Episode 11: June 3, 2025 | Cornered: Brandon Wright on School Law

Transcript

00:00:01: Oh, you're an attorney. I have a friend who…

00:00:03: I've been meaning to update my will, but I just bought

00:00:06: a new house…

00:00:06: I want to start a business…

00:00:06: so I was wondering…

00:00:08: My brother was fired…

00:00:09: My friend got divorced a while back. I just don't understand how her ex…

00:00:14: You've been there at a social function, meeting friends of friends. Word gets out that you're an attorney, and suddenly your night is filled with partygoers asking you, quote, UN quote, simple legal questions. The questions are seldom in your area. Some of the stuff you haven't thought about since law school, you're being cornered.

00:00:31: Of.

00:00:32: Court in the Cornered Out of Court podcast from IICLE, you'll hear from fellow attorneys about the questions they get and the responses they give to escape being cornered. School law is a unique practice area in which local concerns intersect with nationwide.

00:00:52: Discussions about education policy and the role of public services more broadly.

00:00:57: IICLE publishes 2 handbooks on the topic. One of those handbooks, school law, organization, finance and property, is in a new edition for 2025. Stay tuned to the end of this episode for an exclusive 20% off the print or e-book edition. Brandon Wright is the author of Chapter 1

00:01:18: of the new edition, covering school district reorganizations.

00:01:22: I'm Brandon Wright, a partner in the law firm of Miller, Tracy Braun, Funk and Miller in Monticello, IL, and our firm represents school districts throughout.

00:01:32: State I've been representing school districts for over 20 years. At this point. I also am on the Executive Committee of the Illinois Council School Attorneys and previously served as its chair. So I am working with school districts throughout Illinois, but I also get to go all over the country.

00:01:47: And talk about issues of of.

00:01:49: School law, especially in areas of special education, but school law.

00:01:52: Generally as well. So that's what I do.

00:01:56: Let's start off with an overview of the Illinois School Records Act. How does this act protect students?

00:02:03: One of the most frequent ways that we as school attorneys are encountering attorneys in other fields in other areas, whether that be family law or criminal law or or sometimes with medical practice issues that don't involve the school district.

00:02:19: You know, we're oftentimes getting requests for student records.

00:02:22: And we have a statute in Illinois, the Illinois School Student Records Act, which is sort of a companion to the federal FERPA statute that protects records and the privacy and confidentiality of information concerning concerning students and and how it can be shared and and so whether that's a.

00:02:42: Subpoena for records. You know, in a family law matter like a divorce or custody, or sometimes in a in a criminal matter where the state attorney or someone else's defense attorney is seeking a student records.

00:02:55: You know, we've got to make sure that we're complying with the additional provisions that are there to share records and you know what is clear under the only school Student Records Act is that a subpoena alone is not enough to be able to share records. But it's going to require a court order signed by the judge or one of the other exceptions.

00:03:15: Applying parental written.

00:03:17: Event there is a separate process for juvenile authorities as part of the adjudication of a juvenile case of the juvenile.

00:03:25: Court act. So I what?

00:03:26: I really wish attorneys could could understand as we think about this, is to take a look at at the Student Records Act when we're issuing subpoenas for records or asking for information concerning students.

00:03:37: And know that we've got.

00:03:38: Those additional pieces that have to be in place.

00:03:41: Before we could.

00:03:42: Share records with third parties, whether that be, you know, general law enforcement, other attorneys, and and other matters. What that might might.

00:03:50: Look like and.

00:03:50: So you know an important part of of of that interaction with attorneys and other matters is making sure that we are.

00:03:58: Crossing our T's and dotting our eyes when it comes to the Student Records Act, the privacy and confidentiality pieces to that. Obviously, there's also an access right, you know, parents have a right to access student records, to ask for those, but if it's somebody other than the parent, like an attorney acting on a parent's behalf.

00:04:15: To be able.

00:04:16: To disclose that attorney, we've got some.

00:04:17: Of those additional steps.

00:04:18: And so I think it's important that we understand those those requirements where our state law is a little more restrictive than the federal law when it comes to access to those records.

00:04:28: Now to residency requirements for students. What happens if a child's parents live in two different school districts?

00:04:35: I think that these these residency questions are you?

00:04:39: Know a frequent?

00:04:39: Flyer, especially in August, as we're getting ready for the start of a of a school year, but certainly come up throughout the throughout the year and you know the Illinois School code.

00:04:49: Have some very specific provisions related to student residency, meaning in which school district does a student have the right to enroll and attend without the district being required to charge non resident tuition to to the parents?

00:05:06: And I think an issue that frequently we are encountering with attorneys and other other fields, you know, throughout the state is also when we are looking at that issue of residency with divorced or separated parents, you know, what are those provisions within the parenting plan or custody order that gives rise to where a student?

00:05:25: And attend and I think that, you know, there were some substantial changes within the last 10 years to the Illinois Marriage and Dissolution of Marriage Act that also dovetails with the Illinois School Code in terms of where a student can, can reside. And so one of the things that is is very clear and the state.

00:05:43: Shoot is that it is the parent with the majority of the parenting time whose address can be used for school residency purposes. That is, the parent who is.

00:05:52: Considered to have?

00:05:53: Legal custody for purposes of school code residency, and even if it is a true 50/50 split in parenting time, the statute still anticipates that.

00:06:03: One of the parents has to be designated as.

00:06:05: Having the majority of the parenting time for purposes of the school code and where the student can attend tuition free, one of the things that I am seeing frequently that I wish family law attorneys and judges who are signing these orders would understand is that sometimes we'll see, you know, if the parent A has the majority of the parenting time.

00:06:25: Then the order says, but they will use parent B's address for school residency purposes, and that's not what the statute says, right? The statute says the parent, who has legal custody for purposes of enrollment in school, has to be the parent with the majority of the parenting time by.

00:06:42: Statute. And so we get these conflicting orders. And so I do think it's important to recognize that when we're making those decisions, there's some school code school law provisions that come into play that it's really important for our family law friends to take a look at the school code, take a look at, I think at section 6/06/10 of the marriage and dissolution of Marriage Act.

00:07:02: And make sure that we are on the same page and advising our clients about what the law really says when it comes to where a student can attend tuition free.

00:07:12: Parents and guardians want to ensure students are receiving the proper support in school. Could you explain some of the requirements of special education and accommodations?

00:07:24: One of the issues I encounter frequently when we have maybe folks coming in who don't practice in this area all the time, you know, sometimes misunderstand.

00:07:33: You know is understanding.

00:07:35: The definition of a disability under section 504 and the IDEA are very different. You know what those eligibility standards are in terms of not just having this ability, but having this ability that adversely affects the student's educational performance and results in a need for special education, meaning specially designed instruction.

00:07:56: So a heightened standard beyond just the existence of a medical condition, and one of the things that the IDEA is very clear about, that case law is very clear about, the 7th Circuit has been clear as well as all the other.

00:08:03: Sure.

00:08:09: Courts, you know, is that while a physician's diagnosis is certainly something that the district has to consider when looking at eligibility for special education or for Section 504, that it's not determinative. You know, and I think that oftentimes, you know, schools are encountering legal counsel for families who maybe don't practice.

00:08:29: Regularly in the area of special education, who believe well, I got a doctor's note. So doesn't that mean?

00:08:35: The district just.

00:08:35: Has to follow it and the answer to that is, frankly, no.

00:08:39: You know, obviously depending upon what that doctor's.

00:08:41: Note says and what this disability or medical condition says is going.

00:08:45: To vary in terms of.

00:08:48: The extent to which something is purely medical, like a student with diabetes or another medical condition who has very specific needs, versus maybe things that are more within the educational realm—student learning disability, students with ADHD, other things that might be out there. And so just because a doctor writes it down, that's not something the district automatically follows. But there is a

00:09:08: process there and so I think it's really important that if we're going to jump into that world of understanding students with disabilities and their rights, that some of those threshold questions about eligibility are really an important piece and understanding the limits

00:09:23: of the role of physicians and outside evaluators. Not that they have no role—right, they certainly play an important role. Those are oftentimes important sources of information to which the district has an obligation to consider in good faith. But ultimately it's going to have to be the school district team's decision, looking at the totality of the data and especially how that impacts a student

00:09:44: at school. That's going to be really important for us. So I encourage, you know, attorneys to make sure that we're taking a step back and looking at the big picture of the student's educational needs.

00:09:55: And what many courts have said is that the experts on a student's educational performance are the folks that spend all day with the kid at school, not a doctor who might have seen them for 20 minutes in an office visit. And the educational relevance, sometimes, of those outside reports is pretty limited. So I think it's important that we understand

00:10:15: that there's a process. We've got to work together collaboratively and cooperatively in meeting those obligations and responsibilities.

00:10:23: What are some of the 1st amendment issues that arise in schools, especially now with social media and increased scrutiny of school library materials?

00:10:34: One of the things that makes school law so interesting to me is it's a little bit of everything...

00:10:54: Big constitutional issues like the First Amendment, you know, going back to the Supreme Court's famous case...

00:11:02: Plans to protest the Vietnam War and were suspended from school, you know, Tinker v. Des Moines...

00:11:23: One certainly involves the social media piece...

00:11:34: There and when a student's post on social media outside of school is appropriate for school-related consequences...

00:11:54: Learning or virtual learning rules, you know, those are areas where the school district still has...

00:12:00: Action for potential student discipline outside of school...

00:12:20: Harassment or bullying targeting individuals through social media...

00:12:35: Is a threat of violence and what isn't a threat of violence...

00:12:50: Piece for students. For adults...

00:12:54: Getting from my schools or clients are not just about what students are posting online...

00:13:10: But that gets the attention of the community and may have an impact...

00:13:29: Right there on the front piece...

00:13:49: You know, there are some interesting cases in front of the Supreme Court this term...

00:14:16: The Bremerton case a few years ago related to a football coach who was praying with players...

00:14:33: Words for some of these First Amendment questions cause the school districts to have to come back...

00:14:53: You know this year on the docket, we've got a students with disabilities case...

00:15:12: And so I think it's important that as attorneys and other fields again are interacting with school districts...

00:15:33: Are certainly shifting and it makes it more difficult to say I'm as certain as I used to be...

00:15:43: So I think we continue to try and be forward-looking...

00:16:03: That we look at from the school context and figuring that out...

00:16:11: The world of school law, when it comes to the constitutional issues that are front and center...

00:16:17: I think one of the things that we have to understand is that like so many other areas of...

00:16:24: Has many layers and is complex...

00:16:38: Under the Illinois school code in particular...

00:16:56: And that also frankly gives school boards and school administrators less discretion...

00:17:17: So we comply with the law and I think in an era where sometimes state and federal law...

00:17:34: That we understand the legal landscape in which they operate...

00:17:48: Thank you, Brandon. The law firm of Miller, Tracy Braun, Funk and Miller in Monticello...

00:18:00: Brandon is just one of the highly experienced authors of School Law: Organization, Finance and Property...

00:18:20: Edition This offer can be used only for the print or e-book of the 2025 edition...

00:18:29: Count or offer coupon may be used once per customer...

00:18:40: Our address is info.

00:18:41: That's info@iicle.com IICLE is a 501(c)(3) not-for-profit based in Springfield, IL.

00:18:50: We produce a wide range of practice guidance for Illinois attorneys...

00:19:08: or visit the Contributor Resource Center at IICLE.com/contributors...