The Illinois Attorney General and ISBE Release Non-Discriminatory Student Discipline Guidance

The Office of the Illinois Attorney General and the Illinois State Board of Education (ISBE) recently issued new non-regulatory guidance to assist public K-12 school districts with applying student discipline policies in a non-discriminatory manner, in accordance with State and federal law. As a reminder, federal anti-discrimination laws, including the Civil Rights Act of 1964, Title IX, IDEA, Title II, Section 504, and the Americans with Disabilities Act, prohibit public K-12 schools from discriminating against students based on factors such as race, color, national origin, disability, religion, or sex. Illinois law also prohibits discrimination against students based on these protected characteristics.  

The guidance specifically focuses on the disparate impact of school discipline practices on students of color, students with disabilities, and other vulnerable students, noting that punitive and exclusionary discipline policies are disproportionately likely to impact these populations and contribute to the “school-to-prison pipeline.” Additionally, school districts with policies or practices that create an unjustified disparate impact based on a protected characteristic may be subject to investigation by the Illinois Attorney General’s Office, which has authority to investigate all violations of laws relating to civil rights and discrimination, as well as to undertake necessary enforcement measures. 

To combat such disparities, the guidance suggests that school districts should:  

• Scrutinize policies or practices of disciplining students based on subjective of discretionary offenses (such as defiance, disrespect, or disruption), as these practices may be vulnerable to implicit bias.  
• Review disciplinary enforcement of hair and dress codes to ensure enforcement does not impose a disparate impact. Careful review of these types of policies will also assist school districts in compliance with the Jett Hawkins Law, which was recently passed in Illinois and prohibits schools from creating policies on dress codes that restrict hairstyles historically associated with race or ethnicity.  
• Carefully consider and define the role of school resource officers (SROs) in the school setting and ensure appropriate training of SROs.  
• Address student behavior concerns holistically through mental health professionals, counselors, and social workers.  

The guidance also suggests that schools may encounter a greater need for social-emotional and behavioral supports as a result of trauma caused by the COVID-19 pandemic. The guidance encourages schools to provide mental health supports to all students who need it, including those who have experienced trauma; and to the extent that those needs meet the definition of a disability under IDEA or 504, schools have a responsibility to provide services and supports. As students return to in-person learning, the guidance suggests that schools should meet students where they are through evidence-based restorative justice, trauma responsive, and culturally relevant practices and interventions, rather than punitive disciplinary approaches to behavioral challenges. 

To assist school districts in creating and implementing non-discriminatory student discipline policies and practices, ISBE offers a comprehensive model policy toolkit and links to sample policies, national resources, and restorative justice tools. Our office is also available to assist your school district with reviewing student discipline policies and practices for compliance with State and federal law, and best practices to address disproportionate impacts of school discipline. If you have questions about your student discipline policies and practices, please reach out to one of the authors of this post or any Franczek attorney.  

*Hannah May, a third-year law student at Loyola University Chicago School of Law, is a Loyola Education Practicum Student at Franczek P.C. The Practicum, part of Loyola’s education law curriculum, was created to provide law students with practical experience at education law firms and organizations. Students receive academic credit for their Practicum experience.