Office
SCHOOL LAW ADVISOR newsletter
Summer 2021 Update
Greetings!

Consistent with our mission to continually provide relevant, timely, and important updates improve outcomes for schools and protect the education for students throughout the state, Miller, Tracy, Braun, Funk & Miller, Ltd. provides this regular newsletter to schools and educational institutions throughout the state of Illinois.

As Illinois schools await new guidance from ISBE and IDPH, the U.S. Supreme Court has ruled on an important student speech matter. As schools become the front lines in political arguments about what they teach and how they teach it, we have suggestions and reminders that may help boards more effectively keep their meetings safe and under control.

We will discuss all of this and more at our summer webinar, August 2, 2021. We hope you will register to join us. We hope you find our quick-takes useful, and as always, we appreciate the opportunity to continue to serve you.
In this Issue...
MTBFM SUMMER WEBINAR
Please Join attorneys from MTBFM on

Monday, August 2, 2021
from 1:30 to 3:30 p.m.

as we discuss re-opening plans, updates in the law, management of open board meetings, and your questions for the 2021-2022 school year.

Join us on Zoom - REGISTER HERE
Supreme Court of the United States Rules on Free Speech Case Affirming Tinker Standard
Today the U.S. Supreme Court ruled 8-1 to strike down a public school’s discipline of a student who engaged in her freedom of speech right to post to her list of friends on Snapchat 2 messages that used vulgar language and gestures to criticize her school and her school’s cheerleading team (case accessible here: https://www.supremecourt.gov/opinions/20pdf/20- 255_g3bi.pdf). She posted the messages while off-campus and outside of school hours. The first message read: “Fuck school fuck softball fuck cheer fuck everything”. The second message included an upside-down smiley face emoji and the caption: “Love how me and another student got told we need a year of jv before we make varsity but that doesn’t matter to anyone else”.

The Court reaffirmed that Tinker’s (armbands that students wore to protest war) admonition that students “do not shed their constitutional rights to freedom of speech or expression at the school gate” also extends in special circumstances to the regulation of off-campus out of school student speech. The Court affirmed that schools have a special interest in regulating speech which materially disrupts classwork or involves substantial disorder or invasion of the rights of others, noting that these special characteristics call for special leeway when schools regulate speech that occurs under its supervision.

The Court, in refusing to adopt the 3rd District Court of Appeals reasoning that all student off-campus out of school speech is beyond a school’s regulatory authority, noted that these special characteristics give schools additional license to regulate student speech that takes place off- campus. The Court stated, “the school’s regulatory interests remain significant in some off-campus circumstances”. The litigants identified several types of off-campus behavior that may call for school regulation: 1. Serious or severe bullying or harassment targeting particular individuals; 2. Threats aimed at teachers or other students; 3. Failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and 4. Breaches of school security devices, including materials maintained within school computers.

The Court stopped short of adopting a rule defining the extent of a school’s authority to regulate a student’s off-campus, out of school speech, reasoning: 

Particularly given the advent of computer-based learning, we hesitate to determine which of many school-related off-campus activities belong on such a list. Neither do now know how such a list might vary, depending upon a student’s age, the nature of the school’s off-campus activity, or the impact upon the school itself.

Instead of a clear rule, the Court identified 3 features of off-campus speech which serve to diminish a school’s authority to discipline a student’s off-campus, out of school speech. First, the Court noted that in relation to off-campus speech, a school rarely stands in loco parentis; student off-campus speech generally falls within the zone of parental responsibility and not school-related responsibility. 

Second, when a school’s regulation of off-campus speech is in effect 24/7, the Court reasoned that courts must be more skeptical of a school’s efforts to regulate off-campus speech, as students would not be able to engage in off-campus speech without such control. Third, the Court noted that “the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off-campus. America’s public schools are the nurseries of democracy.”, referencing the oft-repeated phrase: “I disapprove of what you say, but I will defend to the death your right to say it”. The Court concludes it reasoning: “Taken together, these three features of much off-campus speech mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished”. In reviewing the student’s speech, the Court noted that her speech was the kind of pure speech that if she were an adult would be “strongly” protected by the First Amendment. The Court reasoned that her off-campus, out of school speech did not identify her school or target any member of the school community with vulgar or abusive language and it was limited to an audience of her friends. 

The Court identified that a school has an interest in teaching good manners and prohibiting students from using vulgar language to criticize a school team or its coaches. However, the Court concluded that this interest is weakened considerably by the fact that she spoke out of school on her own time---outside the purview of a school’s in loco parentis authority. The Court also noted no evidence was presented that the school engaged in any effort to prevent students from using vulgarity outside the classroom.

The Court next concluded that no evidence existed that the student’s speech created a substantial disruption of a school activity or threatened harm to the rights of others, reasoning:

As we said in Tinker: ‘for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.

Lastly, the Court noted that some evidence was presented that indirectly expressed a concern for team morale—that negativity could impact students in the school. However, no evidence was presented to suggest any serious decline in team morale to that would create a substantial disruption or interference with a school’s efforts to maintain team cohesion. Citing Tinker, the Court reasoned: “simple undifferentiated fear or apprehension…is not enough to overcome the right to freedom of expression.”

Where does this leave us?

As you carefully review your policies and practices regarding how, where and under what circumstances you discipline students for out of school, off-campus speech, keep in mind the following guidance. Which if any policies are in effect 24/7, 365? If any such policies exist, do they clearly state expectations concerning out of school off-campus speech? These policies will be heavily scrutinized by a reviewing court and unless we can establish that a student’s out of school, off-campus speech has caused a substantial disruption in a school activity or threatens harm to the specific rights of others, to discipline a student for such speech will expose your district to potential suit and possible liability for damages, including attorneys’ fees for the person suing you.

Do your policies clearly state that out of school, off-campus speech that threatens staff or students is a violation of school rules? Do your policies clearly prohibit out of school, off-campus speech which bullies or harasses students or staff? Do your policies clearly state the rules and behavioral expectations concerning the use of school district computers/network access when students use the same off-campus and out of school? Do you policies clearly state prohibit unauthorized use or access to school networks or misuse of the same?
Criminal Background Checks - New Requirements
As you continue your hiring processes for the coming school year, please pay close attention to the changes related to criminal background checks pursuant to PA 101-656, which was effective March 23, 2021. PA 101-656 amended the Illinois Human Rights Act to add “conviction record” as a protected class akin to race, ethnicity, gender, disability, age, sexual orientation, or – as previously provided in the act – arrest record. 
Under the new law, unless otherwise authorized by law, it is a civil rights violation for any employer to use a conviction record as a basis to refuse to hire, to segregate, or to act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment, subject to a few narrow exceptions. For school districts, of course, it is otherwise authorized (and required) by law to conduct a criminal history records check (105 ILCS 5/10-21.9) to determine if an applicant had been convicted of one of the offenses specified in 105 ILCS 5/21B-80 which would prohibit their employment.

The statute also requires the employer to provide notification and explanation to the individual of the disqualifying conviction(s), permit the individual to provide a response, and then provide written notification to the individual of the employer’s final decision. For those school district which are subscribers to the IASB’s PRESS policy service, there are updates in the most recent policies and procedures which reflect the changes required by PA 101-656.
Managing an Open Meeting Effectively
As schools have become the center of much public and political debate, Boards are well-advised to consider careful and appropriate measures to keep their meetings safe and well-organized. We have 10 quick tips for improved meeting management:
business-meeting-convo.jpg
  1. Set and enforce time limits on public comment. For example, 5 minutes per speaker. Time limits must be enforced for all speakers (not only the speakers that the Board may disagree with).
  2. Do not permit speakers to cede time to others.  5 minutes per person, period. 
  3. Use a timer that is visible to the speaker, audience, and Board of Education. A timer eliminates disputes over timekeeping, and visibly prompts a speaker when their time is winding down.
  4. Listen, but do not interrupt or engage with a speaker during the speaker’s 5 minutes. Answering or engaging a speaker during public comment invites either the criticism that the speaker was given favorable treatment (more time), or that their time was effectively reduced by questions and argument.
  5. Public comment is a one way street, the Board is not obligated to (and should not) answer questions during public comment.
  6. If a Board Member wishes to engage with a speaker, the topic can be added to the Agenda as a discussion item AFTER public comment. Similarly, consider adding Board Member comments to the Agenda (generally after public comment or at the end of the meeting). This allows Board Members to respond to comments without creating a back and forth with the audience during public comment. 
  7. Be honest about the anticipated length of public comment and schedule appropriately. 
  8. If there will be a significant change to the Agenda, consider making it before public comment. For example, if a controversial action item will be removed from the Agenda, make and announce that change before public comment begins.  
  9. Have a standing backup plan for large crowds. A meeting can be called to order and then reconvened in a larger space when necessary. Hot, crowded, standing-room-only settings do not generally lead to calm, level headed commentary.
  10. Take breaks when necessary. A 10 minute water and restroom break can be both courteous and strategic.

And when all else fails… Keep Calm and Carry On.   
Face Mask 2
No News from ISBE and IDPH - Things to Remember as Restrictions Ease, and Planning for 2021-2022


  • New ISBE guidance is coming - but not here yet

  • ISBE prioritizes return to in-person instruction

  • Face coverings continue to be required

  • ISBE is threatening recognition action for noncompliant schools

  • Schools may seek vaccination information
As COVID infection rates in Illinois have continued to plummet, and even as the Delta variant of COVID becomes more prevalent in the United States, with vaccines widely available and nearly half of Illinois residents fully vaccinated, Illinois has begun to return to some degree of normal, with face coverings becoming less prevalent in public and most business back to operating at full or near-full capacity.

Still, vaccines are not yet available to children under the age of 12, and schools are subject to different restrictions than private entities. Some things to remember as schools plan for 2021-2022:

  1. It continues to be really early to plan for next year. While that may be tough to communicate to parents, the rules have changed rapidly and frequently throughout the pandemic.
  2. The politics have often shifted the rules both before and after their issuance. Where possible, being patient affords leadership the opportunity to learn how their neighbors interpret the rules and await final word and outcome of changes. It may prevent backpedaling and, maybe more importantly, give leaders the best opportunity for the most normal return available without being the pin cushion that awaits the first victims of state-wide about-face.
  3. ISBE's latest resolution commands in-person learning, requiring remote learning as an option for students who are not able to be vaccinated and required to quarantine. But ISBE has also (somewhat confusingly) indicated to schools that they should work with parents on an individual basis.
  4. ISBE and IDPH have indicated masks are and will continue to be required for all individuals when students are present. http://www.dph.illinois.gov/covid19/community-guidance/child-face-coverings-schools. Although this issue continues to evolve, ISBE has threatened some schools with pulling of funding through the recognition process if they refuse compliance with the mask requirement by making masks "optional." Additionally, schools that fail to comply with ISBE and IDPH guidance risk breach of their tort immunity shield, which could subject those (including Board members) who make the decision to individual and personal liability.
  5. Even still, the rules are not yet finalized and published, and ISBE has promised additional FAQs and guidance are coming.

With knowledge that communities are returning to normal and may be resistant to the continued mitigations (particularly where teachers have attained a high rate of vaccination), it may be worth awaiting the outcome of both ISBE's processes and guidance to see what the final rules will hold.

In the meantime, schools are fully within their rights to seek information about vaccination where students and staff are willing to share, and sharing such information will free those who are vaccinated from quarantine requirements in the event of close contact with a positive case of COVID - and that may be particularly relevant for athletes and other extra-curricular participation. Schools may also host vaccination events, with the support of ISBE and IDPH: https://www.isbe.net/Documents/Vaccination-site-request-ISBE-IDPH.pdf.

We will continue to monitor for new ISBE guidance and update schools as soon as more information is available.
We look forward to serving you and your schools.

Sincerely,

Miller, Tracy, Braun, Funk & Miller, Ltd.

The contents of this newsletter, as well as any and all attached or linked documents, including websites, blogs, handouts, and legal updates, as well as any and all links on these pages should not be construed as legal advice. Individual problems or requests for information should be referred to legal counsel for an opinion based on facts specific to your inquiry.