Cornered: Brandon Wright on School Law

School law is a unique practice area in which local concerns intersect with nationwide discussions about education policy and the role of public services more broadly.

IICLE® publishes two 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 at IICLE.com. (This offer is valid through June 30, 2025, for School Law: Organization, Finance, and Property 2025 edition and may not be combined with any other discount or offer. Coupon may be used once per customer.)

Brandon Wright with the law firm of Miller, Tracy, Braun, Funk & Miller, Ltd., in Monticello, IL, is the author of Chapter 1 of the new edition covering school district reorganizations. In this episode, he discusses the Illinois School Student Records Act, school residency requirements, special education and accommodations, and First Amendment issues in schools.

IICLE® is a 501(c)(3) not-for-profit based in Springfield, Illinois. We produce a wide range of practice guidance for Illinois attorneys and other legal professionals in all areas of law with the generous contributions of time and expertise from volunteer attorneys, judges, and other legal professionals.

Chapters

• 0:32 Episode Introduction - Brandon Wright
• 1:56 How does the Illinois School Records Act protect students?
• 4:28 What happens if a child's parents live in two different school districts?
• 7:12 What are the requirements of special education and accommodations in Illinois?
• 10:23 What are some of the First Amendment issues that arise in schools?
• 17:48 Wrapping up - Thank you, Brandon!

Transcript

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

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

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a new house…

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I want to start a business…

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so I was wondering…

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My brother was fired…

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

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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.

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Of.

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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.

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

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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

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of the new edition, covering school district reorganizations.

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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.

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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.

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And talk about issues of of.

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School law, especially in areas of special education, but school law.

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Generally as well. So that's what I do.

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

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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.

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You know, we're oftentimes getting requests for student records.

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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.

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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.

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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.

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Applying parental written.

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

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Court act. So I what?

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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.

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And know that we've got.

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Those additional pieces that have to be in place.

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Before we could.

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

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Look like and.

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

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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.

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To be able.

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To disclose that attorney, we've got some.

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Of those additional steps.

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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.

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

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I think that these these residency questions are you?

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Know a frequent?

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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.

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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?

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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?

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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.

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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.

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Considered to have?

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Legal custody for purposes of school code residency, and even if it is a true 5050 split in parenting time, the statute still anticipates that.

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One of the parents has to be designated as.

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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.

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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.

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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.

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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.

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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?

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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.

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You know is understanding.

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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 students educational performance and results in a need for special education, meaning specially designed instruction.

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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.

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Sure.

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Courts, you know, is that while a physicians 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.

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

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The district just.

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Has to follow it and the answer to that is, is frankly no.

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You know, obviously depending upon what that doctor's.

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Note says and what this this disability or medical condition says is going.

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To to vary in terms of.

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The extent to which something is purely medical, like a student, 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 that might be out there. And so just because of Doctor writes it down, that's not something the district automatically follows. But there is a.

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

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Of the role of physicians and outside evaluators now that they have no role right, they certainly play an important role that 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 teams decision. Looking at the totality of the data and especially how that impacts a student.

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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 a step back and looking at the big picture of the students educational needs.

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And what many courts have said is that the experts on a student's educational formats are the folks that folks that spend all day with the kid at school, not a Doctor Who might have seen them for 20 minutes and an office visit. And the educational well events, sometimes of those outside reports is is pretty limited. So I think it's important that we understand.

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That there's a process we've got to work together collaboratively and cooperatively in meeting those, those obligations and responsibilities.

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

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One of the things that makes school law so interesting to me is it's a little bit of everything. You know, we've got the constitutional issues, we've got tax issues, we've got HR and employment issues and and everything in between. And so certainly school districts have historically always been sort of on the front lines of some of these.

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Big constitutional issues like the First Amendment, you know, going back to the Supreme Courts, famous case back in 1969 with the students who wore black arm.

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Plans to protest the Vietnam War and were suspended from school, you know, Tinker versus Des Moines and and all of the various versions of that been interpreted by the Supreme Court and and lower courts since. Since that time. And so, you know, I would say some of the front burner First Amendment issues that we're seeing in schools these days.

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One certainly involves the social media piece. We had a Supreme Court decision here within the last three or four years. The bill versus Mahanoy Area School District case from the Supreme Court looking at student social.

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There and when as a students post on social media outside of school, appropriate for school related consequences or or discipline, and the Supreme Court articulated situations, you know, severe harassment or bullying targeting individuals, threats of violence, cyber security breaches, not following remote.

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

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Action for potential student discipline outside of school, and so we we certainly continue to see student discipline policies and student discipline decisions trying to to catch up with the courts understanding of, you know, federal district courts and circuit courts interpretation since that time of really what does constitute.

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For the year, harassment or bullying targeting individuals through social media, and when does it have a sufficient connection back to the school to to offer discipline and? And so we we see a number of cases continuing to emerge.

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As we will.

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Look at what?

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Is a threat of violence and what isn't a threat of violence? You know, continuing to have that clarified through other court decisions as we try and make make good decisions on that front. So we certainly see this social media piece being a frontline.

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Piece for students. For adults.

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Too anymore, I would say the phone calls.

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Getting from my schools or clients are not just about what students are posting online, but what employees and parents and others as well and where that may be crossing the boundaries, especially in heightened political times. We've got a school employee posting potentially controversial opinions online one way or the other.

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But that gets the attention of the community and may have an impact, and we see recent 7th Circuit case law, not just the school context, but in the public employment context, clarifying the extent to which public employers like a school district or other, you know, state agencies and things may have an interest in regulating that. So certainly the First Amendment component is is.

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Right there on on the front front piece and and I think that we also are are seeing certainly in Illinois, but nationwide you know other long standing curricular issues as you mentioned book bans and and concerns about the content of the curriculum or availability of library materials, you know being being renewed.

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You know, there are some interesting cases in front of the Supreme Court this term related to the parents.

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Right to a.

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Out of aspects of the curriculum that they might object to on religious or other grounds, some Establishment Clause questions about, you know, the establishment of religious charter schools with state funding, you know, so there's some really interesting components as to where those lines are. And as the Supreme Court has sort of fundamentally changed some of those things in the Kennedy.

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The Bremerton case a few years ago related to a football coach who was praying with players. You know, after the game trying to decide, is that really within the course of duties or not? And and the springboard overturning the the long standing lemon test and saying, you know, we're going to look at different legal standard.

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Words for some of these First Amendment questions cause the school districts to have to come back to the drawing, sometimes on policy and practice, and understand where that where that line is. And so I think this year of 2025 is going to be a banner year with a number of interesting Supreme Court decisions that will impact school districts in many ways.

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You know this this year on the docket, we've got a students with disabilities case. We've got First Amendment cases related to parent rights to opt out, you know, related to sort of that first and an Establishment Clause issue as well. So be really interesting to see how that that shakes out and the impact that has for us across the board.

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And so I think it's important that as attorneys and other fields again are interacting with school districts, sometimes we're looking at those constitutional questions that appear to be shifting a little bit, you know, which makes it difficult, right? As a school attorney, like any other attorney, you know, our clients are coming to us saying what's going to happen if we make this decision and ask the Court decisions.

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Are certainly shifting and it makes it more difficult to say I'm as certain as I used to be about what a court will will do with this particular case and what the right decision is.

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So I think we continue to try and be a forward-looking and think about those basic legal standards that exist. And I think the other part of that is trying to apply the words of the 1st amendment, you know written in the 18th century to things like AI and other emerging technologies, you know is also a challenge.

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That we we look at from the school context and and figuring that out. And so those are some of the interesting and fun things that are going on.

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Out there in.

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

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

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The law school law.

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Has many layers and is complex, right? So we're trying to balance federal law and federal regs with state law and state regs and and recognize that just because we Googled an answer, it may not be what really is where where things land for us.

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Under the only school code in particular where there are just, you know, overtime, the school code has gone from being 40 years ago, which is kind of a thin tone to now being published in two volumes because it's it's so huge, right. We continue to have more and more laws, more and more mandates that impact schools.

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And that also frankly gives school boards and school administrators less discretion in the jobs they're doing. And I think right now, you know, public education has tried to become not by any fault of its own, necessarily a a political football. And I think that there are a lot of teachers and administrators and school board members who are really doing their best to try and not only do what's right for the kids in their communities.

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So we comply with the law and I think in in an era where sometimes state and federal law starts to become in conflict with each other, we've got to make sure that we are understanding that everybody's coming at this from that place of good faith and trying to make the best decisions. And so let's make sure before we are jumping in with both feet against school district.

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That we understand the legal landscape in which they they operate and understand the limits sometimes of their authority based on what's been mandated from above. And I think that's that's an important consideration. I would keep in mind for, for all attorneys.

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Thank you, Brandon. The law firm of Miller, Tracy Braun, Funk and Miller in Monticello has over 45 years of experience working with Illinois public schools and universities.

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Brandon is just one of the highly experienced authors of School, Law: Organization, Finance and Property 2025 edition use code IICLEPOD20 at IICLE.com by June 30th for 20% off the cover price of the print or ebook.

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or visit the Contributor Resource Center at IICLE.com/contributors. Thank you for joining us for another edition of cornered out of Port, brought to you by the Illinois Institute for Continuing Legal Education.