Author: Laurene M. Heybach, Director of the Law Project of the Chicago Coalition for the Homeless and Wallace C. Winter, Director of the Disability Law Project of LAF
Last updated: September 2005
The minimum due process required for suspending children in public schools for ten days or less was defined by the Supreme Court in Goss v. Lopez, 419 U.S. 566 (1975). The Illinois Legislature incorporated this minimum due process requirement in 105 ILCS 5/10-22.6(b) that requires any suspension be “immediately” reported to the parents; that the notification include a “full statement of the reasons for such suspension and a notice of their right to request a review” before either the school board or a hearing officer appointed by the board; and that the parents may appear at the review and “discuss the suspension.” The Chicago Public Schools’ 2004-05 Uniform Disciplinary Code (UDC) provides parents with “oral or written notification of the charges and an opportunity for the student and/or parent to respond to the charges.” (UDC, p.33). Appeals of a student’s suspension, after a final decision by the principal, must be made to the Region Education Office (in writing if the Region should so request). (UDC, p. 15).
In practice some districts rarely inform parents that they have the right to a review of the suspension decision for 10 days or less, and therefore such reviews are rarely, if ever, requested. The reality is that by the time a review could be held, the suspension period would usually be over. Nevertheless, a successful appeal of a suspension by a parent could have the beneficial effect of removing the suspension from the student’s record and reducing the likelihood that a student will be expelled for subsequent misconduct.
While state law on suspension limits the right to suspend disabled students for more than ten consecutive days, it does not put any upward limit on the aggregate number of days that a non-disabled student may be suspended during the school year. However, students receiving special education services, or in the process of being evaluated for such services, generally cannot be suspended for more than 10 cumulative days in the school year.
Expulsions in Chicago have sharply increased, from about 30 in 1995 to over 1300 during the 1997-98 school year. The Supreme Court in the Goss case, cited above, noted that expulsion cases may require more formal due process procedures than suspensions because they obviously have more serious consequences. The Illinois School Code agreed and provides in 105 ILCS 5/10-22.6(a) that in cases of “gross disobedience or misconduct” expulsions “shall take place only after the parents have been requested to appear at a meeting of the board, or with a hearing officer appointed by it to discuss their child’s behavior.” “Expulsion” is defined in the Chicago 2004-05 UDC as “the removal of a student from school for 11 days or more, to a maximum of two calendar years.” (UDC, p.29).
The request to appear at the expulsion hearing must be by registered or certified mail and state the time, place and purpose of the hearing. The hearing officer at the hearing must state the reasons for dismissal and the date on which the expulsion is to become effective. The state statute requires the hearing officer to report to the board a written summary of the evidence heard at the hearing and the board may take such action as it finds appropriate. In Chicago, the hearing officer makes a recommendation to the chief educational officer, and the decision is signed by that officer.
Prior to DCFS contracting with legal services lawyers to represent wards in expulsion hearings, wards virtually never had legal representation at such hearings. By contracting with lawyers to represent wards in expulsion cases, DCFS has helped to sharply reduce the number of wards who are expelled from school, often for long periods without any alternative education program. Lawyers, for example, know how to object to the admission of damaging hearsay statements made by students and teachers without the student being able to cross examine his or her accusers. An Illinois Appellate Court has upheld the reversal of an expulsion order because the hearing officer had admitted such hearsay statements without the student having a right to confront his accusers. Colquitt v. Rich Township High School District, 298 III.App.3d 856,699 N.E.2d 1109 (1st Dist. 1998). Although there is no statutory procedure for appealing adverse expulsion decisions, timely appeals in state court are possible by filing what is called a common law writ of certiorari.
Students can be expelled in Chicago for Group Five or Group Six acts of misconduct. Group Six offenses include the use, possession, and/or concealment of a firearm/destructive device or other weapon; arson or bomb threat; robbery; use, possession, sale or delivery of alcohol, Illegal drugs, narcotics, controlled substances, or contraband; sex violations; aggravated battery; murder; attempted murder; and kidnapping. If expelled, students usually are recommended for placement at an alternative SAFE school which generally has smaller classes than the regular schools and virtually no extra curricular activities. A student expelled for a Group Six offense will be expelled for a period of not less than one calendar year, or as modified on a case by-case review by the Chief Executive Officer or designee. Two years is the maximum expulsion period. First time offenders of Group Five or Six acts of misconduct which do not involve violence or the sale or delivery of illegal substances may be recommended by the hearing officer to the SMART program in lieu of expulsion. The SMART program consists of eight Saturday morning sessions to provide students with character building and conflict resolution skills as well as prevention and support services for alcohol or drug related problems. It also includes a 20 hour community service requirement and the attendance of the foster parent at two of the eight sessions. If the student falls to attend any of the SMART classes, he or she will be expelled and transferred to an alternative SAFE school, usually for the duration of the school term.
As noted above, DCFS broadened its contract with legal services programs in 1999 to include the representation of DCFS wards facing expulsion from school for misconduct. The results of this representation for the first four fiscal years – 7/1/99 to 6/30/03 – show that having a lawyer represent a ward in a school expulsion case significantly reduces the likelihood that the ward will be expelled. The Legal Assistance Foundation of Metropolitan Chicago (LAFMC), for example, represented 179 wards from Cook County in school expulsion cases during this period and prevented expulsion from taking place in 91 per cent (161) of the cases.
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