TEST BOOKELTS CAN NOW BE TREATED AS STUDENT RECORDS
The First District Appellate Court of Illinois, in Garlick v. Oak Park and River Forest High School District No. Q (1st Dist., March 30, 2009), recently held that a student test booklet was a "student record" under the Illinois School Student Records Act (105 ILCS 10/2) in a case which may require that Illinois educators rethink how tests are administered.
The Plaintiff had submitted a written request to the District requesting copies of two of his daughter’s Advanced Algebra exams. The District responded to his request by giving him copies of his daughter’s answers and calculations, which were recorded on the test booklets along with her name. The District redacted the test questions from the copies because they contained no identifiable student information. According to the District, the Plaintiff was given an opportunity to review and hand copy the test questions at home, as long as he agreed not to photocopy the questions. The Plaintiff sued the District.
The Trial Court held that "the ...test questions themselves do not give information regarding the student and do not in any way individually identify the student. .. I do not think the fact that the test questions happen to appear on the same pages with the calculations and the student’s name make any difference?
The Appellate Court, however, took a different view. The Appellate Court held that "nothing in the plain language of Section 2(d) indicates only the portions of a document individually identifying a student should be considered a school record for purposes of parental inspection and copying... Because the Advanced Algebra test question booklets contain student markings and other individually identifiable information, we find they fall in their entirety under the definition of a student record. . ." (Garlick, at P. I4)
In light of Garlick, School Districts should consider whether or not to discourage teachers from allowing students to place answers within preprinted test booklets. To the extent teachers wish to use test questions again, in future tests, such a change in practice may be the only way to keep such test questions from becoming “student records" that must be released to parents.
7th CIRCUIT COURT EXPANDS FMLA REMEDIES AGAINST EMPL0YERS
On May ll, 2009, the United States 7th Circuit Court of Appeals, in the case Ryl-Kuchar v. Care Centers, Inc. (7th Cir. 5/ l l/09), found that the Family Medical Leave Act (FMLA) allows an employee to sue an employer when, after an employee requested to use FMLA benefits, the employer revoked health benefits.
The employee alleged that the employer retroactively canceled the employee’s health benefits one month prior to the birth of her triplets, in retaliation for the employee’s decision to take FMLA leave after the birth of her triplets. The employer argued that the health benefits were canceled only because the Plaintiff had become a part-time employee during her pregnancy. However, the Court held that, as the employer allowed the employee to remain on salary status even when working less than 35 hours per week (the employer’s policy required that only the employees working 35 hours or more per week were entitled to remain on salary) for a considerable period of time, and as the employer only revoked the health insurance benefit after learning of the request for FMLA leave, these facts provided a basis for finding that the employer’s reason for revoking health benefits was merely pretextual. In light of Ryl-Kuchar, Districts will need to take especially great care when revoking health benefits whenever an employee is also invoking of FMLA benefits.
SCHOOL IMPACT FEE AND NON-HOME RULE MUNICIPALITIES:
The imposition of impact fees by non-home rule municipalities to offset the costs incurred by School Districts was recently reconsidered by the Second District Court of Appeals in Raintree Homes, Inc. v. the Village of Long Grove. No. 2-06-1105. The Village collected a school impact fee and an open spaces impact fee for a total of $7,300.
Under 65 ILCS 5/ 1 1-12-5(1), a municipal plan commission may establish reasonable requirements for school grounds. As defined in the statute, the term "school grounds" includes "land or site improvements, which include school building or other infrastructure necessitated and specifically and uniquely attributable to the development or subdivision in question." 65 ILCS 5/ 1 1-12-5( 1). Because the impact fee was disbursed into the school’s general operations fund, the court held that the Village exceeded its statutory authority because the fee could be used for purposes beyond "school grounds."
Also, a portion of the fee was deposited into the Village’s general fund for the purpose of acquiring, maintaining, and preserving open spaces within the Village. Any expenses related to the purchase of existing open spaces were already costs incurred by the Village and not costs resulting from the new development. Therefore, to satisfy that standard, the funds received from the fees could only be used to acquire new open space. The Court’s analysis only further expresses the proposition that School Districts can benefit from the imposition of these fees, so long as they work with Municipalities to ensure that the fees are properly tailored to comply with the current legal framework.
"ZUKOWSKI" RE-APPOINTED TO STATE BAR COUNCIL
John O’Brien, President of the Illinois State Bar Association, recently appointed Walter J. Zukowski as a member of the ISBA Council for Education Law. This group of 21 lawyers from across the State work towards addressing issues which face schools.
Mr. Zukowski is an active author and lecturer in various legal fields. He first became a member of the Section Council in 1984. He has previously served as the Chairman of the Section Council. The Education Section has over 700 members.
Mr. Zukowski is a summa cum laude graduate of IVCC and University of Illinois-Springfield. He has a Juris Doctorate and Master’s of Business Administration, with honors, from the University of Notre Dame.
July 2009