08/22/2017

By: Brittany Flaherty Theis

On August 14, 2017, Governor Rauner signed Public Act 100-0105 (the “Act”) into law. Effective January 1, 2018, the Act prohibits early childhood programs receiving State funds and licensed day care centers, day care homes, and group day care homes from expelling preschool children by amending the School Code and the Child Care Act of 1969. Both the General Assembly’s legislative findings and the primary provisions of the Act are discussed in this post. If you have questions about the impact of this law on your school district, early childhood program, or child, please contact Whitt Law Attorney Brittany Flaherty Theis.

Legislative Findings

Section 1 of the Act contains the General Assembly’s findings regarding the research supporting the legislation. Specifically, the General Assembly relied, in part, upon:

  1. Research suggesting school expulsions and suspensions are associated with negative educational, health, and developmental outcomes for children;
  2. Studies showing preschoolers being expelled at alarming rates (one such study showed preschool expulsions at more than 3 times the rate of kindergarten through 12th grade expulsions);
  3. Data showing significant disparities in the rate of expulsions between certain race and gender groups when compared to enrollment composition; and
  4. Recent amendments to the School Code regarding suspension and expulsion practices for kindergarten through 12th grade.

At the same time, however, the General Assembly found that there is insufficient data regarding the suspension and expulsion of children prior to formal school entry. It also highlighted the importance of access to infant and early childhood mental health consultants, positive behavior intervention and support, and professional development for early childhood professionals.

Amendments to the School Code

The Act amends Section 2-3.71 of the School Code, which pertains to grants for preschool educational programs made available to public school districts and other eligible entities that offer voluntary preschool educational programs for children ages 3 to 5 that include a parent education component. Section 2-3.71 already contained requirements regarding teacher certification, State funding and resources through the Illinois State Board of Education (“ISBE”), and documentation and data collection requirements. Once the Act goes into effect on January 1, 2018, Section 2-3.71 will also prohibit early childhood programs from expelling students if they receive State funds under that Section. The Act lays out specific requirements for addressing persistent and serious challenging behaviors, which are discussed below.

When persistent and serious challenging behaviors emerge, the early childhood program must: (1) document the steps taken to ensure the child can participate safely in the program and maintain communication with the child’s parent(s) or legal guardian(s); and (2) utilize a range of community resources, if available and necessary, with parental consent and communication. If it is determined that transitioning the child to another program is necessary for the well-being of the child or his or her peers and staff, a transition plan must be designed to ensure continuity of services and the comprehensive development of the child. However, in such instances, the early childhood program must have documented evidence that all available interventions and supports recommended by a qualified professional have been exhausted. Notably, the Act also states that planned transitions to settings that are better able to meet a child’s needs are not considered an expulsion.

The Act does not prevent a parent or legal guardian from voluntarily withdrawing a child from an early childhood program. It also does not prevent an early childhood program from temporarily removing a child from a group setting in the case of a serious safety threat to a child or for bringing certain weapons or look-alike weapons to school. In the instance of temporary removal, the process described above must be used with the goal of getting the child back into the group setting as quickly as possible.

ISBE, the Department of Human Services, and the Department of Children and Family Services have been tasked with recommending training, technical support, and professional development resources to improve the ability of teachers, administrators, program directors, and other staff to promote social-emotional development, to address challenging behaviors, and to understand a number of other factors relevant to responding to challenging behaviors, such as trauma, cultural competence, family engagement with diverse populations, implicit bias, and the use of reflective practice techniques. ISBE has also been tasked with collecting and reporting data regarding children from birth to age 5 who are served by early childhood programs. Early childhood programs must begin annually reporting such data to ISBE beginning July 1, 2018. Additionally, ISBE must adopt rules to administer the requirements of the Act. Whitt Law will monitor for developments regarding the adoption of rules to implement these new requirements, as well as information regarding the format for reporting such data.

Amendments to the Child Care Act of 1969

The Act also amends the Child Care Act of 1969 to prohibit the use of expulsion due to a child’s persistent and serious challenging behavior in licensed day care centers, day care homes, and group day care homes. The Illinois Department of Children and Family Services, the Governor’s Office of Early Childhood Development, and ISBE are tasked with adopting rules to implement the prohibition. Those rules must address the requirements for licensees to:

  1. Establish intervention and transition policies;
  2. Notify parents of policies;
  3. Document intervention steps; and
  4. Collect and report data on children transitioning out of the program.

Whitt Law attorneys have decades of experience advising clients of the law when responding to safety and behavioral concerns. Whitt Law also has attorneys available to serve as independent hearing officers in disciplinary matters. To discuss questions regarding this post, or ways in which Whitt Law can assist you, please contact Whitt Law Attorney Brittany Flaherty Theis.

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