The U.S. Department of Education’s Office of Special Education Programs (“OSEP”) released nonregulatory guidance discussing the U.S. Supreme Court’s recent unanimous decision in Endrew F. v. Douglas County School District. Endrew F. settled a dispute amongst U.S. Circuit Courts of Appeal on whether a FAPE required an “educational benefit ‘[that is] merely…more than de minimis’” or something more. The Endrew F. holding is clear: “The IDEA demands more,” that a school district must offer a program that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” We reviewed the Endrew F. decision in more detail in an earlier Priority Briefing, which can be accessed here.

OSEP developed a Q&A document to provide parents and stakeholders information on the issues addressed in Endrew F. and the impact of the decision on the implementation of the IDEA. In the guidance, OSEP addressed what it means to have an individualized education program (“IEP”) that is reasonably calculated to provide a FAPE. According to OSEP, in order to have a “reasonably calculated” IEP, the student’s IEP team must make prospective decisions informed by the expertise of educators, the child’s progress, the child’s potential for growth, the views of the child’s parent, and the effectiveness of past services. Factors that help to determine whether or not an IEP is reasonably calculated to confer a FAPE include the previous rate of academic growth, whether a child is on track to achieve grade level proficiency, any behaviors interfering with the child’s progress and any additional information provided by parents.

OSEP also considered what it means to demonstrate “progress appropriate in light of the child’s circumstances,” clarifying that the phrase means designing a program with careful consideration to a child’s present levels of achievement, disability and potential for growth. In this respect, each child must be offered an IEP designed to provide access to state academic standards and general education instructional strategies and curricula.

If a child is not making progress at the level expected, OSEP explained that the IEP team should meet periodically during the course of the school year and revise the IEP to address the lack of progress, including considering goals, interventions, services and placement. In addition, the IEP team should consider behavior interventions if behavior is impeding a child’s progress. OSEP also recommended examining the school district’s practices for communicating with parents.

The OSEP guidance emphasized that there is no one-size-fits-all approach to educating students with disabilities and that program determinations must be individualized. To ensure appropriate progress under Endrew F. standards, boards of education and IEP teams should implement policies, procedures and practices addressing (1) the identification of present levels of academic and functional performance, (2) setting measurable goals, (3) determining how to measure and report progress, and (4) providing appropriate services, aids, accommodations and modifications, supports for school staff.

Attorneys in our Flossmoor (708-799-6766) and Oak Brook (630-928-1200) offices stand ready to assist with reviewing and revising Board Policies addressing the above standards. In addition, if you have additional questions about the OSEP guidance, the Endrew F. decision or the current standard used by the Seventh Circuit to determine an appropriate education, please contact one of our attorneys.

The Illinois School Code has been amended to codify the practice of accelerating students in certain subjects or grades.   Public Act 100-421 amends Article 14A of the Illinois School Code by requiring school districts to adopt a policy regarding the accelerated placement of students.  Pursuant to the new law, “accelerated placement” means, but is not limited to, early entrance into kindergarten or first grade, accelerating a student in a single subject, and grade acceleration.  Each district’s policy must contain certain components:

1. A provision which provides that participation in accelerated placement is not limited to those children who have been identified as gifted and talented, but rather is open to all children who demonstrate high ability and who may benefit from accelerated placement.
2. A fair and equitable decision-making process that involves multiple persons and includes a student’s parents or guardians.
3. Procedures for notifying the parents or guardians of a child of a decision affecting that child’s participation in an accelerated placement program.
4. An assessment process that includes multiple, valid reliable indicators.

The policy may also contain certain other components such as:

1. Procedures for annually informing the community at-large, including parents or guardians, about the accelerated placement program and the methods used for the identification of children eligible for accelerated placement.
2. A process for referral that allows for multiple referrers.
3. A provision which provides that children participating in an accelerated placement program and their parents or guardians will be provided a written plan detailing the type of acceleration the child will receive and strategies to support the child.

The Act is effective July 1, 2018. We expect that IASB’s Policy Services will soon issue a PRESS model policy which satisfies the requirements of this new law.  However, the law appears to leave considerable discretion to districts to develop policies aligned to the district’s mission and vision for accelerating students.   We therefore recommend that districts carefully review the model policy before adopting it. In addition to the policy itself, districts will need to adopt and implement procedures and processes required by the policy and this public act.

If you have questions about this topic, please contact one of our attorneys in Oak Brook (630.928.1200) or Flossmoor (708.799.6766).

The Illinois legislature recently amended the Illinois School Student Records Act (“ISSRA”). The changes to ISSRA by Public Act 100-0532 are effective immediately and require school districts to comply with student records requests more quickly.

Previously, a school district had days to respond to a parent’s or student’s request to inspect and copy student records within 15 school days of its receipt of the request. Now, school districts generally have only 10 business days after receipt within which to respond.

A school district may, however, extend the time to respond by up to five (5) business days.   The reasons are analogous to the reasons a school district can extend the time to respond to a request made under the Freedom of Information Act, i.e.:

1. The requested records are stored in whole or in part at other locations than the office having charge of the requested records;
2. The request requires collection of a substantial number of specified records;
3. The request is couched in categorical terms and requires an extensive search for records responsive to it;
4. The requested records have not been located in the course of a routine search and additional efforts are being made to locate them;
5. The request cannot be complied with by the district within the time limits without unduly burdening or interfering with the operation of the school district; or
6. There is a need for consultation, which shall be conducted with all practicable speed, with another public body or school district, or among two or more components of a public body or school district, having a substantial interest in the determination or in the subject matter of the request.

Also, as with the Illinois FOIA, the person making the student records request and the school district may agree in writing to extend the time for compliance for a period to be determined by the parties. If the requester and the school district agree to extend the period for compliance, failure by the school district to comply with any previous deadlines shall not be treated as a denial of the request for the records.  The statute does not provide a mechanism for resolving situations when the parties cannot agree to extend the period for compliance.  In those scenarios, the statute appears to require compliance within the timeframes described above.

If you have questions about this topic, please contact one of our attorneys in Oak Brook (630.928.1200) or Flossmoor (708.799.6766).

A provision within the recently passed school funding legislation (SB1947, enacted as Public Act 100-465) allows voter-initiated referenda to reduce property taxes for certain school districts in Illinois.  The threshold for districts to be subject to such a possible referendum is 110% of the district’s adequacy target for local taxing capacity, as determined under the State Aid formula, in the school year preceding the year in which the reduction in the levy is sought.  “Adequate funding” or “adequacy” refers to what it costs for a school district to provide the evidence-based practices that drive student achievement.  The referendum may only be held at a consolidated election, the one held in April of odd-numbered years when school board candidates are on the ballot.

This rather complicated new law is best explained with an example. Since the next consolidated election is in April 2019, we’ll use the 2018 and 2019 levies and the 2018-2019 school year for illustrative purposes only.   Thus, under the new law, if District A’s adequacy target exceeded 110% for the 2018-2019 school year, then the voters in District A could file a petition with their election authority (i.e., the County Clerk, or the Election Commission where that agency exists) for a referendum seeking to reduce District A’s tax levy in 2019.  A referendum would be put on the ballot on the next consolidated election, but only if more than 10% of the voters in the school district signed the petition.  The referendum question would ask voters whether they wish to reduce the educational fund tax levy extension for 2019 to an amount less than that extension in 2018.  However, the proposed lower amount for 2019 that would be stated in the referendum cannot be more than 10% lower than the 2018 educational extension and the 2019 extension amount cannot be in an amount that would cause the district’s adequacy target to fall below 110%.  For example, if the 2018 adequacy target is 122%, the lowest the 2019 adequacy target could be after a successful referendum reducing the tax levy is 112%.   On the other hand, if the 2018 adequacy target is 117%, the lowest the 2019 adequacy target could be after a successful referendum reducing the tax levy is 110%.

Although the concept is complicated, the law mandates that the following simple question be put forth to the voters:

“Shall the amount extended for educational purposes by [School District A] be reduced from [2018’s %] to [2019’s %] for [2019], but in no event lower than the amount required to maintain an adequacy target of 110%?”

Voters would vote either “yes” or “no” in response to this question and, if a majority of votes cast is in favor of the referendum, then the tax levy would be reduced for 2019.  Regardless of the outcome of the referendum, the question cannot be submitted to the voters again at any of the next two consolidated elections.  In our example, then, if there were a referendum held in April 2019, the next time there could be a tax reduction referendum would be in April 2025.

Clearly, the impact of this new state law, which is codified at 35 ILCS 200/18-206, could be substantial.   School districts with adequacy targets above 110% stand to lose local property tax funding thereby reducing the district’s educational fund.  To see your district’s most current adequacy target (as of May 2017) and whether your district is meeting or exceeding the 110% threshold, go to the link below from the ISBE website, click the tab under House Amendment 1 to Senate Bill 1, and look for the number applicable for your district in column 21:

https://www.isbe.net/Pages/Education-Funding-Proposals.aspx.

If you have questions about these topics, please contact one of our attorneys in Oak Brook (630.928.1200) or Flossmoor (708.799.6766).

Public Act 100-163 amends the Illinois School Code beginning on January 1, 2018 to require that school districts make feminine hygiene products available at no cost to students in the bathrooms of all school buildings serving students in grades 6-12.  Please note that the term “feminine hygiene products” includes both tampons and sanitary napkins.  School districts impacted by this new statute should consider what type of dispensary system will be needed to comply in addition to considering which employees will be responsible for stocking and restoring the products and how frequently these items will be replenished.  While there are not yet any regulations regarding this topic, we advise that these items should be inspected and restocked on a daily basis.

Public Act 100-029 requires school districts to make breastfeeding accommodations available if there are students who need them.  These accommodations include, but are not limited to: (a) access to a private and secure room, other than a restroom, to express breast milk or breastfeed an infant child which has a power source for the use of a breast pump if necessary, (b) allowing a breast pump and other related equipment used to express breast milk, (c) access to a place to store breastmilk safely and (d) providing the student with a reasonable amount of time to express breastmilk or to breastfeed.  Given these requirements, we believe that a private room with a lock should be made available to the student and that providing access to an area in the nurses’ office or a locker room where other persons may be present is not sufficient.  In addition, as the statute makes clear, a breast-feeding child must be permitted to be on grounds for purposes of feeding if requested by the student.  Lastly, we would recommend that there be a dedicated refrigerator in a secure area under the supervision of an employee for the student(s) to store expressed breast milk.  If the same refrigeration unit is going to be used for multiple students, an identification system should be created so that each individual student can clearly mark the expressed breast milk that belongs to her.

Public Act 100-029 provides further that the nursing students must not suffer academically based upon the choice to breastfeed.  Specifically, the student must not incur an academic penalty as a result of her decision to utilize the accommodations required by law and she must be provided the opportunity to make up any work missed due to utilizing these accommodations.  It is our suggestion to work with any student who needs to breastfeed or express breastmilk to develop a schedule that will allow the student to utilize these accommodations with as little disruption to educational instruction as possible or to provide instructional materials that the student may be able to review while expressing breast milk.  Please recognize, however, that the nature of the accommodations will almost undoubtedly lead to some missed class time and that the student may need to utilize the accommodations multiple times during the school day.

The last component of the new law is a requirement that there be a grievance procedure for alleged violations of the statute.   This process is the same as that utilized under the current sex equity requirements, which should already exist in Board Policy.  This existing policy can simply be amended to permit complaints alleging a violation of the breastfeeding accommodations of the School Code.

If you have questions about these topics, please contact one of our attorneys in Oak Brook (630.928.1200) or Flossmoor (708.799.6766).

The Illinois Appellate Court, Second District, in the case of 1001 Ogden Avenue Partners v. Henry, has given school districts a major victory in the on-going battle against one of the most persistent arguments made in tax rate objections.

Illinois school districts often need to raise money to pay for capital projects in amounts which cannot be funded through normal operating revenues. This can be through the issuance of bonds, borrowing money which is paid off over a period of years.  The law specifies several different kinds of school district bonds and the mechanism for obtaining the authority to issue them differs with each kind of bond.  Some bonds always require voter approval, some only have to be submitted to referendum upon filing of a petition signed by a particular number of registered voters (“back door referendum”), and some do not need voter approval at all.  Working cash bonds fall into the middle category, requiring voter approval only upon proper petition.  Once working cash bonds have been issued, the money in the working cash fund may be used for many purposes, including short-term inter-fund loans.  But working cash moneys may also be transferred to other district funds on a permanent basis.  It has long been the practice of school districts throughout the State to issue working cash bonds and then use the proceeds to finance various types of building projects short of building a new school.

Over the last several years, however, taxpayers in multiple counties have been filing rate objections alleging that the School Code and the Property Tax Code do not permit the issuance of non-referendum bonds, such as those for working cash, if the school district intends to use those bonds to finance any kind of building project. The objectors have contended that direct referendum approval of “building bonds” is the exclusive means for financing building-related projects, regardless of the scope or size of the project.

This issue has been actively litigated for several years in both the Cook County and the DuPage County Circuit Courts. The DuPage Court ruled against the objectors in September 2016.  Upon the appeal of that decision, the Second District of the Appellate Court issued a unanimous opinion on September 21 which held that, where a school district complies with all of the statutory steps mandated in Article 20 of the School Code for the issuance of working cash bonds, then it need not also seek voter approval as required under Article 19 for building bonds, even though the district has indicated its intent to use the bonds to finance building projects.  The court explained that the School Code permits working cash bonds to be used for any “corporate purpose” and that capital projects — such as the roof maintenance, carpet replacement, ceiling repair, and door and toilet replacements done by one of the districts in this case — fit the broad definition of that term.  Although Article 19 building bonds, which always require voter approval, may be issued for the “building, equipping, altering or repairing [of] school buildings or purchasing or improving school sites”, the legislature did not intend for Article 19 bonds to be the exclusive means of financing any and all projects which meet this description.    While there is some overlap in the purpose for which Article 19 building bonds and Article 20 working cash bonds may be used, the two provisions include different tax and borrowing limitations and different procedures.  Thus, as a practical matter, school districts cannot use working cash bonds for the largest capital projects, such as building a new school.  (Besides the amount of money required to build a completely new school building, the School Code expressly requires a referendum for that purpose.)  Finally, despite the assertions by the objectors that the districts had been “fraudulent” and “hid” their true intent in order to “scam” the public, the Court found that, by complying with all of the notice and hearing requirements of several different statutory provisions, the districts had provided the taxpayers with ample opportunity to pose any questions they had or to submit petitions requesting a referendum.

The consequences of a court decision going the other way can hardly be overstated. Not only would those school districts with pending objections of this sort (and there are scores of those) face the prospect of losing millions of dollars in revenue through tax refunds, no school district in the future would be able to finance even the most routine capital projects without waiting for voter approval.

Nonetheless, this opinion may not end the dispute. First, the DuPage County objectors in the 1001 Ogden Avenue Partners case may seek a rehearing in the Appellate Court, review by the Illinois Supreme Court, or both.  Further, the Cook County objectors have their own objections still pending and are expected to continue to pursue their remedies there, possibly to the First District of the Appellate Court.  But the decision last week from the Second District Court is the first ruling on that level and hopefully indicates how this important school finance dispute will ultimately be resolved.

If you have questions about this topic, or tax rate objections generally, please contact one of our attorneys in Oak Brook (630.928.1200) or Flossmoor (708.799.6766).

Employees who have exhausted their right to paid sick leave and unpaid leave under the Family and Medical Leave Act (“FMLA”) often request additional unpaid leave as a “reasonable accommodation” due them under the Americans with Disabilities Act (“ADA”). Now,  the United States 7^th Circuit Court of Appeals, whose jurisdiction includes Illinois, has taken an important step in defining the parameters of an employer’s obligation to provide such leave under those circumstances.   In Severson v. Heartland Wood Craft, Inc., the Court ruled that the ADA did not require that an employer grant an employee a multi-month period leave to recover from surgery which would have extended beyond the employee’s 12-week period statutory leave period under the FMLA.

In Severson, the employee, who suffered from debilitating spinal impairments, properly exercised his right to the 12-week FMLA leave.  Before his FMLA leave was scheduled to expire, the employee requested that he be given an additional 3-month leave to recuperate from surgery as a reasonable accommodation.  The employer refused his request and terminated him at the conclusion of his FMLA leave, but invited the employee to reapply for work once he had recovered from surgery.  Rather than re-apply, the employee filed suit alleging that the employer violated the ADA because, among other things, it failed to reasonably accommodate his disability.  The U.S. District Court rejected the employee’s claim and granted judgment in favor of the employer.  The Court of Appeals agreed with the District Court and upheld its decision.

The Court of Appeals examined the language of the ADA and concluded that a “reasonable accommodation” was “one that allowed a disabled employee to perform the essential functions of the employment position.”  Based on this understanding, the Court held that if the accommodation does not make it possible for the employee to return to work, the employee is not a “qualified individual” within the meaning of the ADA, and therefore could not prevail in a lawsuit against an employer.  Simply put, the Court of Appeals decided that the employee was not denied a “reasonable accommodation” because the accommodation he sought was more time off of work, not an accommodation that would permit him to do his job.  However, the Court distinguished “long-term” leave from intermittent time off and short-term leave of “a couple of days or even a couple of weeks”, which might be considered a reasonable accommodation under some circumstances.

The Court of Appeals also rejected the employee’s argument that he should have been allowed to take a vacant position with the employer that arose after he was terminated. Instead, the Court of Appeals decided that the employer’s duty to provide alternative employment as an accommodation meant that the alternative position had to exist at the time of the employee’s termination. In other words, the ADA does not require an employer to create a new job for the employee or remove the important duties of a currently existing job to accommodate an employee.

Severson is an important case because, while it confirms an employer’s duty under the ADA to accommodate a disabled employee, it makes it clear that the employer’s duty cannot be converted into a right to a multi-month extension of leave beyond the 12-week period set forth in the FMLA.

If you have any questions concerning how Severson may apply to your employees, please contact our attorneys at our Flossmoor Office at 708-799-6766, or our Oak Brook Office at 630-928-1200.

Another of the provisions contained in the school funding legislation signed into law by Governor Rauner on August 31, 2017, (known as SB 1947, or Public Act 100-465) which has not received much attention in the media is the removal of the specific rate limit for Educational Fund levy for all school districts subject to the Property Tax Extension Limitation Act (PTELL or the “tax cap”).  This new provision was added as Section 17-3.6 of the School Code. Since the Educational Fund can be used for any purpose, this action should give tax-capped school districts much more flexibility in the use of precious property tax revenues.

Some history is helpful in understanding the significance of this legislation.  Prior to PTELL (and still in those counties not subject to PTELL), school district tax levies in all of the major operating funds were subject to specific rate limitations, defined as a percentage of the district’s equalized assessed valuation (EAV).  Those rate limits varied from district to district and could be increased by referendum, but there was a cap on the Educational Fund.  Even with voter approval, an elementary or high school district’s Educational Fund tax rate could not be higher than 3.50%, or 4.00% in unit districts.  As the tax cap first came into play in the 1990s for most districts, each district’s local rate limits carried over, so there were individual rate limits within the overall limiting rate for the aggregate levy established under the PTELL formula.  However, the aggregate PTELL limiting rate floated up or down in inverse relation to the district’s EAV, while the individual rate limits remained fixed as a percentage of EAV.  In 2006, the Property Tax Code was amended to allow tax-capped districts to maximize their rate limits without a referendum, meaning that all such districts could levy in their Educational Fund up to 3.50% or 4.00% of EAV.

Then the Great Recession of 2008-09 hit, bringing with it historic drops in property values and sinking EAVs.  The effect of this was that, while PTELL’s floating limiting rate protected a district’s aggregate property tax revenues, the fixed Educational Fund rate limit prevented many districts from levying enough in the one school fund where districts needed the money most.  To meet this challenge, many districts levied more in the unlimited Transportation Fund and then transferred those revenues to the Educational Fund later, but this was never a satisfactory solution and last year’s transportation “Lockbox” constitutional amendment raised real issues concerning the transferability of those revenues.

SB 1947’s elimination of the Educational Fund rate limit for school districts in tax-capped counties solves this problem.  Districts can now levy whatever portion of their aggregate tax levy in the Educational Fund which they need to.  And since Educational Fund revenues can effectively be used for any school district purpose, this provides much more flexibility in the use and management of the district’s funds.  School boards and school administrators should keep this in mind when preparing this year’s and future years’ proposed levies.

The lifting of the Educational Fund tax rate limit will not bring more money to tax-capped school districts, but it is designed to allow those districts to put their tax moneys where it can be most effectively used to accomplish the district’s goals.  Levies should be prepared to take advantage of this new authority.

If you have questions about this topic, or any provision within SB 1947, please contact one of our attorneys in Oak Brook (630.928.1200) or Flossmoor (708.799.6766).

One of the lesser known aspects of the school funding legislation signed into law by Governor Rauner on August 31, 2017, (known as SB 1947, or Public Act 100-465) is that it provides much-needed relief from some of the mandates historically imposed upon school districts statewide. Importantly, the School Code previously permitted waivers of mandates only when they were necessary to stimulate innovation or improve student performance.  Under the new law, a waiver may be granted if a school district believes that criteria will be satisfied or if it can demonstrate that it can address the intent of the mandate in a more effective, efficient, or economical manner.

Public Act 100-465 also makes changes to the waiver process. Previously, waivers of School Code mandates were considered by the full General Assembly.  However, the legislation establishes a panel of four legislators who will now have the opportunity to first review waiver requests.  If three or more of the legislators object to the request, then it goes directly to the full legislature for consideration.    But, if fewer than three object, the waiver is transmitted to ISBE which can approve, deny, or modify the waiver. ISBE’s failure to act on a request will constitute approval of the waiver.  If ISBE denies it, the request will go to the full legislature just as requests did previous to this new law.

The legislation also provides relief with regard to some specific School Code mandates which have been the frequent subject of waiver applications:  driver training and physical education.

Driver Training. Formerly, a school district needed to be granted a waiver in order to contract with a driver training school.   Under the new law, a school district will be able to contract with a commercial driver training school to provide both the classroom instruction part and the practice driving part, or either one, without having to request a modification or waiver of administrative rules of the State Board of Education.  Rather, the school district will only need to approve a contract with a commercial driver training school after a public hearing.

Physical Education. Schools have been required to provide physical education five days per week.  Under the new law, however, a school board may determine the schedule or frequency of physical education courses, provided that a pupil engages in a course of physical education for a minimum of three days per five-day week. The legislation also permits additional discretion to excuse students, on a case-by-case basis, from physical education requirements.   SB 1947 provides that, in addition to the existing bases by which students in grades 11 and 12 may be excused from physical education, a school board may also, on a case-by-case basis, excuse pupils in grades 7 through 12 who participate in an interscholastic or extracurricular athletic program from engaging in physical education courses.  Lastly, waivers from all physical education mandates are still available; however, the law now permits the waiver to remain in place for five years, instead of just two years with a limit of two renewals.

If you have questions about this topic, or any provision within SB1947, please contact one of our attorneys in Oak Brook (630.928.1200) or Flossmoor (708.799.6766).

As we have reported in previous Priority Briefings, the rights of transgender students have yet to be resolved. In the last several months, the federal government withdrew guidance that existed under the Obama Administration and federal courts have dismissed cases that could have clarified transgender students’ rights nationwide.  In light of these events, on June 6, 2017, the United States Department of Education’s Office of Civil Rights (“OCR”) issued instructions to its field offices to assist their investigations of complaints of sex discrimination against transgender students.  In those instructions, OCR stated that investigators should “rely on Title IX and its implementing regulations, as interpreted in decisions of federal courts and OCR guidance documents that remain in effect.”  This statement will likely mean different things to different field offices, depending on the federal circuit in which the OCR investigator is located.  The OCR guidance lists specific instances where investigators might have specific jurisdiction, such as failure to use a student’s preferred pronoun or a school or district’s failure to fix an environment that is hostile toward transgender students.   Notably, investigations into the denial of transgender students’ right to use the bathrooms of their choice is not on that list.  Instead, the memo states that, based on jurisdiction, some complaints might go forward while others, including those involving bathrooms, might be dismissed.

Illinois is located within the jurisdiction of the Seventh Circuit Court of Appeals, which has recently ruled that the statutory language of Title IX of the Civil Rights Act – even absent the Obama administration guidance – protects transgender students. The Seventh Circuit opted to take an expansive view of other courts’ decisions which protected transgender people under Title VII of the Civil Rights Act and concluded that the rationale underlying those decisions applied to this case.  Consequently, we predict that transgender students in Illinois will be among the most protected in the country.   As we have mentioned previously, however, since the facts of each case may be unique, we encourage you to contact one of our attorneys in Oak Brook (630.928.1200) or Flossmoor (708.799.6766) if you have any questions regarding this topic or you are presented with a similar issue in your district.