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Jim Naughton, Reforming Discipline in Early Childhood Education: Responding and Implementing HB 2663, 30 DCBA Brief 14 (May 2018)(42 Footnotes)


State-funded preschools reopened after winter break to confront new legislation that prohibits them from expelling students and narrows the circumstances under which they may temporarily remove a student. The Illinois legislature passed HB 2663, now PA 100-0105, as a response to what it saw as an overuse of exclusionary school discipline, such as suspension and expulsion, by early childhood settings.

Background to the Legislation

Illinois has made a number of school discipline reforms in recent years. In 2015, Illinois passed SB 100 (now PA 99-0456) into law, eliminating zero-tolerance policies and declaring exclusionary discipline a last resort. Yet, there still remained a gap in addressing school discipline in early childhood programs. While SB 100 applied to school district programs, many early childhood programs receive state funding, but are not run by a school district and do not fall under SB 100's coverage.

Aside from the coverage gap, the law addresses the notable challenges faced by discrete groups of students in preschool. The U.S. Department of Education, Office of Civil Rights released data for 2013-14 school year finding that black preschool children were 3.6 times as likely to receive one or more out-of-school suspensions as their white classmates. Hispanic and black boys represent nearly 65% of preschool boys suspended. National research suggests that these types of discipline disparity are not explained by differences in student behavior. Additionally, in 2014, black girls represented 20% of preschool enrollment, but accounted for over 50% of students receiving one or more out of school suspensions.

Research shows that exclusionary school discipline in early childhood programs can have lifelong impacts. The joint policy statement issued by DHS and DOE cites research that students who are expelled or suspended from preschool are up to ten times more likely to drop out of high school, experience academic failure and grade retention, hold negative school attitudes, and face incarceration than those who are not. In addition, there is no research or data that supports the effectiveness of exclusionary discipline. These findings are especially unfortunate as the students who are most often formally or informally pushed out of preschool are the ones who generally would make the largest academic gains from high quality preschool programs.

Illinois's Response--HB 2663

In direct response to statements issued by DHS and DOE, the State of Illinois enacted HB 2663, which went into effect January 1, 2018. The bill was introduced by Rep. Juliana Stratton and Senator Kimberly Lightford (one of the primary sponsors of SB 100) and was signed into law by the Governor on August 14, 2017. Under PA 100-0105, early childhood programs receiving grant funding from the Illinois State Board of Education (ISBE) are prohibited from expelling students. The law also lays out a number of steps that early childhood programs are required to take in response to challenging student behavior.

When early childhood education providers observe persistent and challenging behaviors, they must first document their initial observations and continue to document ongoing challenging behaviors. The provider's documentation of student behavior informs the additional steps required by the law, namely creating "strategies for remediation and intervention plans for addressing the behaviors," communicating with parents or guardians, and encouraging their participation in planning and decision-making. Following these initial steps, the program is required, after receiving parent or guardian consent, to engage community resources such as developmental screenings, referrals to other programs and services offered by local educational agencies, or consultation with mental health providers and child's healthcare providers. When the provider communicates these steps to parents or guardians, the law requires that the communication "take place in a culturally and linguistically competent manner."

Only after a program has taken these steps can it consider the planned transition of a student to a different early childhood program. The law allows for planned transitions, with parental consent, when the provider determines that a transition is necessary for the well-being of the child, his or her peers, or the program's staff. Additionally, the law also allows for temporary removal in case of serious threat or behavior enumerated in 105 ILCS 5/10-22.6(d), such as possession of a firearm or knife.

In essence, PA 100-0105 imposes a threefold analysis for a school or program to undertake as it initiates the planned transition of a student. Before a planned transition the school or program must show:

1) that there is documented evidence that all available interventions and supports recommended by a qualified professional have been exhausted;

2) that the current program determined that transitioning the student to another program is necessary for the well-being of the child or staff; and

3) that the school or program receives the consent of the parent or guardian. Only after this finding can the school or program meet with the pending program placement to create a transition plan ensuring continuity of services for the student.

The imposition of an exhaustion requirement on schools or programs sets a high threshold for planned transitions. This threshold is also present in the law's provision for temporary removals from a program. As discussed above, the law allows for temporary removals for serious safety threats and certain enumerated behaviors, but even a temporary removal triggers the same threefold analysis. In addition to this high threshold, the requirement that providers obtain parental/guardian consent before transitioning a student may preclude a program from moving the student at all. The law signals that removal is no longer the first step; rather, programs are required to document, intervene, and exhaust options before using any exclusionary discipline.

There are a number of other notable features of the law including its expansive coverage. The law expands its coverage to licensed day care centers, day care homes, and group day care homes. The law tasks the Department of Children and Family Services (DCFS) with creating rules to prohibit expulsions in these settings, but leaves discretion to DCFS as to what the rules ultimately look like. While the law is expansive, it does not extend to private preschools not receiving state funds. Additionally, the law imposes new data reporting requirements on early childhood programs. Starting on July 1, 2018, programs must report to ISBE the number of students it served, the number of planned transitions to another program disaggregated by categories such as race, gender, and disability, the number of temporary removals also disaggregated, and the hours of infant and early childhood mental health consultant contact with program staff and families.

Resources for School Response

As schools and early childhood programs address the new requirements of the law, it is important to note the challenges facing many of these programs. Early childhood programs are often small, with limited staff, and the staff may not be well trained in addressing challenging student behaviors. While one purpose of the new regulation is to ensure that state agencies provide early childhood professionals with the recommendations and resources needed to support social-emotional health and address behavioral issues, the law's requirements in terms of the roles of the agencies are relatively weak.

The law specifically states that early childhood programs may utilize the State Board of Education, Department of Human Services, and the Department of Children and Family Services. These state entities are tasked with recommending trainings, technical supports and professional development resources as well as providing the resources to contract with mental health consultants. While the law requires these agencies to provide resources to contract with mental health consultants, there is no requirement that these agencies develop or provide trainings for programs; they are simply required to "recommend" them. Schools and programs may need to put pressure on these agencies to provide them with the support they need to implement the law.

Schools can look for guidance from federal and state sources as they implement the law. The U.S. Department of Health and Human Services undertook a survey of state and local action aimed at preventing expulsion and suspension in early childhood education. This high-level overview examined states like Arkansas, which at the time, met 9 out of 10 of the National Institute for Early Education Research's (NIEER) quality benchmarks. The survey noted that Arkansas's working group on early childhood programs had added content on expulsion and suspension prevention in licensing tests that providers were required to take and required parental notification of a program's non-expulsion policy. Other states like Connecticut formed partnerships with non-profit behavioral health providers to deliver consistent services to preschool students. Although it predates HB 2663, this guide is helpful nonetheless as schools and programs look for guidance and best practices.

As schools look to modify their handbooks and procedures, it is worth noting that a number of districts have already addressed issues of discipline for early childhood education in their handbooks. Since 2014, Chicago Public Schools has prohibited pre-K to second grade in or out-of-school suspensions with limited exceptions. Head Start also revised its performance standards in 2016 to prohibit expelling or unenrolling children from the program. In addition to the policy statements issued by DHS and DOE, the Head Start Program Performance Standards (codified in 45 C.F.R § 1302.17) provide helpful, program-level recommendations. These recommendations include developing and clearly communicating discipline guidance with staff, families, and community partners, providing teachers support from specialists, consultants, and counselors, as well as setting goals related to discipline reduction and using data to assess progress.

Additionally, organizations like the Ounce of Prevention (Ounce) conduct trainings in which they provide information about practices that can be used by school districts. The Ounce's 2016 training on "Suspending Early Childhood Expulsion," is particularly insightful as many of the best practices the Ounce outlined were adopted into law. In addition, the Ounce provides a number of Illinois-specific resources in its Suspending Early Childhood Expulsion training materials that schools and programs may wish to utilize when crafting their response to HB 2663.

Challenges and Questions - Defining Terms

There are lessons to learn from HB 2663's one-year old sibling, SB 100, which was the comprehensive discipline-reform law that went into effect during the 2016-2017 school year. One issue that is sure to be present in the implementation of HB 2663 is the same definitional tug-of-war that has occurred with SB 100. For instance, SB 100 only allows out-of-school suspensions for three days or less if a student's continuing presence in school would "pose a threat to school safety or a disruption to other students' learning opportunities." Words such as threat and disruption are inherently subjective: A threat to whom? What constitutes a disruption? Similarly, HB 2663 allows planned transitions only in insistences where "persistent and serious challenging behaviors" emerge. Schools and programs will need to develop appropriate definitions to guide their decision-making.

Another consideration is the standard for temporary removal of a child. Although the law expresses a strong preference for keeping children in their school or program, it allows removal upon the determination of a "serious safety threat to a child or others" or for other behaviors such as bringing a gun or knife to school. Again, the standard of what constitutes a "serious" safety threat may be subjective and may lead to uneven implementation of the law. One solution may be to provide a list of defined, concrete behaviors that fall into the "serious" category as CPS does in their student code of conduct. As schools look to create guidance for HB 2663, they should be sure to avoid categorizing certain age-appropriate behaviors (e.g., talking out of turn) as "serious" behavior.

Return to Classroom

Perhaps the most glaring omission from the temporary removal standard is a set deadline for when a student must be allowed to return. Unlike SB 100 which sets standards for suspensions three days or less and three days or longer, HB 2663 simply states that the child should be "placed back in the group setting as quickly as possible." DHS and DOE stressed in their joint statement that exclusionary discipline of any kind often contributes to setting young children's educational trajectories in a negative direction. It is crucial that schools and programs establish common-sense guidelines for temporary removals and only use them in the most extreme of circumstances.

While this law presents challenges for implementation and questions about definitions and policies, it is an important step in addressing research suggesting the harmful impacts of school discipline for young children. Accordingly, school districts and early childhood programs should endeavor to craft policies and procedures that not only comply with the new law, but also uphold its spirit.