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School Law Update:

State and Federal Law Restrictions on Expelling Truant Special Education Students

Educating children with disabilities has always presented school systems with a myriad of challenges; however, truancy has recently presented itself as key dilemma for educators within the state. As per the Individuals with Disabilities Act, a student can receive Special Education services until the age of 21. However, it is quite difficult to educate young adults who rarely report to school. This article will discuss the intersection of federal laws governing Special Education and Illinois law on student truancy.

When a special education student does not attend classes on a regular basis, typically a school will file truancy papers with the Regional Office of Education ("ROE") and document the school's attempts to contact the parents. If the school's effort to correct truant behavior does not work, the school is faced with a dilemma, complicated by multiple tiers of overlapping laws, when it contemplates whether or not to drop the student from classes.

At the outset, a school must adopt an official policy on truancy that is consistent with rules adopted by the State Board of Education and governs how and when a student is dropped from school. 105 ILCS 5/26-13.

Under Illinois law, a child's parent or guardian is responsible for a child's enrollment in school until the child is 18 years old (the age of majority). At age 18 the legal rights of a special education student transfers from the parents or guardians to the student (unless a court has declared the student incompetent.) 20 U.S.C. 1415(m). Therefore, at age 18 the student has the legal right to make all decisions regarding his education - including whether or not he wishes to attend school or remain enrolled. 750 ILCS 30/3-1. All children under age 18 must be enrolled in school unless excused for "valid cause" as defined by Illinois statute. 105 ILCS 5/26-2.

To comply with Illinois law, a school district must follow a specific procedure for absentee students aged 17 and below. Often the school district's ROE will handle the bulk of the truancy proceedings. First, the school must report student absences to the district's truancy officer (or an administrator delegated to handle truancy). The district's truancy officer will investigate all cases of truancy and send notice by mail to the absentee child's parent/guardian informing the parent of the child's truancy and that the child must attend classes regularly.

This notice should also inform that parent of his/her right to request that the district conduct an Individualized Education Plan ("IEP") meeting to determine whether the student's truant behavior is a manifestation of his disability. If the student remains truant, the school will notify the truancy officer, who will send out a second notice to the student's parent. If the student is still truant, the officer will attempt to contact the parents two additional times (sending out a total of 4 notices).

If truant behavior persists, the school district will conduct a truancy hearing. If it is determined that the child is under the control of parents/guardians, the school will file a complaint against the persons having custody or control to the state's attorney or in the circuit court in the county where the person resides or conduct truancy mediation to encourage the student to enroll in a graduation incentives program. If it is determined that the child is beyond the control of the parents/guardians, the school will file a truancy petition under Article III of the Juvenile Court Act of 1987.

If, after following this procedure, the child remains truant, the truant child's IEP Team must meet. If the IEP team concludes that the child's truant behavior is not a manifestation of the child's disability, then the child can be expelled from school. However, expulsion can take place only after the parents have been requested to appear at a meeting of the school board, or with a hearing officer appointed by it, to discuss their child's behavior. 105 ILCS 10-22.6(a). And, the expulsion must be for a definite period of time not to exceed 2 calendar years, as determined on a case by case basis. 105 ILCS 10-22.6(d).

The law governing truancy for students between age 17 and 18 is slightly different. A school may deny enrollment to a student 17 years of age or older for one semester for failure to meet minimum attendance standards if all of the following conditions are met:

  1. The student was absent without valid cause for 20% or more of the attendance days in the semester immediately prior to the current semester;
  2. The student and the student's parent or guardian are given written notice warning that the student is subject to denial from enrollment for one semester unless the student is absent without valid cause less than 20% of the attendance days in the current semester;
  3. The student's parent or guardian is provided with the right to appeal the notice, as determined by the State Board of Education in accordance with due process;
  4. The student is provided with attendance remediation services, including without limitation assessment, counseling, and support services; and
  5. The student is absent without valid cause for 20% or more of the attendance days in the current semester. 105 ILCS 5/26-2(c).

Practically speaking, dropping a truant special education student from school means that the child is not likely to reenroll or request other educational services. Nonetheless, a school or school district may not deny enrollment or reenrollment of a Special Education Student in violation of the Individuals with Disabilities Education Act or the Americans with Disabilities Act. 105 ILCS 5/26- 2(c).

Federal law provides that a free appropriate public education (FAPE) must be available to all children residing in the State between the ages of 3 and 21, inclusive, including children with disabilities who have been suspended or expelled from school. 34 CFR §300.101. However, the obligation to make FAPE available to all children does not apply to children aged 18, 19, 20, or 21 in a State to the extent that its application to those children would be inconsistent with State law or practice. 34 CFR §300.102. In a nutshell, this means that even if a special education student is expelled for truancy, if the child is under age 18, he still must have access to FAPE and services as provided for in his IEP.

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Scott Rochelle, an associate in our Chicago office, concentrates his practice in general litigation with a focus on commercial litigation, civil rights defense, and school law. If you would like information regarding Querrey & Harrow's School Law practice group, please contact Mike Stillman, Group Co-Chair, via 312-540-7878, or via mstillman@querrey.com.