appeals held that Nevada school officials could
refuse to publish advertisements for birth control and pregnancy counseling services in high
school newspapers, yearbooks, and athletic event programs. Planned Parenthood of Southern
Nevada, Inc. v. Clark County School District, 887 F.2d 935 (1989), aff’d en banc, 941 F.2d 817
(9th Cir. 1991). The court reasoned that the district had not treated these publications as public
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forums and that school officials could reasonably reject the ads as likely to engender controversy
and distract from the high schools’ educational mission.
In contrast, when a curriculum-related, faculty-advised high school student newspaper had
been operated as a limited public forum, the district and its superintendent violated a student
reporter’s First Amendment freedoms of speech and press by censoring an article she wrote,
reporting on a lawsuit against the district that alleged that diesel fumes from its bus barn
constituted a health-endangering nuisance to residents who lived in the adjoining neighborhood.
Dean v. Utica Community Schools, 345 F.Supp.2d 799 (E.D.Mich. 2004). Unlike the subsidized
student newspaper in Hazelwood, the Utica High School Arrow was funded by students’ sale of
advertising to local businesses, and the student journalists had previously controlled the paper’s
content, production, and editorial decisions without significant administrative intervention. The
reporter’s story amply satisfied journalistic standards and had been suppressed, not for
pedagogical reasons, but because the superintendent disagreed with and was sensitive to the
political implications of its content. Thus, the court held, even if the Arrow had been a nonpublic
forum, the censorship of the plaintiff’s article would not have met constitutional standards under
Hazelwood. 345 F.Supp.2d at 805 – 806.
It is not clear whether Hazelwood supplies the appropriate standard for regulation of student
newspapers at the university level nationwide. The Hazelwood Court declined to decide that
question. 108 S.Ct. at 571 n.7. The First and Sixth Circuit Courts of Appeal, among others, have
taken the view that Hazelwood does not apply to the college student press. See Student
Government Ass’n v. Board of Trustees of University of Massachusetts, 868 F.2d 473, 480 n.6
(1st Cir. 1989); Kincaid v. Gibson, 236 F.3d 342 (6th Cir. 2001) (en banc).
However, the law is now clear in Illinois that the Hazelwood standard does not apply to
student media at public colleges and universities. Five years ago, the Seventh Circuit applied
Hazelwood principles to preclude civil rights liability on the part of a Governors State University
administrator who — allegedly piqued by articles criticizing a decision not to renew the contract
of the GSU student newspaper’s faculty adviser — directed that printing of the paper be held up
until a university official had reviewed and approved each issue. Hosty v. Carter, 412 F.3d 731
(7th Cir. 2005) (en banc, with four dissenting judges finding Hazelwood’s inapplicability to
college newspapers to be “clearly established” enough to negate qualified immunity), cert.
denied, 126 S.Ct. 1330 (2006). In displeased reaction to the Hosty decision, the Illinois General
Assembly passed the College Campus Press Act, 110 ILCS 13/1, et seq., under which all types of
“campus media” (as broadly defined in the statute) are declared to be public forums for
expression by the student journalists and editors at the particular institution, and the authority of
colleges and universities to exercise control over student expression in these media is
significantly limited. Students and their faculty advisers may enforce their rights under the
College Campus Press Act by filing a civil lawsuit for injunctive and declaratory relief, in which
a court may award them attorneys’ fees, if they prevail. 110 ILCS 13/20.
b. [7.13] Nonschool Publications
In Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 98 L.Ed.2d 592, 108 S.Ct. 562,
570 (1988), the Court’s focus was on school-sponsored expressive activities that students,
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parents, or the public “might reasonably perceive to bear the imprimatur of the school.” The
Hazelwood Court did not define the extent to which schools may regulate publications and other
student speech that are not a part of recognized school functions. In a case concerning a policy
aimed at curtailing “communications among students . . . which no one could associate with
school sponsorship or endorsement,” the Ninth Circuit held that school officials could not
condition distribution of a student-written underground newspaper on their prior approval of its
content. Burch v. Barker, 861 F.2d 1149, 1150 (9th Cir. 1988).
c. [7.14] Prior Restraint Issues
Although Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 98 L.Ed.2d 592, 108 S.Ct.
562, 570 (1988), supports “prior review” regulation of student expression in school-sponsored
activities, prior restraint or review of the content of speech in other contexts is less likely to be
upheld. The Seventh Circuit has in the past rigorously applied the heavy presumption against any
scheme involving prior restraint on publications. The court in Fujishima v. Board of Education,
460 F.2d 1355, 1356 (7th Cir. 1972), overturned a Chicago Board of Education rule that no
person could distribute “any books, tracts, or other publications” on school premises unless the
materials had been approved by the school administration. The court found the rule to be an
unconstitutional prior restraint under the combined teachings of Near v. State of Minnesota ex rel.
Olson, 283 U.S. 697, 75 L.Ed. 1357, 51 S.Ct. 625 (1931), and Tinker v. Des Moines Independent
Community School District, 393 U.S. 503, 21 L.Ed.2d 731, 89 S.Ct. 733 (1969):
Tinker held that, absent a showing of material and substantial interference with the
requirements of school discipline, schools may not restrain the full FirstAmendment rights of their students. Near established one of those rights, freedom to
distribute a publication without prior censorship. Fujishima, supra, 460 F.2d at 1357.
But see Hosty v. Carter, 412 F.3d 731 (7th Cir. 2005) (en banc, four judges dissenting)
(university administrator who imposed prior restraint on publication of student newspaper was
entitled to qualified immunity from suit under 42 U.S.C. §1983), cert. denied, 126 S.Ct. 1330
(2006).
Requiring prior review of any written materials proposed to be distributed on school premises
was also found to violate students’ First Amendment rights in the Ninth Circuit’s post-Hazelwood
decision Burch v. Barker, 861 F.2d 1149, 1158 (9th Cir. 1988) (court commenting that its holding
did not affect school’s ability to punish students for unacceptable behavior or conduct after it
occurs).
Most federal circuits have approved prior review requirements in the K – 12 setting if they
are accompanied by adequate procedural safeguards, as justified by school officials’ right to
prevent disruption and to control the time, manner, and place of distribution of written material.
See, e.g., Baughman v. Freienmuth, 478 F.2d 1345 (4th Cir. 1973); Eisner v. Stamford Board of
Education, 440 F.2d 803 (2d Cir. 1971), cited approvingly in Bystrom v. Fridley High School,
Independent School District No. 14, 822 F.2d 747 (8th Cir. 1987).
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6. [7.15] Personal Appearance: Dress Codes, Uniform Policies, Etc.
Governmental regulation of the personal appearance of public college and university
students, the vast majority of whom are adults, is exercised lightly in those settings and rarely
becomes a subject for the courts.
At the K – 12 level, the ability of school authorities to regulate students’ attire and other
aspects of their personal appearance is also gauged primarily by the First Amendment principles
laid down by the Supreme Court in Tinker v. Des Moines Independent Community School
District, 393 U.S. 503, 21 L.Ed.2d 731, 89 S.Ct. 733 (1969), and Bethel School District No. 403
v. Fraser, 478 U.S. 675, 92 L.Ed.2d 549, 106 S.Ct. 3159 (1986), discussed in §§7.2 and 7.4
above. State constitutional guarantees may also come into play on occasion, as they sometimes do
when the government exerts control over other types of student expressive — or allegedly
expressive — activity.
a. [7.16] Ask First: Is Expressive Activity Involved?
When a school restriction of student attire or personal appearance is challenged, the threshold
issue is whether the article of clothing or attribute involved does, in fact, qualify as expressive
activity for First Amendment purposes. Supreme Court precedents recognize that the First
Amendment protects not only verbal and written expression, but also symbols and conduct, such
as the wearing of antiwar black armbands by students in Tinker v. Des Moines Independent
Community School District, 393 U.S. 503, 21 L.Ed.2d 731, 89 S.Ct. 733 (1969). However, the
activity in question must be one that (1) reflects an intent to convey a particularized message, and
(2) is likely to be understood by people who see it. Texas v. Johnson, 491 U.S. 397, 105 L.Ed.2d
342, 109 S.Ct. 2533 (1989).
Absent these communicative elements, a student’s attire or feature of personal appearance
falls outside the purview of First Amendment protection, and schools may regulate it without
objection on that ground. This caveat foiled the civil rights suit of a sixth grader whose civil
rights suit challenged her school’s dress code policy because she wanted to be able to wear
clothes that look nice on her and that she feels good in. Blau v. Fort Thomas Public School
District, 401 F.3d 381 (6th Cir. 2005). The court held that First Amendment solicitude did not
extend to conduct amounting to “nothing more than a generalized and vague desire to express . . .
middle-school individuality.” 401 F.3d at 389, cited in Brandt v. Board of Education of City of
Chicago, 480 F.3d 460, 465 – 466 (7th Cir.) (unlike “a campaign button affixed to clothing . . .
that convey[s] a political message,” picture and words on eighth graders’ “gifties” T-shirt were
“no more expressive of an idea or opinion that the First Amendment might be thought to protect
than a young child’s talentless infantile drawing which Brandt’s design successfully mimics”),
cert. denied, 128 S.Ct. 441 (2007).
Likewise, a student’s action to overturn a dress code ban on sagging pants failed because the
court was unable to discern that wearing them sent any “particularized message” that would be
apparent to viewers. Bivens v. Albuquerque Public Schools, 899 F.Supp 556, 560 (D.N.M. 1995).
“Not every defiant act by a high school student is constitutionally protected speech,” and many
observers would miss the connection between this “hip hop” style and the wearer’s asserted
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nonverbal proclamation that he was identifying with his African-American roots. 899 F.Supp. at
560, 561. See also Olesen v. Board of Education of School District No. 228, 676 F.Supp. 820
(N.D.Ill. 1987) (upholding ban on wearing of earrings by male students under policy outlawing
symbols furthering gang activity; plaintiff’s desire to express his individuality by wearing earring
was not “message” above regulation by school officials). Compare Chalifoux v. New Caney
Independent School District, 976 F.Supp. 659, 667 (S.D.Tex. 1997) (students’ wearing of rosaries
reflected sincere religious belief subject to constitutional protection and could not be banned as
reputed gang symbol under district’s dress code prohibiting wearing of “gang-related apparel,”
absent evidence of actual disruption or substantial reason to anticipate disruption at school).
b. [7.17] Student Dress That Disrupts
Student clothing that is protected by the First Amendment because it communicates an
intelligible political, social, or religious message may nonetheless be restricted under Tinker v.
Des Moines Independent Community School District, 393 U.S. 503, 21 L.Ed.2d 731, 89 S.Ct. 733
(1969), if the school can show that the clothing has caused or can reasonably be expected to cause
substantial disruption or material interference with school activities.
Court decisions illustrating the application of this rule, the perennial role of the humble
T-shirt in eliciting jurisprudence on student attire rights, and the need for a defense evidentiary
showing on the disruption issue include Newsom v. Albemarle County School Board, 354 F.3d
249 (4th Cir. 2003), and Sypniewski v. Warren Hills Regional Board of Education, 307 F.3d 243
(3d Cir. 2002). In Newsom, the school board was preliminarily enjoined from enforcing a dress
code provision prohibiting “messages that relate to . . . weapons” against a student who wore a
T-shirt labeled “NRA Shooting Sports Camp” and depicting men with firearms after it failed to
adduce any proof that clothing with weapons-related messages had ever created a stir at the
school. 354 F.3d at 258. In Sypniewski, students sued asserting a First Amendment right to
continue wearing “country humor” T-shirts listing reasons why “You Might Be a Redneck.” 307
F.3d at 250. To support its contention that the shirts were likely to be disruptive, the board
pointed to past racial hostility within the school system, including violent incidents brought on by
student displays of the Confederate flag, and to “White Power Wednesdays” touted by a clique
calling itself “the Hicks.” However, the redneck T-shirts themselves had not provoked friction or
unrest among students. The court therefore ruled that it was unreasonable for school officials to
ban them based on a forecast of disruption.
On the other hand, when school officials reasonably forecast that the wearing of garments
depicting the Confederate flag would disrupt school work and discipline, a court upheld their
action prohibiting students from wearing such clothing. Barr v. LaFon, 538 F.3d 554 (6th Cir.
2008), rehearing en banc denied, 553 F.3d 463 (6th Cir. 2009), cert. denied, 130 S.Ct. 63 (2009).
See also other Confederate flag attire/display cases cited in §7.4 above.
See also Barber v. Dearborn Public Schools, 286 F.Supp.2d 847 (E.D.Mich. 2003) (when
defendants failed to show reasonable fear of disruption, high school student was likely to prevail
on claim that school violated First Amendment by forbidding him from wearing T-shirt with
photo of President Bush captioned “International Terrorist” to protest imminent war in Iraq).
Compare Griggs v. Fort Wayne School Board, 359 F.Supp.2d 731, 744 (N.D.Ind. 2005) (First
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Amendment permitted board to prohibit apparel depicting “symbols of violence” based on
Hazelwood-type pedagogical interest in discouraging culture of violence in schools (Hazelwood
School District v. Kuhlmeier, 484 U.S. 260, 98 L.Ed.2d 592, 108 S.Ct. 562 (1988)), but board
could not ban high school student plaintiff’s “Marine Creed” T-shirt with large picture of M16
rifle that was “relatively benign message of support for the military” and not “symbol of
violence”), and Baxter v. Vigo County School Corp., 26 F.3d 728 (7th Cir. 1994) (assuming that
elementary pupil had right to wear T-shirts protesting school district policies, that right was not
clearly established, and principal was therefore entitled to qualified immunity from suit).
c. [7.18] Student Dress at Odds with the School’s Educational Mission
On the strength of the Supreme Court’s pronouncements that a school need not tolerate
speech inconsistent with the “school’s basic educational mission” and that schools have authority
to determine what type of speech is inappropriate at school (Bethel School District No. 403 v.
Fraser, 478 U.S. 675, 92 L.Ed.2d 549, 106 S.Ct. 3159, 3165 (1986)), school boards have adopted
and courts have sustained dress rules proscribing clothing that is lewd, indecent, or offensive.
Thus, in Boroff v. Van Wert City Board of Education, 220 F.3d 465, 467 (6th Cir. 2000), cert.
denied, 121 S.Ct. 1355 (2001), the court held that the district could enforce, under its dress code
banning “offensive illustrations,” Marilyn Manson T-shirts on the ground that the rock performer
and his band promoted drug use, destructive conduct, and other demoralizing values inimical to
the educational climate. See also Pyle v. South Hadley School Committee, 861 F.Supp. 157
(D.Mass. 1994) (sustaining prohibition and discipline of students for wearing “vulgar” apparel
(“Coed Naked Band” T-shirts)); Gano v. School District No. 411 of Twin Falls County, State of
Idaho, 674 F.Supp. 796, 798 – 799 (D. Idaho 1987) (refusing to enjoin discipline of student for
wearing T-shirt that caricatured school administrators as drunken tipplers, calling it an
“offensive,” unprotected expression falling “clearly . . . within the Bethel precedent”).
Harper v. Edgewood Board of Education, 655 F.Supp. 1353, 1356 (S.D. Ohio 1987), rejected
claims of a brother and sister who wanted to cross-dress for the prom, the court opining that the
board could require students to dress “in conformity with the accepted standards of the
community.” However, in McMillen v. Itawamba County School District, No. 1:10-CV61-D-D,
2010 WL 1172429 (N.D.Miss. Mar. 23, 2010), the court ruled that a school district that refused to
allow a lesbian student to attend prom wearing a tuxedo and bringing a same-sex date violated
that student’s First Amendment rights. The court declined to issue a preliminary injunction
ordering the school district — which had canceled prom “[d]ue to the distractions to the
educational process” — to sponsor the event, based on representations that a parent-sponsored
prom open to all IAHS students was being planned. 2010 WL 1172429 at *2. A copy of the
opinion in McMillen is posted at www.aclu.org/files/assets/McMillen_Opinion_Denying_
Prelim_Injunction.pdf (case sensitive).
In Scott v. School Board of Alachua County, 324 F.3d 1246 (11th Cir. 2003), the court upheld
a high school administrator’s prohibition of Confederate flag symbols on a north Florida high
school campus, finding his action to be justified not only under the disruption standard of Tinker
v. Des Moines Independent Community School District, 393 U.S. 503, 21 L.Ed.2d 731, 89 S.Ct.
733 (1969), but also under Bethel, supra, because the emotionally charged and divisive
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Confederate symbols impeded the school in its mission to teach students of different backgrounds
to engage one another on civil terms rather than through offensive or highly threatening
communication. 324 F.3d at 1248 – 1249.
d. [7.19] School Uniform Policies
The School Code, 105 ILCS 5/1-1, et seq., authorizes boards of education to adopt not only
dress codes but school uniform policies as “necessary to maintain the orderly process of a school
function or prevent endangerment of student health or safety.” 105 ILCS 5/10-22.25b. Such
policies must give students transferring into the district a reasonable time to comply and include
procedures to accommodate the needs of, or provide resources to enable, students from indigent
families to comply. A parent or guardian may object to the policy on religious grounds, and a
student will not be required to comply if the student’s parents or guardians provide the school
board with “a signed statement . . . detailing the grounds for the objection.” Id.
An Illinois elementary district’s uniform-like dress code policy for middle school students
was upheld by the U.S. District Court for the Northern District of Illinois in an unreported
memorandum opinion and order in Vines v. Board of Education of Zion School District No. 6,
No. 01 C 7455, 2002 WL 58815 (N.D.Ill. Jan. 14, 2002). The policy required students to dress in
solid black, solid white, or a combination of black and white clothing without logos, printed
words, or designs. The court began by noting that the school was a nonpublic forum by practice
as well as under Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 98 L.Ed.2d 592, 108
S.Ct. 562 (1988), and the Seventh Circuit decisions in Muller v. Jefferson Lighthouse School, 98
F.3d 1530 (7th Cir. 1996), cert. denied, 117 S.Ct. 1335 (1997), and Hedges v. Wauconda
Community Unit School District No. 118, 9 F.3d 1295, 1302 (7th Cir. 1993) (discussed in §7.8
above), and further that “[s]peech restrictions in a nonpublic forum school that are ‘reasonably
related to legitimate pedagogical concerns’ do not violate a student’s free speech.” 2002 WL
58815 at *3, quoting Muller, supra, 98 F.3d at 1540. The declared purposes of the uniform
policy — to improve school safety and students’ academic and social growth by discouraging
gang affiliations, reducing peer pressure and socioeconomic competition, improving self-concepts
and classroom behavior, and reducing vulgar and profane disruptions of the educational
process — were legitimate pedagogical concerns to which the dress code restrictions on
expression were reasonably related. “Accordingly, the Board’s dress code constitutionally
regulates [the plaintiff’s] First Amendment free speech rights in the nonpublic forum of her
school.” 2002 WL 58815 at *4.
The Fifth Circuit Court of Appeals has upheld mandatory school uniform policies against
First Amendment challenge, most recently in Palmer v. Waxahachie Independent School District,
579 F.3d 502 (5th Cir. 2009). The Palmer court cited and followed Canady v. Bossier Parish
School Board, 240 F.3d 437 (5th Cir. 2001), in finding the policy before it to be constitutional
under the analytical framework for evaluating content-neutral restrictions on expressive activity
set out in United States v. O’Brien, 391 U.S. 367, 20 L.Ed.2d 672, 88 S.Ct. 1673, 1678 – 1679
(1968), in which the Court stated that “when ‘speech’ and ‘nonspeech’ elements are combined in
the same course of conduct, a sufficiently important governmental interest in regulating the
nonspeech element can justify incidental limitations on First Amendment freedoms.”
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§7.20
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Assertions that school dress codes or uniform policies violate parents’ fundamental rights to
make decisions concerning the care, custody, and control of their children (cf. Pierce v. Society of
Sisters of Holy Names of Jesus & Mary, 268 U.S. 510, 69 L.Ed. 1070, 45 S.Ct. 571, 573 (1925))
have also been rejected. See, e.g., Blau v. Fort Thomas Public School District, 401 F.3d 381 (6th
Cir. 2005).
School districts that adopt school uniform policies should regulate carefully, to avoid
punishing students for engaging in protected symbolic speech. See Lowry v. Watson Chapel
School District, 540 F.3d 752 (8th Cir. 2008) (discipline of students for wearing black armbands,
à la Tinker (Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 21
L.Ed.2d 731, 89 S.Ct. 733 (1969)), to protest school district’s mandatory school uniform policy,
violated their First Amendment rights), cert. denied, 129 S.Ct. 1256 (2009).
For more detailed coverage of this subject, the reader is referred to Todd A. DeMitchell and
Mark A. Paige, School Uniforms in the Public Schools: Symbol or Substance? A Law & Policy
Analysis, 250 Ed. Law Rep. 847 (2010).
B. Fourth Amendment Protection Against Unreasonable Searches and Seizures
1. School Administrative Searches and “Reasonableness” Standards
a. [7.20] New Jersey v. T.L.O. and Two-Part Test in Individualized Suspicion Cases
The Fourth Amendment to the U.S. Constitution protects “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
The Fourteenth Amendment extends this fundamental safeguard to searches by state officers,
including public school officials:
In carrying out searches . . . school officials act as representatives of the State, not
merely as surrogates for the parents, and they cannot claim the parents’ immunity
from the strictures of the Fourth Amendment. New Jersey v. T.L.O., 469 U.S. 325, 83
L.Ed.2d 720, 105 S.Ct. 733, 740 (1985).
However, the Supreme Court in T.L.O. also held that school officials are not subject to the Fourth
Amendment’s Concluding Clause (“and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized”). The Court found that the schoolhouse environment, with its
emphasis on safety, order, and discipline, required a relaxed application of traditional search-andseizure rules. Unlike law enforcement authorities, school personnel do not need a warrant to
search a student suspected of wrongdoing. Nor do they need probable cause to conduct a
warrantless search.
Rather, the legality of a search of a student should depend simply on the
reasonableness, under all the circumstances, of the search. Determining the
reasonableness of any search involves a two-fold inquiry: first, one must consider
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“whether the . . . action was justified at its inception,” Terry v. Ohio, [392 U.S. 1, 20
L.Ed. 2d 889, 88 S.Ct. 1868, 1879 (1968)]; second, one must determine whether the
search as actually conducted “was reasonably related in scope to the circumstances
which justified the interference in the first place,” ibid. [Emphasis added.] 105 S.Ct. at
742 – 743.
According to the Court, a school search is “justified at its inception” when there are
reasonable grounds to suspect it will turn up evidence that a student has violated or is violating
the law or school rules. The scope of a search is proper when the measures adopted to conduct it
are reasonably related to the objectives of the search and not overly intrusive in light of the age
and sex of the student and the nature of the infraction. 105 S.Ct. at 743.
T.L.O. involved an assistant principal’s search of a high school student’s purse for cigarettes.
The Court held that the administrator’s search was (1) justified at the outset by a teacher’s report
that T.L.O. had been smoking in the lavatory in violation of school rules and T.L.O.’s denial that
she had done so, and (2) reasonable in its ensuing scope because the administrator’s discovery of
rolling papers when he opened the purse gave him grounds to think she was carrying marijuana as
well as cigarettes and a basis for the further search which led him to find empty plastic bags,
marijuana, a list of people who owed T.L.O. money, and other evidence of drug dealing. 105
S.Ct. at 745 – 746.
In 2009, the Supreme Court applied the test for school searches it announced in T.L.O. to a
strip-search case. The Court held that school officials, acting on reasonable suspicion that 13year-old Savana Redding had ibuprofen pills at school, properly searched her backpack and outer
clothing for evidence of this contraband. But when, after finding nothing, they subjected her to a
search of her underwear, they exceeded the bounds of a “reasonable” school search in violation of
the Fourth Amendment. Safford Unified School District #1 v. Redding, ___ U.S. ___, 174
L.Ed.2d 354, 129 S.Ct. 2633 (2009). The Redding decision is reviewed in more detail in §7.29
below, dealing with strip searches.
b. [7.21] “Reasonableness” of School Searches Not Based on Individualized Suspicion
As New Jersey v. T.L.O., 469 U.S. 325, 83 L.Ed.2d 720, 105 S.Ct. 733, 743 n.8 (1985),
concerned the reasonableness of a school search based on individualized suspicion, the Court said
it “need not consider the circumstances that might justify school authorities in conducting
searches unsupported by individualized suspicion,” and left that unresolved issue for another day.
105 S.Ct. at 743 n.8.
That day came ten years later when the Court sustained a public school program of
mandatory random drug testing for student athletes against a Fourth Amendment challenge in
Vernonia School District 47J v. Acton, 515 U.S. 646, 132 L.Ed.2d 564, 115 S.Ct. 2386 (1995).
Vernonia, and its thesis that special needs and circumstances of the school environment justified
suspicionless searches of student athletes, was extended to sanction random urinalysis for all
extracurricular participants. Board of Education of Independent School District No. 92 of
Pottawatomie County v. Earls, 536 U.S. 822, 153 L.Ed.2d 735, 122 S.Ct. 2559 (2002). The
Court’s suspicionless drug testing cases, discussed further in §§7.26 and 7.27 below, instruct
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judges to evaluate suspicionless school searches using a balancing inquiry that weighs the
magnitude of the government’s need to conduct the search at issue against the nature of the
privacy invasion it entails. A court reviewing such searches is to first consider “the scope of the
legitimate expectation of privacy at issue,” then the “character of the intrusion . . . complained
of,” and finally the “nature and immediacy of the governmental concern at issue” and the efficacy
of the means used to deal with it. Vernonia, supra, 115 S.Ct. at 2393, 2394.
Sections 7.26 – 7.33 below highlight how judges have applied the principles announced in
T.L.O., Vernonia, Earls, and the Supreme Court’s latest decision concerning students’ Fourth
Amendment rights in Safford Unified School District #1 v. Redding, ___ U.S. ___, 174 L.Ed.2d
354, 129 S.Ct. 2633 (2009), to various types of searches. Sections 7.22 – 7.25 below address
several other points to be kept in mind when analyzing challenges to searches or seizures of
students by school officials, i.e., the definitions of “search” and “seizure” for Fourth Amendment
purposes, how police involvement in a school search or seizure may affect the constitutional
standard to be applied, and relevant provisions of the School Code.
2. [7.22] Definition of “Search” for Fourth Amendment Purposes
Fourth Amendment protections come into play only when the place searched is one in which
the party searched has a reasonable expectation of privacy. “Official conduct that does not
‘compromise any legitimate interest in privacy’ is not a search subject to the Fourth
Amendment.” Illinois v. Caballes, 543 U.S. 405, 160 L.Ed.2d 842, 125 S.Ct. 834, 837 (2005),
quoting United States v. Jacobsen, 466 U.S. 109, 80 L.Ed.2d 85, 104 S.Ct. 1652, 1662 (1984).
In New Jersey v. T.L.O., 469 U.S. 325, 83 L.Ed.2d 720, 105 S.Ct. 733, 741 n.5 (1985), the
Supreme Court declined to address the question “not presented by this case” (but see discussion
in §7.32 below) of whether a schoolchild has a legitimate expectation of privacy in lockers, desks,
or other school property provided for the storage of school supplies. However, the Court observed
that students may need to bring various articles of legitimate, noncontraband personal property
with them to school and that they have legitimate expectations of privacy in these personal
effects — therefore acknowledging that the intrusion into the female student’s purse was a search
implicating Fourth Amendment protections. See the discussion in 105 S.Ct. at 740 – 742, which
has been cited by Illinois courts in recognizing that young people have privacy expectations in
items they bring to school. See People v. Dilworth, 169 Ill.2d 195, 661 N.E.2d 310, 315, 214
Ill.Dec. 456, cert. denied, 116 S.Ct. 1692 (1996); People v. Williams, 339 Ill.App.3d 956, 791
N.E.2d 608, 612, 274 Ill.Dec. 516 (2d Dist. 2003); People v. Kline, 355 Ill.App.3d 770, 824
N.E.2d 295, 299, 291 Ill.Dec. 719 (3d Dist.), appeal denied, 215 Ill.2d 609 (2005).
The Supreme Court confirmed the correctness of this understanding in Safford Unified School
District #1 v. Redding, ___ U.S. ___, 174 L.Ed.2d 354, 129 S.Ct. 2633, 2641 n.3 (2009), noting
there was “no question” that the justification that school officials had to search Savana Redding’s
backpack was required under the T.L.O. standard of reasonable suspicion, “for it is common
ground that Savana had a reasonable expectation of privacy covering the personal things she
chose to carry in her backpack, cf. 469 U.S., at 339, and that [the assistant principal’s] decision to
look through it was a ‘search’ within the meaning of the Fourth Amendment.”
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Nonetheless, School Code §10-22.6(e) purports to deprive students of privacy expectations
that under controlling caselaw are protected by the Fourth Amendment. The key text added by
P.A. 89-610 in 1996 is set out below, with text of particular concern shown in italics:
To maintain order and security in the schools, school authorities may inspect
and search places and areas such as lockers, desks, parking lots, and other school
property and equipment owned or controlled by the school, as well as personal
effects left in those places and areas by students, without notice to or the consent of
the student, and without a search warrant. As a matter of public policy, the General
Assembly finds that students have no reasonable expectation of privacy in these places
and areas or in their personal effects left in these places and areas. School authorities
may request the assistance of law enforcement officials for the purpose of
conducting inspections and searches of lockers, desks, parking lots, and other school
property and equipment owned or controlled by the school for illegal drugs,
weapons, or other illegal or dangerous substances or materials, including searches
conducted through the use of specially trained dogs. If a search conducted in
accordance with this Section produces evidence that the student has violated or is
violating either the law, local ordinance, or the school’s policies or rules, such
evidence may be seized by school authorities, and disciplinary action may be taken.
School authorities may also turn over such evidence to law enforcement authorities.
[Emphasis added.] 105 ILCS 5/10-22.6(e).
This legislative declaration that students have no reasonable expectation of privacy in
personal effects they bring to school creates a risk that school officials relying on the statute may
conduct overly broad searches that if challenged could be held unconstitutional. See Doe v. Little
Rock School District, 380 F.3d 349, 354 (8th Cir. 2004), in which the court held that random,
suspicionless searches of high school students’ belongings “invade[d] students’ privacy interests
in a major way” and violated the Fourth Amendment, absent extenuating circumstances that pose
a grave security threat. The Doe court noted that the Little Rock School District had attempted to
negate these privacy interests by stating in high school student handbooks that “book bags,
backpacks, purses and similar containers are permitted on school property as a convenience for
students,” and that “if brought onto school property, such containers and their contents are at all
times subject to random and periodic inspections by school officials.” 380 F.3d at 355. The court
found this tactic ineffective, opining that the district “may not deprive its students of privacy
expectations protected by the fourth amendment simply by announcing that the expectations will
no longer be honored.” 380 F.3d at 354.
3. [7.23] Definition of “Seizure” for Fourth Amendment Purposes
A person is seized within the meaning of the Fourth Amendment when, by a show of
authority or by physical force, his or her freedom of movement is restrained. For example, a
seizure occurs whenever a police officer accosts an individual and restrains his or her freedom to
walk away. People v. Kline, 355 Ill.App.3d 770, 824 N.E.2d 295, 291 Ill.Dec. 719 (3d Dist.),
appeal denied, 215 Ill.2d 609 (2005); People v. Parker, 284 Ill.App.3d 860, 672 N.E.2d 813,
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815 – 816, 219 Ill.Dec. 960 (1st Dist. 1996), citing United States v. Mendenhall, 446 U.S. 544, 64
L.E.2d 497, 100 S.Ct. 1870, 1877 (1980); Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct.
1868, 1877 (1968).
Although the Court in New Jersey v. T.L.O., 469 U.S. 325, 83 L.Ed.2d 720, 105 S.Ct. 733
(1985), dealt only with searches, courts have presumed that school officials’ seizures of students
also fall within the purview of the Fourth Amendment and have used the reasonableness standard
to evaluate their constitutionality. See, e.g., Kline, supra; Edwards v. Rees, 883 F.2d 882, 884
(10th Cir. 1989) (“We believe that the same considerations which moved the Supreme Court to
apply a relaxed Fourth Amendment standard in cases involving school searches support applying
the same standard in school seizure cases.”) Similarly, the Seventh Circuit has held that “in the
context of a public school, a teacher or administrator who seizes a student does so in violation of
the Fourth Amendment only when the restriction of liberty is unreasonable under the
circumstances then existing and apparent.” Wallace v. Batavia School District 101, 68 F.3d 1010,
1014 (7th Cir. 1995) (rejecting civil rights claim of teen who sued teacher for briefly grabbing her
arm to escort her from classroom to break up fight).
The T.L.O. reasonable-suspicion standard was also applied to a school seizure in Wofford v.
Evans, 390 F.3d 318, 326 (4th Cir. 2004), holding that administrators did not violate the Fourth
Amendment rights of a ten-year-old girl when, based on tips from her classmates and without
calling her parents, the administrators held the student in the principal’s office on two occasions
to question her — the second time with police participation — about whether she had brought a
gun to school. “Imposing a rigid duty of parental notification or a per se rule against detentions of
a specified duration would eviscerate the ability of administrators to meet the remedial exigencies
of the moment.” 390 F.3d at 321.
4. [7.24] Police Involvement and Potential Effect on Constitutional Standard
The reasonable-suspicion standard announced in New Jersey v. T.L.O., 469 U.S. 325, 83
L.Ed.2d 720, 105 S.Ct. 733 (1985), has been extended to situations involving police participation
in school searches, when (a) school officials initiate the search or police involvement is minimal,
or (b) school police or resource officers conduct the search acting on their own authority. On the
other hand, courts have applied the probable-cause standard when outside police officers initiate
the search or when school officials act at the behest of law enforcement authorities. See People v.
Dilworth, 169 Ill.2d 195, 661 N.E.2d 310, 317 – 318, 214 Ill.Dec. 456, cert. denied, 116 S.Ct.
1692 (1996), and cases cited therein.
In Dilworth, the Illinois Supreme Court held that the reasonable-suspicion standard governed
a search conducted by a liaison police officer assigned full-time to the staff of an alternative high
school for students with behavioral disorders. Two teachers asked the officer to search a student
for drugs. No drugs were found, but after escorting the student back to his locker, the officer
observed him talking and laughing with the defendant (another student) as though they had “put
one over” on him. 661 N.E.2d at 313. The officer noticed that the defendant was holding a
flashlight. On the hunch it might contain drugs, he took the flashlight from the defendant,
unscrewed the top, and found a bag containing cocaine under the flashlight batteries. The court
held that the reasonable-suspicion standard should be applied to the search, characterizing the
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scenario as one involving a police liaison officer who acted on his own initiative and authority to
further a proper educational environment at the school and conducted a “minimally intrusive”
search based on an individualized suspicion that the defendant’s flashlight concealed drugs. 661
N.E.2d at 318.
See also People v. Williams, 339 Ill.App.3d 956, 791 N.E.2d 608, 611 – 612, 274 Ill.Dec. 516
(2d Dist. 2003) (rejecting argument that high school resource officer needed probable cause to
search student’s car in school parking lot, and applying T.L.O. standard to reverse trial court’s
grant of defendant’s motion to suppress evidence of gun found in trunk).
The T.L.O. reasonableness standard has also been held to govern seizure (restraint) of a
student on school premises by a school resource officer acting in conjunction with a school
official. In re J.F.M., 168 N.C.App. 143, 607 S.E.2d 304, 307 (2005). Compare People v. Kline,
355 Ill.App.3d 770, 824 N.E.2d 295, 300 – 3014, 291 Ill.Dec. 719 (3d Dist.) (applying T.L.O.
reasonableness standard to joint action by high school dean and non-SRO city police officer to
detain student for questioning about alleged cannabis possession, but finding seizure unlawful
and suppressing evidence because anonymous Crimestoppers tip lacked requisite indicia of
reliability to provide reasonable suspicion), appeal denied, 215 Ill.2d 609 (2005).
On the related issue of whether a student is in “custody” for Miranda purposes if school
officials asked him or her about illegal acts and their questioning is prompted by a police
investigation, the Illinois appellate court has held that such interrogation is not custodial if (a) the
school officials are legitimately concerned about the student’s potential misdeeds because of their
role as school administrators, and (b) they are not acting merely as cat’s paws for the police in
situations in which the police would themselves lack authority or justification for the
investigation. People v. Pankhurst, 365 Ill.App.3d 248, 848 N.E.2d 628, 302 Ill.Dec. 329 (2d
Dist. 2006) (reversing grant of defendant’s motion to suppress self-incriminating statements; high
school principal and dean were not required to give Miranda warnings to him because, although
police were present at school when student was detained in principal’s office, administrators were
not acting as agents of police when they questioned him about drugs found in his possession at
school and elicited his admission that he had been dealing).
The Illinois Council of School Attorneys has published Guidelines for Interviews of Students
at School by Law Enforcement Authorities (rev. Mar. 2009), www.iasb.com/law/icsaguidelines
interviews.pdf.
5. [7.25] Pertinent Provisions of Illinois School Code and Related Practice Tips
The provisions of School Code §10-22.6(e) dealing with school searches are discussed in
§7.22 above. 105 ILCS 5/10-22.6(e). Parallel to §10-22.6(e), School Code §10-22.10a empowers
school boards to adopt a policy to authorize school officials to request the assistance of law
enforcement officials for the purpose of conducting reasonable searches of school grounds and
lockers for illegal drugs, including searches conducted through the use of specially trained dogs.
105 ILCS 5/10-22.10a.
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§7.26
ILLINOIS SCHOOL LAW: PERSONNEL AND STUDENT ISSUES
The School Code also requires each district board of education to develop, in collaboration
with a parent-teacher advisory committee, “policy guidelines on pupil discipline, including school
searches.” 105 ILCS 5/10-20.14(a).
PRACTICE POINTER
9
A district’s student discipline policy should state plainly that lockers are school property
that school personnel may open and inspect at any time for any reason. The same caveat
should be published in student handbooks. By making clear that the lockers are school
property that school officials are authorized to open and inspect at will, the district can
negate any expectation on the part of students that they have a privacy interest in the
space inside their lockers — as most courts appear to acknowledge. See the discussion in
§7.32 below. (CAUTION: Such notices are not effective to negate a student’s privacy
interest in the contents of a backpack, jacket pocket, purse, or other closed “container”
that he or she may store inside the locker. Absent exigent circumstances, reasonable
suspicion is ordinarily required to search these items.)
High school students and their parents may retain a legitimate expectation of privacy in the
contents of a locked, family-owned car (assuming the contents are not in plain view), although
this expectation may be in more doubt after Illinois v. Caballes, 543 U.S. 405, 160 L.Ed.2d 842,
125 S.Ct. 834 (2005), discussed in §7.33 below. In any event, a district may include language in
its discipline policy and student handbooks stating that by electing to avail themselves of the
convenience of a school parking lot, students consent to any search of their vehicles parked on
that lot.
6. Particular Types of Searches
a. Searches of Student’s Person
(1)
[7.26] Drug tests
School districts are well advised to work closely with legal counsel in laying the foundation
for and crafting the details of drug-testing policies, whether the policies provide for random
testing of students, for testing only on reasonable suspicion of drug use, or both.
(a)
[7.27] Urinalysis
The Supreme Court upheld a school district’s policy requiring suspicionless drug testing of
student athletes in Vernonia School District 47J v. Acton, 515 U.S. 646, 132 L.Ed.2d 564, 115
S.Ct. 2386 (1995). The Court recognized that collecting urine samples implicates Fourth
Amendment privacy interests, but a six-Justice majority found that the searches involved in the
Vernonia district’s program of random urinalysis were reasonable and therefore constitutional.
Before adopting the policy, the Vernonia district had conducted prevention programs and dog
searches to try to curtail persistent substance abuse by students, including athletes who were
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“leaders of the drug culture.” 115 S.Ct. at 2389. Stating that the Fourth Amendment does not
contain an “irreducible requirement” of individualized suspicion (115 S.Ct. at 2391), the
Vernonia Court determined the reasonableness of the random drug testing regimen by balancing
three primary factors: (1) the nature of the privacy interest at issue; (2) the character of the
intrusion; and (3) the nature and immediacy of the governmental concern and efficacy of the
means used to address that concern. The Court first emphasized that public school students have a
lower expectation of privacy than citizens generally and that student athletes’ privacy
expectations are even lower, citing preseason physical exams and the communal undress inherent
in locker rooms. As to the character of the intrusion, the Court found that safeguards observed in
the collection and testing of students’ urine moderated the privacy-invasive character of the
procedures, as did their limited uses: test results were disclosed only to school personnel who
needed to know them and were not turned over to law enforcement authorities or used for any
internal disciplinary function other than suspending or excluding positive-testing students from
interscholastic sports. Last, the Court deemed the district to have an important interest in
deterring drug use, given that its physical, psychological, and addictive dangers are especially
great in adolescence and affect not only individual users’ lives but also the educational climate of
the entire school in which athletes are role models. The Court also noted that drug-impaired
athletes heighten the risk of harm to themselves and others. In sum, although the district could
have chosen to address student athletes’ drug use by narrower means, such as testing based on
reasonable suspicion, the Court held that school officials were not limited to that alternative. 115
S.Ct. at 2393 – 2396.
The Court significantly enlarged Vernonia’s holding in Board of Education of Independent
School District No. 92 of Pottawatomie County v. Earls, 536 U.S. 822, 153 L.Ed.2d 735, 122
S.Ct. 2559 (2002). The Earls Court upheld a suspicionless drug testing policy that, rather than
responding to and targeting a specific group of students with a documented history of substance
abuse as the school district did in Vernonia, required all middle and high school students to
consent to random urinalysis as a condition of participating in any extracurricular activities,
including Future Farmers and Future Homemakers of America, the interscholastic academic
team, band, and choir. Writing for five members of the Court, Justice Clarence Thomas viewed
Earls as a logical extension of Vernonia, focusing on the “custodial and tutelary responsibility” of
schools. 122 S.Ct. at 2565, quoting Vernonia, supra, 115 S.Ct. at 2392. Broadly applying the
elements of the reasonableness test as articulated in Vernonia, the Court found that the affected
students had only limited privacy expectations, reasoning that participants in non-sport
extracurricular activities, like athletes, subject themselves to special rules and some similar
intrusions on their privacy. As in Vernonia, the invasion of privacy occasioned by urine testing
was characterized as insignificant. Regarding the nature of the school district’s interests and the
efficacy of the policy in addressing it, although there was little evidence showing drug use among
students generally or extracurricular participants in particular (in fact, the superintendent
repeatedly described drugs as not a major problem in the district), the Court found that drug use
was an important governmental concern nationwide and that the policy effectively served the
district’s interest in protecting its students’ health and safety. 122 S.Ct. at 2575.
Given the expansive view of school officials’ justification for suspicionless drug testing
suggested in Earls, the permissible reach of such policies under the Fourth Amendment is
unclear. Could a public school district mandate random drug tests for its student population as a
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whole on the “special needs” rationale as broadly articulated in Earls? A Seventh Circuit case
decided after Vernonia but before Earls suggests that the answer is no. In Joy v. Penn-HarrisMadison School Corp., 212 F.3d 1052 (7th Cir. 2000), the court upheld a policy that required
high school students to consent to suspicionless drug testing in order to take part in sports and
other extracurricular activities and to drive or park a vehicle on school property. However, the
court struck down a part of the policy that required students to submit to suspicionless drug
testing in order to return to school after being suspended three consecutive days for any “student
misconduct or substantial disobedience,” following Willis v. Anderson Community School Corp.,
158 F.3d 415 (7th Cir. 1998), cert. denied, 119 S.Ct. 1254 (1999), in which the court invalidated
a similar provision. 212 F.3d at 1055. The Seventh Circuit rejected the notion that schools should
be allowed to drug test the entire student population:
The scope of Vernonia remains undecided today. Until we receive further
guidance from the Supreme Court, we shall stand by our admonishment in Willis
that the special needs exception must be justified according to the methodology set
forth in Vernonia. Under that approach, the case has yet to be made that a urine
sample can be the “tuition” at a public school. 212 F.3d at 1067.
See also Urine as “Tuition”: Are We There Yet?, 194 Ed. Law Rep. 775 (2005), in which authors
Gareth Diaz Zehrbach and Julie F. Mead express doubt that Earls authorizes general drug testing
of public school students, but observe that the decision may lend support for drug testing as a
condition of reentry to school after expulsions for drug- or alcohol-related misconduct, attendance
at alternative schools, or admission by “choice” to magnet or charter schools.
In the wake of Earls, a number of plaintiffs have successfully challenged such searches as
violating state constitutional protections. See York v. Wahkiakum School District No. 200, 163
Wash.2d 297, 178 P.3d 995 (2008) (en banc); Theodore v. Delaware Valley School District, 575
Pa. 321, 836 A.2d 76 (2003). Compare Joye v. Hunterdon Central Regional High School Board
of Education, 176 N.J. 568, 826 A.2d 624 (2003) (similar random drug/alcohol testing program
was consistent with New Jersey’s Constitution when fully developed factual record showed that
drug problem existed and indicated that testing program would help alleviate it).
(b)
[7.28] Breathalyzers; saliva testing
The Supreme Court has held that blood and breath tests, like urinalysis, implicate Fourth
Amendment protections. In Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 103
L.Ed.2d 639, 109 S.Ct. 1402 (1989), the Court ruled that blood tests by a hospital physician
involved “virtually no risk, trauma or pain” and were not unreasonably invasive. 109 S.Ct. at
1417, quoting Schmerber v. State of California, 384 U.S. 757, 16 L.Ed.2d 908, 86 S.Ct. 1826,
1836 (1966). The Skinner Court further stated that breathalyzer tests are less invasive than blood
tests as they “do not require piercing the skin and may be conducted safely outside a hospital
environment and with a minimum of inconvenience or embarrassment.” 109 S.Ct. at 1418.
A district may “search” a student by breathalyzer based on reasonable suspicion that the
student has been consuming alcohol. See Anable v. Ford, 653 F.Supp. 22, 37 (W.D.Ark. 1985). In
Juran v. Independence or Central School District 13J, 898 F.Supp. 728 (D.Or. 1995), the court
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held that school officials did not violate a student’s constitutional rights by taking him to the
police station for a breathalyzer test when they had probable cause to believe he was under the
influence of alcohol on a senior field trip. The reasonable-suspicion standard might have applied
to the breathalyzer testing if school officials had not acted with the aid of police officers. 898
F.Supp. at 733 n.4. See also Bridgman v. New Trier High School District No. 203, 128 F.3d 1146,
1148 (7th Cir. 1997) (upholding comparably nonintrusive “medical assessment” that included
taking student’s blood pressure and pulse and searching his outer clothing when student
assistance program coordinator — informed by her expertise as certified drug addiction
counselor — reasonably suspected that student was under influence), cited and followed in Mac
Ineirghe v. Board of Education of East Islip Union Free School District, No. 05-CV-4324, 2007
WL 2445152 (E.D.N.Y. Aug. 22, 2007).
Instead of testing students for drug use by means of urinalysis, some districts have
inaugurated use of saliva-based drug testing. See Mac Ineirghe, supra, 2007 WL 2445152 at *11
(initial saliva-based drug test was “far less invasive search than either a urinalysis or blood test”
and was justified by student’s behaviors that gave rise to reasonable suspicion that he possessed
or had been using drugs at school).
(2)
[7.29] Strip searches
Safford Unified School District #1 v. Redding, ___ U.S. ___, 174 L.Ed.2d 354, 129 S.Ct.
2633 (2009), confirmed that the reasonableness standard announced for school searches in New
Jersey v. T.L.O., 469 U.S. 325, 83 L.Ed.2d 720, 105 S.Ct. 733, 740 (1985), governs strip searches
of students by school personnel. The Supreme Court held that school officials, acting on
reasonable suspicion that 13-year-old Savana Redding had ibuprofen pills at school, properly
searched her backpack and outer clothing for evidence of this contraband. But when, after finding
nothing, they subjected her to a search of her underwear, they exceeded the bounds of a
“reasonable” school search. 129 S.Ct. at 2640 – 2643. (As requested by female school employees,
Savana removed her jacket, socks, shoes, stretch pants, and T-shirt, and pulled out her bra and the
elastic on her underpants, partly exposing her breasts and pelvic area.)
The Court gave the defendants the benefit of the doubt as to whether the law relating to strip
searches of students was “clearly established” when they acted in October 2003. Justice David
Souter’s opinion found that it was not and held that the school officials were entitled to qualified
immunity from suit, in light of the conflicting lower federal court decisions on the subject. 129
S.Ct. at 2643 – 2644. Justices John Paul Stevens and Ruth Ginsburg dissented from this aspect of
the holding, arguing that Redding plowed no new precedential ground but merely decided that the
strip search of Savana was, on its facts, prohibited under T.L.O. 129 S.Ct. at 2644 – 2646.
According to the Redding Court, school officials had enough suspicion based on information
the assistant principal obtained in his initial interview of Savana to justify the first part of their
search: a student reasonably suspected of giving out contraband pills can also be reasonably
suspected of carrying them on her person or in her backpack. Neither the check of her backpack,
nor the search of Savana’s outer clothing by female staff members in the privacy of the nurse’s
office, was overly intrusive. However, the strip search was another matter. The Court noted that
while young people may not be frightened or humiliated by nakedness or “near undress” in other
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school settings such as changing for gym, exposing oneself for a search in response to an
accusation of wrongdoing is “so degrading that a number of communities have decided that strip
searches in schools are never reasonable and have banned them no matter what the facts may be.”
129 S.Ct. at 2642. The indignity of such a search does not automatically outlaw it as a
constitutional matter, but it does bring into play T.L.O.’s rule that the search as conducted be
reasonable in scope — i.e., “not excessively intrusive in light of the age and sex of the student
and the nature of the infraction.” Id.
As the Court evaluated the facts in Redding, when school officials proceeded with the strip
search, they did not have a reasonable suspicion of danger to the students based on the the power
of the drugs or their quantity, nor reason to suppose that Savana was carrying pills in her
underwear: “[T]he combination of these deficiencies was fatal to finding the search reasonable.”
129 S.Ct. at 2643. Despite the “high degree of deference that courts must pay to the educator’s
professional judgment,” the Fourth Amendment requires a reasonable suspicion of danger, or that
a student is hiding evidence of wrongdoing in his or her underwear, before a search can
“reasonably make the quantum leap from outer clothes and backpacks to exposure of intimate
parts.” Id.
In the first reported strip-search decision by a federal district judge after Redding, the court
denied relief to an assistant principal and his female discipline aide who requested summary
judgment in their favor on the basis of qualified immunity. Foster v. Raspberry, 652 F.Supp.2d
1342 (M.D.Ga. 2009). The plaintiff alleged that high school personnel made her remove her
clothes during a search for non-dangerous contraband consisting of that “ubiquitous teenage
accessory” — an iPod — after another student had already “come clean” and told an
administrator the identity of the student with the iPod. 652 F.Supp.2d at 1346, 1347. To protect
the informant’s identity, the administrator delayed confronting the alleged culprit directly and
instead told his discipline aide to search the clothing of the plaintiff and four other girls. School
officials maintained that the girls had only been asked to shake out their blouses and roll down
their waistbands, but crediting the plaintiff’s version as true on the defendants’ summary
judgment motion, the court held that the search as described in the complaint violated the Fourth
Amendment under the T.L.O. standard: the employees did not have an individualized suspicion
that King had the iPod, and the scope of the search was not reasonable since there was no
indication of danger to students nor reason to think King was carrying the iPod in her underwear.
652 F.Supp.2d at 1349 – 1350. The Foster court then held that the defendants were not entitled to
qualified immunity because a 2001 decision of the federal appeals court with jurisdiction over
Georgia, applying T.L.O., had “clearly established” the unconstitutionality of strip searches when
the governmental interest at stake was not important enough to justify the intrusion.
Even before Redding, most federal courts applied T.L.O.’s two-part test rigorously in
considering the constitutionality of school strip searches. See Cornfield v. Consolidated High
School District No. 230, 991 F.2d 1316, 1320 – 1321 (7th Cir. 1993) (upholding limited body
search by male administrators of 16-year-old male student whose physical appearance together
with credible reports of his apparent involvement with marijuana led administrators to reasonably
suspect, albeit incorrectly, that he was “crotching” drugs; court noted that to conduct very
intrusive search in response to minor infraction would not comport with “sliding scale approach”
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to evaluating reasonableness prescribed in T.L.O.), cited and followed in Phaneuf v. Cipriano,
330 F.Supp.2d 74, 81 (D.Conn. 2004) (strip search of female high school student for marijuana,
conducted by student’s mother at principal’s request in presence of female school nurse, was both
reasonable at its inception and in scope).
Partial strip searches of groups of male and female high school students conducted by
teachers to find money reported stolen from another student during gym class were found
unconstitutional in Beard v. Whitmore Lake School District, 402 F.3d 598 (6th Cir. 2005). The
Beard court held the defendants entitled to qualified immunity from liability, finding that the law
as to reasonableness of a strip search under such circumstances was not settled. Accord Lamb v.
Holmes, 162 S.W.3d 902 (Ky. 2005). Compare Kennedy v. Dexter Consolidated Schools, 129
N.M. 436, 10 P.3d 115, 122 (2000) (suspicionless search in which two students were required to
strip to their undergarments as part of school’s effort to find another student’s missing ring
violated clearly established law; officials not entitled to qualified immunity), and Konop v.
Northwestern School District, 26 F.Supp.2d 1189 (D.S.D. 1998) (no qualified immunity for
principal and teacher who strip-searched eighth graders for allegedly stolen $200 without
reasonable basis to believe that particular student had committed theft), followed in Bell v.
Marseilles Elementary School, 160 F.Supp.2d 883 (N.D.Ill. 2001) (under clearly established law,
it was unconstitutional for defendant police officer to search all students in grade school gym
class for missing money by asking them to remove their shirts and/or lower their pants for visual
inspection).
After Redding, supra, conducting general strip searches of students to find money or other
non-dangerous personal property is not reasonable and will likely be found to violate clearly
established constitutional rights, with the result that school officials sued over such searches will
be denied qualified immunity.
(3)
[7.30] Use of metal detectors
Use of magnetometers or handheld scanners to conduct random or general searches of
students for weapons has been held constitutional, in reliance on Supreme Court decisions such as
United States v. Martinez-Fuerte, 428 U.S. 543, 49 L.Ed.2d 1116, 96 S.Ct. 3074 (1976), which
uphold such searches when they are not unduly intrusive and the searched person’s expectation of
privacy is not subject to the discretion of the official in the field. See, e.g., People v. Pruitt, 278
Ill.App.3d 194, 662 N.E.2d 540, 547, 214 Ill.Dec. 974 (1st Dist. 1996), and cases cited therein.
(4)
[7.31] Use of dogs
Under the School Code, a board of education may adopt a policy authorizing school officials
to “request the assistance of law enforcement officials for the purpose of conducting reasonable
searches of school grounds and lockers for illegal drugs, including searches conducted through
the use of specially trained dogs.” 105 ILCS 5/10-22.10a. See also 105 ILCS 5/10-22.6(e),
discussed in §7.22 above.
Use of trained dogs to search places and property to detect illegal drugs, as authorized by the
School Code provisions just cited, is constitutionally unobjectionable. Most state and federal
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courts that have considered the point have held that a canine sniff of property is not a “search”
within the meaning of the Fourth Amendment. See United States v. Place, 462 U.S. 696, 77
L.Ed.2d 110, 103 S.Ct. 2637, 2645 (1983), followed in Illinois v. Caballes, 543 U.S. 405, 160
L.Ed.2d 842, 125 S.Ct. 834 (2005). Caballes held that the Fourth Amendment does not require
police to have reasonable suspicion to justify using a drug detection dog to sniff the exterior of a
vehicle that has been stopped for speeding. According to the Court,
[a]ny intrusion on [the driver’s] privacy expectations does not rise to the level of a
constitutionally cognizable infringement. . . . A dog sniff conducted during a
concededly lawful traffic stop that reveals no information other than the location of
a substance that no individual has any right to possess does not violate the Fourth
Amendment. 125 S.Ct. at 838.
See also Doran v. Contoocook Valley School District, 616 F.Supp.2d 184 (D.N.H. 2009);
Fitzgerald v. State of Maryland, 384 Md. 484, 864 A.2d 1006, 1010 n.5 (2004) (citing state cases
including People v. Cox, 318 Ill.App.3d 161, 739 N.E.2d 1066, 1070, 251 Ill.Dec. 133 (5th Dist.
2000)).
On the other hand, School Code §§10-22.10a and 10-22.6(e) do not by their terms authorize
using dogs to search the persons of individual students, and whether canine sniffs of individuals
are “searches” for Fourth Amendment purposes has still not been resolved. In 1980, the Seventh
Circuit affirmed a ruling that sniffing of a student by a dog trained in detecting narcotics did not
amount to a search. Doe v. Renfrow, 631 F.2d 91 (per curiam), reh’g en banc denied, 635 F.2d
582 (7th Cir. 1980) (four judges dissenting from denial), cert. denied, 101 S.Ct. 3015 (1981). The
Fifth Circuit expressly rejected the view taken in Renfrow two years later, stating that such a dog
sniff infringed students’ reasonable expectation of privacy. Horton v. Goose Creek Independent
School District, 690 F.2d 470 (5th Cir. 1982). Only two federal circuit courts of appeal have
addressed this point. Both held that a canine sniff that involves contact with or is conducted in
close proximity to a person’s body is a search. See United States v. Kelly, 302 F.3d 291, 294 n.1
(5th Cir. 2002); B.C. v. Plumas Unified School District, 192 F.3d 1260, 1265 – 1267 (9th Cir.
1999) (discussing Renfrow and Horton and following latter, noting that dog sniff of person is
more intrusive than dog sniff of inanimate object).
Until the courts clarify the law in this area, the conservative approach would be to assume
that a dog sniff of an individual student is a search subject to Fourth Amendment reasonableness
requirements discussed in §7.20 above.
b. Searches of Particular Property
(1)
[7.32] Lockers
In New Jersey v. T.L.O., 469 U.S. 325, 83 L.Ed.2d 720, 105 S.Ct. 733, 74, n.5 (1985), the
Supreme Court focused on searches of a student or personal items carried by the student and did
not decide “whether a schoolchild has a legitimate expectation of privacy in lockers, desks, or
other school property provided for the storage of school supplies.” Various state courts have since
held that schools may negate student expectations of privacy in lockers by means of a written
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policy explicitly declaring that lockers are school property that may be inspected at any time for
any reason. If the school has such a policy and has notified students of that policy, a locker
inspection is not a “search” within the meaning of the Fourth Amendment, T.L.O.-type reasonable
suspicion is not required, and administrators may conduct random or general inspections of
lockers. See In re Isiah B., 176 Wis.2d 639, 500 N.W.2d 637 (1993); In re Patrick Y., 358 Md.
50, 746 A.2d 405 (2000); Shoemaker v. State of Texas, 971 S.W.2d 178 (Tex.App. 1998).
However, even if the Fourth Amendment does not apply to inspecting locker interiors under these
circumstances, it may preclude suspicionless searches of private compartments inside the locker,
such as jacket pockets or backpacks. See, e.g., In re Dumas, 357 Pa.Super. 294, 515 A.2d 984
(1986).
Absent clear policy, or if district policy purports to limit school authorities’ ability to conduct
a search to reasonable-suspicion situations, some courts have concluded that students do have a
legitimate privacy interest in their locker space. See, e.g., Commonwealth v. Snyder, 413 Mass.
521, 597 N.E.2d 1363 (1992). See also State of Iowa v. Jones, 666 N.W.2d 142 (Iowa 2003)
(students enjoy some privacy in their lockers despite school rules or state laws contemplating
locker searches).
(2)
[7.33] Cars
Precedents upholding suspicion-based searches of students’ vehicles on school premises
under the reasonableness standard set out in New Jersey v. T.L.O., 469 U.S. 325, 83 L.Ed.2d 720,
105 S.Ct. 733 (1985), include People v. Williams, 339 Ill.App.3d 956, 791 N.E.2d 608, 612, 274
Ill.Dec. 516 (2d Dist. 2003) (reasonable-suspicion standard governed legality of school resource
officer’s search of defendant’s car in student parking lot after officer received tip that student had
handgun in trunk); Anders v. Fort Wayne Community Schools, 124 F.Supp.2d 618 (N.D.Ind.
2000) (upholding search of car reasonably supported by suspicion that student had been smoking
there); State v. Best, 201 N.J. 100, 987 A.2d 605 (S.Ct. 2010); Covington County, Mississippi
School District v. G.W., 767 So.2d 187 (Miss. 2000); F.S.E. v. State of Oklahoma, 993 P.2d 771
(Okla.Crim.App. 1999); State of Washington v. Slattery, 56 Wash.App. 820, 787 P.2d 932 (1990)
(noting that exigent circumstances justified immediate search — student could have removed his
drug-containing car from school grounds).
As noted in §7.22 above, a school may include language in its discipline policy and student
handbooks stating that applicants for school parking privileges thereby consent to any search of
their vehicles on school property. Furthermore, the rationale of the Supreme Court’s decision in
Illinois v. Caballes, 543 U.S. 405, 160 L.Ed.2d 842, 125 S.Ct. 834 (2005), discussed in §7.31
above in connection with use of canine-assisted searches, appears to give school officials more
latitude to conduct general dog sniffs of the exteriors of cars on school parking lots. See 125 S.Ct.
at 845 – 846 (Ginsburg, J., dissenting: decision arguably “clears the way for suspicionless, dogaccompanied drug sweeps of parked cars along sidewalks and in parking lots”).
7. [7.34] Consequences of Unlawful School Searches or Seizures
Violations of student Fourth Amendment rights may subject school officials to suit under
federal civil rights statutes for damages or injunctive relief, as well as to state law claims for
invasion of privacy.
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On defense motions in criminal cases, Illinois courts will exclude evidence obtained in school
searches or seizures shown to have contravened the Fourth Amendment. See, e.g., People v.
Parker, 284 Ill.App.3d 860, 672 N.E.2d 813, 219 Ill.Dec. 960 (1st Dist. 1996) (affirming
suppression of weapon found in possession of student who was unlawfully seized by police
officer operating metal detector at school entrance; officer had no reasonable suspicion to detain
student who approached and then walked away from campus). However, the so-called
exclusionary rule does not apply in school disciplinary proceedings. Thompson v. Carthage
School District, 87 F.3d 979, 981 (8th Cir. 1996), cited and followed in T.M.M. v. Lake Oswego
School District, 198 Or.App. 572, 108 P.3d 1211 (2005).
C. [7.35] Students’ Rights to Equal Protection and Substantive Due Process
Information on the rights of public school students to protection under the Equal Protection
Clause of the Fourteenth Amendment can be found in Chapter 11 of IICLE’s ILLINOIS
SCHOOL LAW: ORGANIZATION, FINANCE, AND PROPERTY (2010), dealing with civil
rights litigation, with emphasis in §§11.80 – 11.88 on litigation relating to discrimination on the
basis of race.
As also discussed in §11.16 of Chapter 11, the Fourteenth Amendment has also been held to
be a source of substantive due-process rights. However, as the Seventh Circuit has reaffirmed,
“the scope of substantive due process is very limited.” Tun v. Whitticker, 398 F.3d 899, 902 (7th
Cir. 2005). See also King v. East St. Louis School District 189, 496 F.3d 812, 818 (7th Cir. 2007).
Tun, King, and like precedents in this area generally exemplify the courts’ reluctance to expand it
by recognizing new fundamental rights. See Blau v. Fort Thomas Public School District, 401 F.3d
381, 393 – 394 (6th Cir. 2005) (parent did not have fundamental right to exempt his middle
school daughter from dress code, nor did she have fundamental right to wear blue jeans). But see
Meeker v. Edmundson, 415 F.3d 317 (4th Cir. 2005) (student who complained that wrestling
coach deliberately encouraged repeated unprovoked and severe beatings of him by other team
members stated viable cause of action under 42 U.S.C. §1983 for violation of his substantive dueprocess right to be free from infliction of malicious corporal punishment by school officials).
III. TITLE IX SEXUAL HARASSMENT OF STUDENTS AND SEX EQUITY IN
STUDENT ATHLETICS
A. [7.36] Title IX Sexual Harassment and Sex Equity Issues
Congress enacted Title IX, 20 U.S.C. §1681, et seq., as part of the Education Amendments of
1972, Pub.L. No. 92-318, 86 Stat. 235. Title IX provides in pertinent part: “No person in the
United States shall, on the basis of sex, be excluded from participation in, be denied the benefits
of, or be subjected to discrimination under any education program or activity receiving Federal
financial assistance.” 20 U.S.C. §1681(a). Title IX applies to all educational institutions receiving
federal funds. Programs and activities include, but are not limited to, admissions, recruitment,
financial aid, academic programs, student services, education, recreation, physical education, and
athletics. Also, a recipient may not retaliate against any person because he or she opposed an
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unlawful educational practice or policy or participated in any complaint action under Title IX. See
Jackson v. Birmingham Board of Education, 544 U.S. 167, 161 L.Ed.2d 361, 125 S.Ct. 1497
(2005).
Although neither the statute nor its implementing regulations specifically mention sexual
harassment, the U.S. Supreme Court, Congress, and federal agencies including the U.S.
Department of Education have recognized that sexual harassment of students can constitute
discrimination prohibited by Title IX. “Quid pro quo” harassment occurs if a teacher or other
school employee conditions an educational decision or benefit on the student’s submission to
unwelcome sexual conduct. “Hostile environment” harassment can occur if misconduct
perpetrated by teachers, fellow students, or third parties is serious enough to deny or limit a
student’s participation in or benefit from the school’s programs and services.
The sole means of enforcing Title IX expressly provided for in the statute is loss of federal
funds by administrative agency action. Individuals who believe they have been discriminated
against in violation of Title IX may file a complaint with the federal agency that provides
education funds to the recipient or they may file a lawsuit in federal court. The Office for Civil
Rights (OCR) in the U.S. Department of Education is responsible for enforcing Title IX and the
Department’s implementing regulations at 34 C.F.R. pt. 106.
Title IX regulations require school districts to identify the person, address, and telephone
number of the individual responsible for coordinating the district’s compliance efforts. In addition
to notifying students of the uniform grievance procedure, a district must notify them of the person
designated to coordinate the district’s compliance with Title IX. 34 C.F.R §106.8(a). The notice
requirement can be satisfied by including the necessary information in the student handbook.
The focus of §§7.37 – 7.57 below is on federal regulations, Seventh Circuit Court of Appeals,
and Illinois state court decisions under Title IX. It is important to note that the Illinois State Board
of Education (ISBE) has also promulgated rules on sex equity pursuant to Title IX. The ISBE
rules are found at 23 Ill.Admin. Code pt. 200.
1. [7.37] Private Right of Action, Remedy for Damages, Liability Standards
The Supreme Court recognized an implied private right of action for sex discrimination under
Title IX in Cannon v. University of Chicago, 441 U.S. 677, 60 L.Ed. 560, 99 S.Ct. 1946 (1979).
The Court subsequently held that Title IX’s implied cause of action encompasses the right to
recover money damages and injunctive relief upon proof of intentional discrimination. Franklin v.
Gwinnett County Public Schools, 503 U.S. 60, 117 L.Ed.2d 208, 122 S.Ct. 1028 (1992). Only the
educational institution itself — the federal funds recipient — can be a defendant in a suit
predicated on the implied cause of action under Title IX. Delgado v. Stegall, 367 F.3d 668, 672
(7th Cir. 2004). Title IX does not authorize suit against school officials, teachers, and other
individuals. The Title IX standard of liability applies to all educational institutions receiving
federal funds — thus, to colleges and universities as well as K – 12 school systems. See, e.g.,
Delgado, supra; Hayut v. State University of New York, 352 F.3d 733 (2d Cir. 2003).
A conflict emerged among the circuit courts of appeal regarding whether Title IX precludes
the use of §1983 to redress unconstitutional gender discrimination in schools. The Supreme Court
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resolved the conflict in Fitzgerald v. Barnstable School Committee, __ U.S. __, 172 L.Ed.2d 582,
129 S.Ct. 788 (2009), holding that Title IX was not meant to be an exclusive mechanism for
addressing gender discrimination in schools or a substitute for §1983 suits as a means of
enforcing constitutional rights.
A damages remedy for a school employee’s sexual harassment of a student is available
against the educational entity under Title IX if (a) an “appropriate official” of the school district
had “actual notice” of the sexual harassment, and (b) that official responded with deliberate
indifference to the misconduct. Gebser v. Lago Vista Independent School District, 524 U.S. 274,
141 L.Ed.2d 277, 118 S.Ct. 1989 (1998). An appropriate official is one who, at a minimum, has
authority to address the alleged discrimination and “to institute corrective measures” on the
educational entity’s behalf. 118 S.Ct. at 1993. Thus, a student alleging sexual harassment by an
educational employee under Title IX must show not only harassment of either the quid pro quo or
hostile environment variety, but also that an appropriate official of the educational institution was
on notice of the harassment and failed to respond reasonably. Claims for punitive damages are not
available against school district defendants in Title IX actions. Doe 20 v. Board of Education of
Community Unit School District No. 5, 680 F.Supp.2d 957 (C.D.Ill. 2010).
Peer sexual harassment claims of which a district has notice were held cognizable under Title
IX in Davis v. Monroe County Board of Education, 526 U.S. 629, 143 L.Ed.2d 839, 119 S.Ct.
1661 (1999). The Supreme Court cautioned that damages are not available for “simple acts of
teasing and name-calling among school children, however, even where these comments target
differences in gender.” 119 S.Ct. at 1675. Rather, in a student sexual harassment case, an
educational entity may be held liable in damages only when the entity is deliberately indifferent
to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and
objectively offensive that it can be said to deprive the victim of access to the educational
opportunities or benefits provided by the school. Id.
The Supreme Court expanded the contours of Title IX’s implied cause of action once again in
Jackson v. Birmingham Board of Education, 544 U.S. 167, 161 L.Ed.2d 361, 125 S.Ct. 1497
(2005), holding that Title IX implies a private right of action for retaliation in favor of individuals
who, although not themselves the victims of gender discrimination, suffer retaliation because they
have complained about gender discrimination suffered by others. Jackson, a teacher and girls’
basketball coach in the Birmingham public schools, complained to his supervisors that he did not
believe the girls’ basketball team received equal funding and access to athletic equipment and
facilities. He then began receiving negative work evaluations and was ultimately fired from his
coaching position. He sued under Title IX, alleging that these acts were retaliatory and violated
Title IX’s prohibition of discrimination based on sex.
Justice O’Connor’s opinion for the Court held that Title IX’s private right of action includes
claims of retaliation, reasoning that retaliation is a form of “discrimination on the basis of sex”
because the complainant is subjected to different treatment in response to the original allegations
of sex discrimination. The Court emphasized the importance of Title IX’s enforcement scheme
and reporting of sex discrimination, stating: “Without protection from retaliation, individuals who
witness discrimination would likely not report it, indifference claims would be short circuited,
and the underlying discrimination would go unremedied.” 125 S.Ct. at 1508.
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Although Title IX does not specifically prohibit discrimination on the basis of sexual
orientation, sexual harassment directed at gay or lesbian students that is sufficiently serious to
limit a student’s ability to participate in or benefit from the district’s programs and services may
be actionable under Title IX in some jurisdictions. In other cases, harassment may be based not
on gender, but on one’s failure to conform to male or female stereotypes.
The plaintiff in Seiwert v. Spencer-Owen Community School Corp, 497 F.Supp.2d 942
(S.D.Ind. 2007), was called “gay” and “faggot” over the course of two school years, was kicked
by other boys after he fell during a dodge ball game, and endured death threats. He was removed
from school due to psychological concerns, prompting the court to find that the objectively
offensive incidents amounted to severe and pervasive conduct. In analyzing whether the
misconduct amounted to sexual harassment prohibited by Title IX, the court stated:
There is no concrete evidence that any of the children at OVMS were harassing S.S.
simply because he was a male. S.S. may, however, still have a viable Title IX claim.
As the Seventh Circuit has clearly indicated, “federal courts look to cases decided
under Title VII to inform analysis under Title IX.” Doe v. University of Illinois, 138
F.3d 653, 663 (7th Cir.1998). And, within the context of Title VII, the Seventh
Circuit has intimated that there is a second avenue for demonstrating sexual
harassment. If an individual is being harassed because of a failure to adhere to
specific sexual stereotypes, and not because of his sexual orientation, he has an
actionable claim. Hamm v. Weyauwega Milk Products, Inc., 332 F.3d 1058, 1065 n. 5
(7th Cir. 2003); Massaro v. Illinois Dept. of Corrections, 2006 WL 1063797 at *5
(C.D.Ill 2006). Thus it is conceivable that an individual could sustain a cause of
action under Title IX if he were to demonstrate that he was being harassed — not
because he was a homosexual, but because he was acting in a manner that did not
adhere to the traditional male stereotypes. 497 F.Supp.2d at 953.
The court denied summary judgment to the defendant after determining that it was reasonable
to infer from the facts that other students harassed the plaintiff because they had concluded he
was homosexual, such that their conduct demonstrated the type of harassment prohibited by Title
IX. Id. See also Doe v. Brimfield Grade School, 552 F.Supp.2d 816 (C.D.Ill. 2008), discussed in
§7.49 below.
2. [7.38] 2001 Office for Civil Rights Revised Guidelines
After the Supreme Court decisions in Gebser v. Lago Vista Independent School District, 524
U.S. 274, 141 L.Ed.2d 277, 118 S.Ct. 1989 (1998), and Davis v. Monroe County Board of
Education, 526 U.S. 629, 143 L.Ed.2d 839, 119 S.Ct. 1661 (1999), the U.S. Department of
Education’s Office for Civil Rights issued the Revised Sexual Harassment Guidance: Harassment
of Students by School Employees, Other Students, or Third Parties, in 66 Fed.Reg. 5,512 (Jan. 19,
2001), www2.ed.gov/about/offices/list/ocr/docs/shguide.html. The 2001 guidelines, which
replaced the OCR’s 1997 guidelines, delineate the standards to follow when investigating and
resolving student claims of sexual harassment and are also intended to help school officials
identify and prevent sexual harassment. At the time of publication, the 2001 guidelines were still
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the most recent in effect and had not been revised or updated since 2001. An additional OCR
informational publication dated September 2008 and titled Sexual Harassment: It’s Not Academic
is available at www2.ed.gov/about/offices/list/ocr/docs/ocrshpam.html.
3. [7.39] Employee-Student Sexual Harassment
Court decisions reviewed in §§7.40 – 7.49 below clarify the elements of and proof needed to
support a Title IX claim for employee-student sexual harassment.
a. Illustrative Rulings for Sexual Harassment Plaintiffs
(1)
[7.40] Sex-based hostile environment or quid pro quo harassment
In Hayut v. State University of New York, 352 F.3d 733 (2d Cir. 2003), the court held that a
professor’s alleged sexually charged comments were severe and pervasive enough to constitute a
hostile environment and violated Title IX by effectively barring the plaintiff from access to an
educational opportunity or benefit. According to the student, the professor referred to her
supposed physical resemblance to onetime White House intern Monica Lewinsky. The professor
stood in front of his desk and screamed “Monica,” and said things like, “[h]ow was your weekend
with Bill?” and “[b]e quiet, Monica, I will give you a cigar later.” 352 F.3d at 739.
Given that the professor’s conduct “permeated the classroom atmosphere and set the tone for
the whole class,” the Second Circuit concluded that a jury could find the repeated “Monica”
comments were “severe enough to transcend the bounds of propriety and decency, let alone
harmless humor, and become actionable harassment based on [the student’s] sex.” 352 F.3d at
746, 747. Although brief, each remark “was made against a backdrop of classroom discussions
and press coverage of the most salacious developments in the [Lewinsky] scandal” and could be
reasonably viewed as implying that the student enjoyed similar sexual exploits. 352 F.3d at 747.
See also Jennings v. University of North Carolina, 482 F.3d 686 (4th Cir. 2007) (male university
soccer coach’s alleged persistent, sex-oriented discussions including inquiries about team
members’ sex lives, if proven, were sufficiently severe and pervasive to create hostile
environment, given his power and influence as most successful women’s soccer coach in U.S.
history, and age disparity between coach and players).
(2)
[7.41] Who is an “appropriate official” for notice purposes
In Warren v. Reading School District, 278 F.3d 163 (3d Cir. 2002), a parent brought an action
under 42 U.S.C. §1983 against a school principal and a Title IX action against the district for
sexual abuse of her son, after learning that his fourth grade teacher had repeatedly engaged him in
a game in which the teacher’s genitals repeatedly touched the back of the student’s head and
neck. At trial, another student’s father testified that he had previously told the building principal
that the teacher had engaged in the same type of improper conduct with his son and that the
principal had responded that she was “too busy” to listen to his complaint. 278 F.3d at 173. The
Third Circuit held that the principal was an appropriate person whose knowledge of the sexual
abuse and failure to respond to it could subject the district to liability; although Pennsylvania law
might not empower the principal to dismiss or even suspend a teacher, she did have authority to
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supervise the teacher and investigate a complaint of misconduct, which also implied the authority
to institute corrective measures on the district’s behalf such as reporting her findings to her
superior or to the appropriate school board official. Moreover, the court readily determined that
the school principal’s refusal to listen or act on the parent’s complaint constituted “deliberate
indifference.” Id.
The plaintiffs in a teacher-student sexual harassment claim survived the district’s motion to
dismiss in Peck v. West Aurora School District 129, No. 06 C 1153, 2006 WL 2579678 at *3
(N.D.Ill. Aug. 30, 2006), when the court found that School Code provisions that state that
principals direct, supervise, and discipline teachers do not foreclose the possibility that the dean
and school counselor (who were allowed to be on notice of the harassment) could “institute
corrective measures,” given that they can investigate teacher conduct, remove students from
classes, or call the police. Compare Doe 20 v. Board of Education of Community Unit School
District No. 5, 680 F.Supp.2d 957 (C.D.Ill. 2010), discussed in §7.42 below.
(3)
[7.42] Actual notice requirement met
In Doe 20 v. Board of Education of Community Unit School District No. 5, 680 F.Supp.2d
957 (C.D.Ill. 2010), the defendant district contended that its alleged knowledge of a teacher’s
sexual abuse of students in school year 2003 – 2004 could not suffice as knowledge of
misconduct that occurred in 2004 – 2005, because there were no allegations of parent complaints
during that school year. During 2003 – 2004, parents complained that the teacher had students
give him massages underneath his clothes, and regularly isolated female students outside
classroom instruction. The court found that school officials knew of these complaints made to the
assistant principal in 2003 – 2004, and the assistant principal would have been required to relay
them to the principal and assistant superintendent. Therefore, “a plausible inference arises that
school officials knew that White had sexually harassed students in the year 2003-04 and that he
posed the same risk to students in the next school year. A new school year does not wipe clean
knowledge of sexual misconduct from the prior school year.” 680 F.Supp.2d at 970 – 971. The
plaintiffs therefore survived the district’s motion to dismiss.
Rejecting a principal’s argument that he did not have actual knowledge of sexual harassment
because he did not know whether a teacher had consummated a relationship with a student by
engaging in sexual intercourse, one lower federal court recognized that “[a]n administrator cannot
turn a blind eye to a mounting stream of information showing that a staff member and student are
engaged in an obviously inappropriate relationship.” Bostic v. Smyrna School District, No.
01-0261 KAJ, 2003 WL 723262 at *4 (D.Del. Feb. 24, 2003), aff’d, 418 F.3d 355 (3d Cir. 2005).
The actual notice standard was satisfied when the principal had received several reports from
teachers about their colleague’s inappropriate behavior and the principal himself had admonished
the teacher about it. See also Doe A v. Green, 298 F.Supp.2d 1025, 1034 (D.Nev. 2004), in which
the court held that the student’s retraction of her initial report of sexual abuse did not absolve the
district of Title IX liability as a matter of law and denied summary judgment in the district’s
favor, stating:
[A] complaint of harassment need not be undisputed or uncorroborated before it
can be considered to fairly alert the school district of the potential for sexual
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harassment. . . . [A]ctual notice “requires more than a simple report of
inappropriate conduct” on the part of a school employee but “the . . . standard does
not set the bar so high that a school district is not put on notice until it receives a
clearly credible report of sexual abuse from the plaintiff-student.” Doe v. School
Admin. Dist. No. 19, 66 F.Supp.2d 57, 63 (D.Me. 1999). At some point between these
poles a supervisory school official knows, or it should be obvious to him or her, that
a school employee is a substantial risk.
(4)
[7.43] Deliberate indifference demonstrated
A district was held to have acted with deliberate indifference to sexual abuse by a middle
school gym teacher in Doe v. Warren Consolidated Schools, 307 F.Supp.2d 860 (E.D.Mich.
2003). After initial allegations of sexual misconduct surfaced, the teacher received only a verbal
warning. He then harassed a 19-year-old former student who agreed not to file harassment
charges in return for keeping her job as an assistant volleyball coach, and the teacher received
only a “strong” reprimand. 307 F.Supp.2d at 864. When parents and teachers continued to report
misconduct by the teacher, police investigated and brought criminal assault and battery charges,
at which point the district suspended the teacher without pay but allowed him to return to school
after being acquitted and expunged the suspension from his personnel file. More reports of
improper conduct again resulted in only a reprimand to the teacher, which were again later
removed from his personnel file. After being transferred to an elementary school, the teacher
sexually assaulted three students. In the ensuing Title IX lawsuit, the court readily determined
that the plaintiffs established deliberate indifference on the part of the district, whose response
was “clearly unreasonable in light of known circumstances.” 307 F.Supp.2d at 891.
b. [7.44] Cases Denying Claims of Sexual Harassment
As the cases in §§7.45 – 7.47 below demonstrate, Title IX sexual harassment cases often
founder not only on the actual notice and deliberate indifference standards imposed by Gebser v.
Lago Vista Independent School District, 524 U.S. 274, 141 L.Ed.2d 277, 118 S.Ct. 1989 (1998),
but also due to failure to sufficiently plead or prove a hostile educational environment or quid pro
quo harassment.
(1)
[7.45] No sex-based hostile environment or quid pro quo harassment
Failure to plead discrimination of a sexual nature doomed the Title IX claim of the plaintiff in
Howell v. North Central College, 331 F.Supp.2d 660 (N.D.Ill. 2004). Howell, a former member
of the college women’s basketball team alleged that her coaches were pro-lesbian and harassed
her because she was a heterosexual. Following Seventh Circuit cases decided under Title VII and
holding that harassment based on one’s sexual preference or orientation is not actionable, the
court dismissed the plaintiff’s complaint.
For other examples of Title IX claims dismissed for lack of allegations amounting to
actionable sexual harassment, see Doe-1 v. Huddleston, No. 03-1107, 2006 WL 1582455 (C.D.Ill.
2006) (art teacher’s conduct in hanging heart shape photo of first grade student among her
classmate’s pictures on the classroom door frame and repeatedly calling student his “girlfriend”
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and telling her he loved her was not so severe, pervasive, and objectively offensive as to
constitute actionable sexual harassment under Title IX); Cockerham v. Stokes County Board of
Education, 302 F.Supp.2d 490, 492 (M.D.N.C. 2004) (student who alleged that teacher forced
him to wear pink sign asking “Will you go with me?” as classroom disciplinary measure did not
make out case of gender-based harassment).
(2)
[7.46] No actual notice
The actual notice requirement defeated a Title IX claim brought by a former Western Illinois
University student who alleged that her voice professor harassed her while she worked for him as
an office assistant. Delgado v. Stegall, 367 F.3d 668 (7th Cir. 2004). The student reported the
harassment to another music teacher, who advised her to remove herself from the situation, obtain
counseling, get her parents involved, and see the department chair or dean. Neither Delgado, the
teacher, nor the counselor with whom Delgado subsequently spoke reported Stegall’s misconduct
to any other university official. After transferring to another college, Delgado lodged a complaint
against her former voice teacher. The university responded by directing Stegall to undergo
training in proper behavior toward female students and by placing a letter in his personnel file.
In defending against Delgado’s subsequent Title IX action, WIU agreed that its fine arts dean
and the music department chair were officials clothed with the requisite authority to take
corrective measures but argued that the suit must be dismissed because they did not have actual
notice of Stegall’s misconduct toward Delgado — or any other student. The Seventh Circuit
agreed and affirmed dismissal of Delgado’s Title IX claim, stating Gebser v. Lago Vista
Independent School District, 524 U.S. 274, 141 L.Ed.2d 277, 118 S.Ct. 1989 (1998), requires the
plaintiff in a “damages suit based on a teacher’s behavior to prove actual knowledge of
misconduct, not just actual knowledge of the risk of misconduct.” 367 F.3d at 672. Although this
standard requires knowledge only of “ ‘acts of sexual harassment,’ by the teacher . . . not of
previous acts directed against the particular plaintiff,” Delgado failed to establish that university
administrators knew that Stegall had been serially harassing other students. [Citation omitted.]
Delgado, supra, 367 F.3d at 672, quoting Davis v. Monroe County Board of Education, 526 U.S.
629, 143 L.Ed.2d 839, 119 S.Ct. 1661, 1670 (1999). See also Hansen v. Board of Trustees of
Hamilton Southeastern School Corp., 551 F.3d 599, 606 (7th Cir. 2008) (district had no actual
knowledge of teacher misconduct against student until student revealed misconduct to therapist
two years after misconduct ended; fact that faculty members knew teacher had married woman
who was formerly his student did not constitute sufficient actual notice to hold district liable
under Title IX); P.H. v. School District of Kansas City, 265 F.3d 653, 662 (8th Cir. 2001)
(student’s statement that another teacher had walked in on abusing teacher’s sexual activity with
him on school grounds, and report of that teacher’s sexual abuse of another student 20 years
earlier, did not provide school district sufficient actual notice to support Title IX liability).
(3)
[7.47] No deliberate indifference
A Georgia school district was ruled not liable under Title IX for a female teacher’s improper
sexual relationship with one of her male high school students. Sauls v. Pierce County School
District, 399 F.3d 1279, 1286 (11th Cir. 2005). School officials responded to each report they had
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received by investigating the allegations, interviewing the relevant parties, monitoring the
teacher’s conduct, and warning her both orally and in writing about avoiding “even the
appearance of impropriety” in her dealings with students. Id.
The Sixth Circuit Court of Appeals affirmed a verdict for a Title IX defendant found not to
have acted with “deliberate indifference” with regard to a teacher’s sexual fondling of male
students in his fourth grade classroom in Williams v. Paint Valley Local School District, 400 F.3d
360 (6th Cir. 2005). The plaintiff was molested in 1999, after which the teacher surrendered his
license in exchange for dismissal of criminal charges. The teacher had been accused of similar
misconduct in 1976 and again in 1990. After the 1976 incidents, the principal involved told the
teacher to leave his classroom door open and to use aides more often. The 1990 incident was
reported to the county children’s services agency, which determined that there was no way to
refute the teacher’s denial. The Sixth Circuit agreed with the trial judge that whether the district’s
pre-1999 responses were “clearly unreasonable in light of known circumstances” presented a
question for the jury — which ultimately determined that the responses were not unreasonable,
deciding the case against the student plaintiff. [Emphasis in original.] 400 F.3d at 364.
4. Peer Sexual Harassment Court Decisions
a. [7.48] Federal Courts of Appeal Cases
Caselaw illustrates that it is not easy to succeed on a peer sexual harassment claim under the
liability standard set out in Davis v. Monroe County Board of Education, 526 U.S. 629, 143
L.Ed.2d 839, 119 S.Ct. 1661 (1999), reviewed in §7.37 above, but some plaintiffs have survived
early challenges to their claims.
In Gabrielle M. v. Park Forest-Chicago Heights, Illinois School District 163, 315 F.3d 817
(7th Cir. 2003), a female kindergarten student claimed that a male classmate “bothered” her by
doing “nasty stuff” and wanted to play with her in “funny ways” at recess. The Seventh Circuit
observed in passing that the acts as alleged by the plaintiff were too “vague and unspecific” to
determine whether the peer’s conduct was “severe, pervasive, and objectively offensive
harassment,” but decided that in any event, the school district was not liable because its response
was not deliberately indifferent. 315 F.3d at 822. After each alleged incident, the school
disciplined the classmate and took steps to prevent future inappropriate conduct, including
suspensions, timeouts, detentions, referral to the school psychologist, and calls to his parents.
However, a female student succeeded in showing that the school district was deliberately
indifferent to her claim of peer sexual harassment in Vance v. Spencer County Public School
District, 231 F.3d 253 (6th Cir. 2000). During the first alleged incident of misconduct, two boys
held her against a wall while others removed her shirt. On another occasion, she was stabbed in
the hand. The student also reported that she was routinely propositioned or touched
inappropriately. Eventually, the female student was diagnosed with depression and dropped out of
school. The Sixth Circuit upheld a $220,000 jury verdict on the student’s Title IX claim, finding
that the plaintiff met both the pervasive and severe test and the notice requirement. The student
and her mother repeatedly reported the harassment, both verbally and in writing, to the school
principal and teachers. The court also concluded that the school was deliberately indifferent as
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shown by its failure to discipline the offenders, separate the plaintiff from them, or establish any
sexual harassment policy or procedure. Simply talking to the harassers was not enough.
b. [7.49] Lower Federal Court Cases
Even if difficult to plead and litigate successfully, student-on-student sexual harassment
claims are proliferating in the lower federal courts in Illinois.
In Doe v. Brimfield Grade School, 552 F.Supp.2d 816, 823 (C.D.Ill. 2008), the plaintiff
alleged that district officials responded to incidents in which other male students grabbed,
twisted, and hit his testicles by stating that the victim needed to “toughen up and stop acting like a
little girl” and “stick up for himself.” The court found these allegations stated a sex-based
discrimination claim arising from gender stereotyping and accordingly denied the school district’s
motion to dismiss for failure to state a Title IX claim.
Similarly, in S.G. v. Rockford Board of Education, No. 08 C 50038, 2008 WL 5070334
(N.D.Ill. Nov. 28, 2008), the plaintiffs alleged that the first grade female student was sexually
harassed by a male first grade student who took her into a broom closet where he sexually
battered, harassed, and abused the female student. Thereafter, the male student continued to have
access to the victim, told her she was “hot,” and stalked her on the playground and other places in
the school. The victim enrolled in a private school after the district’s alleged failure to move,
control, or supervise the male student. The district argued the plaintiffs failed to state a cause of
action under Title IX because they did not allege severe, pervasive, and offensive conduct and
unreasonable responsive actions by the district. The court disagreed, finding that the plaintiffs
sufficiently alleged that the female victim suffered a denial of educational benefits given her
withdrawal from school and that the facts alleged created an issue of material fact as to the
adequacy of the district’s response.
In Stanley v. Carrier Mills-Stonefort School District No. 2, 459 F.Supp.2d 766 (S.D.Ill.
2006), students were encouraged to dress in accordance with each daily theme during the
district’s Spirit Week. On Opposite Sex Day, students were to dress as members of the opposite
sex. The plaintiff kept her children home on Opposite Sex Day because she believed crossdressing violated her Christian values and did not want her children to be exposed to other
students who were cross-dressing or to be stigmatized for not cross-dressing. 459 F.Supp.2d at
771. The plaintiff sued the district, claiming that “Opposite Sex Day fostered a ‘sexually hostile
learning environment’ because the ‘boys wore skirts and large breasts [and] groped themselves as
part of the day’s activities.’ ” 459 F.Supp.2d at 777. In analyzing whether the harassment was so
severe or pervasive to be actionable, the court noted the district was on notice, having received
similar complaints from the plaintiff the previous school year. Without more detail as to when,
where, and how often the conduct occurred, the court could not find the plaintiff unable to state a
claim as a matter of law and therefore denied the district’s motion to dismiss. 459 F.Supp.2d at
778.
B. [7.50] Sex Equity in Athletics
In addition to preventing sex-based harassment in schools and universities receiving federal
funds, Title IX has been applied to eradicate inequities in athletic opportunities for women in
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educational settings. Regulations and caselaw interpreting Title IX have converted it from a
statute that prohibits “discrimination on the basis of sex” (defined as elimination of or exclusion
from participation opportunities) into a statute that provides “equal opportunity for members of
both sexes.” Kelley v. Board of Trustees of University of Illinois, 832 F.Supp. 237, 241 (C.D.Ill.
1993), aff’d, 35 F.3d 265 (7th Cir. 1994); Boulahanis v. Board of Regents, 198 F.3d 633 (7th Cir.
1999), cert. denied, 120 S.Ct. 2762 (2000).
For Illinois state law provisions addressing sex equity requirements for school districts in
athletics and other extracurricular programs and activities, see 105 ILCS 5/27-1, 5/34-18(1); 23
Ill.Admin. Code §200.80. The focus in §§7.51 – 7.55 below is on federal regulations and court
decisions under Title IX.
1. [7.51] Federal Regulations
The U.S. Department of Education’s rule implementing Title IX in the area of interscholastic
athletics was promulgated in 1975 and reads:
(a) General. No person shall, on the basis of sex, be excluded from participation
in, be denied the benefits of, be treated differently from another person or otherwise
be discriminated against in any interscholastic, intercollegiate, club or intramural
athletics offered by a recipient, and no recipient shall provide any such athletics
separately on such basis.
(b) Separate teams. Notwithstanding the requirements of paragraph (a) of this
section, a recipient may operate or sponsor separate teams for members of each sex
where selection for such teams is based upon competitive skill or the activity
involved is a contact sport. However, where a recipient operates or sponsors a team
in a particular sport for members of one sex but operates or sponsors no such team
for members of the other sex, and athletic opportunities for members of that sex
have previously been limited, members of the excluded sex must be allowed to tryout for the team offered unless the sport involved is a contact sport. For purposes of
this part, contact sports include boxing, wrestling, rugby, ice hockey, football,
basketball and other sports the purpose or major activity of which involves bodily
contact.
(c) Equal Opportunity. A recipient which operates or sponsors interscholastic,
intercollegiate, club or intramural athletics shall provide equal athletic opportunity
for members of both sexes. In determining whether equal opportunities are
available the Director will consider, among other factors:
(1) Whether the selection of sports and levels of competition effectively
accommodate the interests and abilities of members of both sexes;
(2) The provision of equipment and supplies;
(3) Scheduling of games and practice time;
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(4) Travel and per diem allowance;
(5) Opportunity to receive coaching and academic tutoring;
(6) Assignment and compensation of coaches and tutors;
(7) Provision of locker rooms, practice and competitive facilities;
(8) Provision of medical and training facilities and services;
(9) Provision of housing and dining facilities and services;
(10) Publicity. 34 C.F.R. §106.41.
2. [7.52] OCR Policy Interpretation and Three-Part Test
The Department of Education’s Office for Civil Rights is also responsible for developing
policy on Title IX’s implementing rules. To clarify the regulatory requirements for educational
institutions with athletic programs, the OCR in 1979 issued an intercollegiate athletics policy
interpretation. See www.ed.gov/about/offices/list/ocr/docs/t9interp.html. The 1979 policy
interpretation addressed three areas: (a) opportunities for athletic scholarships; (b) equivalence in
other athletic benefits and opportunities; and (c) the accommodation of the interests and abilities
of members of both sexes.
In effectively accommodating the interests and abilities of male and female athletes,
educational institutions must provide both the opportunity for individuals of each sex to
participate in intercollegiate competition and for athletes of each sex to have competitive team
schedules which equally reflect their abilities. The section Effective Accommodation of Student
Interests and Abilities set forth a three-part test for determining compliance:
(1) Whether intercollegiate level participation opportunities for male and
female students are provided in numbers substantially proportionate to their
respective enrollments; or
(2) Where the members of one sex have been and are underrepresented among
intercollegiate athletes, whether the institution can show a history and continuing
practice of program expansion which is demonstrably responsive to the developing
interest and abilities of the members of that sex; or
(3) Where the members of one sex are underrepresented among intercollegiate
athletes, and the institution cannot show a continuing practice of program
expansion such as that cited above, whether it can be demonstrated that the
interests and abilities of the members of that sex have been fully and effectively
accommodated by the present program.
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To comply with the regulations, a school need only pass one of the three parts. However,
given the abstract nature of prongs two and three, most educational entities use the first,
“substantial proportionality,” prong of this test to demonstrate compliance with Title IX.
3. [7.53] OCR “Clarifications”
The controversies engendered by Title IX’s mandate for sex equity in athletics and the efforts
of the Department of Education to deal with those controversies are reflected in a series of
clarifications issued by the Office for Civil Rights beginning in 1996.
In 1996, the OCR released a clarification of the intercollegiate athletics policy guidance
three-part test, reiterating considerations bearing on the “interests and abilities” requirement in
Title IX regulations.
In 2003, the OCR issued a three-page further clarification of the 1979 policy interpretation,
saying the three-part interests and abilities test remains in effect except that the elimination of
men’s teams to achieve sex equity in athletics is a permitted but “disfavored” strategy because it
diminishes opportunities for participation in athletics instead of enhancing opportunities for
students who have suffered from discrimination.
In March 2005, the OCR released Additional Clarification of Intercollegiate Athletics Policy:
Three-Part Test — Part Three, dealing with the third prong of the interests and abilities test, i.e.,
whether a school or university can demonstrate that despite one sex being underrepresented in an
athletics program, the interests and abilities of the members of that sex have been fully and
effectively accommodated. The 2005 policy allowed institutions to rely solely on a survey of
students to assess their interests and abilities in athletics and to count nonresponses to the survey
as a lack of interest or ability in athletics. Most recently, the OCR withdrew the 2005 additional
clarification, concluding that it was inconsistent with the prior guidance on Title IX athletics
policy and returning to the pre-2005 approach of looking at multiple indicators to assess student
interests or ability (such as participation in club and intramural sports or interviews with students,
admitted students, coaches, and administrators). See Dear Colleague Letter, dated April 20, 2010,
by Russlynn Ali, Assistant Secretary for Civil Rights, http://www2.ed.gov/about/offices/list/ocr/
letters/colleague-20100420.pdf.
In 2008, the OCR provided guidance as to the factors OCR will consider in determining
whether an activity can be counted as an intercollegiate or interscholastic sport for purposes of
Title IX compliance in a letter from Stephanie Monroe, Assistant Secretary for Civil Rights,
September 17, 2008, www2.ed.gov/about/offices/list/ocr/letters/colleague-20080917.html.
Detailed treatment of the OCR clarifications is beyond the scope of this discussion. All of the
OCR clarifications may be accessed at www.ed.gov/about/offices/list/ocr/athleticresources.html.
4. [7.54] Caselaw
Although gender-based disparities in intercollegiate sports provided the first wave of Title IX
suits concerned with equal opportunity for male and female athletes, such litigation has become
more common at the middle and high school levels.
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In McCormick v. School District of Mamaroneck, 370 F.3d 275 (2d Cir. 2004), the plaintiffs
presented a Title IX challenge to differences in scheduling girls’ and boys’ high school soccer.
The district scheduled the girls’ season in spring and the boys’ in fall, thereby depriving the girls
of the opportunity to compete in regional and state championships. Analyzing the female student
plaintiffs’ claims, the court noted that in determining whether equal opportunity exists, the factors
the Office for Civil Rights considers include “scheduling of games and practice time,” and that
the 1979 policy interpretation assesses compliance with this factor by examining the equivalence
for men and women of “opportunities to engage in available pre-season and post-season
competition.” 370 F.3d at 292. A disparity in one program component such as scheduling of
games and practice time can constitute a Title IX violation standing alone if it is substantial
enough to deny equality of athletic opportunity to students of one sex at a school. The court
concluded that scheduling girls’ soccer in spring clearly created a sharp disparity in competitive
opportunity that was not being offset by any advantages given to girls as compared to boys in
other athletic programs. The disparity violated Title IX because it placed a ceiling on the possible
achievement of girls’ teams that they could not break, despite their efforts, while the boys’ teams
were not subject to the same ceiling. 370 F.3d at 295.
In another case involving the scheduling of girls’ and boys’ games, Parker v. Indiana High
School Athletic Association, No. 1:09-CV-885-WTL-JMS, 2010 WL 987750 (S.D.Ind. Mar. 11,
2010), a Franklin County High School girls’ basketball player sued her high school, 13 other
county high schools, and the Indiana High School Athletic Association (IHSAA), alleging that
the schools, in cooperation with the IHSAA, worked together to determine the schedule for girls’
and boys’ high school basketball, including the days of the week and time of day the games are
played. Specifically, the plaintiff alleged that the defendants assigned preferable Friday and
Saturday night game times to boys’ programs far more frequently than to girls’ basketball
programs in violation of Title IX. The 13 non-Franklin County school districts argued that the
plaintiff’s claims against them should be dismissed as she was not a “beneficiary” of each of their
programs and activities. The district court disagreed, finding the plain statutory language of Title
IX is clear and the statute’s protections are not limited to program beneficiaries.
The district court did, however, dismiss the plaintiff’s case against the IHSAA, finding that
the IHSAA was not a recipient of federal financial assistance and citing Johnny’s Icehouse, Inc. v.
Amateur Hockey Association of Illinois, 134 F.Supp.2d 965 (N.D.Ill. 2001) (hockey association
not subject to Title IX prohibition against discrimination based on sex; even though nearly all
high schools in state had ceded controlling authority over their hockey programs to association, it
received no federal financial assistance). Compare Communities for Equity v. Michigan High
School Athletic Ass’n, 178 F.Supp.2d 805 (W.D.Mich. 2001) (state high school association was
subject to Title IX by virtue of its controlling authority over scheduling of interscholastic athletics
in state; although association was not direct recipient of federal funds, it received dues from
member schools that received federal funding).
In a case involving collegiate athletes, male wrestlers argued unsuccessfully that it violated
Title IX to eliminate men’s wresting so that resources could be allocated more equitably among
male and female athletes in Chalenor v. University of North Dakota, 291 F.3d 1042 (8th Cir.
2002). The wrestlers argued that budgetary considerations were not a factor in the university’s
decision to cut the men’s wrestling program because a private donor had offered to fund the team.
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However, the court explained that the private outside funding did not obviate the need to reduce
the athletic department’s budget due to tuition shortfalls and a proposed university-wide funding
cut. Further, a public university cannot eschew its legal obligations simply by accepting private
funds. Once a university receives a donation, it becomes public money, subject to Title IX’s
strictures when disbursed. Therefore, the alleged availability of private funding to save men’s
wrestling did not render elimination of the program discriminatory under Title IX.
In the Ninth Circuit, female varsity collegiate wrestlers successfully appealed a summary
judgment ruling for a university defendant, in Mansourian v. Regents of University of California,
594 F.3d 1095 (9th Cir. 2010). The university did not operate separate wrestling teams for men
and women. Instead, the women wrestlers participated with the men’s team. 594 F.3d at 1099. In
2001, the university eliminated all women from the wrestling team but later (after complaints to
OCR) agreed to permit women to participate conditioned on their ability to beat male wrestlers in
their weight class using men’s collegiate wrestling rules. Id. In overturning the district court’s
summary judgment decision in favor of the university, the circuit court of appeals found that the
record did not contain “undisputed facts showing a history and continuing practice of program
expansion that is responsive to women’s interests” as required under the second prong of the
three-part test. 594 F.3d at 1110.
Other representative Title IX student athletics cases include Equity in Athletics, Inc. v.
Department of Education, 675 F.Supp.2d 660 (W.D.Va. 2009) (university could pursue gender
proportionality in its athletic programs by eliminating men’s program without first showing that it
had not already met second and third prongs of Department of Education’s three-part test in order
to satisfy Title IX’s effective accommodation requirement), and Miller v. University of
Cincinnati, No. 1:05-CV-764, 2008 WL 203025 (S.D. Ohio Jan. 22, 2008) (elimination of
women’s rowing team did not violate Title IX, as opportunities for participation by women
athletes were more than proportional to percentage of women in undergraduate student body).
5. [7.55] Sex Equity and Booster Clubs
Although booster clubs and other parent-led athletic organizations provide valuable financial
support to a school’s athletic programs, school districts should be aware that Title IX can hold the
school district responsible for any disparities in benefits provided by the clubs between girls and
boys athletic teams. Under 34 C.F.R. §106.31, a district shall not, on the basis of sex, “[a]id or
perpetuate discrimination against any person by providing significant assistance to any agency,
organization, or person which discriminates on the basis of sex in providing any aid, benefit or
service to students or employees.” Districts must monitor the donations and benefits made by
booster organizations to district sports teams to ensure compliance with Title IX.
C. [7.56] Sex Equity and Marital or Parental Status
Another section of the Title IX regulations prohibits educational institutions from applying
rules concerning a student’s actual or potential parental, family, or marital status that treats
students differently on the basis of sex. 34 C.F.R. §106.40(a). That section further provides:
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A recipient shall not discriminate against any student, or exclude any student
from its education program or activity, including any class or extracurricular
activity, on the basis of such student’s pregnancy, childbirth, false pregnancy,
termination of pregnancy or recovery therefrom, unless the student requests
voluntarily to participate in a separate portion of the program or activity of the
recipient. 34 C.F.R. §106.40(b)(1).
An educational entity may require the student to obtain a physician’s statement that the
student is physically and emotionally able to continue participation in the program or activity but
only if a similar physician’s statement is required of all students for other physical or emotional
conditions that require the attention of a physician. 34 C.F.R. §106.40(b)(2).
As this regulation pertains to the termination or reduction of athletic scholarships to women
athletes the Office for Civil Rights issued a Dear Colleague Letter, dated June 25, 2007, by
Stephanie J. Monroe from the Office of the Assistant Secretary for Civil Rights,
www2.ed.gov/about/offices/list/ocr/letters/colleague-20070625.html, which set forth the
following:
[T]erminating or reducing financial assistance on the basis of pregnancy or a related
condition is prohibited by Title IX. Subjecting only students of one sex to additional
or different requirements, such as requiring female athletes to sign athletic
contracts listing pregnancy as an infraction, or excluding students from
participating in a recipient’s program or activity, including extracurricular
activities and athletics, on the basis of the student’s pregnancy or a related condition
is also prohibited under Title IX.
Another OCR guidance document, Teenage Pregnancy and Parenthood Issues (Under Title
IX of the Education Amendments of 1972), dated July 1991, which is available by request at
www2.ed.gov/about/offices/list/ocr/publications.html#title_ix,
addresses
elementary
and
secondary school retention problems associated with teenage pregnancy and parentage issues in
relation to the regulations implementing Title IX. Detailed treatment of these topics is beyond the
scope of this discussion.
D. [7.57] Sex Equity and Single-Sex Classes
New federal regulations that took effect in November 2006 describe how elementary and
secondary schools may provide for single-sex classes and extracurricular activities that meet the
requirements of §106.34 of Title IX’s implementing regulations. 34 C.F.R. §106.34. The new
regulations do not require schools to offer single-sex education or activities, but for schools that
do, the regulations must be carefully followed.
Prior to the changes, single-sex classes were generally prohibited in a coeducational school
except for sex education instruction, choruses, and contact sports in physical education classes.
The new regulation added another exception for single-sex classes or activities based on the
school’s important objective to improve educational achievement of its students through the
school’s policy of providing diverse educational opportunities or, on the objective to meet the
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particular, identified needs of its students. 34 C.F.R. §§106.34(b)(1)(i)(A), 106.34(b)(1)(i) (B). In
addition, the objective must be implemented evenhandedly: enrollment in single-sex classes must
be voluntary and the school district must provide all other students a substantially equal
coeducational class or activity in the same subject. 34 C.F.R. §§106.34(B)(1)(ii) – 106.34(B)(1)
(iv).
Additional information concerning the revised regulation can be found in the Dear Colleague
Letter written by Stephanie J. Monroe, Assistant Secretary, Office for Civil Rights, United States
Department of Education, dated January 31, 2007, www2.ed.gov/about/offices/list/ocr/letters/
colleague-20070625.html.
IV. STUDENT RECORDS AND PRIVACY RIGHTS
A. [7.58] Generally
Sections 7.59 – 7.80 below focus primarily on the Family Educational Rights and Privacy Act
of 1974 (FERPA), 20 U.S.C. §1232g, and §§7.81 – 7.92 below focus primarily on the Illinois
School Student Records Act (ISSRA), 105 ILCS 10/1, et seq. The Acts are treated separately in
this discussion because not all educational entities are subject to both statutes. For example, the
FERPA and the ISSRA apply to virtually all public elementary and secondary schools in Illinois,
but community colleges are subject only to the FERPA. Because their provisions dealing with
student records differ in some respects, care is required in advising entities that must comply with
both laws.
B. The Family Educational Rights and Privacy Act of 1974 (FERPA)
1. [7.59] Overview and Related Law
To protect student privacy interests and provide improved access to student records for
parents and adult students, the Family Educational Rights and Privacy Act became law in 1974 as
an amendment to legislation that extended the former Elementary and Secondary Education Act
of 1965, Pub.L. No. 89-10, 79 Stat. 77. Enacted pursuant to the Constitution’s Taxing and
Spending Clause, U.S.Const. art. 1, §8, cl. 1, the FERPA applies only to educational entities that
receive federal funding administered through the U.S. Department of Education.
Under the FERPA, schools and educational agencies that accept such federal funding must
comply with certain conditions. The statute’s key elements generally entitle parents of students,
or students who are more than 18 years of age or attend a postsecondary institution, to have
access to their education records. Secondly, the FERPA protects students’ rights to privacy by
limiting the disclosure of information in their education records without prior written consent.
The FERPA empowers the U.S. Secretary of Education, who administers the statute, to
withdraw federal funding from noncompliant educational institutions. The Secretary’s regulations
implementing the FERPA, found at 34 C.F.R. §99.1, et seq., were comprehensively revised in
2009 to implement provisions of the USA PATRIOT Act, Pub.L. No. 107-56, 115 Stat. 272, and
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§7.60
the Campus Sex Crimes Prevention Act, Pub.L. No. 106-386, 114 Stat. 1537, to conform to two
U.S. Supreme Court decisions interpreting the FERPA, and to clarify permissible disclosures.
These revisions are discussed below. A detailed analysis of the 2009 revisions is available at
www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html.
The separate but related Protection of Pupil Rights Amendment (PPRA), 20 U.S.C. §1232h,
entitles parents to inspect all instructional materials used by a school district in connection with
any U.S. Department of Education-funded survey, analysis, or evaluation in which their children
will take part. 20 U.S.C. §1232h(a). The PPRA also provides that no student can be required to
submit to any such survey, analysis, or evaluation that reveals information about certain private
matters without prior written parental consent (or that of the student if age 18 or emancipated). 20
U.S.C. §1232h(b). Section §1232h(d) requires schools to give parents and students “effective
notice” of these rights. Notices of rights under §1232h, like notices of FERPA rights discussed in
§7.67 below, should be given annually in student and parent handbooks. The U.S. Department of
Education’s website supplies a Model Notification of Rights Under the Protection of Pupil Rights
Amendment (PPRA), at www.ed.gov/policy/gen/guid/fpco/ppra/modelnotification.html. The
PPRA requires an additional annual notice to parents if school districts intend to (a) use students’
personal information for marketing purposes; (b) survey them about political beliefs, income,
sexual behavior or attitudes, or other specific topics enumerated in the statute; or (c) administer
certain nonemergency invasive examinations. 20 U.S.C. §1232h(c).
The PPRA requires the U.S. Department of Education to establish a review board to seek
voluntary compliance, but also provides for withdrawal of federal funds as an ultimate sanction.
2. [7.60] Basic Rights Protected by FERPA
The Family Educational Rights and Privacy Act affords five basic rights to parents of
students and eligible students. A parent may exercise rights under the FERPA until a child turns
18 years old or attends a postsecondary educational institution. Thereafter, the eligible student is
entitled to exercise FERPA rights to the exclusion of parents. Records of an eligible student may,
however, be disclosed to parents if the student is a dependent as defined in §152 of the Internal
Revenue Code, 26 U.S.C. §152. 20 U.S.C. §1232g(b); 34 C.F.R. §99.31(a)(8). Even when an
eligible student is not a dependent, records may be disclosed to parents in connection with a
health or safety emergency or under an alcohol and controlled substance exception. See 34 C.F.R.
§§99.36, 99.31(a)(10) – 99.31(a)(15); §7.66 below.
Parents or eligible students have five basic rights afforded by the FERPA:
Notice of rights. Educational institutions subject to the FERPA must annually inform
parents of students and eligible students of their rights under the Act. 20 U.S.C. §1232g(e); 34
C.F.R. §99.7. Citations to the model notices on the U.S. Department of Education’s website are
provided in §7.67 below, where FERPA notice requirements are reviewed in more detail.
Right to inspect records. Parents or eligible students have the right to review and
inspect most, but not all, education records maintained regarding the student. 20 U.S.C.
§1232g(a); 34 C.F.R. §§99.10, 99.12. Limitations on the right to inspect records are discussed
below in §§7.68 and 7.69.
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Right to request correction of records. The FERPA affords the right to request that the
educational institution amend the content of any education records that a parent or eligible student
believes is inaccurate, misleading, or otherwise in violation of the student’s rights. Refusal may
be challenged in a hearing. If the educational entity refuses after a hearing to make the requested
changes, the parent or eligible student has the right to place a statement in the education record
explaining concerns with that record. 20 U.S.C. §1232g(a)(2); 34 C.F.R. §§99.20, 99.21.
Right to prevent unconsented disclosures. Parents or eligible students have the right to
prevent the disclosure of personally identifiable information without prior written consent, with
certain limited exceptions. 20 U.S.C. §1232g(b); 34 C.F.R. §§99.30, 99.31.
Right to complain to the U.S. Department of Education’s Family Policy Compliance
Office. This is the exclusive remedy of parents and eligible students under the FERPA. 20 U.S.C.
§1232g(g); 34 C.F.R. §§99.60, 99.63.
3. Scope
a. [7.61] No Private Remedy
Parents and eligible students have no private right of action under the Family Educational
Rights and Privacy Act itself or via a “laws” action under 42 U.S.C. §1983. Gonzaga University
v. Doe, 536 U.S. 273, 153 L.Ed.2d 309, 122 S.Ct. 2268 (2002).
b. [7.62] Interface with Public Records Statutes
Courts have had occasion to decide whether education records of students protected by the
Family Educational Rights and Privacy Act must be disclosed in response to third-party requests
made under freedom of information laws or other statutes dealing with public records.
In United States v. Miami University, 294 F.3d 797, 8.12 (6th Cir. 2002), the Sixth Circuit
held that under a plain language interpretation of the FERPA, “student disciplinary records are
education records [under the statutory definition] because they directly relate to a student and are
kept by that student’s university.” The court rejected the contention of The Chronicle of Higher
Education, a party to the litigation which sought to obtain the information under Ohio’s Public
Records Law, that the FERPA’s disclosure restrictions abridged an asserted First Amendment
right of access to government records. The First Amendment does not guarantee the press a right
of special access to information not available to the public generally and the injunctive relief
awarded did not prevent news media from requesting disciplinary records from which personally
identifiable information about students had been redacted. 294 F.3d at 820 – 824.
The Freedom of Information Act (FOIA), 5 ILCS 140/1, et seq., includes an exemption for
“[i]nformation specifically prohibited from disclosure by federal or State law or rules and
regulations implementing federal or State law.” 5 ILCS 140/7(1)(a). FOIA also contains an
explicit provision in 5 ILCS 140/7.5(r) that exempts from inspection and copying requirements,
records that are prohibited from disclosure by the Illinois School Student Records Act, discussed
in §§7.81 – 7.82 below.
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When asked to advise clients on FOIA requests involving student records, school counsel
should bear in mind that what FERPA and ISSRA protect from disclosure is personally
identifiable information concerning individual students. 20 U.S.C. §1232g; 34 C.F.R. §99.3; 105
ILCS 10/2(d). See §7.73 below. A district may be required to provide records relating to students
in response to a FOIA request when the records can be provided in redacted or “masked” form so
as to delete individual identifying information. Bowie v. Evanston Community Consolidated
School District No. 65, 128 Ill.2d 373, 538 N.E.2d 557, 560, 131 Ill.Dec. 182 (1989) (general
exemption in FOIA §7(1)(b) for disclosures that would constitute “unwarranted invasion of
personal privacy” did not justify district’s refusal to produce student test scores in masked form
with student identifiers deleted).
FOIA used to include a provision found in former 5 ILCS 140/7(1)(b)(i) of the statute that
exempted information “that, if disclosed, would constitute a clearly unwarranted invasion of
personal privacy, . . . includ[ing] . . . files and personal information maintained with respect to
students . . . receiving . . . educational . . . services . . . from . . . public . . . bodies.” In Chicago
Tribune Co. v. Board of Education of City of Chicago, 332 Ill.App.3d 60, 773 N.E.2d 674, 265
Ill.Dec. 910 (1st Dist.), appeal denied, 201 Ill.2d 562 (2002), the court held that §7(1)(b)(i) per se
prohibited student records from disclosure, without regard to whether student identifiers were
deleted from the information sought. However, the Chicago Tribune decision’s precedential value
is limited in that §7(1)(b)(i) was itself deleted from FOIA effective January 1, 2010, as part of the
rewrite of that statute effected by P.A. 96-542.
c. Entities, Records, and Persons Covered by FERPA
(1)
[7.63] Agencies or institutions
The Family Educational Rights and Privacy Act imposes its requirements indirectly, by
providing that no funds shall be made available under any program administered by the Secretary
of Education to any educational institution that does not comply. 20 U.S.C. §1232g(a)(1)(A); 34
C.F.R. §99.1. Most Illinois educational institutions, public and private, receive federal funds of
this type directly through one or more of such programs and are therefore subject to the FERPA.
The FERPA also applies when an educational institution receives funds indirectly in the form
of tuition payments by students attending under federally funded student loan or grant programs
such as the Pell Grant Program. 34 C.F.R. §99.1(c).
(2)
[7.64] Education records
Family Educational Rights and Privacy Act regulations define “record” to include
information or data in any format, including “handwriting, print, computer media, video or audio
tape, film, microfilm, and microfiche.” 34 C.F.R. §99.3. The FERPA applies to “education
records,” which it defines broadly to mean those records, files, documents, and other materials
that are (a) directly related to a student, and (b) “[m]aintained by an educational agency or
institution or by a party acting for the agency or institution.” Id.
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School officials continue to be concerned about the extent to which e-mail communications
relating to individual students fall within the FERPA’s broad definition of “education records,”
for the statute does not elaborate on the meaning of the phrase “maintained by an educational
agency,” Are e-mails between staff members, automatically preserved on district technology
systems, “education records” if they contain personally identifiable information about one or
more students? Are deleted student-specific school e-mails FERPA records if a computer expert
can retrieve them? Unfortunately, the answers are not yet clear.
The Supreme Court shed some light on the meaning of “education records” in Owasso
Independent School District No. I-011 v. Falvo, 534 U.S. 426, 151 L.Ed.2d 896, 122 S.Ct. 934
(2002). The Court held that the district’s practice of having students grade one another’s work
and call out the grades to their teachers did not violate the FERPA, because the peer-graded
papers were not education records. Although the papers contained information directly relating to
a student (the first requisite of “education record” status), the Court nonetheless held that they
were not “maintained” by the school or a person acting for the school. 122 S.Ct. at 937. The
Court went on to say that the word “maintain” seems to imply that “education records” will be
those kept in a filing cabinet or on a secure database, calling it “fanciful” to assume that students
maintain papers in the same way that a registrar maintains a student’s folder in a permanent file.
122 S.Ct. at 939. Further, the Court indicated that the phrase “acting for” connotes individuals
who are agents of the school, such as teachers, administrators, or other employees. In the Court’s
view, students could not be said to “act for” the school when they complied with a teacher’s
direction to grade a classmate’s test, since correcting the answers can actually be part of the
learning process. Id. The Court also noted:
FERPA requires “a record” of access for each pupil. This single record must be
kept “with the education records.” This suggests Congress contemplated that the
education records would be kept in one place with a single record of access. By
describing a “school official” and “his assistants” as the personnel responsible for
the custody of the records, FERPA implies that education records are institutional
records kept by a single central custodian, such as a registrar, not individual
assignments handled by many student graders in their separate classrooms. 122
S.Ct. at 940.
A federal district court drew guidance from these comments, when called upon to decide
whether FERPA required an educational agency to provide parents with “any and all electronic
mail” the agency had sent or received “concerning or personally identifying” their minor son, in
response to the parents’ request for his education records. S.A. v. Tulare County Office of
Education, No. CV F 08-1215 LJO GSA, 2009 WL 3126322 at *1 (E.D.Cal. Sept. 24, 2009). The
Tulare County Office of Education and codefendant the California Department of Education
agreed with parents that an e-mail may be an “education record” within the meaning of FERPA.
However, they disputed the parents’ contention that all e-mails specifically identifying their
student were “maintained” in Tulare County Office of Education’s e-mail system and could be
located on its electronic storage system through use of information technology, including those
e-mails that were previously deleted. The school agencies contended that the Tulare County
Office of Education only “maintained” those e-mails that it printed out and placed in the student’s
permanent file.
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The court agreed, noting that under the language of the FERPA and its implementing
regulations, an e-mail is an education record only if it contains information related to the student
and is maintained by the educational agency. The court found no support for the parents’ position
that the FERPA compelled an educational agency to maintain an e-mail or any other record based
solely on the fact that it contains personally identifiable information about a student. 2009 WL
3126322 at *5. The court noted that the FERPA does elsewhere affirmatively require educational
agencies to maintain certain records, as, for example, mandating that they keep a record of each
request for access to and each disclosure of personally identifiable information from a student’s
education records. See 34 C.F.R. §99.32(a)(1). The district judge went on to quote the Owasso
Court’s observation that the word “maintain,” considered within the context of the overall
statutory scheme, suggested that Congress contemplated that education records would be kept in
one place such as a filing cabinet or on a permanent secure database, by a single central
custodian. In contrast,
Emails, like assignments passed through the hands of students, have a fleeting
nature. An email may be sent, received, read, and deleted within moments. As such,
[the] assertion . . . that all emails that identify [a student], whether in individual
inboxes or the retrievable electronic data base, are maintained “in the same way the
registrar maintains a student’s folder in a permanent file . . . is fanciful”. Owasso,
543 U.S. at 433. Like individual assignments that are handled by many student
graders, emails may appear in the inboxes of many individuals at the educational
institution. FERPA does not contemplate that education records are maintained in
numerous places. 2009 WL 3126322 at *7.
The status of school security videotapes of students as “education records” (or not) under the
FERPA also remains uncertain. A video recording made and maintained exclusively by a school
law enforcement unit is not an education record subject to FERPA requirements. See §7.65
below. A school security videotape was held not to be an education record in Rome City School
District Disciplinary Hearing v. Grifasi, 10 Misc.3d 1034, 806 N.Y.S.2d 381 (Sup.Ct.N.Y.
2005). In that case, a student who had been suspended for fighting applied for a subpoena
directing the district to produce any videotapes depicting the altercation. The court granted his
application over the district’s objection that the videotape, which also captured images of other
students who participated in or were located in the vicinity of the fight, was an education record
prohibited from disclosure. However, the court held that the FERPA was not intended to apply to
a recording made to maintain the physical safety and security of the school building, and which
did not pertain to the educational performance of the students shown on the tape.
In an opinion dated February 10, 2004, the U.S. Department of Education’s Family Policy
Compliance Office (FPCO) concluded that the FERPA did apply to entitle the parents of the only
student pictured fighting in a school videotape to view the tape as an education record of their
student. The Rome City court took note of the FPCO opinion, but stated that in the case before it,
the accused student’s due-process rights outweighed the district’s interest in protecting any
claimed confidentiality of the tape. For other FPCO commentary on this subject, see the guidance
entitled Balancing Student Privacy and School Safety: A Guide to the Family Educational
Rights and Privacy Act for Elementary and Secondary Schools, dated October 2007,
www2.ed.gov/print/policy/gen/guid/fpco/brochures/elsec.html.
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(3)
[7.65] Excluded records
The Family Educational Rights and Privacy Act expressly excepts several categories of
records from the class of “education records” to which parent and student rights apply. The
following are not considered education records:
•
Records of school personnel kept in the maker’s sole possession (such as a teacher’s personal
notes) and not shared with anyone other than a substitute. 20 U.S.C. §1232g(a)(4)(B)(i); 34
C.F.R. §99.3.
•
Records created and maintained by a school’s “law enforcement unit” solely for law
enforcement purposes (as distinguished from non-law enforcement purposes such as student
discipline), if the law enforcement unit records are maintained apart from the student’s
education records covered by the FERPA and are not disclosed to individuals other than law
enforcement officials of the same jurisdiction. 20 U.S.C. §1232g(a)(4)(B)(ii); 34 C.F.R.
§§99.3, 99.8.
(NOTE: Some rather subtle distinctions come into play with this exception. A “law enforcement
unit” is an individual or component of a school or school district, such as a unit of commissioned
police officers or noncommissioned security guards, which the district has designated to enforce
any federal, state, or local law or maintain the physical security and safety of district schools. A
“law enforcement unit” may also handle non-law enforcement functions for the school, such as
investigating incidents that lead to disciplinary actions. However, records that a law enforcement
unit creates exclusively for a non-law enforcement purpose such as student disciplinary
proceedings do not qualify as “law enforcement unit records” and are “education records” subject
to the FERPA. 34 C.F.R. §99.8. See also United States Department of Education Family Policy
Compliance Office and United States Department of Justice Office of Juvenile Justice and
Delinquency Prevention, Sharing Information: A Guide to the Family Educational
Rights and Privacy Act and Participation in Juvenile Justice Programs (June 1997),
www.eric.ed.gov/ericdocs/data/ericdocs2sql/content_storage_01/0000019b/80/43/95/3c.pdf.)
•
Records relating to a person employed by an educational institution, kept in the normal
course of business, which relate exclusively to that person in his or her capacity as an
employee, and are not available for use for any other purpose. (However, this exclusion does
not apply to records about a student who attends the educational institution and is employed
as a result of his or her status as a student.) 20 U.S.C. §1232g(a)(4)(B)(iii); 34 C.F.R. §99.3.
•
So-called “treatment” records on a student over age 18 made or maintained by a medical or
other recognized professional or paraprofessional acting or assisting in that capacity, as long
as the records are not available to anyone other than treatment providers for treatment
purposes. 20 U.S.C. §1232g(a)(4)(B)(iv); 34 C.F.R. §99.3.
Rights under the FERPA do not extend to an educational institution’s records that contain
only information about a person after he or she is no longer a student at the educational
institution, such as facts collected by an educational institution on accomplishments of its alumni.
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§7.67
34 C.F.R. §99.3. However, a former student retains FERPA rights as to (a) records made while he
or she was a student, and (b) records pertaining to his or her attendance, regardless of when the
educational institution created or received them.
Various privileges provided by Illinois statute and common law and potentially relevant to
disclosure of student records include the attorney-client privilege and those of “therapists”
(physicians, social workers, psychologists, and nurses) under the Mental Health and
Developmental Disabilities Confidentiality Act, 740 ILCS 110/1, et seq.
(4)
[7.66] Parents and students
Until a student turns 18 years old or attends a postsecondary school and thereby becomes
“eligible” to invoke Family Educational Rights and Privacy Act protections in his or her own
right, pertinent rights under the Act are exercised not by the student but by his or her “parent,”
which includes a guardian or person acting as a parent in the absence of a parent or guardian. 34
C.F.R. §99.3; 20 U.S.C. §1232g(d). An institution may voluntarily extend rights to non-eligible
students. 34 C.F.R. §99.5(b). When a student becomes FERPA-eligible, rights must be accorded
the student alone, except that records may be disclosed to parents without the consent of an
eligible student who is a dependent of his or her parents for income tax purposes. 34 C.F.R.
§99.31(a)(8). Records may also be disclosed to an eligible student (a) in connection with a health
or safety emergency if knowledge of the information is necessary to protect the health or safety of
the student or other individuals (34 C.F.R. §§99.36, 99.31(a)(10)), or (b) if the student has
violated any federal, state, or local law, or any rule or policy of the institution governing use or
possession of alcohol or a controlled substance, if the institution determines the student has
thereby committed a disciplinary violation and the student is under 21 at the time of the
disclosure (34 C.F.R. §99.31(a)(15)).
An educational institution must accord FERPA rights to either of a student’s parents, unless it
has been provided with evidence that a court order or other legally binding document has
specifically negated these rights. 34 C.F.R. §99.4.
A person who has applied but not been admitted to an educational institution is not a
“student” for FERPA purposes.
4. [7.67] Annual Notice of Rights
The educational institution must annually provide notice of rights accorded by the Family
Educational Rights and Privacy Act using means that are reasonably likely to inform parents and
eligible students of those rights, including parents or eligible students who are disabled or whose
primary language is one other than English. 34 C.F.R. §99.7(b).
The FERPA implementing regulations elaborate on the notice requirements. 34 C.F.R. §99.7.
To facilitate compliance, the U.S. Department of Education has posted the Model Notification of
Rights for Elementary and Secondary Schools (www.ed.gov/policy/gen/guid/fpco/ferpa/leaofficials.html) and Model Notification of Rights under FERPA for Postsecondary Institutions
(www.ed.gov/policy/gen/guid/fpco/ferpa/ps-officials.html).
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5. Inspecting and Reviewing Education Records
a. [7.68] Scope of Right To Inspect and Review
The right to inspect and review education records under the Family Educational Rights and
Privacy Act includes the right to have the educational institution respond to reasonable requests
for explanations and interpretations of the records. 20 U.S.C. §1232g(a)(1)(A); 34 C.F.R.
§99.10(c).
The right to inspect and review does not generally require that a student be given or allowed
to make a copy of his or her records unless circumstances (such as distance or illness) would
otherwise effectively prevent exercise of the right. A copying fee may be charged unless doing so
would effectively prevent exercise of the right to inspect and review, but a fee may not be
charged for records search and retrieval efforts. 34 C.F.R. §99.11.
The right of a student over age 18 to inspect and review education records does not include
financial records of parents, nor does it include access to confidential recommendations for
admission to the institution, for employment, or for receipt of an honor if a student has previously
signed a waiver of access. 20 U.S.C. §1232g(a)(1)(C); 34 C.F.R. §99.12(b).
If education records contain information on more than one student, a parent or eligible
student may inspect and review only the information that pertains to that student. 20 U.S.C.
§1232g(a)(1)(A); 34 C.F.R. §99.12(a).
Requests to inspect education records must be granted within a reasonable time but in no case
more than 45 days after the request has been made. 20 U.S.C. §1232g(a)(1)(A); 34 C.F.R.
§99.10(b).
b. [7.69] Waivers of Right To Inspect and Review Records
The Family Educational Rights and Privacy Act specifies circumstances in which, and
procedures by which, parents or eligible students may waive records inspection rights. 20 U.S.C.
§1232g(a)(1)(C).
Generally, the signature of the person (parent or eligible student) who is entitled to exercise
rights under the Act is required for a valid waiver. However, waiver of access to confidential
letters of recommendation to a postsecondary school must be executed by the student, regardless
of age, rather than by his or her parent. 34 C.F.R. §99.12(c)(1)(ii).
Even if the right to access confidential recommendations has been waived, the FERPA
nevertheless requires that the student, upon request, be notified of the names of all persons
making confidential recommendations. 20 U.S.C. §1232g(a)(1)(D).
A waiver of rights under the FERPA may be revoked in writing, but revocation will not
enable review of documents or material placed in the record while the waiver was effective. 34
C.F.R. §99.12(c)(3).
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§7.73
6. Amendments of and Challenges to Education Records
a. [7.70] Request To Amend
A parent or eligible student who believes that information contained in a student’s education
records is inaccurate, misleading, or violates the student’s privacy or other rights may ask the
educational institution that maintains the records to amend them. 20 U.S.C. §1232g(a)(2); 34
C.F.R. §99.20. The Family Educational Rights and Privacy Act’s pertinent provisions allow
students to challenge and correct ministerial errors in their records, not to bring substantive
claims regarding the reasons for particular notations having been made. Goodreau v. Rector &
Visitors of University of Virginia, 116 F.Supp.2d 694 (W.D.Va. 2000).
An educational institution must respond to a request to amend within a reasonable period of
time. If it does not amend the record, it must advise the parent or eligible student of the right to a
hearing on the request. 34 C.F.R. §99.20.
b. [7.71] Hearing upon Denial of Request To Amend
The FERPA does not prescribe procedures for a hearing challenging the content of the
education record, but the U.S. Department of Education’s implementing regulations at 34 C.F.R.
§99.22 set out basic fairness standards that must be followed.
If the educational institution decides as a result of the hearing that the challenged content is
inaccurate, misleading, or otherwise violates the student’s rights, it must amend the education
records and so inform the parent or eligible student in writing. 34 C.F.R. §99.21(b).
c. [7.72] Statement Placed in Records
If the educational entity decides not to amend the records, the parent or eligible student has
the right to place a statement of reasons for disagreeing with the decision in the student’s
education records. Any such statement must remain as part of the education records as long as the
institution maintains the contested material and must be disclosed along with any disclosure of
the contested material. 34 C.F.R. §§99.21(b), 99.21(c).
7. Right To Prevent Disclosure of Education Records
a. [7.73] Background
Absent written consent by a parent or eligible student, the Family Educational Rights and
Privacy Act generally prohibits disclosure of personally identifiable information about a student
from education records. 20 U.S.C. §1232g(b)(1). Under updated regulations for the FERPA
issued by the U.S. Department of Education in December 2008 after rulemaking proceedings, the
term “personally identifiable information” includes but is not limited to the student’s name and
address and those of his or her parent(s) or other family members; personal identifiers such as the
student’s social security number, student ID number, or biometric record; and indirect identifiers
such as the student’s date or place of birth or mother’s maiden name. 34 C.F.R. §99.3. The
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FERPA rule also states that personally identifiable information includes other information that,
“alone or in combination, is linked or linkable to a specific student [and] that would allow a
reasonable person in the school community, who does not have personal knowledge of the
relevant circumstances, to identify the student with reasonable certainty,” and “[i]nformation
requested by a person who the educational agency reasonably believes knows the identity of the
student to whom the education record relates.” Id.
In addition to “de-identified” records from which the agency has removed all personally
identifiable information about a student (see 34 C.F.R. §99.31(b)(1)), so-called “directory
information” may be released without prior written consent unless a parent or eligible student has
affirmatively objected in writing to its release. “Directory information” means information in a
student’s education record that would not generally be considered harmful or an invasion of
privacy if disclosed, such as the student’s name, address, telephone number, e-mail address,
photograph, date and place of birth, major field of study, grade level, dates of attendance,
participation in officially recognized activities and sports, weight and height (for members of
athletic teams), degrees and awards received, the most recent educational institution attended by
the student, and other similar information. 34 C.F.R. §99.3.
b. [7.74] Disclosure of Directory Information
Educational agencies must give public notice of the specific types of personally identifiable
information that they intend to designate as directory information, the right of the parent or the
eligible student to refuse to let the agency designate any or all of those types of information about
the student as directory information, and the time within which the parent or student must inform
the agency in writing that the directory information is not to be released. 20 U.S.C.
§1232g(a)(5)(B); 34 C.F.R. §99.37. The required notice may be given by special mailing or by
publishing it as a part of the annual notice of Family Educational Rights and Privacy Act rights
discussed in §7.67 above.
Unless a parent or an eligible student thereafter objects, an educational institution may
disclose the directory information without prior written consent. It may also disclose directory
information from the education records of a person who no longer attends the institution, unless
that person opted out of disclosure while he or she attended the institution, in which case the
agency must continue to honor the former student’s request to opt out of disclosure of directory
information made while he or she was in attendance. 34 C.F.R. §99.37. Also, an educational
agency may not disclose directory information with prior written consent of the parent or eligible
student if a student’s social security number or other non-directory information is used alone or
combined with other data elements to identify the student or the student’s records. 34 C.F.R.
§99.37(d).
Districts receiving federal funding under the Elementary and Secondary Education Act must
disclose the names, addresses, and telephone numbers of high school students to military
recruiters upon recruiters’ request. See 20 U.S.C. §7908. A district must comply with this
requirement even if it has otherwise elected not to release any FERPA directory information
about its students. A district must also notify parents of its obligation to provide this information
and afford them (or adult eligible students) an opportunity to instruct the district not to disclose
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the information to recruiters. Although not obliged to do so, some districts provide parents and
eligible students with a separate notice and opt-out opportunity regarding military recruiters’
access to directory information.
c. [7.75] General Rule: Consent Required To Disclose Non-Directory Information
Before an educational institution may disclose non-directory information, it must ordinarily
obtain from the affected parent or eligible student consent in writing, properly signed and dated,
specifying the records to be disclosed, the purpose of the disclosure, and the party or parties to
whom the disclosure may be made. Once any disclosure has been made, the institution must
provide a copy of the disclosed record to the parent or eligible student, if requested. 34 C.F.R.
§99.30.
d. [7.76] Exceptions to Prior Consent Based on “Educational Interest”
20 U.S.C. §1232g(b)(1) lists certain exceptions to the general requirement that a parent or
eligible student must consent to any disclosure of education records. These exceptions include
one for “school officials, including teachers within the educational institution . . . who have been
determined by such agency or institution to have legitimate educational interests, including the
educational interests of the child for whom consent would otherwise be required.” 20 U.S.C.
§1232g(b)(1)(A); 34 C.F.R. §99.31(a)(1)(i)(A).
An educational agency’s annual notice of Family Educational Rights and Privacy Act rights
should identify the criteria it uses to determine who is a school official and what constitutes a
legitimate educational interest. The term “legitimate educational interest” has been applied to
approve local school officials and state educational authorities unconsented viewing, in the course
of a placement hearing, of a videotape of a special education student’s classroom behavior. M.R.
v. Lincolnwood Board of Education, District 74, 843 F.Supp. 1236 (N.D.Ill. 1994). See also
Aufox v. Board of Education of Township High School District No. 113, 225 Ill.App.3d 444, 588
N.E.2d 316, 167 Ill.Dec. 675 (2d Dist. 1992) (school attorneys could be given access to
educational records under parallel provision of Illinois School Student Records Act), followed in
Ibata v. Board of Education of Edwardsville Community Unit School District No. 7, 365
Ill.App.3d 1056, 851 N.E.2d 658, 303 Ill.Dec. 471 (5th Dist. 2006). However, except in the
context of a student disciplinary hearing before them, board of education members should not be
assumed to be persons with “legitimate educational interests” who should have nonconsensual
access to individual student records.
An educational agency relying on the “school officials” exception must use reasonable
methods, such as physical or technological controls, to ensure that school officials have access
only to those records as to which they have a legitimate educational interest. 34 C.F.R.
§99.31(a)(1)(ii).
As updated in 2009, the FERPA rule expands the “school officials” exception to include a
contractor, consultant, volunteer, or other party to whom an agency or institution
has outsourced institutional services or functions . . . provided that the outside
party —
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(1) Performs an institutional service or function for which the agency or
institution would otherwise use employees;
(2) Is under the direct control of the agency or institution with respect to the
use and maintenance of education records; and
(3) Is subject to the requirements of §99.33(a) governing the use and
redisclosure of personally identifiable information from education records. 34
C.F.R. §99.31(a)(1)(i)(B).
Disclosure without consent may also be made to officials of another school, school system, or
postsecondary school institution in which the student seeks or intends to enroll, or is already
enrolled, so long as the disclosure is for purposes related to the student’s enrollment or transfer.
20 U.S.C. §1232g(b)(1)(B); 34 C.F.R. §99.31(a)(2). An educational agency relying on this
exception must attempt to notify the parent or the eligible student of the records transfer, except
when the parent or eligible student initiates the transfer or if the annual FERPA rights notice
states that the agency will forward education records upon request to a school in which a student
seeks or intends to enroll or is already enrolled. 34 C.F.R. §99.34(a)(1). Upon request, the
educational agency must give the parent or eligible student a copy of the record that was
disclosed and an opportunity for a hearing on any request to amend an alleged incorrect record.
When a student is enrolled in or is receiving services from more than one school, the schools
involved may disclose information from the student’s education records to one another without
obtaining written consent. 34 C.F.R. §99.34(b).
Finally, personally identifiable information can be disclosed without consent from a student’s
education records to organizations conducting studies for or on behalf of educational agencies to
develop, validate, or administer predictive tests, administer student aid programs, and improve
instruction, if the studies are conducted so as not to permit personal identification of students and
their parents by anyone other than representatives of such organizations, and the personally
identifiable information will be destroyed when no longer needed for the purpose for which the
study was conducted. 20 U.S.C. §1232g (b)(1)(F); 34 C.F.R. §99.31(a)(6).
e. [7.77] Health/Safety and Juvenile Justice Exceptions
Disclosure of education records without consent may be made in emergency situations to
appropriate persons, including parents of FERPA-eligible adult students, if necessary to protect
the health or safety of the student or other persons. 20 U.S.C. §1232g(b)(1)(I). A school may
include in a student’s education records information about discipline taken against the student for
conduct that posed a significant risk to the student’s safety or well-being or that of other members
of the school community. The school may also disclose that information to its staff or to
personnel at other schools who have legitimate educational interests in the student’s behavior. 34
C.F.R. §99.36(b).
Records may also be disclosed without consent to parents of a student at a postsecondary
institution if the student violates any federal, state, or local law or policy of the institution
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governing the use or possession of alcohol or a controlled substance, and the student is found
guilty of a related disciplinary violation, if the student is under age 21 at the time of disclosure. 34
C.F.R. § 99.31(a)(15).
The FERPA further allows disclosure without consent if the disclosure concerns the juvenile
justice system’s ability to serve the student whose records are released. The release must occur
prior to the student’s adjudication. 20 U.S.C. §1232g(b)(1)(E). The juvenile justice officials
receiving the records must certify that they will not re-disclose this information to any other party
without consent except as provided by state law. See also §10-20.14 of the School Code,
requiring school boards to maintain a reciprocal reporting system with local law enforcement
agencies regarding criminal offenses committed by students. 105 ILCS 5/10-20.14.
Schools frequently receive subpoenas for student records from parties in medical malpractice
suits or other civil litigation such as child custody proceedings. An educational agency may
disclose personally identifiable information from the education records of a student without prior
consent if the information is being disclosed in order to comply with a judicial order or lawfully
issued subpoena, provided that the agency makes a reasonable effort to notify the parent or the
eligible student of the order or subpoena before complying. 20 U.S.C. §1232g(b)(2)(B).
Records may be disclosed without prior notice to or consent of parents or an eligible student,
to an entity or persons designated in a grand jury subpoena or a subpoena issued for law
enforcement purposes, if the court orders the educational institution not to disclose the existence
or contents of the subpoena or the information furnished in response to it. 20 U.S.C.
§1232g(b)(1)(J); 34 C.F.R. §99.31(a)(9)(ii).
The USA PATRIOT Act amended the FERPA to add 20 U.S.C. §1232g(j). The provision
authorizes the Attorney General or specified designees to ask a court for an ex parte order
requiring an educational agency to permit the government to collect education records in the
agency’s possession deemed relevant to an authorized terrorism investigation or prosecution as
defined by federal law. The FERPA record-keeping requirements do not apply to disclosures
made pursuant to such a court order. School district attorneys whose clients receive a request
under this provision should review a copy of the court order in light of the requirements of
§1232g(j) and seek clarification if the scope of the document request is unclear. The district
should also be advised that it cannot be found liable to any person for complying in good faith
with the court order and that it is not required to maintain a record of its compliance with the
order. Educational agencies disclosing records in compliance with an ex parte court order
obtained by the Attorney General are not required to obtain consent from or give notice to parents
or eligible students. 34 C.F.R. §99.31(a)(9)(ii).
An educational agency may disclose without consent information about a student who is
required to register as a sex offender in the state pursuant to §170101 of the Violent Crime
Control and Law Enforcement Act of 1994, 42 U.S.C. §14071, if the state provided that
information to the agency under that Act and applicable federal guidelines. 34 C.F.R.
§99.31(a)(16). Disclosures under this section must comply with Attorney General guidelines for
state community notification programs.
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ILLINOIS SCHOOL LAW: PERSONNEL AND STUDENT ISSUES
[7.78] Limitations on Re-Disclosure
The Family Educational Rights and Privacy Act provides that third parties to whom education
records are disclosed shall not permit any other party access to the information without the parent
or eligible student’s written consent and that third-party recipients must be expressly advised of
this limitation. 20 U.S.C. §1232g(b)(4)(B). See also 34 C.F.R. §99.33, elaborating on
re-disclosure restrictions.
It is recommended that schools and other educational agencies stamp each page of every
document they release advising third parties of their duties not to re-disclose the information
except in compliance with the FERPA and the Illinois School Student Records Act.
g. [7.79] Record of Disclosures
Agencies subject to the Family Educational Rights and Privacy Act must maintain a record of
access or disclosure of education records, identifying who has requested or obtained the
information and their legitimate interests in receiving it. 20 U.S.C. §1232g(b)(4)(A); 34 C.F.R.
§99.32(a). However, an access record is not required for disclosures to a parent or eligible student
or per their written consent specifically designating the parties to whom the disclosure is to be
made. Nor is an access record required for disclosures to persons within the educational
institution having a legitimate educational interest in the records or for proper disclosures of
directory information. 34 C.F.R. §99.32(d).
Access/disclosure records are themselves part of the student’s education records. 34 C.F.R.
§99.32.
8. [7.80] Right To Complain to the FERPA Office
There is no implied private cause of action under the Family Educational Rights and Privacy
Act, nor are FERPA violations redressable by means of a “laws” action under 42 U.S.C. §1983.
Gonzaga University v. Doe, 536 U.S. 273, 153 L.Ed.2d 309, 122 S.Ct 2268 (2002). The only
remedy for violation of the FERPA is to file a complaint with the Secretary of the Department of
Education, requesting withdrawal of the alleged offending agency’s federal funding. The
Department’s Family Policy Compliance Office handles complaints and determines whether
funding should be terminated in a given instance. 20 U.S.C. §1232g(g); 34 C.F.R.
§§99.60 – 99.67.
C. The Illinois School Student Records Act (ISSRA)
1. [7.81] Background
The Illinois School Student Records Act became effective in 1976, two years after the
enactment of the Family Educational Rights and Privacy Act. The ISSRA parallels the FERPA in
many but not all respects, somewhat complicating compliance for the public schools at the pre-K
to secondary level to which it applies.
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The Illinois State Board of Education (ISBE) administers the ISSRA. 105 ILCS 10/3. The
regulations implementing the ISSRA are found at 23 Ill.Admin. Code pt. 375. The ISBE is in the
process of amending these regulations at this writing. A draft of the proposed amendments is
expected to be available on the ISBE website, www.isbe.state.il.us, by Summer 2010.
2. [7.82] Key Differences Between FERPA and ISSRA
Unlike the Family Educational Rights and Privacy Act, the Illinois School Student Records
Act incorporates affirmative remedies for parents and students. Any person injured by a willful or
negligent violation of the ISSRA’s provisions may sue for injunctive relief to enforce compliance
and may also seek damages, court costs, and attorneys’ fees. 105 ILCS 10/9.
Both the FERPA and the ISSRA cover virtually all student records, which the ISSRA refers
to as “school student records.” However, the ISSRA breaks them down into “permanent” or
“temporary” records and prescribes different requirements for each category.
All rights accorded to a parent under the ISSRA become exclusively those of the student on
his or her 18th birthday, high school graduation, marriage, or entry into military service,
whichever occurs first. 105 ILCS 10/2(g). An adult student’s status as a dependent for IRS
purposes does not prolong parental rights of access to student records, as it does under the
FERPA.
Both the FERPA and the ISSRA require notice to parents and students of their rights under
the respective statutes. The ISSRA requires that such notice be given when a student first enrolls
in or transfers to a school. 23 Ill.Admin. Code §375.30(a). The FERPA requires an annual
notification. Districts can satisfy the discrepant requirements by giving notice upon a student’s
initial enrollment or transfer of a student and also giving notice annually.
Whereas students attain FERPA rights only when they turn 18 or begin attending a
postsecondary educational institution, students may exercise ISSRA rights “at any time” with
respect to their permanent records. 105 ILCS 10/2(g). The ISSRA also grants the right to copy all
school student records regardless of the circumstances. 105 ILCS 10/5(a).
The ISSRA provides that schools may destroy a student’s temporary record five years after
the student has transferred, graduated, or withdrawn from the school. 105 ILCS 10/4(f). The
FERPA does not provide a retention schedule or differentiate between temporary and permanent
records.
Ordinarily, federal law preempts state law on the same subject in the event of conflict. When
ISSRA and FERPA requirements differ, school officials should follow the more restrictive
provision (i.e., the more student-protective provision) that fosters the common purpose of the
statutes.
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3. Scope of ISSRA
a. [7.83] Schools Governed by ISSRA
The Illinois School Student Records Act applies to any public school, day care center,
kindergarten, nursery, elementary or secondary educational institution, vocational school, special
education facility, or any other elementary or secondary educational institution and to any person,
agency, or institution that maintains school student records from more than one school. The
ISSRA does not apply to nonpublic schools or to postsecondary educational institutions such as
community colleges (although it would appear to apply to day care facilities operated by public
colleges). 105 ILCS 10/2(b). Most schools to which the ISSRA applies receive federal funds and
thus are also subject to the Family Educational Rights and Privacy Act.
b. [7.84] Records
The Illinois School Student Records Act excludes a few categories from the universe of
school student records. Any writings or other recorded information maintained by an employee of
a school or other person at the direction of a school for the employee’s exclusive use and not
released or disclosed to anyone other than a substitute (so-called “sole possession” notes) fall
outside the definition. School student records also do not include “information maintained by law
enforcement professionals working in the school.” 105 ILCS 10/2(d). See §7.77 above.
c. [7.85] Parents and Students
For Illinois School Student Records Act purposes, “parent” includes a person who has
primary responsibility for the care and upbringing of the student. 105 ILCS 10/2(g).
Under the School Code, noncustodial parents are entitled to have access to their children’s
student records unless the school is furnished with a certified copy of a court order prohibiting the
release of such reports, records, notices, or other documents to that parent. The pertinent
provision of the School Code also states that school reports or records shall not be provided to a
parent who has been prohibited from inspecting or receiving them by an order of protection
issued under the Illinois Domestic Violence Act of 1986, 750 ILCS 60/101, et seq. 105 ILCS
5/10-21.8.
A copy of any order of protection received by a school district should be maintained in the
affected student’s records per §10-22.3c of the School Code, which also prohibits school
employees who have received such orders from disclosing the location or address of the petitioner
for the order (generally, the custodial parent) or identifying the schools that the affected children
attend. 105 ILCS 5/10-22.3c.
4. [7.86] Permanent and Temporary Records
As noted in §7.82 above, the Illinois School Student Records Act distinguishes between
permanent and temporary student records. Schools must maintain a student’s permanent records
for at least 60 years after the student transfers, graduates, or otherwise permanently withdraws
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from the school. 105 ILCS 10/4(e). Schools must maintain a student’s temporary records for at
least 5 years after the student transfers, graduates, or otherwise permanently withdraws from the
school. 105 ILCS 10/4(f). However, before a school destroys any school student record, it must
give “reasonable prior notice” to the student’s parent at his or her last known address so that the
parent may copy the information before it will be destroyed. 105 ILCS 10/4(h).
A student’s permanent record consists of his or her name, birth date, address, grades and
grade level, parents’ names and addresses, attendance records, and other entries authorized by the
Illinois State Board of Education. 105 ILCS 10/2(e). Per ISBE rules, the permanent record must
also include the student’s gender, place of birth, class rank, graduation date, scores on college
entrance examinations, accident reports and health records, and records of any release of
permanent record information. Districts may also include awards received, participation in
school-sponsored activities or athletics, and offices held in school-sponsored organizations. No
other information can be contained in a student’s permanent record. 23 Ill.Admin. Code §375.10.
A student’s temporary record includes all information not contained in a permanent record,
such as family background information, intelligence test scores, aptitude test scores, reports of
psychological evaluations, achievement-level test results, teacher anecdotal records (other than
personal sole possession notes), disciplinary information, special education files, verified reports
or information from noneducational persons or organizations, and records of release of temporary
record information. 105 ILCS 10/2(f); 23 Ill.Admin. Code §375.10. The temporary record also
includes information on serious disciplinary infractions (i.e., those involving drugs, weapons, or
bodily harm) that resulted in expulsion, suspension, or other sanctions.
Information added to a student’s temporary record must include the name, signature, and
position of the person who has added the information and the date of its entry into the record. 105
ILCS 10/4(d).
Although not included in the ISSRA’s definition of “student temporary records” student
biometric information if collected by a school district also has a statutorily specified and brief
shelf life. See 105 ILCS 5/10-20.40, added by P.A. 95-232, discussed further in §§7.134 – 7.137
below.
The School Code requires districts to keep reports received from courts or law enforcement
officers in a file separate from the official school record. The principal, counselors, and teachers
of the school are to use these reports solely to “aid in the proper rehabilitation of the child.” 105
ILCS 5/22-20.
5. [7.87] Right To Be Informed: Written School Policy Required
The Illinois State Board of Education’s implementing regulations mandate that schools adopt
a policy and regulations to ensure that parents and students are accorded their rights under the
Illinois School Student Records Act. The statute makes it the responsibility of each building
principal to inform school personnel of ISSRA requirements. 105 ILCS 10/3(c).
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6. [7.88] Notification of Rights
The Illinois School Student Records Act rules require that all students and parents be notified
of their rights under the Act upon the initial enrollment or transfer of a student to a school. 23
Ill.Admin. Code §375.30(a). All notifications to children classified under 105 ILCS 5/14C-3 to be
of limited English-speaking ability must be both in English and in the primary language of the
child or the parents. 23 Ill.Admin. Code §375.30(b). The notifications may be delivered by any
means likely to reach the parents, including direct mail, parent-teacher conferences, delivery by
the student to the parent, or incorporated in a parent-student handbook or other information
brochure disseminated by the school. 23 Ill.Admin. Code §375.30(c). The content of the notices
is prescribed minutely in 23 Ill.Admin. Code §375.30(d).
7. [7.89] Right To Inspect, Copy, and Review Records
The Illinois School Student Records Act generally provides inspection and review rights
similar to those under the Family Educational Rights and Privacy Act highlighted in §7.68 above.
The ISSRA authorizes schools to make records copying charges at the lesser of the actual cost for
providing a copy or 35 cents per page. 23 Ill.Admin. Code §375.50(a). Inability to pay for copies
must not preclude access to inspection and copying. 23 Ill.Admin. Code §375.50(b).
The extent of a parent’s right to inspect and copy school records was clarified in Garlick v.
Oak Park & River Forest High School District No. 200, 398 Ill.App.3d 306, 905 N.E.2d 930, 329
Ill.Dec. 92 (1st Dist. 2009). The parent in Garlick requested copies of his daughter’s biology and
math tests. The school district responded by allowing the parent to review the records, take them
home overnight, and hand copy the test questions, but did not allow the parent to photocopy test
questions because it intended to reuse them. Finally, the district gave the parent a photocopy of
his daughter’s math test answers and calculations that appeared in her test booklet with her name,
but redacted the test questions because they did not contain identifying information. On review,
the court considered the definition of “school student records” provided in ISSRA §2(d) and
reasoned that nothing in the plain language of the statute indicated that only those parts of a
document individually identifying a student should be considered school records for purposes of
parental inspection and copying. The court ruled that school districts may not redact portions of a
student record that do not individually identify the student because doing so would restrict
parents’ right to receive a copy of their child’s student records and would be inconsistent with the
legislature’s intent to provide a broad right of access to student records. Under Garlick, test
booklets that contain individually identifiable information about students are school student
records, whereas test booklets devoid of such information are not student records.
The ISSRA does not entitle a parent or student to review confidential letters and statements of
recommendation furnished in connection with applications for employment to a postsecondary
educational institution or for the receipt of an honor. 105 ILCS 10/5(e). The ISSRA provides that
nothing in the statute should be construed to impair or limit the confidentiality of communications
otherwise protected by law as privileged or confidential, e.g., communications to a physician,
psychologist, or psychotherapist, school social worker, school counselor, school psychologist
intern, or confidential communication by a student or parent to school personnel. 105 ILCS
10/5(f). As amended by P.A. 96-628, effective January 1, 2010, the statute now provides that
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none of these school employees may be subject to adverse personnel actions or discrimination for
acting to protect such confidential information. 105 ILCS 10/5(g).
Under the ISSRA, inspection requests must be granted no later than 15 school days after the
designated school records custodian receives the request. 105 ILCS 10/5(c).
At the option of the parent, student, or school, a qualified professional (psychologist,
counselor, or other adviser) employed by any of them may be present during an inspection to
interpret the information in the student’s temporary record. The party requesting the
professional’s attendance generally bears any related expense involved. 105 ILCS 10/5(b).
8. Right To Challenge School Student Records
a. [7.90] Hearing Rights and Procedures
Parents or the student after he or she turns age 18 may challenge the accuracy, relevance, or
propriety of any entry in the school student record, excepting academic grades. 105 ILCS 10/7(a);
23 Ill.Admin. Code §375.90. A student is entitled to challenge contents in his or her permanent
school record (concurrently with parents) at any age. 105 ILCS 10/2(g).
The Illinois State Board of Education has prescribed records challenge procedures, which are
to include due-process elements such as the right to present evidence and call and cross-examine
witnesses, have counsel, and receive a written statement of any decision. The Illinois School
Student Records Act also provides the right to appeal an adverse decision to an administrative
panel or official to be established or designated by the ISBE. 105 ILCS 10/7(b). For a full
description of the hearing process, including the possibility of a second-level appeal to the
regional superintendent, see 23 Ill.Admin. Code §375.90.
b. [7.91] Appeal to Circuit Court
An adverse decision of the superintendent of the educational service region may be appealed
to the circuit court of the county in which the school is located. 105 ILCS 10/7(c). The circuit
court review is limited to the record presented pursuant to the Administrative Review Law, 735
ILCS 5/3-101, et seq., which provides for judicial review of any final administrative decision.
c. [7.92] Filing of Position Statement
The Illinois School Student Records Act gives parents or students the right to place a
statement of reasonable length in the school student record setting forth the parents’ or students’
position on any disputed information contained in the record. Whenever the records in dispute are
disclosed by the school, a copy of that statement must be included. 105 ILCS 10/7(d).
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V. OTHER PROVISIONS CONCERNING STUDENTS
A. Student Attendance
1. Age Requirements
a. [7.93] Compulsory Attendance
School Code §26-1 states the fundamental requirement concerning compulsory attendance:
Whoever has custody or control of any child between the ages of 7 and 17 years
(unless the child has already graduated from high school) shall cause such child to
attend some public school in the district wherein the child resides the entire time it
is in session during the regular school term. 105 ILCS 5/26-1.
Section 10-19 of the School Code mandates that a school term consist of at least 185 days to
ensure 176 days of actual pupil attendance. 105 ILCS 5/10-19. As discussed in §§7.97 – 7.100
below, the School Code exempts some students from this compulsory attendance requirement.
b. Non-Compulsory Attendance
(1)
[7.94] Regular students
Young people under age 7 and over age 17 are not compelled to attend school. Nonetheless,
the School Code requires districts to operate “a sufficient number of free schools for the
accommodation of all persons in the district who are 5 years of age or older but under 21 years of
age, and to secure for all such persons the right and opportunity to an equal education in such
schools.” 105 ILCS 5/10-20.12.
Section 10-20.12 also authorizes school districts to enroll children who turn 5 on or before
September 1 of the school term. A school district may but is not required to enroll a younger child
after assessing his or her readiness to attend school. A school district may offer either half-day or
full-day kindergarten. If full-day kindergarten is offered, a district must offer a half-day program,
too. 105 ILCS 5/10-20.19a, 5/10-22.18.
The compulsory attendance provisions of School Code Article 26, 105 ILCS 5/26-1, et seq.,
do not require school attendance for a child under age 7 unless the child is enrolled in first grade
or higher. A school board cannot compel a child to attend kindergarten or pass a “readiness test”
before enrolling in first grade. See Morgan v. Board of Education, Trico Community Unit School
District No. 176, 22 Ill.App.3d 241, 317 N.E.2d 393 (5th Dist. 1974) (discussing relationship
between School Code §§10-20.19a, 10-22.18, and Article 26).
(2)
[7.95] Adult education
School Code §10-22.20 authorizes districts to hold classes for persons over 21 years of age,
or persons under 21 who are not attending public schools, to provide additional basic education,
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vocational skills training, and other instruction to adults or to youth whose education has been
interrupted. 105 ILCS 5/10-22.20(a). The Illinois Community College Board (ICCB) is
responsible for determining the adult education needs of school district residents and the
standards for these adult education courses. The ICCB is also responsible for calculating
reimbursement to local public school districts for adult education expenses, including
transportation and child care. 105 ILCS 5/10-22.20(b), 5/10-22.20(c).
(3)
[7.96] Before- and after-school programs
The School Code also authorizes districts to establish various before- and after-school
programs, including child-care and training centers, model day care services, and programs for
preschool children with disabilities. See 105 ILCS 5/10-22.18b, 5/10-22.18c, 5/10-22.38.
2. Exemptions from Compulsory Public School Attendance
a. General Exemptions
(1)
[7.97] Private schools
The School Code exempts from compulsory attendance laws children attending a private or
parochial school whose curriculum is taught in English and includes the branches of education
taught to children of corresponding age and grade in the public schools. 105 ILCS 5/26-1(1). This
exemption is consistent with Pierce v. Society of Sisters of Holy Names of Jesus & Mary, 268
U.S. 510, 69 L.Ed. 1070, 45 S.Ct. 571 (1925), in which the Court struck down a state law
mandating that all students attend public school as an unconstitutional interference with the
liberty of parents to direct their children’s upbringing and education.
(2)
[7.98] Children physically or mentally unable to attend school
Children “physically or mentally unable to attend school” are also exempt from compulsory
attendance if a competent physician or advanced practice nurse properly authorized to perform
health examinations or a Christian Science practitioner certifies the disability to the local truant
officer. 105 ILCS 5/26-1(2). The parental opt-out permitted by this provision is rarely exercised,
given the broad federal and state mandates for education of children with disabilities, discussed in
Chapter 9 of this handbook. This disability exemption does not apply to any female student who
is pregnant or the mother of one or more children, except when she is unable to attend school due
to a pregnancy-related complication as certified by a physician. Id.
(3)
[7.99] Homeschooling
Parents have the right to educate their children at home but must be able to show that the
child is being taught grade-level subjects and shows proficiency in them, has regular hours of
study, and is not being neglected. See People v. Levisen, 404 Ill. 574, 90 N.E.2d 213 (1950).
Regional superintendents are responsible for monitoring compliance with these standards.
Homeschooling parents may attest to compliance by completing the Illinois State Board of
Education’s statement of assurance form. If parents refuse to provide any form of verification, the
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regional superintendent may direct a truant officer to investigate and may refer the matter to the
local state’s attorney for prosecution as a Class C misdemeanor under 105 ILCS 5/26-10 and
5/26-11. Additional information about homeschooling in Illinois can be found on the State Board
of Education’s website, www.isbe.state.il.us/homeschool.
The Illinois Attorney General has opined that parents may homeschool a child with
disabilities as long as the homeschool program provides instruction in subjects taught to public
school children of similar age and ability. Op. Att’y Gen. (Ill.) No. 91-042.
b. [7.100] Limited Exemptions
Under the School Code, a child “necessarily and lawfully” employed in accordance with
child labor laws may be excused from attending public school by the regional superintendent of
schools or superintendent of the public school that the child should be attending, but only if the
school board recommends such excusal. 105 ILCS 5/26-1. Children age 16 or older who submit
evidence of necessary and lawful employment and are enrolled in a graduation incentives
program or an alternative learning opportunities program are also excused. Id. Section 26-1 also
contains limited exemptions for children 12 to 14 years of age while attending confirmation
classes and for children absent for part or all of a particular school day because the tenets of their
religion forbid secular activity on that day or at a particular time of day.
Absences are also excused for “valid cause,” defined as “illness, observance of a religious
holiday, death in the immediate family, family emergency, and . . . such other situations beyond
the control of the student as determined by the board of education in each district, or such other
circumstances which cause reasonable concern to the parent for the safety or health of the
student.” 105 ILCS 5/26-2a.
3. Prerequisites for Attendance
a. [7.101] Identification Documentation for New Students
The Missing Children Records Act, 325 ILCS 50/0.01, et seq., mandates that the district
obtain a certified copy of every newly enrolled student’s birth certificate, other reliable proof of
the student’s identity and age, or an affidavit explaining the inability to provide such documents.
If the documents appear inaccurate or suspicious or cannot be provided, the district must so notify
local law enforcement authorities or the Illinois State Police and give the person enrolling the
student written notice that he or she has ten days to comply. Districts must also “flag” a student’s
record on notice from the State Police that the student has disappeared, and report any request for
a flagged student record to the State Police. 325 ILCS 50/5.
b. Residency in District
(1)
[7.102] Establishing residency
To attend school in a particular district on a tuition-free basis, a student must reside in that
district. 105 ILCS 5/10-20.12a. The School Code states that a student’s residence is that of the
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person who has legal custody of the student and defines “legal custody” to include custody
exercised by a natural or adoptive parent with whom the pupil resides. 105 ILCS
5/10-20.12b(a)(2). It also includes custody of any of the following types, but only if that custody
is for purposes other than to have access to the district’s educational programs:
a. custody granted by court order to a person with whom the pupil resides exercised under a
statutory short-term guardianship, if within 60 days a court order is entered establishing
permanent guardianship and granting custody;
b. custody exercised by an adult caretaker relative receiving Illinois Public Aid for the
student residing with the caretaker;
c. custody exercised by an adult who has assumed and exercises legal responsibility for the
student and provides the student with a regular fixed nighttime abode. Id.
Separate residency standards set out in School Code §§14-1.11 through 14-1.11b apply to
children receiving special education. 105 ILCS 5/14-1.11 through 5/14-1.11b. See Chapter 9 of
this handbook.
(2)
[7.103] Exceptions to residency requirements for homeless and other students
If the Department of Children and Family Services (DCFS) places a child in the home of a
temporary guardian or other type of child-care facility and determines it to be in the child’s best
interests to continue attending school in his or her former district, that district may not charge the
child tuition as a nonresident student. 105 ILCS 5/10-20.12b(b).
Students who become nonresidents of a district during the school term are allowed to
complete the school year without paying tuition. 105 ILCS 5/10-20.12a. Foreign exchange
students may also attend tuition free. 105 ILCS 5/10-22.5a.
Finally, homeless students are exempt from paying tuition even if they are nonresidents,
pursuant to the Education for Homeless Children Act, 105 ILCS 45/1-1, et seq. The Education for
Homeless Children Act defines “homeless child” to include an individual who lacks a fixed,
regular, and adequate nighttime place of abode, or who has a primary nighttime place of abode
that is
a. a supervised publicly or privately operated shelter designed to provide temporary living
accommodations (including welfare hotels, congregate shelters, and transitional housing);
b. an institution that provides a temporary residence for individuals intended to be
institutionalized; or
c. a public or private place not designed for or ordinarily used as a regular sleeping
accommodation for human beings. 105 ILCS 45/1-5.
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The Education for Homeless Children Act also allows a parent or guardian of a homeless
child to enroll either in the school that the child attended before becoming homeless or in any
school that non-homeless students living in the area where the child is actually living could
attend. 105 ILCS 45/1-10.
The Education for Homeless Children Act requires a district to enroll a homeless child
immediately even if the child cannot provide records normally required for enrollment. 105 ILCS
45/1-20. The Missing Children Records Act, discussed in §7.101 above, requires a person
enrolling the child to present the child’s birth certificate as a precondition of enrollment, but
allows the person to give the school an affidavit explaining why he or she is unable to produce a
birth certificate. Presumably, homelessness would suffice as an explanation.
In counseling districts about their obligations regarding the education of homeless students, it
is also important to be aware of the requirements of the federal McKinney-Vento Homeless
Assistance Act, 42 U.S.C. §11301, et seq. The McKinney-Vento Act’s education for homeless
children and youth program, originally authorized in 1987 and reauthorized most recently by the
No Child Left Behind Act of 2001, requires states and districts to revise policies and practices
that may act as barriers to enrollment, attendance, or success in school of homeless young people.
The U.S. Department of Education’s non-regulatory guidance on the McKinney-Vento Act issued
in July 2004 may be accessed at www.ed.gov/programs/homeless/guidance.pdf.
An alien may be accorded nonimmigrant status to attend a public elementary, public
secondary, or publicly funded adult education program only if the period of nonimmigrant status
does not exceed 12 months and the alien has documented payment of all tuition and related
unsubsidized costs of the program’s operation. 8 U.S.C. §1184(m).
(3)
[7.104] Validity of residency
Questions about a student’s residency in a particular district typically arise either when there
is doubt as to whether the family home is in the school district or when it is claimed that the
student resides in the district even though his or her parents do not.
In the first type of case, parents must prove that they actually reside in the district. In
Connelly v. Gibbs, 112 Ill.App.3d 257, 445 N.E.2d 477, 68 Ill.Dec. 29 (1st Dist. 1983), the court
found the family home to be in Chicago despite the parents’ purchase of a condominium in
Skokie in an attempt to enroll their son in that district’s special education program. Similarly,
mere ownership of and alleged intent to move into a home in the parents’ district of choice did
not entitle their daughter to attend school there without paying tuition as long as the family lived
outside the district. Mina v. Board of Education for Homewood-Flossmoor Community High
School District 233, Cook County, Illinois, 348 Ill.App.3d 264, 809 N.E.2d 168, 284 Ill.Dec. 46
(1st Dist. 2004). See also Martinez v. Bynum, 461 U.S. 321, 75 L.Ed.2d 879, 103 S.Ct. 1838
(1983) (upholding Texas statute that denied students tuition-free education unless they were bona
fide residents of school district).
In cases involving students living apart from their parents, courts presume the child’s
residence to be that of his or her parents, and to find otherwise will generally require parents to
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show (a) an actual transfer of custody, and (b) that the primary reason for transfer of custody was
not for the purpose of the child’s attending school in the district. Turner v. Board of Education,
North Chicago Community High School District 123, 54 Ill.2d 68, 294 N.E.2d 264 (1973). See
also Joel R. v. Board of Education of Mannheim School District 83, Cook County, Illinois, 292
Ill.App.3d 607, 686 N.E.2d 650, 226 Ill.Dec. 867 (1st Dist. 1997) (presumption that child’s
residence is that of parents may be rebutted by circumstances showing another residence). In
Israel S. v. Board of Education of Oak Park & River Forest High School District 200, Cook
County, Illinois, 235 Ill.App.3d 652, 601 N.E.2d 1264, 176 Ill.Dec. 566 (1st Dist. 1992), the court
reaffirmed the standard announced in Turner but invalidated the district’s policy that required a
student not living with his or her parents to provide a written statement from a third-party
professional verifying parental incapacity or extreme hardship. The requisite transfer of custody
need not be a formal guardianship, said the court; conversely, a guardianship order may not
suffice if parents are in fact continuing to exercise the parental care, support, and decisionmaking. If a transfer of custody is claimed, a school district may request that affidavits be
executed both by the parents and the substituted custodian, identifying reasons for the change of
custody.
(4)
[7.105] Hearing procedures for residency disputes
The School Code prescribes hearing procedures that must be carefully followed if a school
board determines that a student presently attending school in the district is a nonresident. See 105
ILCS 5/10-20.12b.
The School Code makes it a Class C misdemeanor to knowingly enroll or attempt to enroll a
student on a tuition-free basis when the student does not so qualify or to provide false information
regarding the residency of a pupil. 105 ILCS 5/10-20.12b(e), 5/10-20.12b(f).
(5)
[7.106] Tuition for nonresidents
School districts that permit nonresident students to enroll must charge them tuition not
exceeding 110 percent of the per capita cost of maintaining district schools for the preceding year.
105 ILCS 5/10-20.12a. Enrollment of nonresidents on a tuition basis is within the reasonable
discretion of the board of education. Districts may make written agreements with adjacent
districts providing for tuition-free attendance upon request if it is determined that a student’s
health and safety would be served by such an agreement. 105 ILCS 5/10-22.5a.
School Code §10-20.12a authorizes a student under age 21 who is placed in a drug or alcohol
treatment center to attend school in the district where the center is located and makes the
student’s home district responsible to pay the cost of such educational services. The home district
must pay tuition for such a student even if it has properly expelled the student for a drug-related
offense. See, e.g., Carbondale Community High School District No. 165 v. Herrin Community
Unit School District No. 4, 303 Ill.App.3d 656, 708 N.E.2d 844, 237 Ill.Dec. 41 (5th Dist. 1999).
Section §10-20.12a makes the home district responsible for tuition regardless of whether the
student was placed in a treatment center pursuant to the School Code, the Juvenile Court Act of
1987, an Illinois public agency, or an Illinois court. Disputes arising under this section may be
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submitted to the State Superintendent of Education, in writing, for a residency determination. The
decision of the State Superintendent is final. 105 ILCS 5/10-20.12a(b).
c. [7.107] Part-Time Attendance
The School Code requires public school districts to accept students enrolled in nonpublic
schools (arguably including homeschooled students) for part-time attendance if there is sufficient
space in the public school, provided that they reside in the school district and that the principal of
their nonpublic school timely requests such part-time attendance. 105 ILCS 5/10-20.24.
Attendance of nonpublic school students in public school special education programs is covered
in Chapter 9 of this handbook.
d. [7.108] Nondiscrimination
The School Code prohibits discrimination in assignment of students to attendance centers,
enrollment in particular courses or programs, or participation in activities. 105 ILCS 5/22-11,
5/22-12, 5/22-19, 5/10-21.3, 5/10-22.5a, 5/28-19.2.
e. [7.109] Fee Waivers
School districts must adopt policies providing for waiver of school fees for children of
parents who are unable to pay them. 105 ILCS 5/10-20.13. See also Illinois State Board of
Education implementing rules at 23 Ill.Admin. Code §1.245 (Waiver of School Fees).
f.
[7.110] Immunizations and Physical Examinations
Students must have a health examination within one year before entering kindergarten or first
grade at any public, private, or parochial elementary school and again upon entering fifth and
ninth grades. Students must also undergo a health examination prior to entering any public,
private, or parochial nursery school. 105 ILCS 5/27-8.1.
The Illinois Department of Public Health (IDPH) rules concerning school health
examinations and immunizations require diabetes screening as part of each health examination
and also a tuberculosis skin test screening if the child resides in an area designated by the IDPH
as having a high incidence of tuberculosis. Children must now also be screened for lead poisoning
when, in the medical judgment of the physician or healthcare provider, they are at risk of such
poisoning. 410 ILCS 45/6.2(c). IDPH rules also specify procedures for collecting data relating to
obesity.
Other health exams, including vision and hearing screening tests, may be required when
deemed necessary by school authorities. 105 ILCS 5/27-8.1(1). These tests must also be
conducted in accordance with the rules of the IDPH. As of July 1, 2005, all children in
kindergarten and the second and sixth grades of any public, private, or parochial school must also
have a dental examination. 105 ILCS 5/27-8.1(1.5).
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Students whose parents object on religious grounds to health or dental examinations or to
immunizations may be exempted from the above requirements but must furnish a signed
statement to appropriate school authorities detailing the grounds for objection. 105 ILCS
5/27-8.1(8).
In general, students must be in compliance with the health examination and immunization
requirements by October 15 of each school year or an earlier date as set by the school board. 105
ILCS 5/27-8.1(1.10). If the school board adopts an earlier cutoff date, it must give 60 days’
advance notice of the earlier date. Failure to provide proof of the required health examination and
immunizations or a schedule of when the immunizations will be administered requires the district
to exclude the child from school until proof of compliance is provided. During the child’s
exclusion from school, the parents or legal guardian is considered in violation of compulsory
attendance laws.
Although the State Board of Education takes the position that a school district may exclude
children at the time school opens if they have not complied with these requirements, others
interpret the statute to allow children until October 15 to comply without being excluded during
that period.
4. Additional Limitations on Enrollment and Reenrollment
a. [7.111] Suspension or Expulsion
A student may not enroll in a new district if another public school district located in Illinois
or in any other state has suspended or expelled that student for knowingly possessing a weapon
(as defined in the Gun-Free Schools Act of 1994, 20 U.S.C. §8921, et seq.) in a school building or
on school grounds, for knowingly possessing, selling, or delivering a controlled substance or
cannabis in a school building or on school grounds, or for battering a school staff member. 105
ILCS 5/2-3.13a(a).
If such a student attempts to transfer into any other public school before the suspension or
expulsion period has expired, any school student records required to be transferred shall include
the date and duration of the suspension or expulsion period. The student is barred from attending
class in the new school until he or she has served the entire period of suspension or expulsion
unless the school board has approved placement in an alternative school program established
under Article 13A of the School Code. Id.
In addition, school boards may adopt a policy providing that if a student is suspended or
expelled for any reason from any public or private school in this or any other state, the student
must complete the entire term of suspension or expulsion before the student can be allowed to
enroll in the district. Id. The board policy may allow placement of the student in an alternative
school program established under Article 13A of the School Code.
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b. [7.112] Academic and Attendance Standards for Older Students
A district may deny enrollment for one semester to a student 17 years of age or older if he or
she fails to meet minimum academic or attendance standards as specified in 105 ILCS 5/26-2(c),
subject to the procedural protections set out in that statute and in 23 Ill.Admin. Code §1.242.
A district may not deny enrollment to 17- and 18-year-old students for more than one
consecutive semester for failure to meet academic or attendance standards. Id. Nor may a district
deny enrollment under 105 ILCS 5/26-2(c) in violation of the Individuals with Disabilities
Education Act (IDEA), 20 U.S.C. §1400, et seq., or the Americans with Disabilities Act of 1990,
42 U.S.C. §12101, et seq.
c. [7.113] Denial of Reenrollment to Certain Older Students
Subject to specified procedural protections, the School Code requires a district to deny
reenrollment to high school students age 19 years of age or older who have dropped out of school
and who could not, because of age and lack of credits, attend classes during the normal school
year and graduate before they turn 21. However, a district may enroll such a student in a
graduation incentives program under §26-16 of the School Code or an alternative learning
opportunities program established under Article 13B of the Code. 105 ILCS 5/26-2(b). A
“re-enrolled student” is defined as a dropout who has reenrolled full-time in a public school. 105
ILCS 5/26-2(e).
If a district denies a student reenrollment under this provision after providing the requisite
due process, it must provide counseling to that student and direct him or her to alternative
educational programs, including adult educational programs that lead to graduation or receipt of a
GED diploma. 105 ILCS 5/26-2(b).
Finally, a district may not deny reenrollment under §26-2 of the School Code in violation of
the Individuals with Disabilities Act or the Americans with Disabilities Act. 105 ILCS 5/26-2(d).
5. Responses to Absenteeism
a. [7.114] Parental Notification Calls
Prior to enrollment, a district must advise parents or custodians of their responsibility to
inform the school in advance or at the time of any absence and to submit at the time of enrollment
at least one telephone number at which the parent or custodian can be reached. 105 ILCS 5/26-3b.
Thereafter, a school must make a “reasonable effort” as described in the statute to notify parents
of kindergarten through eighth grade students when their children are absent without valid cause
or excuse. Id.
b. [7.115] Reporting of Truancy
Provisions for dealing with unauthorized absences or truancy are found in Article 26 of the
School Code, 105 ILCS 5/26-1, et seq. Truant officers may be employed either by school districts
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or by the regional superintendents of schools. Unless a district employs its own truant officer, the
superintendent must report to the regional superintendent the names of the persons having
custody or control of any truant or chronically or habitually truant children whose absenteeism
has continued despite provision of supportive services and other school resources. The regional
superintendent is to forward this information to the regional truant officer. 105 ILCS 5/26-3.
Additionally, each district must furnish the regional superintendent four times during each
school year a list of students (excluding transferees) who have been expelled or have withdrawn
and been removed from the regular attendance rolls since the previous quarterly report. The
regional superintendent shall communicate this information to the county or district truant officer.
105 ILCS 5/26-3a.
Upon notification, truant officers are required to investigate all cases of truancy or
nonattendance. If three truancy notices have been given to the persons with custody or control of
the absentee student and those persons have knowingly and willfully allowed the truant behavior
to continue, the regional superintendent is to conduct a truancy hearing. If a finding of truancy is
made, the regional superintendent shall require the student to complete 20 to 40 hours of
community service if such a requirement is age-appropriate. It the truancy persists, the regional
superintendent must make a complaint to the state’s attorney in the county of residence or
conduct a truancy mediation and encourage the student to enroll in a graduation incentives
program under §26-16 of the School Code. 105 ILCS 5/26-8.
A parent or custodian who knowingly and willfully permits a child to persist in truancy is
guilty of a Class C misdemeanor and subject upon conviction to not more than 30 days’
imprisonment and/or a fine of up to $500. 105 ILCS 5/26-10, 5/26-11.
c. [7.116] Other School District Responses to Truancy
School Code provisions pertaining to “chronic” truants (i.e., students who are subject to
compulsory school attendance and who are absent without valid cause for ten percent or more of
the previous 180 attendance days) emphasize providing supportive services before disciplinary
action. 105 ILCS 5/26-12. Districts are also required to adopt policies that identify the appropriate
supportive services and available resources for truants and chronic truants. 105 ILCS 5/26-13.
The availability of public school programs and graduation incentives programs for dropouts is
also addressed in the School Code. 10 ILCS 5/26-14, 26-16.
B. Program Requirements
1. [7.117] Required Curriculum In General
Under the School Code, boards of education are responsible for approving courses to be
taught and textbooks and apparatus to be used in district schools. 105 ILCS 5/10-20.8. Article 27
of the School Code enumerates a host of curricular mandates, including instruction on the proper
use and display of the American flag and the principles of representative government as
enunciated in the American Declaration of Independence and the Constitutions of the United
States and the State of Illinois. 105 ILCS 5/27-3, 5/27-4.
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The General Assembly has also mandated instruction on character education (105 ILCS
5/27-12), consumer education (105 ILCS 5/27-12.1), conservation of natural resources and
protection of wildlife (105 ILCS 5/27-13.1), avoiding abduction and prevention of substance
abuse (105 ILCS 5/27-13.2), Internet safety education in Grades 3 through 12 (105 ILCS 5/2713.3 added in 2007 by P.A. 95-509 (eff. Aug. 28, 2007), also discussed in §9.7 of ILLINOIS
SCHOOL LAW: ORGANIZATION, FINANCE, AND PROPERTY), safety education including
home, vocational, and automobile safety (105 ILCS 5/27-17), the Holocaust and other acts of
genocide (105 ILCS 5/27-20.3), prevention of steroid abuse (105 ILCS 5/27-23.3), black history
(105 ILCS 5/27-20.4), women’s history (105 ILCS 5/27-20.5), history of the United States
(105 ILCS 5/27-21), violence prevention and conflict resolution (105 ILCS 5/27-23.4), and
disability history and awareness (105 ILCS 5/27-23.8).
The School Code also contains detailed provisions about the content of instruction
concerning family life, sex education, and the prevention of AIDS. See 105 ILCS 5/27-9.1 and
5/27-9.2, entitling parents to examine the instructional materials on these subjects and to opt their
children out of such instruction.
2. [7.118] Physical Education
Boards of education of public schools must provide for the physical education and training of
students. 105 ILCS 5/27-5, 5/27-7. However, boards of education are authorized to excuse high
school juniors and seniors from physical education courses if the student participates in
interscholastic athletics, enrolls in academic courses required for admission to a college and
without which the student would be denied admission, enrolls in academic classes required for
graduation from high school and without which the student would not be able to graduate, enrolls
in a marching band program for credit, or enrolls in a Reserve Officer’s Training Corps (ROTC)
program sponsored by the school district. 105 ILCS 5/27-6.
3. [7.119] Driver’s Education
Detailed requirements concerning driver education are also included in the School Code. 105
ILCS 5/27-24, et seq.
4. [7.120] Bullying Policy Requirement
Instruction on bullying prevention and gang resistance education is not a mandatory course of
instruction. However, each school district must create and maintain a policy on bullying and file
such policy with the State Board of Education. In addition, the bullying policy must be
communicated to the district’s students and their parents on an annual basis. The policy must be
updated every two years and filed with the State Board after being updated. 105 ILCS 5/27-23.7.
5. [7.121] Optional Courses
School districts may provide instruction on the Irish Famine (105 ILCS 5/27-20.6), parenting
education (105 ILCS 5/27-23.1), organ/tissue and blood donation (105 ILCS 5/27-23.5), antibias
(105 ILCS 5/27-23.6), safety education including home, vocational, and automobile safety (105
ILCS 5/27-17).
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6. [7.122] Recitation of the Pledge
Section 27-3 of the School Code, requiring the recitation of the Pledge of Allegiance by
pupils in elementary grades, was upheld against constitutional challenge in Sherman v.
Community Consolidated School District 21 of Wheeling Township, 980 F.2d 437 (7th Cir. 1992),
cert. denied, 113 S.Ct. 2439 (1993). The court ruled that the daily recitation of the Pledge did not
violate the First Amendment as long as pupils were free not to participate. Section 27-3 mandates
recitation of the pledge daily by students in elementary and secondary educational institutions
supported or maintained in part by public funds. 105 ILCS 5/27-3.
7. [7.123] Dissection Alternative
School districts must provide an alternative to dissection for students enrolled in courses that
ordinarily require it and instead allow the student to complete an alternative project reasonably
chosen to provide the student with knowledge similar to that expected to be gained by other
students in the course who perform or observe the dissection. 105 ILCS 112/15.
8. [7.124] Graduation, Promotion, and Grading
Public Act 94-676, effective August 24, 2005, gradually increased the course requirements of
105 ILCS 5/27-22.
To receive a high school diploma, each student entering the ninth grade in the 2006 – 2007
school year must successfully complete
a. three years of language arts;
b. two years of writing-intensive courses, one of which must be English and the other of
which may be English or any other subject (when applicable, writing-intensive courses
may be counted toward the fulfillment of other graduation requirements);
c. three years of mathematics, one of which must be Algebra I and one of which must
include geometry content;
d. one year of science;
e. two years of social studies (at least one year must be U.S. history or a combination of
U.S. history and American government); and
f.
one year chosen from music, art, foreign language (American Sign Language qualifies),
or vocational education. 105 ILCS 5/27-22.
Each student entering the ninth grade in the 2007 – 2008 school year must successfully
complete the coursework listed above for the 2006 – 2007 school year plus an additional year of
science (two years total). Id. Each student entering the ninth grade in the 2008 – 2009 school year
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and thereafter must successfully complete the coursework listed above for the 2006 – 2007 school
year plus an additional year of science (two years total) plus an additional year of language arts
(four years total). Id.
Under §27-22, the State Board of Education is to develop standards for writing-intensive
course work and inform school districts of those standards. The amendments do not apply to
pupils who entered the ninth grade in the 2004 – 2005 school year or a prior school year or to
“students with disabilities whose course of study is determined by an individualized education
program.” Id.
To receive a “regular” high school diploma, students must also take (although they need not
pass) the Prairie State Achievement Examination (PSAE). 105 ILCS 5/2-3.64(c). A student may
be exempt from this requirement if (a) the student’s individualized educational program
developed under Article 14 of the School Code identifies the PSAE as inappropriate for the
student; (b) the student lacks the requisite English language proficiency to take the PSAE; (c) the
student is enrolled in a program of adult and continuing education as defined in the Adult
Education Act, 105 ILCS 405/1-1 et seq.; (d) the district is not required to test the individual
student for purposes of accountability under the federal No Child Left Behind Act of 2001
requirements; or (e) the student is otherwise identified by the State Board of Education through
rules as being exempt from the assessment. Id.
Teachers are responsible for determining grades pursuant to School Code §10-20.9a(a),
which also specifies that district policy shall include the procedures for changing grades and
requires that teachers be notified of the nature and reasons for any grade change. 105 ILCS
5/10-20.9a(a).
Promotion or retention of students is generally within the district’s discretion. However,
districts must have a policy prohibiting promotion for purely social reasons. 105 ILCS
5/10-20.9a(b).
School Code §14-16 requires districts operating high schools to adopt a policy and
procedures whereby a special education student who has completed four years of high school may
participate in the graduation ceremony of the student’s high school graduating class and receive a
certificate of completion even if the student will continue to receive services from the district
thereafter per the terms of the student’s individualized educational program. 105 ILCS 5/14-16.
C. Student Transportation
1. Students in District Schools
a. [7.125] Free Transportation
Free transportation is required only for students who live one and one-half miles or more
from school and reside in a community consolidated, community unit, consolidated, or
consolidated high school district, specified combined school districts, or district that includes any
district previously required to provide free transportation. 105 ILCS 5/29-3. Most Illinois school
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districts are in one of the described categories and thus do not have to provide free transportation
to students who live less than one and one-half miles from school. However, this statute also
provides that free transportation “may” be provided to students residing within one and one-half
miles of the school attended when conditions are such that walking to or from the school attended
or to or from a pickup point or bus stop poses a serious safety hazard due to vehicular traffic or
rail crossings and adequate public transportation is not available.
The local board of education is to determine what constitutes a “serious safety hazard” on the
basis of guidelines developed by the Illinois Department of Transportation in consultation with
the State Superintendent of Education. The Department of Transportation is to approve or
disapprove a board determination within 30 days. Board determinations must be reviewed and
certified annually to the State Superintendent.
The statute offers little guidance on how school districts are to provide transportation to
students who live more than a mile and a half from the school. School districts are left to
determine how best to comply with the statute, given their available resources and unique
circumstances. D.M. v. National School Bus Service, Inc., 305 Ill.App.3d 735, 713 N.E.2d 196,
238 Ill.Dec. 950 (2d Dist. 1999). With regard to choosing bus routes, the courts have held that a
route cannot be selected capriciously without regard for student safety. Posteher v. Pana
Community Unit School District No. 8, Christian County, Illinois, 96 Ill.App.3d 709, 421 N.E.2d
1049, 52 Ill.Dec. 186 (5th Dist. 1981). Students may not be required to walk to pickup points onehalf mile or more from their residences. People ex rel. Schuldt v. Schimanski, 130 Ill.App.2d 780,
266 N.E.2d 409 (4th Dist. 1971).
b. [7.126] Charges for Transportation
Districts may transport pupils living within one and one-half miles of school and may charge
a fee for such transportation not to exceed the actual cost. 105 ILCS 5/29-2. The State Board of
Education has taken the position that districts may not charge for transporting students who live
farther away. However, an argument to the contrary can be made: since the statute requires
specified types of school districts to provide free transportation, by implication other districts may
impose a charge for it.
c. [7.127] Special Transportation Provisions for District Students
School districts may charge for transportation to school-sponsored activities and summer
school. 105 ILCS 5/29-3.1, 5/29-3.2a. No district funds may be used for transportation expenses
of educational tours except for salaries of personnel on those tours. 105 ILCS 5/10-22.29b.
Transportation for field trips in Illinois or adjacent states may be paid with district funds. 105
ILCS 5/29-3.1.
Under Illinois State Board of Education rules, whenever a school district that provides
transportation to a student requires the student to serve a disciplinary detention period either
before or after the regular school day, the district must provide transportation to the student unless
the student’s parent has agreed to provide the transportation necessary for the student to serve the
detention. The district is not obligated to provide transportation, nor is reimbursement available,
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for students for detention periods that are scheduled for Saturdays or other days when students are
not in attendance. 23 Ill.Admin. Code §120.20.
2. Transportation of Students Not Enrolled in District Schools
a. [7.128] Other Public School Students
Any district that provides transportation may, by agreement with another public school
district, transport students in that other district to and from activities sponsored by any public
school in that other district if conveyance space is available but must charge not less than the cost
of such transportation. 105 ILCS 5/29-3.3. A charge must also be made if transportation is
provided to participating children or adults attending “organized recreational, cultural,
educational, and public service programs.” 105 ILCS 5/29-3.4.
b. [7.129] Nonpublic School Students
By agreement with officials of a nonpublic school, a district may provide transportation for a
fee to students attending the nonpublic school’s activities at times public school conveyances are
available. 105 ILCS 5/29-3.2.
Free transportation is also required for children who attend a charter school or any private
school who reside at least one and one-half miles from the school attended and who reside on or
along the highway constituting the regular route of such public school bus or conveyance. 105
ILCS 5/29-4. If that statute requires a district to provide such free transportation for any such
child who is not a resident of the district, that district is entitled to have the child’s district of
residence reimburse it for the cost of the transportation, including a reasonable allowance for
vehicle depreciation.
Section 29-4 also specifies that districts are not precluded from operating separate regular bus
routes for charter or private school students when doing so is “safer, more economical and more
efficient.” As these provisions for transporting private school students were enacted for the
secular public purpose of protecting children’s safety, they do not violate constitutional
provisions barring use of public funds for private purposes or in aid of any church. Board of
Education, School District No. 142, Cook County, Illinois v. Bakalis, 54 Ill.2d 448, 299 N.E.2d
737 (1973).
3. Reimbursements for Transportation
a. [7.130] From State of Illinois to School District
The School Code details conditions under which the state reimburses districts for student
transportation costs. Generally, school districts are reimbursed only for required (not
discretionary) transportation furnished to students. 105 ILCS 5/29-5.
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b. [7.131] From State of Illinois to Parents or Custodians
In general, parents may be reimbursed for costs of transporting children who live one and
one-half miles or more from school (or less if the walk qualifies as a “serious safety hazard”) and
for whom public transportation is not available. Application must be submitted with evidence of
actual costs by each June 30, and the amount received is subject to statutory limits and to state
appropriation levels. 105 ILCS 5/29-5.2.
4. [7.132] Specific Mode of Transportation for Specified Interscholastic or SchoolSponsored Activities.
Public Act 96-410, effective July 1, 2010, provides that any school district transporting
students in Grade 12 or below for certain interscholastic, interscholastic athletic, or schoolsponsored, but voluntary, non-curriculum-related activities must transport such students in a
school bus, a vehicle manufactured to transport not more than ten persons (including the driver),
or a “multifunction school-activity bus.” 105 ILCS 5/29-6.3. A “multifunction school-activity
bus” is defined in the Vehicle Code at 625 ILCS 5/1-148.3a-5.
D. Miscellaneous Student Provisions
1. [7.133] Reporting of Child Abuse and Neglect
The Abused and Neglected Child Reporting Act, 325 ILCS 5/1, et seq., requires that school
employees report to the Department of Children and Family Services if they have reasonable
cause to believe a child known to them in their professional capacity may be an abused or
neglected child as defined in the statute. 325 ILCS 5/4. See §1.28 of this handbook.
If a DCFS investigator comes to school premises to interview the child, the school district
may deny access unless there is a temporary custody or court order. Absent a court order to the
contrary, a district may condition interview of the child on school personnel being present during
the interview. After the interview, the school principal or designee may (but is not required to)
notify the parent of the fact of the interview but may not divulge any information about the
interview.
2. Student Biometric Information
a. [7.134] Biometric Information in General
Biometric information means any information that is collected through an identification
process for individuals based on their unique behavioral or physiological characteristics,
including fingerprint, hand geometry, voice, or facial recognition or iris or retinal scans. 105
ILCS 5/10-20.40(a).
With the advancement of technology, school districts may opt to use student biometric
information as a means of identifying individual students. Practical applications of this
technology include the monitoring of school lunch and breakfast accounts, recording of
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attendance, implementation of school library loan programs, and permitting access to specific
school buildings and premises.
b. [7.135] Board of Education Policy Requirements
Section 10-20.40(b) of the School Code requires school districts that collect biometric
information to adopt policies that require, at a minimum, all of the following:
1. the written permission from the person who has legal custody of the student, as defined in
§10-30.12b of the School Code, or from the student if he or she has reached age 18;
2. the discontinuation of use of a student’s biometric information when the student
graduates or withdraws from the school district, or upon receiving a written request for
discontinuation from the person who has legal custody of the student or from the student
if he or she has reached age 18;
3. the destruction of all of a student’s biometric information within 30 days after its use
discontinued;
4. that the use of biometric information must be solely for identification or fraud prevention;
5. a prohibition on the sale, lease, or other disclosure of biometric information to another
person or entity, unless the person who has legal custody of the student (or the student, if
age 18 or older) consents to the disclosure, or the disclosure is required by court order;
and
6. the safe storage, transmittal, and protection of all biometric information to prevent
improper disclosure. 105 ILCS 5/10-20.40(b).
c. [7.136] Refusal To Provide Consent
Failure of the legal custodian or student to provide written consent as described above must
not be the basis for refusal of any services otherwise available to the student. 105 ILCS
5/10-20.40(c).
d. [7.137] Destruction of Biometric Information
Student biometric information may be destroyed without notice to or approval from a local
records commission under the Local Records Act if it is destroyed within 30 days after the use of
the biometric information is discontinued. 105 ILCS 5/10-20.40(d).
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