Moving Beyond Suspension: School District Considerations for Student Drug Use, by Jennifer Sabourin

Posted on December 17, 2019 by Miranda Johnson

As states like Illinois legalize or decriminalize the use of marijuana for medical and recreational purposes, how school districts discipline students (and staff) who use cannabis must evolve accordingly.  Under federal law, the Controlled Substances Act (CSA), marijuana is classified as a Schedule I drug; it has no currently accepted medical use and has a high potential for abuse or dependency. As such, possession, distribution, and use of marijuana remains illegal at the federal level. The U.S. Department of Justice, however, has generally deferred to state legalization and has not prioritized enforcement of the CSA at the local level.  In June 2019, the U.S. House of Representatives approved a measure to prohibit the Department of Justice (DOJ) from interfering with a state’s decision to implement laws governing the use of cannabis, marking a historic beginning to federal cannabis policy reform.

Illinois is considered progressive in its acceptance of cannabis, compared to most other states. Medical marijuana is currently accepted in Illinois under the Compassionate Use of Medical Cannabis Pilot Program Act. More recently, Governor J.B. Pritzker signed into law Public Act 101-0027, known as the Cannabis Regulation and Tax Act (CRTA), legalizing the possession, use, and sale of marijuana for recreational purposes effective January 1, 2020.  The CRTA treats marijuana in a manner similar to alcohol; legal for adults over the age of 21 and to be taxed and sold through legitimate businesses.  Schools remain drug-free learning environments through an explicit provision in the CRTA prohibiting the possession and use of cannabis on school grounds. An important exception to drug-free schools lies in Illinois School Code 105 ILCS 5/22-33, “Ashley’s Law,” which allows students to use medical cannabis on school grounds.

It is difficult to predict how the CRTA will impact school district response to student possession and use of marijuana on school grounds, in the midst of a state climate shift to acceptance of adult recreational marijuana use. Keeping schools safe and substance-free remains a priority, and stakeholders have expressed concerns about easier access to marijuana by youth in states where marijuana is legal or decriminalized. The American Academy of Pediatrics, for example, opposes the legalization of marijuana due to potential harm to children but notes in its 2015 position paper, “[with few exceptions] in all states where medical marijuana has been legalized, marijuana use by minors has been stable or has decreased.” The theory that legalizing marijuana for adult recreational use will result in increased marijuana use among youth is unfounded.  A police sting operation targeting 30 dispensaries in the Denver area found them only 92% compliant with respect to selling to minors, but more recent data indicates that marijuana use among teens dropped dramatically after Colorado legalized recreational marijuana. Across the nation, teen drug use is at a 20-year low.  It is crucial that school districts consider the root causes of student drug use and effective interventions to combat drug use, as opposed to approaching drug use through a purely punitive lens.

Illinois law governing student discipline falls under 105 ILCS 10-22.6, and in September 2016, the state dramatically changed school disciplinary policies and practices with the implementation of Senate Bill 100. Notably, SB 100 prohibits zero tolerance policies that require schools to suspend or expel students for particular offenses and places limits and procedural requirements for the use of exclusionary discipline. The law also obliges school districts to exhaust other appropriate and available behavioral and disciplinary interventions and encourages the availability of support services to students.  “Appropriate and available supports services” are determined by school authorities under this provision, and when removing a student from school for longer than 3 days, schools must document whether other interventions were attempted or whether it was determined that there were no other appropriate and available interventions.

While school districts grapple with implement fair and appropriate disciplinary procedures, it is imperative that districts ensure their practices are effective at promoting their goal. If the goal is to keep schools safe and prevent student drug use, interventions must be accordingly matched. Researchers compared policies in Washington state and Victoria, Australia, finding that students in Washington who were suspended and reported to the police for drug use were 1.6 times more likely to use marijuana again, as opposed to Victoria’s students who were 50 percent less likely to reuse after referral to counseling in lieu of suspension. Data shows that suspension is an ineffective deterrent for drug use, which is a compelling argument to minimize the use of exclusionary discipline to combat drugs in school.

Chicago Public Schools recently amended its Student Code of Conduct in order to shift a more therapeutic approach toward substance use. The changes, adopted at the June 2019 Board of Education meeting and effective September 3, 2019, classify the use or possession of drugs as “very seriously disruptive behavior,” warranting interventions and consequences that may include a teacher/student/parent/administrator conference, detention, a suspension of up to three days, or other “recommended instructive, corrective or restorative responses.” Under the previous Code of Conduct, the possession or use of drugs was an offense eligible for longer suspensions and expulsion. Chicago Public Schools Chief of Safety and Security Jadine Chou stated that the district has been moving “toward more appropriate responses for infractions that help get to the root of the issue, moving away from merely punitive [responses]” in order for students to get needed support.

School districts have the opportunity, particularly under the provisions of SB 100, to truly consider alternatives to suspension and expulsion as a response to student drug use. All school leaders are tasked with the challenge to create discipline policy that achieves the goal of maintaining safe schools while promoting student wellness. Suggestions for discipline reform include minimizing the use of exclusionary disciplinary for minor drug offenses, expanding referrals to drug counseling resources for students in need, and educating all stakeholders (families, school staff, community partners) in effective practices to combat student drug use. These approaches are an important piece of a school climate shift from punitive reaction to therapeutic intervention, which ultimately achieves the goal of student health, wellness, and safety.

Jennifer Sabourin is a law student at Loyola University Chicago and wrote this blog post as part of the Education Law Practicum.

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Work Like a Dog: Service Animals in Schools, by Jennifer Babisak

Posted on July 2, 2019 by Miranda Johnson

Peacocks attempting to board airplanes and longhorns on leashes barging into pet stores make for interesting news stories and plenty of comedy fodder. But these outrageous animal stunts serve as a hindrance to people who depend on service animals to function in their daily lives. Around 500,000 service animals assist people with disabilities—from providing navigation to the blind to serving as glucose meters for diabetics—throughout America, including many animals serving students.

Until recently, parents may have been unaware of their disabled child’s right to bring a service animal to school. In fact, some schools have actively discouraged this assistance. A 2017 Supreme Court case brought national attention to the issue when Ehlena Fry, a Michigan student with cerebral palsy, sued for damages for the emotional distress she suffered when her elementary school did not allow her service dog. In Fry v. Napoleon Community Schools, the Supreme Court held that a student pursuing an Americans with Disabilities Act (ADA) claim not related to a denial of a Free Appropriate Public Education (FAPE) is not required to exhaust the administrative remedies spelled out in the Individuals with Disabilities Education Act (IDEA).

Administrators may be concerned with the repercussions of this ruling—will schools turn into noisy barnyards as throngs of animals come in to support children? Can a student with a disability bring any animal to school now—will snakes and peacocks be roaming the halls? And what qualifies as a disability in need of a service animal?

Emotional Support Animal or Service Animal?

Part of the confusion comes from the designation of “emotional support animal” or “service animal.” Neither type of animal is a pet, while both provide some form of assistance to people. However, the two types of animals perform different levels of support and the latter receives heightened legal protection. Emotional support animals can provide very real comfort to people suffering from anxiety or other emotional distress, but these animals are not protected under the ADA. That means that public entities are not legally bound under the ADA to allow emotional support animals entrance.

Emotional support animals are not usually allowed to accompany students in school. However, students eligible for special education services under IDEA or Section 504 of the Rehabilitation Act may use an emotional support animal that does not meet the ADA definition of a service animal if such an accommodation is included in the Individual Education Program (IEP) or 504 Plan. In other words, if the emotional support animal is necessary for the student to receive a FAPE, then the animal should be allowed to accompany the student to school, regardless of its designation as an ADA-classified service animal.

On the other hand, service animals are usually free to accompany their handler in public places. Service animals include “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.” Public schools are required to admit ADA-compliant service animals to most school functions. Under the ADA, a student with a disability who uses a service animal for specific assistance is allowed to have the animal at school, regardless of whether such accommodation is mentioned in the student’s IEP or Section 504 plan.

Most service dogs used in schools assist visually impaired or deaf students. However, as noted above, psychiatric service is included in services that these dogs can provide. In fact, psychiatric uses are the fourth most common usage of service dogs in North America. According to researchers at the Southwest ADA Center, who addressed the topic in a paper titled “Service Animals and Emotional Support Animals: Where are They Allowed and Under What Conditions?” in this evolving area of service animal use, psychiatric service dogs are used for tasks such as “reminding the handler to take medicine, providing safety checks or room searches, or turning on lights for persons with Post Traumatic Stress Disorder, interrupting self-mutilation by persons with dissociative identity disorders, and keeping disoriented individuals from danger.” A study published in Frontiers in Veterinary Science found an increasing number of dogs used by families with an autistic child in all regions around the world.

In addition to dogs, the ADA labels miniature horses as service animal candidates. Miniature horses are subject to use depending on their type, size, and weight being accommodated by the school. The handler has to have sufficient control of the miniature horse, the horse must be housebroken, and the horse’s presence must not compromise legitimate safety requirements in a specific facility. Some school districts have explicitly approved miniature horses as service animals, but it remains in question if districts in general will welcome miniature horses when ADA requirements give them some wiggle room on the issue.

What if the animal bothers other students?

A student’s right to their service dog does not change upon the comfort of others. Other students or school employees who have allergies or fear of dogs may not serve as excuse to deny the service animal access to the school. Instead, schools should make reasonable accommodations for both individuals, separating students with pet allergies from rooms in which service animals are present.

However, service animals are constrained by ADA behavioral guidelines. A service animal must be under the control of its handler by harness, tether, or leash, unless the handler’s disability prevents them from using these devices. An aggressive or uncontrolled service animal may be excluded from the school. Technically, the school is not required to care for or supervise the service animal. The handler is required to care for the service animal, including toileting, feeding, grooming and veterinary care. However, a school may need to provide a disabled student assistance in caring for their service dog.

It is understandable that schools hesitate to welcome service animals. An animal’s presence introduces novelty to a classroom environment and requires additional effort from student and staff. However, expending additional effort to educate students with disabilities is not a matter of choice—it is mandated by federal law. Schools seeking to build respectful, inclusive environments should be eager to comply with ADA requirements and welcome four-legged assistants to their classrooms.

Jennifer Babisak is a law student at Loyola University Chicago and wrote this blog post as part of the Education Law Practicum.

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School Bell Tolls on Employee Expression: Teachers’ First Amendment Rights, by Jennifer Babisak

Posted on April 23, 2019 by Miranda Johnson

Coach Joseph Kennedy took a knee mid-field after his Bremerton High School football games concluded, privately praying while wearing clothing with the school’s lego. The Washington coach attracted attention, both from players and parents who joined him in prayer, and from opponents who claimed that he was foisting his religious beliefs on impressionable youth. Kennedy defied district warnings to cease such religious expression, integrated motivational speeches that attracted post-game crowds, and soon found himself out of a job. In 2016, Kennedy initiated a legal battle, seeking both his job and his right to pray after games restored.

A federal district court dismissed the Kennedy v. Bremerton School District case; Kennedy appealed, and the United States Court of Appeals for the Ninth Circuit affirmed the district court’s opinion. The saga wound its way to the Supreme Court in January 2019, but the Court denied certiorari, indicating that the case was not ripe for review due to unresolved factual issues. Justice Alito, concurring with three other justices in denying certiorari, criticized the district court for its inadequate fact finding. The crux of those facts was summarized by Kennedy’s superintendent, who justified the coach’s firing for two different reasons:

  1. Kennedy was still on the job after the game ended and neglected his responsibility to supervise what his players were doing during his prayer.
  2. Kennedy’s conduct would lead an observer to believe the district was endorsing religion because he prayed while “on the field, under the game lights, in BHS-logoed attire, in front of an audience of event attendees.”

Dueling Roles: Private Citizen vs. State Actor

Should teachers refrain from any religious expression while on school property? What does the First Amendment have to say about all this?

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Public school teachers function as both private citizens and representatives of the state. The First Amendment protects their free exercise of religion but the Establishment Clause “respecting an establishment of religion” prohibits public school teachers from foisting their personal religious beliefs upon students.

Throw freedom of speech issues into the foray, and teachers are left with a confused jumble of law as they try to determine where their individual freedoms end and their obligations as agents of the state take over. The Supreme Court has clarified matters in several historic decisions:

In landmark case Tinker v. Des Moines (1969), the Court declared that, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” And the venerable Justice Thurgood Marshall, in Pickering v. Board of Education (1968), upheld teacher’s rights to express their opinions, stating, “The interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public.”

But what does that mean in the context of religious expressions? Can teachers display a discreet crucifix or Star of David around their necks? Can they wear a burqa to class? How about placing a Bible or Koran on their desk or hanging religious imagery alongside family photos on their classroom walls?

Ironically, religious adherents have historically been the most fervent promoters of censorship in the classroom, seeking to ban materials that present views of religion, race, or sexuality contrary to their own. Books like The Catcher in the Rye and To Kill a Mockingbird have been banned and burned while Darwin still struggles to fight his way into some science classrooms.

Civilized Social Order Trumps Personal Expression

Recent Supreme Court decisions have chipped away at teachers’ First Amendment rights. In Hazelwood School District v. Kuhlmeier (1988), the Supreme Court gave schools leeway to regulate student speech “inconsistent with ‘the shared values of a civilized social order” as long as the school had an educational purpose for such regulation. Later courts have applied the same reasoning to teachers’ speech.

In Miles v. Denver Public Schools (1991), the court applied the narrower First Amendment construction of Hazelwood over more lenient Pickering, explaining, “Because of the special characteristics of a classroom environment, in applying Hazelwood instead of Pickering we distinguish between teachers’ classroom expression and teachers’ expression in other situations that would not reasonably be perceived as school-sponsored.”

And Garcetti v. Ceballos (2006) really tightened the lock on First Amendment freedom. In Garcetti, the Court ruled that public employees do not have First Amendment freedom of speech in their official job duties. However, Garcetti points to the controlling factor as employer “commissioned or created” speech, with Justice Kennedy writing, “Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen.” In this way, Kennedy and other religious liberty cases differ since school districts certainly have not commissioned or created such personal religious expressions.

Whether schools and courts will continue to impose narrow Pickering restrictions or broad Hazelwood restrictions upon their teachers is a debate still in progress. Though the Supreme Court declined Kennedy’s case, the Court seemed to consider that the issue of teachers’ freedom of expression will probably wind its way back to their hallowed halls soon.

“What is perhaps most troubling about the 9th Circuit’s opinion is language that can be understood to mean that a coach’s duty to serve as a good role model requires the coach to refrain from any manifestation of religious faith—even when the coach is plainly not on duty,” Justice Alito, in his Kennedy concurrence, considered the lower court’s reference to Kennedy praying as a spectator in the stands at a game, “The suggestion that even while off duty, a teacher or coach cannot engage in any outward manifestation of religious faith is remarkable.”

Jennifer Babisak is a law student at Loyola University Chicago School of Law and a student in Loyola’s Education Law Practicum

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