In a decision highlighting the tension between technological developments and personal privacy, an Ohio federal court recently prohibited public universities from scanning student test takers’ home surroundings for impermissible materials. This holding, although likely to be appealed, may impact not only post-secondary institutions, such as colleges and universities, but also K-12 school districts.

Background: A college student filed suit after a testing proctor directed him to scan his bedroom in advance of an online exam.  Specifically, the university had various procedures in place to ensure online test security and proctoring. These included a plagiarism detection system, various proctoring programs to flag suspicious activity or prevent students from accessing the internet, and a room scan with the student’s camera. University faculty had discretion in choosing which of the above tools, if any, to require for their online exams. On the morning of the exam, the college student notified the university that he had confidential settlement documents, including tax records, scattered in his work area. Nevertheless, the proctor asked the student to briefly scan his bedroom with the camera just before the exam.  The student complied, and the room scan lasted about 10 to 20 seconds, during which the proctor did not see any tax documents. The college student alleged that this incident violated the Fourth Amendment, which protects citizens from unreasonable searches and seizures.

Decision: The Court held in the student’s favor, finding that he had an objectively reasonable expectation of privacy in his home. The Court further found that scanning the bedroom was a search under Fourth Amendment case law, and that the room scan was not an effective way of consistently preventing cheating. In short, the student’s privacy interests outweighed the university’s interests in scanning his bedroom.

Implications: Until an appellate court holds otherwise, public post-secondary institutions in Ohio should immediately discontinue room scans for remote testing. In addition, Ohio public school districts should also consider other options for preserving the integrity of any online tests and assessments conducted in students’ homes. Although this decision does include some language suggesting that K-12 students have diminished privacy interests, it is probably best to avoid room scans if at all possible. 

Please do not hesitate to reach out with any questions or concerns related to this decision specifically or student privacy issues in general.  

Miriam Fair is a partner at Walter Haverfield who focuses her practice on education law. She can be reached at mfair@walterhav.com or at 216-619-7861.

July 6, 2022

As another school year ends and planning begins for the fall, below are reminders for you and your district regarding applicable state and federal laws, policies, and funds.

National School Lunch Program

The U.S Department of Agriculture extended the National School Lunch Program (NSLP) Seamless Summer Option to allow all students access to free breakfast and lunch through the 2021-22 school year. This option officially comes to a close on June 30, 2022. The 2022-23 school year will follow the procedures of previous non-pandemic years, and households will need to apply for free and reduced lunches. Notably, it takes approximately 30 days to process these applications. For families who applied during the 2021-22 school year, the first 30 days of lunches will be covered while the application for the new school year is processed.

School Year Start & End Times

This will be the first school year that Ohio Revised Code (ORC) 3327.016 will be in effect, and it will impact planning for the new school year. The code requires community and nonpublic schools to establish start and end times for the school year by April 1 prior to that school year. Districts must develop a transportation plan within 60 days of receiving the information. If the information is submitted after April 1, but before July 1, the district will attempt to provide a transportation plan by August 1. For any eligible student who enrolls after July 1, the district shall develop a transportation plan within 14 business days of receiving a request for transportation services. Additionally, the resolutions of impracticality and offer of payment in lieu of transportation must be passed no later than 30 days prior to the first day of instruction under ORC 3327.02.

Pre-School Special Education

Ohio Administrative Code 3301-51-11 made considerable changes to pre-school special education definitions, licensures, delivery of service, and many other aspects. Although this rule went into effect last school year, the repercussions are still being understood and taken into account. The Ohio Department of Education has created this page for school districts to assist them with resources in the transition. Additionally, revisions to the rule are being considered based on feedback received regarding implementation of the rule during the 2021-22 school year. Changes to the rule could be effective as early as September 2022.

Elementary and Secondary School Emergency Relief (ESSER) Funds

The Elementary and Secondary School Emergency Relief (ESSER) funds are available for expenditure until September 30, 2022. These funds have great flexibility and are often used to off-set academic loss.

Blended Learning Declaration Form

The Blended Learning Declaration Form was due by July 1, 2022 for the 2022-23 school year. Districts that never implemented a blended learning model are the only districts that do not need to fill out this form.

House Bill 99

After signing House Bill 99, Governor DeWine sent a letter to school superintendents to raise awareness about school safety services and resources offered by the state. DeWine further touted his continued school safety initiatives in an effort to reduce violence and enhance mental wellness services for youth.

Dyslexia Requirements & Substitute Teacher Education Requirements

Please review this recent client alert by Walter Haverfield attorney, Lisa Woloszynek, regarding dyslexia requirement changes and the changes in education requirements for substitute teachers for the next two school years.

Walter Haverfield is happy to help with any challenges your district is experiencing. Please contact us below.

Ralph Lusher is an associate at Walter Haverfield who focuses his practice on education law.  He can be reached at rlusher@walterhav.com or 614-246-2269.

July 1, 2022 

In an important decision with far-reaching implications, the United States Supreme Court held that a school district violated a football coach’s First Amendment rights in disciplining him for post-game prayers. The controversial Kennedy v. Bremerton holding represents a departure from the traditional legal approach to prayer in public schools.

The Background: A district coach had a long-standing practice of offering prayers and inspirational speeches at the midway line after a game ended. Sometimes students or other coaches would join him; the extent to which the coach invited or encouraged this was disputed.  Eventually, this situation came to the administration’s attention.  The school district directed the Coach to refrain from any overt actions that could lead a reasonable observer to conclude that the district is endorsing prayer. Following considerable media attention, the opposing team joined the Coach’s next post-game prayer, along with members of the public. The administration directed the Coach to refrain from demonstrative, overt conduct that either interferes with his duties or risks the perception that the district is endorsing prayer. The next several games were followed by the Coach praying while players from the opposing team, community members, and state representatives joined him on the field. Several parents reached out to the district to report that their children participated in previous prayers to avoid separating themselves from the team. Other coaches eventually resigned or did not reapply, citing fear of attacks due to the Coach’s media appearances and the ensuing threats. The school district placed the Coach on administrative leave and he was not recommended for rehiring the following year. The Coach sued, but both the trial court and the appellate court held in the school district’s favor, finding that the district acted appropriately to avoid an Establishment Clause claim.

The Decision: In a 6-3 decision, the United States Supreme Court reversed the previous decisions, holding that the Coach’s prayer was protected by the First Amendment’s free exercise and free speech provisions.  Specifically, the Court found that Coach prayed briefly and alone, and the school district lacked evidence showing that students were coerced to participate. The Court also noted that coaches were free to attend briefly to personal matters after games and were not required to fulfill any job responsibilities at that time. Thus, the Court concluded, the Coach’s prayer did not reflect government speech and the school district improperly disciplined him for his private speech. Finally, the school district’s fear of violating the Establishment Clause by tolerating the coach’s prayer was ill-founded and did not justify the discipline either.

The Implications: School districts and public universities will need to proceed with caution in addressing employee prayer and other religious activity.  Restricting a staff member’s worship or other religious practice may require the employer to show that students were coerced into some level of participation. Examples could include publicly-broadcast prayers or those recited to a captive audience.  In some situations, it may be appropriate to consider collateral violations of an institution’s policies or guidelines, but consulting with counsel before taking any disciplinary steps will be especially essential. Please do not hesitate to contact us should you need any guidance in addressing staff religious conduct in your school district or university.

If you have questions, please know that we are happy to help with any challenges your district may be experiencing.

Miriam Fair is a partner at Walter Haverfield who focuses her practice on education law. She can be reached at mfair@walterhav.com or at 216-619-7861.

June 27, 2022

On Friday June 24, 2022, Ohio Governor DeWine signed House Bill 583.  This bill extends the authorization for Ohio schools to employ substitute teachers according to their own established education-level requirements through the 2023-2024 school year.  It also addresses some budgetary issues and requires the Superintendent of Public Instruction to establish and administer a program to provide tutoring and remedial education services to students in participating public and chartered nonpublic schools.  Importantly, House Bill 583 also modifies key dyslexia requirements and deadlines for school districts that were set to start with the 2022-2023 school year.

The dyslexia requirement changes include:

• Removes “multi-sensory” from the statutory references to multi-sensory structured literacy program”;
• Specifies that art, music and physical education teachers are not required to receive professional development in dyslexia intervention, but authorizes school districts to require their employees to go through additional professional development if the district desires;
• Clarifies that districts must only comply with provisions in the Dyslexia Guidebook that are statutorily required; and
• A delay for the screening requirements of K-3 students until the 2023-24 school year, but allows districts to start screening students earlier.

While House Bill 583 temporarily relieves school districts of some of the dyslexia requirements, the new dyslexia obligations will still require attention during the 2022-2023 school year.  Several requirements for the 2022-2023 school year remain unchanged.

If you have questions, please know that we are happy to help with any challenges your district may be experiencing.

Lisa Woloszynek is an associate at Walter | Haverfield who focuses her practice on education law. She can be reached at lwoloszynek@walterhav.com and at 216-619-7835.

June 24, 2022 

The U.S. Department of Education (Department) has released proposed changes to the regulations implementing Title IX of the Education Amendments of 1972 (Title IX).  These proposals follow the Department’s executively ordered review of its Title IX regulations that were previously revised during the Trump administration. The proposed regulation changes are reportedly intended to “better align the Title IX regulatory requirements with Title IX’s nondiscrimination mandate, and to clarify the scope and application of Title IX and the obligation of all schools, including elementary schools, secondary schools, postsecondary institutions, and other recipients that receive Federal financial assistance from the Department … to provide an educational environment free from discrimination on the basis of sex, including through responding to incidents of sex discrimination.”

The proposed changes would alter the allegations covered under Title IX.  The proposed regulations would:

• Cover harassment that creates a hostile environment by unwelcome sex-based conduct that is so sufficiently severe or pervasive that it denies or limits an individual’s ability to participate in or benefit from the education program/activity.  This change would expand the analysis from whether conduct is “objectively offensive” and effectively denies participation in a program or activity to an assessment based on the totality of the circumstances as evaluated subjectively and objectively.
• Expand off-campus conduct that is actionable under Title IX to include conduct that occurs off-campus when the respondent is a representative of the school or otherwise engaged in conduct under the school’s disciplinary authority.  This would include conduct that occurs outside the United States, which is excluded under the current regulations.
• Add requirements for a school to take prompt and effective action to end any prohibited sex discrimination that has occurred in its program or activity, prevent its reoccurrence, and remedy its effect.  This is an expansion beyond the current response required when a school has “actual knowledge” of the harassment.

The proposed regulations also provide schools with some autonomy in developing response/grievance procedures, but with some notable proposed requirements that impact K-12 schools, including:

• Monitoring and addressing barriers to reporting potential sex discrimination, which include notice and training requirements for students and employees regarding reporting obligations, the role of a school’s confidential employees, and complaint and grievance procedures.
• Mandating specific steps that the Title IX Coordinator must take upon notification of potential sex discrimination. Specifically, the Title IX Coordinator must: treat complainants and respondents equitably, provide proper notification, use expanded supportive measures, determine whether to initiate a complaint, initiate grievance procedures, and take prompt and effective steps to ensure sex discrimination does not continue or reoccur.
• Application of grievance procedures to all complaints of sex discrimination that take into account the age, maturity, and level of independence of students in various educational settings, the particular contexts of employees and third parties, and ensure that procedures include basic requirements for fairness and reliability for all parties.  The proposed regulations include procedures that give the parties an equal opportunity to present relevant evidence and respond to the evidence; decision maker’s objective evaluation of evidence; and a process to assess the credibility of parties and witnesses through live questions by the decision maker (although a live hearing would not be required, nor would cross-examination by the parties).
• Ensuring that Title IX Coordinators, investigators, decision makers, and facilitators of an informal resolution do not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent.
• Adapting grievance procedure requirements to address special education requirements.  The proposed regulations specifically define “student with a disability” and acknowledge that Title IX grievance procedures may intersect with the decisions, including those about FAPE, made by the IEP team or Section 504 team.  The proposed regulations would require that if a complainant or respondent is a student with a disability, the Title IX Coordinator must consult with that IEP team or group of persons knowledgeable about the student under Section 504.
• Providing an option for informal resolution to resolve sex discrimination complaints even if a formal complaint has not been filed.

The proposed Title IX regulations specifically address pregnancy and related conditions.  The proposal includes requirements for schools to provide a student with contact information for the Title IX Coordinator and options for modifications to prevent discrimination, including a voluntary leave of absence and access to a clean, private space for lactation.

The Department further clarifies through the proposed Title IX regulations that Title IX’s prohibition on discrimination based on sex applies to discrimination based on sexual orientation and gender identity.  The Department plans to issue a separate notice of proposed rulemaking to address whether and how the Department should amend the Title IX regulations to address students’ eligibility to participate on a particular male or female athletic team.

Once the regulations are published in the Federal Register, they will be available for public comment for 60 days here.

The changes discussed above are proposed changes to the regulations and have not been finalized.  School districts should continue to follow the current Title IX regulations and Board policy in addressing any issues that arise.  Walter Haverfield will provide updates as the proposed regulations proceed through the rulemaking process.

Lisa Woloszynek is an associate at Walter | Haverfield who focuses her practice on education law. She can be reached at lwoloszynek@walterhav.com and at 216-619-7835.

June 13, 2022

On March 14, 2022, Ohio Governor Mike DeWine signed Senate Bill (SB) 215 (commonly referred to as Ohio’s Constitutional Carry Bill) into law. The provisions of SB 215 went into effect June 13, 2022. The new law eliminates the requirement that a concealed handgun licensee must carry the concealed handgun license in order to carry a concealed handgun in Ohio. The new law also provides that a person who is a “qualifying adult” is not required to obtain a concealed handgun license in order to carry a concealed handgun in Ohio that is not a “restricted firearm.”

While SB 215 introduces a new section (2923.111) of the Ohio Revised Code, which further defines the terms, “qualifying adult” and “restricted firearm,” the new law only contains minor changes to the provisions of Ohio Revised Code Section 2923.122, which is the provision of Ohio law that addresses conveyance or possession of firearms in a school safety zone.

The changes made by SB 215 impact school safety zones as follows:

• The new provisions of Section 2923.111 pertaining to a “qualifying adult” being (automatically) deemed to have been issued a valid concealed handgun license (even if such license was not issued) do not apply to conveying or possessing firearms in school safety zones. This means that if an individual is conveying or possessing a firearm in a school safety zone, he/she must have a valid concealed handgun license.
• A concealed handgun licensee is no longer required to actually carry the concealed handgun license when the licensee possesses a firearm in a school safety zone if the firearm is left locked in a motor vehicle.

Ohio Revised Code Section 2923.122 continues to generally prohibit the conveyance of firearms in school safety zones.

If you have changes regarding the impact of SB 215, Walter Haverfield’s education attorneys are available to help.

Lisa Burleson is a partner at Walter | Haverfield who focuses her practice on education law. She can be reached at lburleson@walterhav.com and at 614-246-2156.

June 13, 2022

On June 13, 2022, Ohio Governor Mike DeWine signed House Bill 99 (HB 99) into law, which allows an employee of a school district to voluntarily be armed within the employing district’s school safety zone. The law will become effective on September 12, 2022.

The new law expressly states the intent was to overrule the Ohio Supreme Court’s decision in Gabbard v. Madison Local School Dist. Bd. of Edn. Gabbard involved a district policy allowing school staff to obtain a concealed carry permit and, based on the permit, be armed in the school safety zone.  Parents challenged the policy, and the case eventually reached the Ohio Supreme Court.  The Court sided with the parents citing the requirement set forth in the Ohio Revised Code that only individuals trained to be peace officers were permitted to be armed in a school zone.

HB 99 permits boards of education to authorize individuals to voluntarily be armed in a school safety zone if certain conditions are met. School employees seeking authorization to be armed in a school safety zone must complete, at a minimum, an initial training that does not exceed 24 hours that includes the following:

• Training in mitigation techniques
• Communications capabilities and collaboration techniques
• Neutralization of potential threats and active shooters
• Accountability
• Reunification
• Psychology of critical incidents
• De-escalation techniques
• Crisis intervention
• Trauma and first aid care
• The history and pattern of school shootings
• Tactics of responding to critical incidents in schools

A re-qualification training that does not exceed eight hours is required on an annual basis.   Boards of education are permitted to require additional training.  School employees authorized to be armed on school property must submit to an annual criminal records check. If a board of education authorizes individuals to be armed on school property, the board must notify the public, in whatever manner is typically used for communication, that one or more persons have been authorized to be armed within that district.  Further, under HB 99, records pertaining to individuals who have completed the necessary training to convey deadly weapons or dangerous ordinance in a school safety zone are not public records pursuant to ORC 149.43. Finally, if a board of education authorizes an individual to convey deadly weapons or dangerous ordnance into a school safety zone, the board must pay all fees associated with the training the individual receives.

HB 99 also creates the Ohio School Safety and Crisis Center (OSSCC) as well as an Ohio Mobile Training Team, both of which are to be administered through the Ohio Department of Public Safety (ODPS). The Ohio Mobile Training Team will operate the OSSCC and provide services regarding safety and security for public and non-public schools.   The chief mobile training officer, as hired by the ODPS, must oversee the mobile training team, which will be composed of 16 regional mobile training officers. The mobile training team is charged with developing curriculum and providing instruction and training, including firearms training, to school employees seeking to satisfy the training requirements for being armed in a school safety zone.  The regional mobile training officers will also promote the use of the SaferOH tip line, and upon request, assist schools with other safety measures, emergency planning, and strategic communications.

Boards of education considering authorizing school employees to be armed on school property should consider liability issues that could arise based on a staff member’s actions with an authorized weapon. Scenarios to consider include the following:

• A staff member negligently leaving the weapon accessible to students or other unauthorized persons
• A staff member’s accidental (or uncalled for) discharge of the weapon
• A staff member’s use of the weapon in a situation that did not require the use or threat of deadly force (e.g., to break up a fight)
• Injuries resulting from the (rightful or wrongful) discharge of the weapon.

Prior to making a decision regarding authorizing staff members to be armed on school property, boards of education are encouraged to consult with the district’s liability insurance carrier to discuss the possible ramifications.

If you have questions, please reach out (contact information is below). We are happy to help with any challenges your district may be experiencing.

Ralph Lusher is an associate at Walter | Haverfield who focuses his practice on education law. He can be reached at rlusher@walterhav.com and at 614-246-2269.

May 16, 2022

As the current school year comes to a close, Ohio’s State Board of Education has approved the Ohio Dyslexia Committee’s Ohio Dyslexia Guidebook. This guidebook stems from the requirements in House Bill 436.

Initial school district obligations for the 2022-2023 school year include:

• Annual dyslexia screenings: Tier I screenings must be used to identify each student at risk of dyslexia There are also requirements to screen some transfer students who enter the school district mid-year. The review process for the list of screeners approved by the Ohio Department of Education is not yet complete; however, basic criteria can be found in the Ohio Dyslexia Guidebook
• Student progress monitoring: Districts must institute progress monitoring for students who are identified as at risk for dyslexia at certain intervals for at least six weeks. Tier II screenings are required for at-risk students who do not show significant progress toward attaining grade-level reading and writing skills by the sixth week after the student is identified as at risk.
• Parent reporting obligations: Parents whose children are identified as at risk based on the results of Tier I and Tier II screenings must be notified by the school district.
• Teacher certification process: Districts must establish a multi-sensory structured literacy certification process for teachers that aligns with the Ohio Dyslexia Guidebook.
• Professional development requirement: Educators who provide instruction in kindergarten through first grade, including special education teachers, must obtain professional development in dyslexia instruction (additional grade levels will be phased in over the 2023-2024 and 2024-2025 school years).

As school districts ramp up strategic plans for the 2022-2023 school year, the new dyslexia obligations will require attention. School districts will have the school year to get these initial obligations up and running.

If you have questions, please reach out (contact information is below). We are happy to help with any challenges your district may be experiencing.

Lisa Woloszynek is an associate at Walter | Haverfield who focuses her practice on education law. She can be reached at lwoloszynek@walterhav.com and at 216-619-7835.

April 21, 2022 

Since 1976, Ohio law has allowed school districts to file complaints with county boards of revision when they believe properties are undervalued. The law also gave school districts meaningful opportunities to contest attempts by property owners to lower their property values. All of that changes now with Governor DeWine signing controversial House Bill 126 into law.

The law brings about sweeping changes to property valuation appeals. Beginning with the 2022-2023 tax year, school districts will be hamstringed when it comes to scrutinizing requests brought by commercial property owners to lower their property values. Worsening matters, HB 126 also constrains school districts by restricting their ability to file original complaints that could counter efforts to erode a district’s tax base. School districts will also be shouldering new administrative burdens as they proceed in the board of revision process.

Some of the changes in HB 126 include the following:

• School districts are prohibited from appealing county board of revision decisions to the Ohio Board of Tax Appeals.
• Districts can only initiate property value complaints after a property was sold in the year before the tax year for which the complaint was filed and when the property’s sale price is $500,000 and at least 10% percent more than the county auditor’s value.
• School boards must pass resolutions for each parcel to be filed on and issue notice to the owner’s tax address and mailing address.
• School boards must notify property owners at least seven days before they intend to vote on a resolution authorizing a valuation challenge.
• School districts cannot file complaints on residential and agricultural lands.
• School districts are no longer automatically notified by the county of complaints filed by property owners. Yet the law still requires that district counter-complaints be filed within 30 days of the date the owner files the original complaint. In contrast, property owners will still receive notice of district-initiated complaints and have 30 days from receiving the notice to file counter-complaints.
• Prohibits school districts from participating in private-pay settlement agreements.

While commercial property owners reap the benefits, it is expected that school districts and residential property owners will need to shoulder the burdens that come with off-setting the losses. District treasurers will need to re-group to determine a strategic approach to tackle the effects. No doubt having a presence at board of revision proceedings will be helpful to observe how proceedings unfold and to ensure valuation changes remain open and fair. Attorneys at Walter | Haverfield are here to assist and advise on new approaches to overcome obstacles brought on by HB 126. HB 126 is available here for review.

Peter Zawadski is a partner at Walter | Haverfield who focuses his practice on education law and labor and employment law. He can be reached at pzawadski@walterhav.com or at 216-928-2920.

March 29, 2022

In Houston Community College v. Wilson, a unanimous Supreme Court held on March 24, 2022 that no First Amendment rights are abridged when a board verbally censures one of its own members.

Wilson, an elected member of a community college board of trustees, challenged his board’s decisions by filing various lawsuits against the entity and its other members.  Eventually, the board adopted a public resolution censuring Wilson, imposing certain penalties, and recommending he complete training in governance and ethics. The resolution stated that Wilson’s conduct was not consistent with the best interests of the college and was not only inappropriate, but also reprehensible.  Thereafter, Wilson amended his complaint to include a First Amendment claim against the board for issuing the verbal censure. Whereas the trial court dismissed this claim, the Fifth Circuit of Appeals reversed, concluding that reprimanding an elected official for speech addressing a matter of public concern can violate the First Amendment. In other words, the Court of Appeals held that the board’s verbal reprimand may have been a retaliatory act against Wilson and violated his free speech rights.

The United States Supreme Court disagreed.  In a unanimous opinion, authored by Justice Gorsuch, the Court first recited America’s long history of assemblies censuring their own members. These censures included not only Congressional reprimands to Senators or Representatives, but also censures issued by state and local bodies. The Court held that a verbal reprimand by itself does not constitute adverse action for retaliation under the First Amendment.  The Court also noted that elected officials are expected to shoulder criticism about their public service and to continue exercising their free speech rights despite such criticism.  Finally, the Court emphasized that the verbal reprimand reflected the exercise of free speech rights by the remaining board members, rights no less important than the one Wilson claimed. Because the censure did not exclude Wilson from any privilege of office or prevent him from doing his job, it could not constitute retaliation under the First Amendment.

Notably, however, the Court only considered a verbal censure of an elected official by members of the same body. This ruling cannot be generalized to circumstances where a verbal censure is accompanied by other punitive actions or where the censured individual is an employee or student. Nevertheless, this Supreme Court decision may be helpful as school boards and university boards of trustees consider their options in addressing internal conflict. If your school district or university is facing challenges in deciding how to resolve similar concerns, please do not hesitate to contact us for further assistance.

Miriam Fair is an attorney at Walter | Haverfield who focuses her practice on education law. She can be reached at mfair@walterhav.com or at 216-619-7861.