New Legislation Adds Discretion and Restorative Practices to Student Discipline

The Legislature recently passed a package of seven bills that will require school officials to consider various factors before suspending or expelling a student and to consider the use of restorative practices, regardless of whether a student is suspended or expelled. The new laws take effect August 1, 2017.

Factors to Consider Before Discipline

Public Act 360 of 2016 (PA 360) adds Section 1310d to the Revised School Code (RSC). Except for students who are being expelled for possessing a firearm in a weapon free school zone, Section 1310d requires school officials to consider all of the following factors before suspending or expelling a student under Sections 1310, 1311(1), 1311(2), or 1311a:

(1)  The student’s age;

(2)  The student’s disciplinary history;

(3)  Whether the student has a disability;

(4)  The seriousness of the violation or behavior committed;

(5)  Whether the violation or behavior committed threatened the safety of any student or staff member;

(6)  Whether restorative practices will be used to address the violation or behavior committed; and

(7)  Whether a lesser intervention would properly address the violation or behavior committed.

While Section 1310d gives school officials sole discretion over the method used to consider these factors, it creates a rebuttable presumption that a suspension of more than 10 school days or an expulsion is not justified unless school officials demonstrate that they considered each of the factors. There is no rebuttable presumption that a suspension of 10 or fewer school days is not justified, but school officials still must consider each of the factors before suspending a student. Moreover, under recently issued OCR/OSEP guidance, any disciplinary removal of a student with a disability must be evaluated for compliance with principles of FAPE (free appropriate public education) and LRE (least restrictive environment).

Restorative Practices Encouraged

Public Act 361 of 2016 (PA 361) adds RSC Section 1310c and requires school officials to consider using restorative practices as an alternative or in addition to suspending or expelling a student. Restorative practices are defined as “practices that emphasize repairing the harm to the victim and the school community caused by a pupil’s misconduct.” Section 1310c provides that such restorative practices may include victim-offender conferences that:

  1. are initiated by the victim;
  2. are approved by the victim’s parent or legal guardian or, if the victim is at least age 15, by the victim;
  3. are attended voluntarily by the victim, a victim advocate, the offender, members of the school community, and supporters of the victim and the offender; and
  4. provide an opportunity for the offender to accept responsibility for the harm caused to those affected by the misconduct and to participate in setting consequences to repair the harm.

The offender may agree through restorative practices to apologize; participate in community service, restoration, or counseling; or pay restitution. The consequences must be incorporated into a written agreement that sets time limits for the offender to complete the consequences and that is signed by all participants. School officials should consider restorative practices to address interpersonal conflicts, bullying, verbal and physical conflicts, theft, damage to property, class disruption, harassment, and cyberbullying. Nevertheless, school officials are reminded that federal non-discrimination laws, such as Title IX, prohibit schools from requiring that a victim of discrimination meet face-to-face with the offender.

Public Act 362 of 2016 (PA 362) amends Section 1310b (the Matt Epling Safe School Law) to encourage schools to include the use of restorative practices in school anti-bullying policies.

Reporting Requirements Revised

Public Act 363 of 2016 (PA 363) amends Section 1308 (the Statewide School Safety Information Policy) by revising subsection (3) to address concerns about duplicative or conflicting reporting requirements in Section 1308. Subsection (3) now clarifies that schools must report to appropriate state or local law enforcement agencies and prosecutors all information required to be reported to those officials under the statewide school safety information policy. The reporting of such information remains subject to the Family Educational Rights and Privacy Act.

Mandatory Expulsion, “Dangerous Weapons,”and Section 1310d

Public Act 364 of 2016 (PA 364) makes Section 1311(2) (pertaining to the mandatory expulsion of students for possessing a dangerous weapon, committing arson, or committing criminal sexual conduct) subject to the new RSC Section 1310d factors, except when a student is being expelled for possessing a firearm. The possession of all other dangerous weapons is subject to the Section 1310d factors.

In addition, a new Section 1311(3) is added, creating a rebuttable presumption that an expulsion for possession of a dangerous weapon is not justified if both of the following conditions are satisfied:

  1. The school determines, in writing, that at least one of the factors listed in Sections 1311(2)(a)-(d) has been established in a clear and convincing manner (obviating mandatory expulsion); and
  2. The student has no history of suspension or expulsion.

Section 1311(2) already provides that a school board is not required to expel a student for possessing a dangerous weapon if the student establishes, in a clear and convincing manner, at least one of the following:

(1) The object or instrument possessed by the student was not possessed by the student for use as a weapon, or for direct or indirect delivery to another person for use as a weapon;

(2) The weapon was not knowingly possessed by the student;

(3) The student did not know or have reason to know that the object or instrument possessed by the student constituted a dangerous weapon; or

(4) The weapon was possessed by the student at the suggestion, request, or direction of, or with the express permission of, school or police authorities.

Although permissive expulsion remains in the school board’s discretion, it is now subject to the conditions and rebuttable presumption in Section 1310d.

Other Offenses Subject to Section 1310d

Public Act 365 of 2016 (PA 365) amends Section 1310 by making subsection (1) (suspension or expulsion of a student in grade 6 or above for committing a physical assault at school against another student) subject to the Section 1310d factors.

Finally, Public Act 366 of 2016 (PA 366) amends Section 1311a by making both subsection (1) (suspen­sion or expulsion of a student in grade 6 or above for committing a physical assault at school against an employee, volunteer, or contractor) and subsection (2) (suspension or expulsion of a student in grade 6 or above for committing a verbal assault at school against an employee, volunteer, or contractor, or for making a bomb threat) subject to the Section 1310d factors.

While the new legislation gives school officials more flexibility in student disciplinary matters, failing to consider the Section 1310d factors as required by law likely will result in legal challenges to school discipline decisions. School officials should revise board policies, student handbooks, and codes of conduct to ensure that these documents incorporate the new factors, use of restorative justice practices as part of student discipline procedures, and are ready for the 2017-18 school year.

Thrun Law Firm is modifying its model student discipline policy and forms and will make these documents available to retainer clients in the next few months.