The U.S. Department of Education’s Office for Civil Rights (OCR) has launched an initiative to make more websites and online programs accessible for individuals with disabilities. OCR will offer technical assistance and design suggestions via a series of webinars to schools, districts, state education agencies, libraries, colleges and universities. The webinars are intended for IT professionals. Vendors are encouraged to attend as well.
The first webinar will be offered on the following dates:
May 29, 2018 at 1 pm EDT
June 5, 2018 at 1 pm EDT
June 12, 2018 at 1 pm EDT
If you interested in participating in any of the webinars, email the OCR here. In the email, include your name, preferred webinar date, contact information and whether you have accessibility needs.
OCR is also available to host personalized interactive webinars with individual recipients. If you are interested in a personalized session, email the OCR here.
Dates for future webinars will be posted. Any additional information can be found on OCR’s website.
Christina Peer is chair of the education group at Walter ǀ Haverfield. She routinely counsels school districts on state and federal laws related to students with disabilities. She also provides counsel to boards of education on student discipline, collective bargaining agreements, First Amendment, public records requests and social media issues.andnbsp; Christina can be reached at firstname.lastname@example.org or at 216-928-2918.
With the prevalence of smartphones and social media, school districts are growing increasingly wary over the ability of students to record what happens in school. And some courts are sharing that same concern, as demonstrated in a recent decision. It’s a decision that involves a novel attempt by parents to obtain a recording device as an accommodation under the Americans with Disabilities Act (ADA) to record everything said throughout the school day.
In Pollack v. Regional School Unit 75, No. 17-1700 (1st Cir. Mar. 26, 2018), parents in Maine gave their son an audio recording device to carry while at school. Their son is autistic and has a severe and rare neurological syndrome which limits his ability to process language and prevents him from speaking. The parents argued that they needed to record everything that was said in their child’s presence so they can learn about his experiences at school, and in turn, advocate for him when necessary. After all, unlike other students, their son was unable to answer the question that many parents ask their children every day: What happened at school today?
After the school district refused the request, the parents filed suit in federal court alleging a violation of the ADA for failure to provide a reasonable accommodation. The primary issue: whether the school district denied the student “the benefits of [its] services, programs, or activities” or otherwise discriminated against him when it rejected the parents’ request to equip their son with a recording device. The lower court ruled that the district did not violate the student’s rights under the ADA by denying his parents’ request for the device.
The legal decision involved extensive procedural analysis, including an Individuals with Disabilities Education Act (IDEA) component. (The administrative hearing officer found that the school district did provide the student with a free appropriate public education (FAPE) and the recording device provided the student with no demonstrable benefit.) Ultimately, however, the appeals court agreed with the lower court.
The court observed that the student had over 12 years in school without a recording device, yet he “has been happy, has loved school, and has made continuous and significant progress.” In addition, district staff testified that the device would not support the student’s education. And it may actually hinder it by increasing his isolation after making staff and peers uncomfortable. But most telling was the parent’s inability to answer the court’s question of “what exactly were the parents going to do with the 4 or 5 hours of recordings each evening?”
The court noted that one of the requirements of an ADA accommodation claim involves showing the “effectiveness” of the proposed accommodation. Specifically, does the proposed accommodation offer a benefit in the form of increased access to a public service? The court concluded the parents failed to show that the recording device would provide the student with a demonstrable benefit, and thus, the parents were unable to prove a necessary element of an ADA claim.
The ability to record is nothing new, but the means to go about it is more sophisticated than ever. Because Ohio is a “one-party consent” state, a student may not always need to ask permission to record. But if you are facing an attempt by parents, students or even employees to record conversations, legal counsel may be necessary to explain the nuances.
Peter Zawadski is an attorney at Walter | Haverfield who focuses his practice on education law as well as labor and employment matters. He can be reached at email@example.com and at 216-928-2920.
The Family Policy Compliance Office (“FPCO”) now offers school districts a tentative framework for responding to parents’ requests for videos. Often such footage – a security video of a cafeteria fight, for example – includes images of multiple students, which may all be individually protected by FERPA, the Family Educational Rights and Privacy Act. For years, school districts struggled with how to handle such requests, what to release, to whom, and what to redact, if anything.
The FPCO’s long-awaited guidance document (Letter to Wachter) describes a school district that received a records request for video footage of a hazing incident. The incident involved six perpetrators and two victims. The request came from a parent of a perpetrator, but the district noted that it did not have the resources to redact other students’ images. The FPCO explained that the video footage was an educational record for both the victims and the perpetrators, but would not be considered a record for bystanders who were not involved in the incident. Further, the FPCO explained that if redaction was impossible or would destroy the record’s meaning, the district may allow the parent to inspect and review the video, even if other students are pictured. Notably, FERPA requires districts to allow parents (or eligible students) the opportunity to inspect and review the record, but does not require – in most circumstances – districts to provide parents with a copy.
In determining whether to release video footage depicting multiple students, districts can begin by considering the following questions:
- Is the video footage an educational record for any student? If not, FERPA does not apply.
- If the video is an educational record of multiple students, will parents of the other students featured in the footage consent in writing to the release of the unredacted educational record? If they would, this may be the simplest way to comply with FERPA requirements.
- Is it possible to redact the video footage so as to conceal the other students’ identity but also maintain the record’s meaning? If not, the district may allow parents to view the unredacted record even if other students are pictured.
- Must the district provide a copy of the video to the requesting parent? Districts are not obligated to provide copies unless requiring parents to come in and review the video effectively prevents them from accessing the record. This might occur if a parent lives far away or is disabled.
Although the FPCO guidance is informative, it remains unclear how these directives will interact with other statutes affecting student records, including Ohio’s Sunshine Laws. Issues related to the release of video footage that contains student images are extremely fact specific, and the information in this alert is intended to provide general guidance. School districts should work directly with legal counsel regarding specific situations.
Miriam Pearlmutter is an attorney at Walter | Haverfield who focuses her practice on education law. She can be reached at firstname.lastname@example.org or at 216-619-7861.
Tragedy. Loss. Sorrow. Debate. Passion. Protest.
The devastating school shooting at Marjory Stoneman Douglas High School in Parkland, Florida has spawned national (and often contentious) debates across the country. Students, school staff members, parents and community groups are front-and-center in this ongoing conversation and are voicing their concerns. As a result, school districts, post-Parkland, have witnessed a tidal wave of student and employee protests in and beyond the classroom. These protests vary in form, size and character. They range from local and national walkouts (such as National School Walkout Day and the March for Our Lives event), administrative office walk-ins, “die-ins,” marches, rallies and social media campaigns to school-structured debates, moments of silence, clothing or insignia support campaigns, and student listening sessions.
For districts, the rising tide of school protests poses complex legal considerations and potential legal risks. Of key importance is the omnipresent and often difficult-to-navigate tension between student free speech rights (including the right to protest, under the First Amendment to the U.S. Constitution) and the need for districts to maintain order and discipline in schools. Moreover, as teachers and other school employees have joined students in the growing protest movement (and, in certain cases, have even coerced student participation in school protests), districts are increasingly faced with the challenge of balancing the managerial right to oversee and regulate employee conduct with the First Amendment right of such employees to speak as private citizens on matters of public concern. Further complicating these legal issues is the explosive use of social media by students and staff to organize and promote protests as well as the effects that off-campus speech has on school grounds.
School protests present many complex legal questions. By way of example, school districts should be on the lookout for and seek assistance with how best to handle the following issues:
- When and to what extent is a district permitted to regulate student and/or school employee protests?
- Can the district discipline students who protest? If so, does the school’s ability to discipline students change when the protest is silent (as in the case of wearing colors or insignia in support of a cause) as opposed to one that is operationally disruptive (such as unscheduled walkouts, walk-ins or rallies)?
- If the district restricts or allows only certain student perspectives to be voiced in debates, does the school run the risk of claims involving viewpoint discrimination in violation of the First Amendment?
- Do students who participate in walkouts or leave class to protest pose truancy and other attendance concerns? If so, how should the school district address these attendance issues without violating students’ free speech rights?
- Can employees promote, organize or participate in student protests, or does such conduct run the risk of coercing student speech?
- Can school districts discipline students or employees for off-campus comments or regulate posts made on social media off school grounds that relate to the ongoing, post-Parkland debate?
While the answers to the above questions are largely driven by the facts of the situation, districts should keep in mind these general principles when looking to address student or employee conduct:
- Because these issues implicate an individual’s First Amendment rights, districts must first consider whether the speech or conduct at issue addresses a matter of public concern.
- For students, the district should consider whether the conduct is actually disruptive to the educational environment and, if so, to what degree. Districts should also consider whether there are any violations of the student code of conduct arising from the speech or conduct.
- For employee conduct, districts should look to collective bargaining agreements and board policy to determine whether the conduct potentially violates any applicable provisions contained in those documents.
- For speech and activities that occur on an employee or student’s personal time (e.g. off-campus conduct or social media), districts should consider whether the conduct actually impacts or disrupts the school environment.
- If there is a potential violation of policy, districts should also consider whether that violation is enforceable in the specific situation, given the likely interplay of student or employee constitutional rights.
The Parkland school shooting is, above all else, an indescribable tragedy. Nonetheless, the resulting school protests present complicated legal questions that districts must be prepared to handle. School districts are therefore encouraged to contact their legal counsel if they are faced with these issues.
While often underreported, statistics of student-to-student sexual harassment are troubling. According to research from the American Association of University Women, approximately half of students in grades seven to 12 reported experiencing some form of sexual harassment in the 2010-2011 school year. Likewise, the United States Department of Education’s Office for Civil Rights recently reported a substantial increase in the number of sexual violence-related complaints that it received from the elementary and secondary education levels. These reports of student-to-student sexual harassment are rapidly transferring the focus of #MeToo from Tinsel Town to the classroom.
Indeed, school-based sexual harassment internet hashtags are on the rise. And that helps give students the opportunity to voice claims of sexual harassment and violence against teachers and staff as well as peers. For example, stories of student-to-student sexual harassment are proliferating at a feverish rate under the #MeTooK12 hashtag, which was developed by Stop Sexual Assault in Schools, a non-profit organization that focuses on schools’ gender discrimination responsibilities pursuant to Title IX of the Education Amendments Act of 1972. Other groups, such as Sexuality Information and Education Council of the United States, created the #teachthem hashtag. #Teachthem advocates comprehensive reform of sex education programs in schools, with a particular focus on teaching consent. As a consequence of these trends, school districts need to understand #MeToo and be acutely aware of the obligations the movement places on them under the law.
Although not exhaustive, schools should be on the look-out for the following legal and policy considerations related to #MeToo in their districts:
- How to respond to calls to change sex education programs, whether informally through parents, students, and/or community members and organizations or through formal government legislation, which focuses on teaching consent and healthy relationships
- Obligations of school districts to investigate, report and remedy student-to-student sexual harassment and violence as well as distinguish bullying from sexual harassment and violence under district sexual harassment policies
- Responsibilities under Title IX to address and remedy alleged violations of gender discrimination as well as allegations of sexual harassment and violence, whether student-to-student or staff-to-student
- Student First Amendment free speech rights that call attention to #MeToo or #MeTooK12 as well as balancing these protected rights against the districts’ need to maintain discipline and order in school.
Above all else, #MeToo presents complicated legal questions for schools. Districts are therefore encouraged to contact their attorneys immediately if #MeToo or related sexual harassment issues arise in (and possibly beyond) their classrooms. Finally, while the focus of this alert has been on student sexual harassment issues, schools should also be mindful of their obligations to protect staff members against sexual harassment.
Fueled by her love of podcasts and her passion for education law, Walter | Haverfield attorney Miriam Pearlmutter started her own podcast for school administrators and teachers. Her colleague, Lisa Woloszynek joined in as her co-host. Cleveland Jewish News recently took notice, profiling Miriam and her increasingly popular podcast, Class Act: Updates in Education Law.
In an about-face move, a federal court took a surprise stance in a recent education case (Crofts v. Issaquah School District), which may put teachers and administrators across the country at a disadvantage and give parents the upper hand.
The U.S. District Court for the Western Division of Washington state concluded that parents may be allowed to sue public school employees individually in cases that involve violations of the Individuals with Disabilities Education Act (IDEA). IDEA requires that students with a disability are provided a free, appropriate public education that allows them to receive meaningful educational benefit commensurate with their individual circumstances.
Prior to the court’s decision, a number of other district and appellate courts ruled otherwise, stating that individual defendants cannot be held personally liable in lawsuits that invoke the IDEA.
In the Crofts case, Layna Crofts and Jeremy Sanders are suing their daughter’s school district, claiming it violated the IDEA. They are also suing the superintendent as well as the district’s executive director for special services. Among other issues, Crofts and Sanders argued that the district did not properly test their daughter (who they say has dyslexia) in response to her suspected disability.
The superintendent and executive director disputed the plaintiffs’ move to sue them in their individual capacity, arguing that it is impermissible. The court, however, denied their motion, stating the absence of any legal precedent from the 9th Circuit. The 2007 9th Circuit case of Blanchard v. Morton School District raised the issue of individual liability, but the court did not rule on the issue.
Regardless of the 9th Circuit decisions, a majority of other circuit courts around the country have concluded that monetary relief of any kind for violating IDEA is not permissible. In most jurisdictions, the only relief allowed is from the school district in the form of compensatory education, tuition reimbursement, attorneys’ fees, reimbursement for an Independent Education Evaluation (IEE), and/or compliance with an order from a hearing officer or court.
As the Crofts case continues in district court, it’s still unclear whether the judge will definitively rule in the parents’ favor and allow them to sue the superintendent and the executive director. If that happens, the case could impact public school employees, parents and students in future IDEA cases in ways not previously anticipated. It must be noted, however, that this case and the judge’s ultimate decision are not binding law in Ohio.
Kathryn Perrico is an attorney in Walter | Haverfield’s Education Law group. She focuses on special education law, school law and labor and employment. Kathryn can be reached at email@example.com or at 216-928-2948.
When Ohio updated its truancy law in 2017, the move required schools to emphasize prevention over punishment. Lawmakers shifted the focus from court proceedings to intervention strategies in schools, hoping students will return to the classroom and face a better chance for academic success. In the process, the juvenile justice system can reduce its caseload and focus on more serious matters.
students solely on truancy. This includes enforcement of zero-tolerance policies. Instead, schools must utilize absence intervention strategies to assist habitually truant or excessively absent students. One strategy is the formation of an absence intervention team. These teams identify root causes, such as transportation, nutrition and family issues, then develop a corrective action plan for the student and family. According to the law, intervention teams should be formed based on the specific needs of each student. They should include at least two school representatives, one of whom is familiar with the student, as well as a parent or guardian. Several attempts should be made to engage both the student and parent in the intervention process.
The approach is straightforward, but students with disabilities pose a separate set of challenges. Some students might have legitimate reasons for missing class and still be considered excessively absent, such as those who are medically unable to attend. Ohio’s new truancy law provides no exemptions for disability-related absences. Schools must follow the required intervention procedures in all circumstances.
For students with disabilities, districts must consider the student’s disability when addressing absences. If an intervention team is utilized, it should attempt to determine if absences are disability related, and if so, consider alternative educational options such as home instruction or online learning opportunities. Districts should be careful not to assume that a student intentionally misses school without considering all of the information available – including information from medical and/or mental health providers, parents and feedback from teachers.
When addressing absences of students with disabilities, school districts must be cognizant of their obligation to provide a free, appropriate public education (FAPE) to the student – whether the student is eligible under the Individuals with Disabilities Education Act (IDEA) or Section 504 of the Rehabilitation Act of 1973. Districts must ensure that the services they are providing offer the student a FAPE. Teams must make individualized decisions and not utilize a “one size fits all” approach to serving students with disabilities who have chronic, disability-related attendance issues.
Because Ohio’s new truancy law does not include any exceptions for students with disabilities, schools must follow the new law without discriminating against students with disabilities. When contacting parents of excessively absent students with disabilities, schools should explain to parents that, although the student’s absences are disability-related, the district is obligated to provide attendance interventions to comply with Ohio law. Districts should also be careful to apply Ohio’s new truancy law in all situations of habitually truant or excessively absent students. This evenhanded approach complies with the law while also eliminating discriminatory decision-making practices.
All districts and community schools in Ohio should review their policies and determine if changes are needed to satisfy the new law.
Definitions and Guidelines
The term chronic truancy has been removed from Ohio law and should no longer be included in a district’s policies and procedures. This includes zero-tolerance policies.
Excessive absences occur with or without legitimate excuses. This is now defined by at least 38 hours per month or 65 hours within a school year. These limits trigger the district’s intervention plan for any student, including disability or medically-related absences. The district must notify parents in writing within seven days of the triggering absence.
A habitual truant student is absent without a legitimate excuse for at least 30 consecutive hours; 42 hours per month; or 72 hours in a school year. This triggers the formation of an absence intervention team within seven days of the triggering event, and the development of an action plan 14 days thereafter. The school must make three attempts to engage a parent or guardian in the process.
Christina Peer is the education chair of Walter ǀ Haverfield. She provides counsel to boards of education on student discipline, collective bargaining, employee grievances and employee evaluations, among other matters. Christina counsels on state and federal laws related to students with disabilities, and she routinely trains teachers and administrators on special education issues. For more information contact Christina at 216-928-2918 or at firstname.lastname@example.org.
James McWeeney is an attorney in Walter | Haverfield’s Education Law practice group. He advises clients on First Amendment issues specific to school districts, labor and employment matters, contract disputes, public record request compliance and policy drafting. James can be reached at 216-928-2959 or at email@example.com.
The Ohio History Connection (previously the Ohio Historical Society) has just released an updated suggested record retention schedule for school districts. The template for this schedule can be accessed here.
School districts are not required to adopt new record retention schedules simply because an update has been released. However, the updated suggested schedule is significantly more detailed than the previous guidance provided by the Ohio History Connection. This level of detail, and the effort to better align the names and categories of records with those generated by school districts, should prove helpful to districts.
School districts are encouraged to review their current record retention schedule as well as the updated schedule. According to the Ohio History Connection, the retention periods on the schedule are required by statute or have been determined by best practice. However, each school district’s local records commission should review the suggested retention periods carefully with legal counsel to determine whether any adjustments should be made. The suggested retention periods can be edited based on the administrative, fiscal, legal and historical value of the records as determined by the commission. Additionally, school districts should note that a new record retention schedule will not be in effect until it is adopted and signed by the commission as well as by a representative from the state archives and the Ohio Auditor of State’s office. Finally, school districts should review their board policies to ensure that the policy is in alignment with the record retention schedule adopted by the commission.
It was the night of February 2, 2017 – a night that ended in tragedy for Tim Piazza. And it all started with alcohol at a Pennsylvania State University fraternity where Piazza was a pledge. Two days later, after prosecutors in the case say Piazza drank excessively at the fraternity during a hazing ritual, then tumbled down a flight of stairs, the sophomore engineering student died.
Hazing is at the core of Piazza’s case. It’s also the focus of similar cases at Louisiana State University and Florida State University, where two pledges have died this school year. In the Louisiana State case, eight fraternity brothers and two others face charges related to the death of 18-year-old Maxwell Gruver. Police say the suspects forced the Louisiana State freshman to drink himself to death.
And here in Ohio, hazing is why the Ohio State University terminated its band director three years ago. The former director sued, but later withdrew his case.
Hazing is defined as coercing another to do an act of initiation into an organization, which causes or creates a substantial risk of mental or physical harm to any person.
And statistics indicate that it may be more common than we think. According to the National Study of Student Hazing, 47% of high school students come to college already having experienced hazing. 55% of college students who participate in clubs, teams and organizations have witnessed the problem or become a victim.
Ohio is one of 44 states that has an anti-hazing law, which includes both civil and criminal statutes.
The state’s criminal statute states that no person may recklessly participate in hazing of another, and that no school administrator, teacher or employee may recklessly allow hazing to occur. Violation of the law is a fourth-degree misdemeanor, punishable by a jail term of up to 30 days and a fine of up to $250.
Ohio’s civil statute allows a victim to file suit against the perpetrators, the organization whose officials tolerated or authorized the hazing, or the officials themselves. The victim is permitted to seek damages for injury as well as mental and physical pain and suffering that results from the act.
While a school may be able to protect itself against any liability by showing that it actively enforced an anti-hazing policy at the time of the incident, a viable defense cannot be made that the plaintiff was negligent in the incident(s) or gave consent to be hazed.
It is highly recommended that boards of education review their anti-hazing policies to ensure that they are detailed enough to address incidents that happen to those who have been actively participating in an organization for some time and become a victim.
It is also important for school administrators to regularly train all teachers and staff on the definition of hazing, the respective state statutes and the district’s policies.
As for Piazza’s case, twelve fraternity brothers, along with the Beta Theta Pi fraternity chapter at Penn State, are now facing multiple charges, including hazing and furnishing alcohol to minors.
In response to the 19-year-old’s death, U.S. Rep. Marcia Fudge (D- OH) and Rep. Patrick Meehan (R-PA) introduced a bill earlier this year that would require universities to include acts of hazing in their annual crime reports required by federal law.
In an article published by the Ohio School Boards Association, in its October 2017 issue of School Management News, Miriam Pearlmutter asserted that school districts attempting to resolve religious conflicts should consider the First Amendment’s Religion Clauses as well as federal and state laws on employee discrimination.
In another controversial move, the Office for Civil Rights (“OCR”) rescinded its previous guidance on sexual violence investigations.
In 2011, OCR issued a “Dear Colleague” letter, requiring universities and school districts to respond to sexual violence accusations with a specific protocol, both for investigations and decision-making. A 2014 question and answer document offered additional details about interim protective measures and confidentiality requirements. Among the more hotly-debated provisions, OCR directed educational institutions to use a “preponderance of the evidence” standard in determining whether the accusation was substantiated. Many universities, in particular, objected to these regulations, some even going so far as to challenge OCR’s noncompliance findings and standard resolution agreements.
On September 22, 2017, OCR rescinded the aforementioned guidance in a brief Dear Colleague letter. Although these previous directives may have been well-intentioned, explained OCR, they “have led to the deprivation of rights for many students – both accused students denied fair process and victims denied an adequate resolution of their complaints.” Asserting that schools faced a confusing and counterproductive set of mandates, OCR withdrew the aforementioned guidance and assured districts that it plans to develop a more fitting approach to sexual misconduct.
On the same day, OCR issued a document entitled “Questions and Answers on Campus Sexual Misconduct,” which provides additional details as to schools’ responsibilities in handling future sexual violence complaints. Citing Supreme Court law and sexual harassment guidance published in 2001, this QandA reiterates school districts’ obligations to respond when a hostile environment threatens a student’s participation. As was previously required, districts must still develop grievance procedures, implement interim measures, and conduct equitable investigations. The QandA, however, emphasizes that neither party should be restricted from discussing the investigation with others, and that both must receive written notice with sufficient details to prepare a response. Further, OCR now allows school districts to opt for informal resolutions – including mediation – provided that both parties voluntarily agree to forgo a full investigation and adjudication. Importantly, school districts may apply either the previous “preponderance of the evidence” standard or a “clear and convincing evidence” standard in reaching their factual conclusions. Finally, schools may allow appeals only for the responding party, if they so choose.
In light of these developments, school districts should review their policies and practices to determine whether any changes or clarifications are needed.
If you have any questions about this news alert, please contact a member of Walter | Haverfield’s Education Law Group.
On September 18, 2017, Christina Henagen Peer and members of Walter | Haverfield’s Education Law Section will be speaking at the “Special Education Legal Update: Session One” (program presented by Walter | Haverfield LLP, in partnership with the Educational Service Center of Cuyahoga County), in Independence, Ohio.
On June 6, 2017, Acting Assistant Secretary for Civil Rights, Candice Jackson, issued instructions to the directors of the regional offices of the U.S. Department of Education’s Office of Civil Rights (OCR) regarding complaints involving transgender students. The instructions come in response to three events that have impacted transgender law in public schools: (1) the withdrawal of two guidance documents by the U.S. Departments of Education and Justice; (2) the dismissal of State of Texas v. United States; and (3) the remand of Gloucester County School Board v. G.G.
On February 22, 2017, the U.S. Departments of Education and Justice issued a letter withdrawing the statements of policy and guidance reflected in the May 13, 2016 “Dear Colleague Letter” (DCL) on the OCR’s enforcement of Title IX with respect to transgender students based on gender identity, as well as a related January 7, 2015 letter. On March 3, 2017, the U.S. District Court for the Northern District of Texas dismissed, without prejudice, State of Texas v. United States, a multi-state lawsuit challenging the May 2016 DCL, and dissolved the preliminary injunction that had restricted OCR’s enforcement of Title IX with respect to transgender individuals’ access to “intimate” facilities such as restrooms. Three days later, the U.S. Supreme Court vacated and remanded Gloucester County School Board v. G.G., a case involving Title IX as it relates to transgender students’ access to restrooms. The Court remanded the case to the U.S. Court of Appeals for the Fourth Circuit for further consideration in light of the letter issued by the Departments withdrawing the May 2016 DCL.
Because of these events, Jackson says that the OCR can no longer rely on the policies set forth in the May 2016 DCL or the January 2015 letter to a private individual as the sole basis for resolving a complaint. However, according to the February 2017 letter, “withdrawal of these guidance documents does not leave students without protections from discrimination, bullying, or harassment.” Instead, the OCR should rely on Title IX regulations, as interpreted in federal court decisions, and OCR guidance documents that remain in effect, in evaluating complaints of sex discrimination against individuals whether or not the individual is transgender. Further, Jackson says that the OCR may still assert subject matter jurisdiction over, and open for investigation, the following allegations if other jurisdictional requirements are met under the OCR’s Case Processing Manual (CPM):
- Failure to promptly and equitably resolve a transgender student’s complaint of sex discrimination.
- Failure to assess whether sexual harassment or gender-based harassment of a transgender student created a hostile environment.
- Failure to take steps reasonably calculated to address sexual or gender-based harassment that creates a hostile environment.
- Retaliation against a transgender student after concerns about possible sex discrimination were brought to the recipient’s attention.
- Different treatment based on sex stereotyping.
In light of the above, the OCR asserts that it will approach each of these types of cases with great care and individualized attention before reaching a dismissal conclusion. OCR has emphasized that withdrawal of the May 2016 and January 2015 guidance documents does not leave students without protections, and the OCR remains committed to investigating all claims of discrimination, bullying and harassment against those who are most vulnerable in schools. However, at the present time, this area of the law remains very unsettled and school districts are cautioned to tread carefully when addressing issues related to the rights of transgender students. School districts should also be cognizant of state and local laws that may impact the rights of transgender students.
Ohio Legislature passed House Bill 410 (H.B. 410) last December after
considering the legislation for over a year. The bill became law on
April 6, 2017. As of April 6, school districts must measure absences in
hours, rather than days, and must adhere to new laws regarding student
discipline. The new law substantially changes the truancy law for the
2017-2018 school year, and requires school districts to prepare and
implement policies that emphasize intervention strategies for
chronically absent students. Significant changes have also been made
with respect to student out-of-school suspensions.
Changes Effective on April 6, 2017
Truancy Terminology and Notice
new law eliminates the concept of “chronic truancy” and instead
categorizes all students with excessive absences as “habitually truant.”
Students are considered habitually truant when the student is absent
for at least:
- 30 consecutive hours without a legitimate excuse (formerly 5 days);
- 42 hours in one month without a legitimate excuse (formerly seven days);
- 72 hours in one school year without a legitimate excuse (formerly 12 days);
- 38 hours in one month regardless of excuse; or
- 65 hours in one school year regardless of excuse.
districts must calculate absences by hours, rather than days, in
conformance with the new definition of habitual truancy. The school
district must send written notification to the parent or legal custodian
of any student who is absent, with or without legitimate excuse, for 38
hours in a month or for 65 hours in a year. The notice must be sent
within seven school days of the absence that triggers the habitual
Make-up Work for Out-of-School Suspensions
a student is suspended for any misconduct, the new law provides that
the school board may, at its discretion, permit the student to complete
any assignments missed due to the suspension.
suspensions for any misconduct may not carry-over to the next school
year, but may be converted into required community service or a similar
alternative consequence. The student must begin the community service or
alternative consequence during the first full week of summer break. If
the student fails to complete his or her service requirements, then the
school district may determine an appropriate next course of action, but
may not require the student to serve the remaining time of the
suspension in the following school year. This change does not impact a
school district’s ability to carry an expulsion forward into the next
Changes for 2017-2018 School Year
on July 1, 2017, a school district may not suspend, expel, or remove a
student solely due to excessive absences, and therefore may no longer
include excessive truancy in its zero tolerance policy.
Truancy Intervention Policy
school district must establish or modify a policy to guide employees in
addressing student absences and the policy must include absence
intervention strategies. Under the new law, the intervention strategy
policy is required for all school districts. The policy should include, as applicable, intervention strategies such as:
- Providing a truancy intervention plan for habitually truant students;
- Providing counseling to habitually truant students;
- Notifying and involving the student’s parent or legal custodian;
- Notifying the department of motor vehicles and county juvenile judge of habitual truancy; and
- Pursing legal action in the juvenile court system under certain circumstances.
the new law, habitually truant students whose absences are unexcused
must be assigned an absence intervention team. However, the law creates
an exception for districts with less than 5% chronic absenteeism as
reported on the district’s most recent state report card– those
districts are not required to assign habitually truant students to an
absence intervention team.
Absence Intervention Plan Team
required, the absence intervention team must consist of, at minimum,
two representatives from the school or district (at least one must know
the child) chosen by the superintendent or chief administrator of the
school, and the child’s parent or legal custodian, unless the parent or
legal custodian refuses to cooperate.
The team must be assigned to
the habitually truant student within ten school days after the
triggering absence. The team is required to develop an intervention plan
tailored to the student within fourteen school days after the team is
assigned. The school district must make reasonable efforts to provide a
written copy of the plan to the student’s parent or legal custodian
within seven school days after the plan is developed. The intervention
plan must explain that the attendance officer is required to file a
complaint with the juvenile court no later than 61 days after the
implementation of the plan if the student fails to comply with the plan.
the school district may choose to enroll the student in an appropriate
juvenile court’s alternative to adjudication instead of convening an
intervention plan team.
in the 2017-2018 school year, the school district must report to the
Department of Education, as soon as practicable, when:
- A student becomes habitually truant;
- A habitually truant student violates a court order; and
- A habitually truant student is provided an absence intervention plan.
the school district must make three good-faith attempts to entice
meaningful parental or custodial involvement in the intervention team
and, if the parent or custodian fails to become involved, the school
district must investigate whether failure to respond triggers mandatory
reporting to the child protective services.
districts should plan ahead for end of the year mischief by developing a
list of alternative consequences that can be imposed in lieu of
carrying suspension days into the following school year. School
districts should also determine consequences for students who fail to
complete the assigned community service of alternative consequence
during the summer of 2017.
School districts can expect a model
policy emphasizing preventive strategies and alternatives to suspension
or expulsion from the Ohio Board of Education no later than July 6,
2017. The new law also requires the Board of Education to develop
absence intervention training materials for teachers and staff no later
than October 6, 2017.
School districts should use the summer to reevaluate or adopt absence policies for the 2017-2018 school year.
Educational podcast provides insights on latest court cases and helps
guide school superintendents and administrators through quickly
changing regulatory landscape
To help school districts stay abreast of the latest court decisions and agency guidance and provide insights on best practices for handling today’s most complex issues, Walter | Haverfield education law attorneys Miriam Pearlmutter and Lisa Woloszynek have launched “Class Act: Updates in Education Law”, a podcast series covering an array of timely issues.
The legal challenges facing schools today are more numerous and complex than ever before. Transgender students, cyberbullying, social media protocols and a significant increase in the needs of special education students are just a few of the many issues facing schools of all sizes in both urban and rural settings. Add to that the rapidly changing rules and government regulations and it’s clear that school officials have more to handle than what already busy schedules can accommodate.
The “Class Act: Updates in Education Law” podcast, which is believed to be the first of its kind specifically targeting school districts, is just one more way that Walter | Haverfield is reaching out to enhance the understanding of the challenges schools face today. Walter | Haverfield’s education law attorneys also provide information to school districts through legal updates presented at a variety of local, statewide and national conferences. The “Class Act: Updates in Education Law” podcast series provides educators an opportunity to get legal updates from the comfort of their offices, homes or cars.
The first topics covered in the Class Act: Updates in Education Law podcast include Section 504 Plans and IEPs, transgender students, and religion in the classroom. “Class Act: Updates in Education Law” is available on iTunes and Stitcher, or you can link to the podcast from Walter | Haverfield’s website at walterhav.com/services/education#podcasts.
In this episode, Miriam and Lisa tackle a sometimes-thorny issue: students’ religious rights and how the First Amendment sometimes collides with school policies and practice. Learn about the law and enjoy a plethora of fascinating cases from all around the country! Can a district require students to cut their hair? Is student-led prayer before football games allowed? What about at graduation? What if a child writes an essay about her faith?
Class Act: Updates in Education Law tackles a fascinating and controversial topic: What does the federal government require of school districts serving transgender students and how did we get here? Lisa and Miriam summarize recent regulations issued by the Office for Civil Rights and discuss some of the more prominent case law, including Gloucester County School Board v. G.G., the famous Virginia case pending before the Supreme Court. We chat about why this topic is so controversial and how school districts across the country are reacting to these developments.
In the second part of our Supreme Court term preview, we explore Endrew F. v. Douglas County Schools, a case that addresses the most fundamental question in special education today: What level of education does a school district have to provide to its IEP students to meet federal FAPE obligations? Is any educational benefit enough to comply with the IDEA or must districts provide meaningful educational benefits to their special education students? And what is a meaningful educational benefit anyway?
In our inaugural episode we talk about Fry v. Napoleon Community Schools, an education law case pending before the Supreme Court this term. What is the difference between IDEA and Section 504? What remedies are available to parents under these laws and how will the Court’s decisions affect school districts? Can parents take claims straight to court and will this circumvent the administrative process?
On March 22, 2017, the United States Supreme Court, in the case of Endrew F. v. Douglas County School District RE-1, created a new standard for determining whether a student with a disability under the Individuals with Disabilities Education Improvement Act (IDEIA) has been provided with a free appropriate public education (FAPE). In Endrew F., the Court was asked to decide the degree of “educational benefit” a child must receive in order for the school district to have provided a FAPE. The lower court in Endrew F. used the “merely more than de minimus” standard that had been adopted by the Tenth Circuit Court of Appeals. The U.S. Supreme Court unanimously rejected this standard and instead held that in order “to meet its substantive obligation under the IDEIA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, No. 15-827, 2017 WL 1066260, at *1 (U.S. Mar. 22, 2017) (emphasis added).
In reaching this decision, the Court reasoned, “[i]t cannot be right that the IDEIA generally contemplates grade-level advancement for children with disabilities who are fully integrated in the regular classroom, but is satisfied with barely more than de minimis progress for children who are not.” Id. at *2. Notably, the Court did not reject or overrule Rowley v. Hendrick Hudson School District, the U.S. Supreme Court case that first established a standard for the provision of FAPE. Rather, the Endrew F. Court noted that Rowley “did not provide concrete guidance with respect to a child who is not fully integrated in the regular classroom and not able to achieve on grade level.” Id. The Court further explained that a child’s IEP need not “aim for grade-level advancement if that is not a reasonable prospect.” Id. However, that child’s “educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom.” Id. The Court went on to state that every child should have the chance to meet challenging objectives.
In setting forth this new standard, the Court rejected the parents’ argument that the IDEIA requires school districts to provide children with disabilities with educational opportunities that are “substantially equal to the opportunities afforded to children without disabilities.” Id. The Court noted that this standard had been rejected by the Supreme Court in Rowley and that Congress has not materially changed the definition of FAPE since Rowley was decided. Consequently, the Court declined to adopt the higher standard advocated by the parents.
The standard adopted by the Endrew F. Court does not create a bright-line rule. Rather, “[t]he adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Id. at *3. This standard appears to be similar to the heightened “meaningful educational benefit” standard, as outlined by the Sixth Circuit Court in Deal v Hamilton County Board of Education. Both Endrew F. and Deal require an analysis of the child’s capabilities and potential for learning to determine the appropriateness of the child’s IEP.
From a practical standpoint, the Endrew F. standard places renewed emphasis on the need for comprehensive evaluations (and reevaluations) of students with disabilities. Without this data, it will be difficult for a school district to demonstrate that a child’s progress is “appropriate in light of the child’s circumstances.” School districts must also continue to be mindful of the requirement that a student’s IEP goals must align with the needs set forth in the evaluation team report. Additionally, districts should continue to ensure that intervention specialists and related service providers collect data in accordance with each student’s IEP and reconvene IEP teams as necessary based on the data collected.
In last week’s high-profile decision, the Supreme Court permitted parents to skip the due process complaint procedures if their claims relate primarily to Section 504 of the Rehabilitation Act of 1973 (“Section 504”), rather than the Individuals with Disabilities Education Improvement Act (“IDEIA”). The IDEIA requires school districts to provide qualifying students with a free appropriate public education (“FAPE”) through specially-designed instruction and related services. Section 504, however, is a more general law prohibiting discrimination and obligating districts to provide equal access to public institutions to all persons with disabilities. In the past, courts have often required dissatisfied parents to exhaust the special education due process procedures, even if their claims related primarily to Section 504, and did not involve FAPE under the IDEIA. In Fry v. Napoleon, however, the Supreme Court rejected this approach and provided new parameters for claims appearing to relate to both laws.
This case features E.F., a middle school student with cerebral palsy and a service dog (a goldendoodle named Wonder). Because the dog helped E.F. with various needs throughout her day (opening doors, retrieving dropped items, etc.), E.F.’s parents wanted Wonder to accompany her to school on a full-time basis. The school refused, citing the one-on-one aide assigned to assist E.F. throughout the day as part of her IEP. After the Office for Civil Rights sided with the parents, the school agreed to allow the dog in school to provide E.F. with assistance during the day. E.F.’s parents, however, were concerned about potential resentment issues, and chose to move their child to a different district. The parents then sued in federal court, alleging that the district violated Section 504 and the Americans with Disabilities Act (“ADA”).
The lower courts dismissed this lawsuit, noting that – because any alleged harm to E.F. was generally education-related – the parents were first required to file an IDEIA due process complaint before suing in court. The Supreme Court, however, explained that if a lawsuit does not hinge on a FAPE analysis, the hearing officer cannot provide the requested relief, and a due process hearing is not proper – and not necessary.
In determining whether a complaint primarily addresses FAPE, the Court offered the following tests:
- First, could the plaintiff bring the same claim if the problem took place at any public facility, not just a school?;
- Next, could any adult at the school have brought the same claim?
Affirmative answers to these inquiries would indicate that the matter is not a true IDEIA claim, and that a due process hearing is unnecessary. The Court also suggested that starting the IDEIA due process, only to drop it later in favor of going to court, could indicate that the conflict was related to FAPE all along. In short, the Court sought to strike a balance between allowing parents to pursue their claims in federal courts and protecting school districts from FAPE complaints disguised as Section 504 allegations. In moving forward, school districts and their attorneys will need to carefully review parents’ claims and factual history before determining the best course of action.
The Trump Administration made a significant move Wednesday night in the national debate regarding transgender students’ rights by withdrawing previously issued guidance from the United States Department of Education (“DOE”) and Department of Justice (“DOJ”) on the topic. The prior guidance from the DOE and DOJ, which was issued by the Obama administration in May 2016 (“May guidance”), interpreted Title IX as requiring treatment of students in a manner consistent with their gender identity. The May guidance provided examples of policies and practices to support transgender students, such as utilizing the name the student has selected, requiring access to restrooms, locker rooms, and overnight accommodations for school trips in accordance with the gender with which the student identifies.
Amidst significant backlash, numerous states sought to invalidate the May guidance through a federal lawsuit in Texas v. United States. The Trump Administration’s Dear Colleague letter which rescinded the May guidance referenced that lawsuit and further stated that the May guidance lacked a formal public vetting process, extensive legal analysis, and an explanation of how the position is consistent with Title IX language. The Trump Administration’s letter also stated that there are conflicting national court decisions and further noted the role States and local school districts should play in educational policy development.
While the May 2016 guidance has been rescinded in favor of State control over the issue, the Trump administration noted that transgender students should be protected from discrimination, bullying and harassment. In a press release, the U.S. Secretary of Education Betsy DeVos emphasized a federal mandate and moral obligation to protect all students and ensure a safe and trusted environment, in which to learn and thrive.
This rescission of the May 2016 guidance comes just weeks before the United States Supreme Court is set to hear oral arguments in Gloucester County School Board v. GG. The Court was set to review whether deference should extend to the DOE’s prior interpretation of Title IX in relation to gender identity. With this new development, the Supreme Court must choose whether or not it will address these questions now.
Finally, while the DOE and DOJ’s prior position has been rescinded by the Trump Administration, the recent decision of the federal Sixth Circuit Court of Appeals in Board of Education of Highland Local School District v. United States Department of Education, et al. remains in effect at the moment. The Highland Court affirmed the decision of the United States District Court for the Southern District of Ohio, which found that a transgender student should be allowed access to the restroom of the gender with which the student identified and should also be called by the pronoun of the gender with which the student identified. The Sixth Circuit Court of Appeals is binding on public school districts in Ohio, absent a contrary ruling from the United States Supreme Court. Thus, school districts should continue to watch for further developments and consult with legal counsel as issues arise.
On February 2, 2017, Peter T. Zawadski spoke at a Compliance Officer Training program, organized by the Buckeye Association of School Administrators. The topic of Peter’s presentation, which was given in Columbus, Ohio, was, “Expectations of the EEOC, OCRC and OCR.”
On January 17, 2017, Peter T. Zawadski spoke at the Legal Update Series, which took place at the Summit County Educational Service Center in Cuyahoga Falls, Ohio. The topic of Peter’s presentation was, “School Sports Law: Hot Legal Topics Involving School Athletics.”
On March 28, 2017, Christina Henagen Peer will give a presentation to the Northeast Ohio Legal Updates Network at the Educational Service Center of Cuyahoga County, in Independence, Ohio.
On March 13, 2017, Christina Henagen Peer will be speaking at the Special Education Legal Update Seminar, at the Educational Service Center of Cuyahoga County, in Independence, Ohio.
On March 8, 2017, Eric J. Johnson will be speaking to the Ohio Association of School Business Officials at the Essentials of Financial Management and Administration Seminar.
Eric J. Johnson will provide a Legal Update to the Ohio Association of School Personnel Administrators Conference on March 3, 2017, in Dublin, Ohio.
On February 28, 2017, Miriam M. Pearlmutter will present a Bullying and School Safety Legal Update at the Summit County Educational Service Center, in Cuyahoga Falls, Ohio.
Christina Henagen Peer will be speaking at a BASA Compliance Officer Training Seminar on February 17, 2017, in Cleveland, Ohio.
On February 16, 2017, Kathryn I. Perrico will present a Public and Student Records Legal Update at the Summit County Educational Service Center, in Cuyahoga Falls, Ohio.
On January 24, 2017, Eric J. Johnson will be presenting a Human Resources Legal Update to the Northeast Ohio Association of School Personnel Administrators at the Educational Service Center of Cuyahoga County, in Independence, Ohio.
Christina Henagen Peer will be providing a SPED Legal Update on January 24, 2017, at the Mahoning County Educational Service Center, in Canfield, Ohio.
On January 12, 2017, Christine T. Cossler gave a presentation on Transgender Issues at the Educational Service Center of Cuyahoga County, in Independence, Ohio.
The ongoing debate regarding the responsibilities of public school districts with respect to transgender students has continued to be fueled by a new decision from the United States Court of Appeals for the Sixth Circuit. On December 15, 2016, the Sixth Circuit issued an Order in Board of Education of Highland Local School District v. United States Department of Education, et al., affirming the decision of the United States District Court for the Southern District of Ohio, which blocked that school district’s attempt to prevent a transgender student identifying as a female from using the girls’ restroom at her school. Both the lower court’s decision and the Sixth Circuit decisions in Highland align with the DOE interpretation of Title IX. Specifically, the DOE has provided that funding recipients must “generally treat transgender students consistent with their gender identity.”
The Highland Court, in a 2-1 decision, explained that “[t]he crux of this case is whether transgender students are entitled to restroom access for their identified gender rather than their biological gender at birth.” Noting that the law in the Sixth Circuit prohibits discrimination based on a person’s transgender status, the appellate court refused to grant the school district’s request to stay a preliminary injunction issued by the district court allowing the student to access the restroom of her identified gender. While Highland argued that such an allowance would result in irreparable harm, the Sixth Circuit disagreed.
The appellate court examined the student’s individual circumstances, along with broader public policy interests, in making this decision. The Sixth Circuit’s decision explained that the student, “a vulnerable eleven-year-old with special needs” would suffer significant harm if prevented from using the girls’ restroom. Specifically, the majority pointed to the student’s “personal circumstances—her young age, mental health history, and unique vulnerabilities—and her use of the girls’ restroom for over six weeks, which has greatly alleviated her distress, [to] differentiate her case from” the Gloucester matter. In Gloucester, the Supreme Court granted a Virginia school district’s request for a stay, where the issue involves a high school transgender student’s request to use the boys’ restroom.
In Highland, the court explained that “staying the injunction would disrupt the significant improvement in Doe’s health and well-being that has resulted from the injunction [and] further confuse a young girl with special needs who would no longer be allowed to use the girls’ restroom…” The dissent argued that the status quo should have remained in place until the U.S. Supreme Court has issued a decision regarding this issue, as “similar treatment of similar plaintiffs is the essence of equal justice under law.”
The Supreme Court is set to decide the Gloucester case in 2017. The decision in Gloucester should resolve the issue of whether courts must provide deference to the U.S. Department of Education’s (“DOE”) interpretation of Title IX. Specifically, the DOE has provided that funding recipients must “generally treat transgender students consistent with their gender identity” which could be different than the student’s sex at birth.
While we await the Supreme Court’s decision in Gloucester, school districts should take note that, although the Highland decision was limited to the specific facts in that case, decisions from the Sixth Circuit are binding authority in Ohio.
On November 14, 2016, Peter T. Zawadski served as a Co-Presenter at the Ohio School Boards Association’s 2016 Capital Conference in Columbus, Ohio. The topic of Peter’s presentation was, “The Nuts and Bolts of Vendor Contracts.”
The national debate regarding transgender students’ rights and the obligations of school districts has developed rapidly this year. Courts across the country, including in Ohio, have issued varied decisions on these issues and the United States Department of Education (“DOE”) and the United States Department of Justice (“DOJ”) have issued controversial guidance. On October 28, 2016, the United States Supreme Court agreed to hear the recent Fourth Circuit Gloucester County School Board v. GG case, regarding bathroom use policy in relation to a transgender student. So, clarification on some of the issues facing districts may be on the horizon.
The Gloucester case began when a school district adopted a policy requiring students to use the restroom or locker room of the student’s biological gender. A transgender student had been permitted to use the boys’ restroom for several weeks before this policy, but that permission was terminated after the policy was implemented. The student subsequently sued the school board under the Equal Protection Clause and Title IX of the Education Amendments of 1972 (“Title IX”) challenging the school board’s policy, The student also sought an injunction to permit his use of the boys’ restroom.
As the case moved up through the courts, the U.S. District Court for the Eastern District of Virginia denied the injunction request and dismissed the student’s Title IX claims. However, in April, the U.S. Court of Appeals for the Fourth Circuit found that the District Court should have given deference to the DOE’s interpretation. Under the DOE’s interpretation, students should be allowed to use the restroom of the gender with which they identify. The Fourth Circuit reversed the District Court and remanded the case for further proceedings with instructions to give deference to the DOE’s interpretation. In reaching this conclusion, the Fourth Circuit relied on a 2015 opinion letter from the DOE’s Office for Civil Rights (Letter to Prince Jan. 7, 2015) which interpreted Title IX as to treat students in a manner consistent with their gender identity. In its decision and application of the DOE’s interpretation, the Fourth Circuit relied on a principle from a prior court decision, Auer v. Robbins, that courts should generally defer to an agency’s interpretation of its own regulation. The United States Supreme Court granted an emergency petition to stay the decision while the case continues. Thus, the school board’s policy remains in effect for the time being.
While this case revolves around a high-profile topic, the issue before the United States Supreme Court is quite technical. The Court will determine if Auer deference should extend to an unpublished agency letter and if the DOE’s regulatory and specific interpretation of Title IX (a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity”) should be given effect. The latter determination will have robust implications, especially in light of the DOE and DOJ’s 2016 published Dear Colleague Letter guidance, which many states are now challenging in court.
Several prior client alerts address the development of this topic. Please access them below for additional background information:
Ohio Court Weighs in on Transgender Student
U.S. Department of Education and Justice Weigh In on the Legal Developments Regarding Transgender Students
Legal Developments Regarding Transgender Students
The U.S. Supreme Court and Transgender Students
Under the Individuals with Disabilities Education Improvement Act (IDEIA), public schools must provide a free appropriate public education (FAPE) to students with disabilities. The degree of “educational benefit” a child must receive in order for the school district to have provided a FAPE has been a question that school districts across the country have grappled with for decades. But clarification is in sight as the United States Supreme Court will hear the case of Endrew F. v. Douglas County School District RE-1. The central issue in Endrew F. is defining the level of educational benefit a school district must confer on children with disabilities to provide them with the FAPE guaranteed by the IDEIA.
In 1982, the United States Supreme Court decided Rowley v. Hendrick Hudson School District and held that school districts are not required to maximize the potential of a child with a disability in order to provide FAPE. Rather, school districts are required to provide a program that is reasonably calculated to confer an educational benefit. In Rowley, the Court held that achievement of passing marks and advancement from grade to grade were indicators that FAPE had been conferred for a student educated in a regular education classroom setting. Unfortunately, the Court in Rowley did not address the level of “educational benefit” that must be conferred. This question is especially difficult in situations where students are not progressing successfully through school in a general education classroom. For example, what must a district demonstrate in order to prove that it provided an “educational benefit” to a student with autism or multiple disabilities who is being educated using a modified curriculum?
The appellate courts are not in agreement on their interpretation of what constitutes sufficient “educational benefit” in this type of circumstance and there are essentially two different standards. Some courts, including the Tenth Circuit in Endrew F., rely on a “merely more than de minimis” (i.e., just above trivial measurement) standard. This is in direct controversy with the Sixth Circuit (which includes Ohio) and the Third Circuit, which utilize the higher “meaningful educational benefit” standard. The “meaningful educational benefit” standard, as outlined by the Sixth Circuit Court in Deal v Hamilton County Board of Education, requires an analysis of the child’s capabilities and potential for learning to determine how much of an educational benefit must be provided to equate to meaningful, with an eventual goal of self-sufficiency where possible. The Deal Court also noted that “[i]n conducting this inquiry, courts should heed the congressional admonishment not to set unduly low expectations for disabled children.” The U.S. Solicitor General as well as Autism Speaks and the Public Interest Law Center are in favor of this heightened standard for the country and have weighed in with their input through amicus curiae briefs in Endrew F.
Endrew F.’s parents seek, through their Petition, to resolve this issue to “ensure that millions of children with disabilities receive a consistent level of education, while providing parents and educators much-needed guidance regarding their rights and obligation.” Ultimately, the United States Supreme Court could uphold either of the established standards or could create an entirely new standard for the provision of FAPE. Whatever the outcome, school districts and parents alike would be well served by a decision that includes concrete standards to be used when determining whether a program provided a FAPE.
Oral arguments in the Endrew F. case have not been scheduled, but are expected to be held next year.
As the national debate regarding transgender students’ rights and school districts’ obligations rapidly evolves, the United States District Court for the Southern District of Ohio adds to the conflicting precedent. On September 26, 2016, Judge Marbley ordered the Highland Local School District (“District”) to treat 11 year-old “Jane Doe,” a biological male, “as the girl she is.” The Judge’s order requires the District to allow the student to use the girls’ restroom in the elementary school and refer to her by female pronouns and her female name. The crux of the issues involves transgender identity protections under the Equal Protection Clause and Title IX of the Education Amendments of 1972. In making his ruling, Judge Marbley rejected the privacy argument made by the District that the privacy rights of other students weighed against allowing Jane Doe to use the girls’ restroom.
The Highland Local decision is not binding on courts in Northeast Ohio, but, it is the first Ohio court decision addressing student transgender issues at the K-12 level and the decision does align with the approach espoused by the United States Department of Education (“DOE”) and Office for Civil Rights.
In recent months, courts have grappled with expanding transgender students’ rights, with requirements to treat students in a manner consistent with their gender identity and protect against gender identity discrimination. However, some contend that these federal laws do not extend to transgender identification. This controversy has extended up to the United States Supreme Court for potential consideration; meanwhile, the United States DOE and United States Department of Justice (“DOJ”) issued guidance for school districts to treat students in a manner consistent with the student’s gender identity, only to be met with a preliminary injunction to stop the enforcement of such federal guidance while the Northern District of Texas addresses eleven states’ challenges. Until Monday, Ohio courts had not weighed in on the issue.
In reference to the pending Texas lawsuit and its nationwide preliminary injunction, Judge Marbley reasoned that it was not applicable because Ohio was not a party to the Texas case and the Highland litigation was initiated prior to that lawsuit. This decision is in line with the DOE and DOJ guidance and adds to the trend toward transgender protections. Notably, Judge Marbley also granted the State of Ohio’s motion for leave to file an amicus curiae brief on behalf of the District. To highlight the importance of these issues and district obligations – more than $1 million of education funding is at stake for the District (the Highland District filed the lawsuit because it was potentially facing loss of federal funding in connection with its unwillingness to allow the 11-year old student to use the girls’ restroom).
Until this area of law begins to settle, it is advisable for Ohio school districts to keep these recent rulings in mind when addressing transgender student concerns and avoid actions that may be construed as gender identity discrimination. The Highland Local School District intends to appeal this injunction; therefore, more direction for Ohio school districts should be forthcoming.
Amid national strain and debate surrounding gender identity–from boycotts of Target due to its transgender bathroom policy to state laws and city ordinances that are aimed to restrict restroom use to biological at birth gender–school districts find themselves thrown into this national debate. Guidance from courts and agencies continues to evolve, leaving school districts floundering amidst the controversy with a lack of adequate legal direction to help them balance the prohibition of discrimination against privacy and safety concerns for the student body and community.
The U.S. Department of Education Office of Civil Rights (OCR) enforces Title IX of the Education Amendments of 1972 (Title IX), which protects individuals from discrimination based on sex in education programs. However, the interpretation as to what constitutes sex discrimination in relation to transgender individuals is in dispute. With a lack of explicit protections within Ohio law, school districts are left to face uncertain decisions. So, for example, should a transgender boy use the designated boys’ restroom? Girls’ restroom? Another separate restroom available in the building? And ultimately, is separate really equal or does it lend itself to a sex discrimination claim? Title IX has been successfully used to address sexual and gender-based harassment in schools despite no expressed provision of prohibition on those grounds.
Settlement agreements have been made in connection with restroom conflicts (e.g. $75,000 from a school district in Doe v. Regional Sch. Unit 26) with a Maine court having issued an order prohibiting the district from “refusing access by transgender students to school restrooms that are consistent with their gender identities.” In another case, an Illinois school district attempted to defy the OCR which had required access to a girls’ locker room by a female transgender student. The school, instead, had attempted to provide a separate changing area—an action which led to OCR-initiated proceedings to revoke the district’s federal funding. Ultimately, however, a settlement was reached.
While Title IX does not provide direction for school districts to determine restroom use for transgender students, the Department of Education has indicated that Title IX instructs schools to treat transgender students consistent with their gender identities and not separate or treat them differently based on sex (e.g. gender-specific restrooms).
Recently, the U.S. Court of Appeals for the Fourth Circuit addressed a transgender high school boy’s motion for a preliminary injunction to use the boys’ restroom after his school district adopted a policy limiting restroom and locker room use to biological genders with an alternative private facility for individuals with gender identity issues. The student had initially been permitted to use the boys’ restroom for several weeks before this policy was implemented. The student sued the school board under the Equal protection Clause and Title IX of the Education Amendments of 1972 challenging the school board’s policy. The student requested a preliminary injunction which would permit him to use the boys’ restroom during the pendency of the case. The school district filed a motion to dismiss the lawsuit. The U.S. District Court for the Eastern District of Virginia denied the injunction request and dismissed the student’s Title IX claims. The student appealed to the U.S. Court of Appeals for the Fourth Circuit.
In a 2-1 split, The Court of Appeals remanded the case back to the District Court with instructions to give deference to the Department of Education’s interpretation of Title IX. The Court found that the section which allows for gender-specific restrooms is ambiguous as it relates to the application for transgender students and, therefore, the Department of Education’s interpretation of gender identity as an individual’s “sex” for purposes of Title IX is the applicable interpretation the District Court must apply. Following the Fourth Circuit’s ruling, a Virginia federal district court ordered the School Board to allow the transgender student to use the boy’s restroom.
The school district has filed an emergency motion with the United States Supreme Court asking the Court to delay the implementation of the federal district court injunction until the high court decides whether to review the case. As part of the motion, the school board’s attorneys argued that allowing the transgender student to use the boy’s bathroom could jeopardize the constitutional rights of parents. If the Supreme Court ultimately decides to the take the case for review, the Court may be faced with determining whether the prohibitions of sex discrimination encompass gender identity. At this point, the School Board plans to file a formal petition seeking the Supreme Court’s review of the matter later this summer.
While this case does not directly impact Ohio schools, if the Supreme Court takes up this issue, it would impact schools throughout the nation. The Fourth Circuit case continues a trend toward greater protections for transgender students. In addition to restroom/locker room issues, districts should be mindful of requests for name changes (both in everyday practice and on official educational records); athletic team participation; rooming arrangements for students while on school- sponsored trips; and gown color in graduation ceremonies.
Due to the increasing prevalence of issues regarding transgender students, it is advisable for school districts to proactively manage these situations to decrease the likelihood that they result in discrimination complaints. The National School Boards Association has published a guide with frequently asked questions to address a wide range of issues. School districts should proceed carefully when addressing transgender issues given that the legal standards in this area continue to evolve.
In yet another development in the saga of transgender law in America’s public schools, the United States Supreme Court put a halt to a trial court order that would have allowed a transgender male student to use the boy’s restroom in a high school in Gloucester County, Virginia at the start of the upcoming school year. The Supreme Court blocked the trial court’s order in a 5-3 decision, which will preserve the status quo at the high school until the Gloucester County School Board seeks the Supreme Court’s review of the lower court’s order later in August. While the high court’s decision is a significant step in the transgender student’s case, it does not have legal effect on any other cases.
By way of history, this ruling resulted from the school board’s request that the Supreme Court stay the Virginia trial court’s order permitting the female-to-male transgender student to use the restroom of his choice. The trial court’s order came after the Fourth Circuit United States Court of Appeals held that the school district’s policy – which requires students to use the restroom that comports with their biological sex – ran afoul of a federal Department of Education directive providing that public schools could lose federal funding if they discriminate against transgender students. The Fourth Circuit’s ruling and the Virginia trial court’s order implicate the scope and application of Title IX of the Education Amendments of 1972, which prohibits discrimination in public schools on the basis of sex. At the heart of this dispute is whether Title IX also extends to gender identity discrimination.
In addition to the complicated legal questions involved in this case, the school, the student, and the community all face challenging issues – from the personal stigma of discrimination to the rights of parents to direct and control the public education of their children. Districts, therefore, should be extremely circumspect when transgender questions arise in the halls and classrooms of their schools. Indeed, a deliberate and cautious approach to transgender questions is all the more necessary, as this new area of law continues to play out and develop and in our public schools and courts.
In an article published in Crain’s Cleveland Business and titled, “Social media usage blurs legal guidelines for school districts,” Christina Henagen Peer asserted that social media has made the field of education law much more complicated and controversial.
On May 13, 2016, the United States Department of Education (“DOE”)
and the United States Department of Justice (“DOJ”) issued guidance to
educational institutions that receive federal financial assistance
regarding the rights of transgender students under Title IX. This
guidance comes on the heels of a decision by the Fourth Circuit Court of
Appeals regarding this issue.
joint Dear Colleague Letter and press release make clear that schools
are required to treat students in a manner consistent with the student’s
“gender identity.” Gender identity is defined in the Dear Colleague
Letter as “an individual’s internal sense of gender” and may differ from
the person’s sex assigned at birth. When a student, or parent, notify a
school that a student is transgender, even without a medical diagnosis,
treatment records, birth certificate, etc., the school is obligated to
treat the student consistent with the student’s gender identity.
The Dear Colleague Letter makes clear that it is the position of the
DOE and DOJ that gender identity is protected under Title IX of the
Education Amendments of 1972. Essentially, the student’s “gender
identity” equates to the student’s sex for Title IX purposes. Hence,
according to the DOE and DOJ, discrimination on the basis of gender
identity is prohibited by Title IX.
The Dear Colleague Letter
indicates that treating a student in a manner consistent with his/her
gender identity includes, but is not limited to, utilizing the name the student has selected
that is consistent with his/her gender identity. For example, if a
student’s gender identity is female, and the student adopts a female
name and asks to be addressed using the feminine pronoun, school
officials must comply with the student’s request. Failure to do so could
constitute sex-based harassment that is actionable under Title IX. Any
alleged harassment of a transgender student based on the student’s
gender identity must be handled under the district’s Title IX harassment
With respect to restrooms and locker rooms,
the Dear Colleague Letter states that a transgender student must be
permitted to use the restroom and/or locker room that corresponds with
the student’s gender identity. A school may not require a transgender
student to utilize a restroom or locker room that is inconsistent with
the student’s gender identity. Further, while a school district can
offer the use of a private restroom or locker room to all students,
mandating that a transgender student utilize this option would
constitute a violation of Title IX. The Dear Colleague Letter states “as
is consistently recognized in civil rights cases, the desire to
accommodate others’ discomfort cannot justify a policy that singles out
and disadvantages a particular class of students.”
The Dear Colleague Letter also addresses housing and overnight accommodations.
The guidance states that school districts must allow transgender
students to access housing consistent with their gender identity and may
not require transgender students to stay in single-occupancy
accommodations. Further, school districts may not disclose personal
information (e.g., the student’s transgender status) when such
disclosures are not required of other students. This guidance will
impact school districts with respect to school-sponsored overnight
The educational records
of transgender students are also addressed by the Dear Colleague
Letter. Although nothing in the Dear Colleague Letter mandates that
school districts amend a student’s educational records to reflect the
student’s gender identity, it does stress the importance of maintaining
the confidentiality of these records in accordance with FERPA.
Additionally, the Dear Colleague Letter clarifies that if an eligible
transgender student or the student’s parent request that the student’s
records be amended, the request must be handled in accordance with the
school district’s policy for amending or correcting educational records
pursuant to FERPA. If an eligible student or parent complains about the
school district’s handling of a request to amend or correct educational
records, the complaint must be handled under the district’s Title IX
The Dear Colleague Letter covers additional
topics such as athletics, single-sex schools, single-sex classes and
social fraternities/sororities. The guidance also references additional
resources to give schools and parents the “tools they need to protect
transgender students from peer harassment and to identify and address
unjust school policies.” Additionally, while the Dear Colleague Letter
does not endorse any specific policy regarding transgender students, it
references an extensive guidance document entitled Examples of Policies and Emerging Practices for Supporting Transgender Students. School districts are urged to review these policy options.
Dear Colleague Letter indicates that it “does not add requirements to
applicable law” but rather “provides information and examples to inform
recipients about how the Departments evaluate whether covered entities
are complying with their legal obligations.” However, some are viewing
this guidance as a significant departure from past interpretations of
Title IX. Subject to any further revisions or outcomes of potential
legal challenges, the guidance is the current position of the DOE and
DOJ. Failure to comply with the guidance in the Dear Colleague Letter
may result in the loss of federal financial funding.
School Boards Association has published a frequently asked questions
guide for school districts which addresses a wide range of issues
relating to transgender students which will be updated in light of the
new guidance. School districts should continue to proceed carefully when
addressing transgender issues and give substantial consideration to
this new guidance given that the potential consequences can be extreme
(e.g. potential loss of federal funding, etc.). Stay tuned as the legal
developments in this area continue to evolve.
While Ohio has not addressed the issue yet, the nationwide trend of
affording protections to transgender students under Title IX of the
Education Amendments of 1972 continues. On April 19, 2016, the U.S.
Court of Appeals for the Fourth Circuit ruled on a transgender high
school boy’s motion for a preliminary injunction. See G.G.ex rel. Grimm v. Gloucester Cty. Sch. Bd.,
4th Cir. No. 15-2056, 2016 WL 1567467 (Apr. 19, 2016). The student
sought to use the boys’ restroom after his school district adopted a
policy requiring students to use the restroom or locker room of their
biological gender. The district also allowed the alternative of using a
private facility for individuals with gender identity issues. The
student had initially been permitted to use the boys’ restroom for
several weeks before this policy was implemented. After the policy was
implemented, the student was no longer permitted to use the boys’
The student sued the school board under the Equal
protection Clause and Title IX of the Education Amendments of 1972
(“Title IX”) challenging the school board’s policy. The student
requested a preliminary injunction which would permit him to use the
boys’ restroom during the pendency of the case. The school district
filed a motion to dismiss the lawsuit. The U.S. District Court for the
Eastern District of Virginia denied the injunction request and dismissed
the student’s Title IX claims. The student appealed to the U.S. Court
of Appeals for the Fourth Circuit.
In a 2-1 split decision, the
Fourth Circuit vacated and reversed the decision of the lower court and
remanded the case for further proceedings. The Fourth Circuit reasoned
that the statute allowing for gender specific restrooms is ambiguous as
it relates to transgender students. Consequently, the Department of
Education’s interpretation of Title IX, which treats students in a
manner consistent with their gender identity, is the standard that the
district court must apply. The case was remanded to the district court
with instructions to give deference to the Department of Education’s
interpretation. The school district has requested an en banc review of the decision.
this decision is not mandatory authority in Ohio, it continues a trend
toward protections for transgender students. In addition to
restroom/locker room issues, districts should be mindful of requests for
name changes (both in everyday practice and on official educational
records); athletic team participation; rooming arrangements for students
while on school sponsored trips; and gown color in graduation
ceremonies. Due to the increasing prevalence of issues regarding
transgender students, it is advisable for school districts to
proactively manage these situations to decrease the likelihood that they
result in discrimination complaints. The National School Boards
Association has published a frequently asked questions guide for school
districts which addresses a wide range of issues. School districts
should proceed carefully when addressing transgender issues given that
the legal standards in this area continue to evolve.
In Tuesday’s much-anticipated decision, the Ohio Supreme Court held that an email exchange between a majority of board members may qualify as a meeting under Ohio’s Open Meeting Act. The plaintiff, a board member who conducted an independent inquiry into allegedly improper athletic expenditures, voted against a proposed board policy that would have limited similar future investigations. After a newspaper editorial praised the dissenting board member, his four colleagues collaborated on a formal response to the editorial, but did so by email and without his involvement. The board president submitted the final response to the paper, signing consent to its publication in his official capacity.
The plaintiff then sued the board and its individual members, alleging that the email collaboration violated the Open Meeting Act, which requires board meetings to be open to the public. In response, the board publicly ratified its previous response to the paper and denied any violations. Both the trial and appellate courts held against the plaintiff, finding that sporadic emails do not constitute a meeting, especially as no resolution was pending at the time.
The Ohio Supreme Court disagreed. A meeting, the Court explained, is any prearranged discussion and does not have to occur face to face. It can take place telephonically, by video conference, or electronically, by email, text, or tweet. Categorically excluding email communications from the Open Meetings Act, the Court emphasized, would subvert the Act’s purpose. Citing to case law from other states, the Court also noted that by ratifying its response, the board retroactively made the previous discussions a matter of public business under the law.
Aside from granting plaintiff permission to continue his suit, this decision also cautions Ohio board members to avoid prearranged public business discussions in any medium. Especially if the communications involve a quorum, the board risks violating Ohio law and should table the discussion until a formal session can be convened. Although the exact contours of this decision have yet to be clarified, for now it is better to be safe than sorry.
On March 18, 2016, Christina Peer spoke at OSBA 2016: Technology and the Law Seminar. Her presentation with Rhonda Porter, Esq. of the Akron City School District described in detail ten dangerous apps that can expose students to bullies and predators, and how to handle their widespread use.
On March 9, 2016, Peter T. Zawadski spoke at the BASA School Facilities and Safety Conference in Columbus, Ohio. The topic of Peter’s presentation was, “Contracts Have Consequences.”
On March 4, 2016, Christina Henagen Peer spoke at the 2016 OSBA Special Education Law Workshop, in Columbus, Ohio. The topic of her presentation was, “Providing FAPE to students who aren’t yours (and other unique scenarios).”
In late December 2015, Governor John Kasich signed a law that prohibits public employers, including townships, villages, municipal corporations, and public school districts, from asking questions about an applicant’s criminal background on their job applications. Under the new law, the Fair Hiring Act, public employers are permitted to conduct background checks, but they can only do so later in the application process. The law takes effect March 23, 2016.
Under the new law, public employers will not be allowed to ask applicants about past criminal convictions on written job applications. It is permissible, however, for a public employer to include a general statement on the written application regarding criminal offenses which may preclude employment under the law (e.g., disqualifying offenses in the public school setting). Further, public employers will have the opportunity to inquire about an applicant’s criminal background later in the process, and public employers will not be prohibited from taking an applicant’s criminal history into account when deciding whether to hire an employee. Public employers, however, will face increased scrutiny about the manner in which they use the criminal background check information when making decisions regarding employment. Thus, public employers might want to consider the Equal Employment Opportunity Commission’s guidance that any decisions based on an applicant’s background, should be job related and consistent with business necessity.
There is some speculation as to whether the law applies to municipal corporations under the Home Rule Amendment to the Ohio Constitution. The issue is whether the law addresses a “matter of local self-government.”
In addition, the new law includes an amendment to Ohio Civil Service Law. Public employers are now clearly prohibited from using a felony conviction against a current classified officer or employee unless the conviction occurs while the classified officer or employee is employed in the civil service. If, however, the classified officer or employee is convicted of a felony while employed in a classified position, the employee may be removed from his or her position.
The new law does not apply to private employers.
Walter | Haverfield, in conjunction with the Educational Service Center of Cuyahoga County, continued our Education Law Legal Update series. Thank you for joining us at ESC on January 25, 2016 for the second in a series of three updates for the 2015-16 school year.
The session covered:
- Religion In Schools: Navigating the Murky Waters of Religious Accommodation and Other Issues presented by Christine T. Cossler and Lisa H. Woloszynek
- When Enough is Enough: Managing Excessive Absenteeism Without Violating Employee Rights presented by Peter T. Zawadski
- Opening Pandora’s
BoxPage… The Unintended Consequences of District-Sponsored Social Media presented by Eric J. Johnson and James M. McWeeney II
In the wake of increasing complaints regarding bullying of students with disabilities, the U.S. Department of Education, Office of Civil Rights (OCR) released expanded guidance for schools (public, charter, and magnet) regarding responsibilities to prevent and address the bullying of students with disabilities. The OCR clarified that bullying may violate civil rights laws, including Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act,andnbsp;even if the bullying was not based on the student’s disability. The OCR has also clarified thatandnbsp;bullying may interfere with the student’s receipt of a Free Appropriate Public Educationandnbsp;(FAPE) under Section 504 or the Individuals with Disabilities Education Act (IDEA). Districts must take steps to address both the bullying and the impact of bullying on the provision of FAPE.
When an allegation that a student with a disability was bullied arises, districts must: (1) investigate the allegation and implement the established anti-bullying policies;andnbsp;andandnbsp;(2) take additional steps to ensure the provision of FAPE. Specifically, the OCR guidance outlines several steps when a student with a disability is bullied:
- Promptly determine if the student’s receipt of FAPE services may have been affected by the bullying (even if the bullying was not based on the student’s disability).
- Determine if a Section 504 or IEP team meeting is needed (triggers for calling a meeting include changes in academic performance or behavior, such as grades suddenly declining, emotional outbursts, increased frequency or intensity of behavior, or an increase in missed service sessions).
- Promptly convene the Section 504 team or IEP team to determine if (1) the student’s needs have changed due to the bullying, (2) the student’s receipt of services necessary for the provision of FAPE has been affected, and (3) if any additional services or changes are necessary to meet the student’s needs.
- Implement changes determined by the Section 504 team or IEP team promptly.
- Safeguard against the student having the burden to avoid or handle the bullying independently.
- Ensure that the school’s anti-bullying procedures are followed and that staff members are trained to implement strategies to support students and respond appropriately to allegations of bullying.
- Conduct thorough and quick investigations when bullying, harassment, or intimidation is suspected for a student with a disability,andnbsp;even if the bullying, harassment or intimidation is not based upon the student’s disability.
- Take prompt and reasonable steps to address any behavior of bullying, harassment, or intimidation, including the environment created by it, elimination of effects, and prevention of reoccurrence.
- Identify procedures and train staff to ensure that the impact on the provision of FAPE is assessed in situations involving students with disabilities (including promptly convening the Section 504 or IEP team).
- Ensure procedural safeguards for students with disabilities are followed in assessing the impact on the student’s needs and make any necessary changes to the IEP or Section 504 plan (i.e., services, placement, etc.).
Now, ten years after Ohio legislature mandated the creation of the Educator Standards Board (ESB) and five years after it was charged with recommending a model evaluation system for teachers and principals, the Ohio Teacher Evaluation System (OTES) is in full swing. Ohio educators have exited the first school year of full implementation of OTES and the first year where ratings must inform personnel decisions is about to begin.
Getting to this stage has taken longer than some may have expected; however, in 2011teacher evaluation requirements were defined through House Bill 153 and school districts were required to revise their evaluation system to align with the State Board-approved OTES framework by July 2013.
Although OTES is a new system, the General Assembly continues to make significant modifications. It is important to understand the system’s initial requirements before delving into recent changes. The 2011 evaluation requirements included:
- Evaluations annually for teachers holding a teaching license and providing student instruction at least 50% of time employed (exception for accomplished teachers: every two years if adopted by the district board of education);
- Evaluations to be used in district policies and procedures for teacher retention, promotion, removal, and reduction in force;
- Alignment with standards for teachers, resulting in ratings: accomplished, proficient, developing, or ineffective;
- Multiple evaluation factors (50% teacher performance; 50% student academic growth measures);
- At least two formal observations of 30+ minutes and classroom walkthroughs;
- Each teacher to be provided a written report of his/her evaluation results; and
- Provisions for professional development and allocation of financial resources for professional development.
Changes were made via House Bill 555, which became effective as of March 2013. House Bill 555 further defined Student Growth Measures. It also phased in the use of value-added progress, which is a statistical method that compares student achievement data from one year to the next. Value added progress is used to estimate the academic growth of students and assess the impact of the instruction. As of July 2014, for teachers who instruct only subjects with value-added data available, that data will account for the teacher’s entire student growth component. For teachers who teach only some subjects where value-added data is available, this data will be used proportionately to the teacher’ overall schedule.
OTES was modified again in June 2014 with Ohio’s Mid-Biennium Review–specifically House Bill 362. These revisions provide districts with some flexibility in evaluation regularity and offer an alternate student growth framework option. While an observation and conference must still be completed each year by an evaluator, the frequency of full evaluation is extended for a teacher rated accomplished (every three years) or skilled (every two years).
Districts may choose this frequency as long as the teacher’s student academic growth measure for the most recent year is average or above. A district may also opt to not evaluate a teacher who was on leave for at least 50% of the year or whom has submitted notice of retirement by December 1. If a district would rather not use the 50/50 framework (50% teacher performance and 50% student growth measure), it may choose to use the following alternate framework for teacher evaluation:
2013-2014 school year
Starting 2014-2015 school year
42.5% teacher performance measure
42.5% to 50% teacher performance measure
42.5% student academic growth measure
42.5% to 50% student academic growth measure [% equal to teacher performance]
15% from one of these components: student surveys, teacher self-evaluations, peer review evaluations, or student portfolios
Remainder from one of these components: student surveys, teacher self-evaluations, peer review evaluations, or student portfolios
** if using this framework the new choice component must be one from the ODE-approved instruments list
Areas for School Districts to be Mindful
As implementation of OTES continues, districts should monitor any new modifications from the Ohio Department of Education and keep in mind potential legal concerns, such as:
- Are your evaluators’ other responsibilities still being met while managing evaluation time demands? If not, how can you plan to continue to meet all responsibilities or reallocate where necessary?
- Are you using linkage of Value-Added data appropriately for the student growth measure? Remember, this may be more complicated for some, such as intervention specialists.
- Does your collective bargaining agreement include appropriate provisions for OTES? OTES provisions will prevail over any conflicting provisions entered into after September 29, 2011.
- The recent Mid-Biennium Review provided that some consequences from teacher evaluations will be delayed a year because new assessments will be administered during the 2014-2015 school year.
- Continue to sort through any staff confusion or misunderstandings as well as provide appropriate professional development for teachers and evaluators.
The Mid-Biennium Review bill was recently passed and presents changes to current laws related to public education. Among the numerous modifications implemented, major revisions include adjustments to teacher evaluations and new graduation requirements for the replacement of the Ohio Graduation Tests. These revisions will take effect as early as this fall, for the 2014-2015 school year.
Modified Standards for Teacher Evaluations and New Alternative Evaluation Structure
- On June 12, 2014, HB 362 was signed into law and permits flexibility in the Ohio Teacher Evaluation System (OTES). The frequency of evaluations may now be reduced for any teacher who receives a rating of “accomplished” or “skilled” on their most recent evaluation. Teachers who receive a rating of “accomplished” may be evaluated once every 3 years, while teachers who receive a rating of “skilled” may be evaluated once every 2 years, as long as the teacher’s academic growth measure for the most recent year is average or higher. A credentialed evaluator must still conduct at least one observation and hold one conference with teachers in any year in which they have not been formally evaluated as a result of receiving a rating of “skilled” or “accomplished.” A school board may also elect not to evaluate teachers who were on leave for more than half of the school year or who have submitted notice of retirement.
- Districts will now be able to choose between a new alternative teacher evaluation structure and the original structure. Under the new structure, teacher performance measures and student academic growth measures may account for 42.5 percent of each rating, while the remaining 15 percent may be attributed to student surveys, teacher self-evaluations, peer review evaluations or student portfolios.
College and Work-Ready Assessment System and New Graduation Requirements
Under HB 487, which was signed into law on June 16, 2014, the College and Work-Ready Assessment System will replace the Ohio Graduation Tests (OGTs), beginning with the 2014-2015 school year, for students who enter ninth grade for the first time on or after July 1, 2014. With the elimination of the OGTs, three new paths, together with the unchanged curriculum requirements, have been implemented in order for students to receive a high school diploma.andnbsp;
Students must satisfy one of the following paths:
- Path 1: Students must take seven end-of-course exams (English Language Arts I and II, Physical Science, Algebra I, Geometry, American History and American Government). The student must attain a minimum cumulative performance score (set by the State Board) on these examinations. (Note: Students enrolled in an Advanced Placement, International Baccalaureate, or Advanced Standing Program must take the exams aligned to those courses in lieu of the Physical Science, American History, and American Government end-of-course exams. The State Board may also decide to include an Algebra II end-of-course exam in place of Algebra I, beginning with students entering ninth grade on or after July 1, 2016.)
- Path 2: Students must earn a “remediation-free” score on a national college admission exam. All students will have the opportunity to take the exam their junior year. The district will be responsible for covering costs of administering the exam and the State will reimburse the district.
- Path 3: Students must obtain either an industry-recognized credential or state-issued license for practice in a specific vocation while attaining a passing score (set by the State Board) on a nationally recognized job skills assessment.
Other Key Reforms to Current Policies
- Third Grade Reading Guarantee: School districts that cannot furnish the number of teachers needed for the 2014-2015 or 2015-2016 school year, who satisfy one or more of the criteria to teach a third-grader who reads below grade level, are now permitted to submit an alternative staffing plan for that school year.
- Opt-Out Curriculum Requirements: The terminal date of an exemption from the curriculum requirements for graduation is extended to July 1, 2016. Beginning with students who enter ninth grade for the first time on or after July 1, 2014, new curriculum requirements for exemption have been established. Students are required to complete 4 units of math, one of which must be probability and statistics, computer programming, applied mathematics, quantitative reasoning or any other course approved by the Department, using standards established by the Superintendent. Students must complete 5 elective units and 3 science units, which must include an inquiry-based lab experience engaging students in asking scientific questions and gathering and analyzing information. (Note: School districts must provide annual notification to the Department regarding the number of students who choose to qualify for graduation under the exemption.)
- Extending Access to Career-Technical Education: School districts are now required to provide career-technical education to students in grades 7-12. (Note: A school district is permitted to obtain a waiver from the requirement to provide career-technical education to students in grades 7 and 8 if specified criteria are met.)
- Parental Review Committees: School boards must now establish a parental advisory committee, or another method of review, to provide parents with the opportunity to review textbooks, reading lists, instructional materials, and academic curriculum used by the schools in the district.
- Dropout Prevention: Beginning in the 2015-2016 school year, school districts are required to identify students at risk of dropping out of school and must develop a student success plan with the assistance of the student’s parent, guardian or custodian.
- College Credit Plus Program (CCP): At the outset of the 2015-2016 school year, the CCP (formally called the Post-Secondary Enrollment Options Program) will govern arrangements in which a high school student enrolls in a college and, upon successful completion of coursework taken under the program, receives credit from the college. This program requires public high schools to develop, in consultation with a public partnering college, a 15-credit hour and a 30-credit hour model course pathway which must be published among the school’s official list of course offerings for the program. Public high schools will be required to provide information and counseling services, beginning in the sixth grade, to students and their parents before a student’s participation in the program is permitted. Public high schools must also implement a policy for awarding grades and ensure that the policy is equivalent to the schools’ policy for Advanced Placement, International Baccalaureate, and honors courses.
- Released Time to Attend Religious Instruction: School boards are now permitted to adopt a policy authorizing students to attend released time courses in religious instruction, conducted by a private entity off school property, if specified criteria are met.
Entering the 2014-2015 school year, school districts should prepare for these changes by taking the following steps:
- Review and revamp the OTES policy if the school district wishes to implement the new performance measure scale and change evaluation procedures for “accomplished” and “skilled” teachers.
- Prepare to implement the College and Work-Ready Assessment System.
- Prepare to submit an alternative teacher staffing plan if unable to furnish a sufficient number of third grade educators in accord with the Third Grade Reading Guarantee.
- Be prepared for students to opt-out of curriculum requirements for graduation under new standards.
- Prepare to offer students in grades 7-12 a career-technical education.
- Create a parental advisory committee (or another method of review) for reviewing textbooks and academic curriculum within the school district.
- Locate students at risk of dropping out of school and prepare to implement a student success plan.
- Prepare for the replacement of the Post-Secondary Enrollment Options Program (PESO) with the College Credit Plus Program (CCP).
- Determine whether policy will be adopted to authorize students to attend courses in religious instruction off school property.
If your school district has further questions about the recent Ohio legislation, please contact a member of Walter | Haverfield’s Education Services Group.
On June 12, 2014, the Governor signed into law House Bill (HB) 264 that establishes care for students with diabetes in public schools and chartered nonpublic schools. Specifically, HB 264 requires that schools ensure that all diabetic students receive appropriate diabetes care in accordance with orders signed by their treating physician and with their Section 504 plan (if applicable). Some important aspects of HB 264 are as follows:
- HB 264 authorizes a school nurse or, in the absence of a school nurse, a school employee trained in diabetes care as prescribed by HB 264, to administer diabetes medication.
- HB 264 mandates that students with diabetes be allowed to attend their neighborhood schools (e.g., the school the child would attend if he/she did not have diabetes).
- HB 264 requires schools to provide an information sheet to parents advising them that their child may be eligible for a Section 504 Plan no later than 14 days after receiving an order signed by a student’s physician regarding the student’s diagnosis. The Ohio Department of Education (ODE) is required to develop a Section 504 plan information sheet for schools to use. ODE is also required to adopt nationally recognized training guidelines for the training of school employees in caring for diabetic students.
- HB 264 also mandates that training for employees regarding diabetes take place prior to the beginning of the school year or, as needed, within 14 days of the enrollment of a student with diabetes or within 14 days of being notified by a parent that a student has been diagnosed with diabetes. The training must be coordinated by the school nurse (or a licensed health care professional with expertise in diabetes).andnbsp;Not all staff is required to have training in diabetes care, but all school buildings that have a student(s) with diabetes must have a staff member who is trained.andnbsp;Accordingly, HB 264 allows school building principals to solicit volunteers by providing notices to employees stating: that the school is required to provide diabetes care to students with diabetes and is seeking employees who are willing to be trained to provide that care; a description of the task to be performed; that participation is voluntary and that the school can not take action against an employee who does not agree to provide care; that training will be provided by a licensed health care professional; that trained employees are immune from liability; and the name of the individual to contact if an employee is interested.
- Schools are also authorized to provide to bus drivers responsible for the transportation of a diabetic student, and to all school employees who have primary responsibility for supervising a diabetic student, training in the recognition of hypoglycemia and hyperglycemia and actions to be taken in response to emergency situations.andnbsp;This training is separate and apart from the non-emergency training mentioned above.
- HB 264 also allows students to provide their own diabetes care during regular school hours and at school-sponsored activities.andnbsp;Schools can not limit the areas in which such care can be administered; thus, a student can use any area of the school, including classrooms or private areas.
- HB 264 requires that schools report to the ODE, no later than December 31, the number of students with diabetes enrolled in the school and the number of errors associated with the administration of diabetes medication during the previous school year.
Moving forward to the 2014-15 school year, school districts should:
- Review (and revise if necessary) current medication administration policies to comport with the requirements of HB 264.
- Solicit volunteers to be trained in diabetes care for each school building where diabetic students are in attendance and schedule training for them.
- Review student building assignments to ensure that all students with diabetes are attending their neighborhood schools. If students are not attending their neighborhood schools and have been assigned to other buildings due to the availability of diabetes care, schools should contact parents to discuss whether they prefer to have the student continue in his/her current building or to return to his/her neighborhood school.andnbsp;All decisions regarding this issue should be documented in writing.
- Stand ready to provide notices to parents/guardians of diabetic students regarding their rights under Section 504, and be ready to develop such plans as are necessary.
On December 21, 2013, the Office for Exceptional Children (OEC) issued Memorandum 2013-1 which outlines changes to Ohio Administrative Code Section 3301-51-05(H)(4)(c). Pursuant to this Memorandum, and changes to theandnbsp;Operating Standards for Ohio Educational Agencies Serving Students with Disabilities, an IEP no longer serves as prior written notice – even if parents sign the document indicating their agreement. This is anandnbsp;immediate changeandnbsp;and districts must immediately begin issuing prior written notice afterandnbsp;all IEP meetingsandnbsp;where changes are made to the student’s IEP. This includes annual review meetings where a new IEP is developedandnbsp;andandnbsp;any meetings held during the term of the IEP where changes are made to the document. OEC will immediately begin enforcing compliance with this new requirement both in complaint investigations and monitoring activities.andnbsp;
What should districts do now?andnbsp;
- Review all Board policies and internal procedures and make any changes necessary to reflect the new prior written notice requirement.
- Provide notice toandnbsp;allandnbsp;special education staff members including supervisors, intervention specialists, school psychologists and related service providers about the change to the prior written notice requirement.
- Provide notice to all building administrators regarding the change to the prior written notice requirements and information on how this will impact special education staff members.
- Decide which staff members will be responsible for drafting and issuing prior written notice to parents following “routine” IEP meetings (i.e., meetings where there is no disagreement in any area and the PR-01 is only to notify parents of the change to the child’s free appropriate public education).
- Decide which staff members will be responsible for drafting and issuing prior written notice to parents following “non-routine” IEP meetings (i.e., meetings where there is disagreement on one or more topics, even if parents ultimately sign the IEP indicating agreement).
- Develop “standard” language for prior written notices to be issued after “routine” IEP meetings.
- Provide training to all staff members who will be responsible for drafting and issuing prior written notice to parents following IEP meetings.
What are key elements for training?andnbsp;
- Emphasize the importance of timely issuance of prior written notice – failure to issue prior written notice is a serious procedural error and will lead to adverse consequences for the district.
- Teach staff members to recognize the difference between “routine” and “non-routine” IEP meetings and what this means with respect to the content of the prior written notice.
- For “routine” meetings, reassure staff members that the prior written notice is not onerous to write and, in many cases, the district’s “standard” language can be utilized.
- Train staff members to modify “standard” language when necessary to accurately reflect the discussions at the IEP meeting and changes to the IEP.
- Remind staff members that there should not be any blanks or N/A notations on the PR-01 form – all questions must be answered.
- Remind staff members to re-read the prior written notice to ensure that they have answered the question asked by the prior written notice form.
Other tips for compliance…andnbsp;
- Designate individuals to review all prior written notices drafted by intervention specialists and related service providers to ensure compliance until staff members have had an opportunity to adjust to the new requirements.
- After discontinuing the mandatory review, continue spot checking prior written notices to find and correct any errors.
- Advise staff members of available resources if they have questions about whether a prior written notice is required or the content of the notice.
If you have specific questions regarding the content of a prior written notice or would like to schedule training for staff members, please contactandnbsp;Christina Peerandnbsp;or any other member of our Education Law Group.
U.S. Department of Education Letter Requiring ABA to be Made Available
On September 5, 2013, the Office of Special Education Programs (OSEP) advised the director of the Ohio Department of Health (ODH) that the state must make Applied Behavioral Analysis (ABA) available as an early intervention service to any child considered a good candidate for that particular treatment. OSEP is requiring ODH to submit a written statement that it will make ABA available to children identified as appropriate recipients of the therapy, and to send a memorandum to all early intervention service programs to inform them of this requirement. The OSEP letter makes clear that there is no mandate to provide ABA services; however, ODH must include ABA therapy “in the non-exhaustive list of early intervention services that an IFSP can identify and the State will make available if identified as needed by the IFSP team under IDEA Part C.”
Ongoing Litigation Involving Availability of ABA Through Help Me Grow
OSEP’s letter comes in the midst of a federal court battle between parents of a boy with autism and the Clermont County Board of Developmental Disabilities (CCBDD), which administers the ODH’s Help Me Grow (HMG) program. The parents filed a complaint on behalf of their then 2-year-old son to have CCBDD provide him with ABA and immediately sought a court order to force CCBDD to continue their son’s private ABA program during the pendency of legal proceedings. Prior to the complaint, when the parents presented CCBDD with clinical recommendations that their son receive intensive ABA, CCBDD informed the parents that it does not provide ABA.
The court issued an order requiring CCBDD to develop a plan to provide the child with 40 hours of ABA per week based on a recommendation from the Cleveland Clinic Center for Autism.andnbsp;See Young v. State of Ohio, 113 LRP 2036 (S.D. Ohio 2013). The order is to remain in place until the child’s third birthday, when he will move to IDEA Part B and the school district of residence will be responsible for providing services. OSEP indicated in its letter that it will continue to monitor this litigation.
Implications for School Districts
While the OSEP letter only refers to IDEA Part C, the provision of extensive ABA therapy through HMG has implications for students transitioning to IDEA Part B services. If a child receives 40 hours of ABA under Part C, parents are likely to request a continuation of this level of service as the child moves to Part B preschool services. If data from the child’s early intervention ABA services demonstrates growth using this methodology, it may be difficult for districts to argue that a different methodology should be utilized when the child transitions to preschool.
Districts may also have difficulty arguing that a child who received 40 hours of ABA per week through HMG does not require this same level of support as a preschool student. This has implications for districts in terms of the length of the preschool program, staffing considerations, staff training and other logistical issues. Districts must also consider how to incorporate related services and other school activities that foster the development of social skills into the student’s day.
In response to a report from the Government Accountability Office (GAO) finding students with disabilities are not receiving an equal opportunity to participate in extracurricular athletics, the Office for Civil Rights (OCR) issued a “Dear Colleague” letter on January 25, 2013. The letter does not create new obligations, but reiterates and clarifies the responsibilities of public school districts under Section 504 of the Rehabilitation Act of 1973 (Section 504) with respect to extracurricular activities.
Under Section 504, public school districts must ensure that qualified students with disabilities are given an opportunity to benefit from a district’s extracurricular programs “equal to that of students without disabilities.” As a practical matter, this means:
- Extracurricular programs can still require students to demonstrate a level of skill or ability to participate through a tryout process – provided thatandnbsp;allpotential team members are required to try out.
- A qualified student with a disability must be given the opportunity to try out if he/she meets the criteria for doing so (e.g., has the required grade point average, etc.). Failure to allow a qualified student with a disability the opportunity to try out is discrimination and violates Section 504.
- District personnel cannot act on generalizations and stereotypes about the capabilities of students with disabilities. OCR gives the example of a lacrosse coach who will not play a student with a learning disability because the coach feels the disability renders the student unable to deal with the pressures of an actual game.
- Districts are required to provide “reasonable modifications” and provide necessary aids and services to qualified students with disabilities, unless the district can show that doing so would result in a “fundamental alteration” to the program or create a health or safety hazard for other students or the student with a disability.
- A “fundamental alteration” either: a) alters an essential aspect of the activity or game so that it would be unacceptable even if it affected all competitors equally; or b) has a peripheral impact on the activity or game itself but could give the particular player with a disability an unfair advantage over others and, therefore, it fundamentally alters the character of the competition.
- For example, widening the holes on a golf course would affect all players equally but would fundamentally alter the nature of the game.
- Any rule promulgated by an extracurricular association, organization, club or league using school district property that renders a student ineligible to participate on the basis of disability is superseded by the district’s obligations under Section 504. Providing assistance to organizations that use discriminatory practices could constitute a Section 504 violation.
OCR recognizes that even if a district adheres to the guidance set forth above, there may still be circumstances where students with disabilities cannot participate in existing programs, even with reasonable modifications, aids and services. In these situations, OCR encourages districts to create additional extracurricular activities for those students. However, there is no requirement that school districts create additional extracurricular activities.
In response to the “Dear Colleague” letter, school districts should consider:
- Reviewing current policies to ensure compliance with the guidance in the Dear Colleague letter and with Section 504 requirements generally.
- Looking at how extracurricular programs operate in practice to ensure students with disabilities are indeed getting an equal opportunity to participate. A well-crafted policy serves no purpose if it is not being followed.
- Educating school staff on the “equal opportunity” requirement of Section 504 and the danger of making decisions based on stereotypes rather than objective evidence.
- Creating extracurricular activities for those students with disabilities who cannot participate in current programs. This could include discussions with nearby districts about forming regional teams.
- Ensuring that no organizations receiving district assistance discriminate on the basis of disability and that these groups understand that receiving district assistance requires Section 504 compliance.
If your district has questions about the “Dear Colleague” letter or whether its policy and/or practices are compliant with Section 504, please contact a member of Walter | Haverfield’s Education Services Group.
Despite current market conditions that have caused the size of many other area law firms to remain stagnant or shrink, we are pleased to announce that Walter | Haverfield overall has grown by more than 20 percent in 2012 with a large percentage of the growth occurring in our Employment/Education Group. Since 2010, in fact, six attorneys have joined the group, making us one of the largest groups in the region to focus on employment and education law.
We see this as a major testament of our firm’s ability to differentiate itself in the market. At Walter | Haverfield, we pride ourselves in being able to offer high-quality and responsive legal services at competitive rates. The results speak for themselves, as in the past 12 months alone, we have brought on board 20 new school districts as clients.
The school year is officially underway! With this new school year comes not only the work of educating students, but also, the after-school work of coaching and teaching students in extracurricular sports, clubs and activities. School districts generally employ teachers to oversee these extracurricular activities via supplemental contracts. However, as the list of extracurricular activities for students grows, districts have more frequently sought to use the services of non-teaching employees to staff coaching and similar supplemental contract positions. At first glance, this inclination to use non-teaching personnel may seem to be an efficient solution to finding coaches and advisors. Nonetheless, employment of non-teaching personnel in these positions poses complicated legal issues. Specifically, those issues are related to a school district’s obligation to comply with the cumbersome overtime requirements of federal law – namely, the Fair Labor Standards Act (FLSA). School districts, therefore, should “think twice” before quickly resorting to non-teaching employees as alternative sources of staffing for coaching and related positions.
Overall, the FLSA requires that overtime (or time-and-a-half) be paid to non-exempt employees who work more than 40 hours in a given work week. Notably, teachers are exempt from the FLSA’s overtime requirements. As a result, when school districts employ teachers as coaches or advisors (as a “supplement” to their teaching contract), the overtime provisions of the FLSA are not triggered, and no overtime is due. Rather, the teacher is paid a flat rate per a supplemental contract for the work performed.
In contrast, non-teaching employees – such as custodians, maintenance workers, cafeteria personnel, groundskeepers or assistants – are not exempt from the FLSA. Thus, the work of non-teaching personnel in coaching and other extracurricular positions could trigger the overtime requirements of the FLSA, if the employee works more than 40 hours in a week (through a combination of their regular and extracurricular duties). A school district’s FLSA obligations become all-the-more complicated based on various overtime formulas that include the blending of rates when employees work two different positions at two different rates of pay. Equally important, the remedies available for non-teaching employees under the FLSA are extensive. They include the ability of employees to collect up to three years of back wages for a school district’s violation of the FLSA.
Additionally, even if a district decides to staff non-teaching employees in coaching and other extracurricular positions, schools still must keep in mind the mandatory hiring process for such personnel with pupil activity permits. Ohio Revised Code 3313.53 establishes that hiring process and specifically provides that a non-licensed individual who holds a valid pupil-activity program permit may be employed only after the district offers the position to qualified, licensed employees of the district. If no qualified, licensed individual is accepted for the position, then a school district must advertise the position to any licensed individual who is qualified, but not employed by the board. Only when no such person has applied for and accepted the position is a school district able to then offer the position to non-teaching employees in and beyond the school district.
All told, a school district’s employment of non-teaching personnel in coaching and other extracurricular positions presents a host of complex legal concerns that merit the attention of legal counsel. School districts are thus encouraged to contact their attorneys to assess the legal implications and potential solutions related to the employment of non-teaching personnel as coaches or advisors.
Safety-oriented assistive technology for children with special needs has proliferated in recent years. One of the more recent devices is called AngelSense. The name sounds innocuous, but its potential misuse is raising concerns for school districts.
Recently, districts have been faced with an increased number of requests to permit AngelSense in their classrooms. The device is a GPS tracker with a corresponding app, and it’s designed for parents to locate a child with special needs who may elope. While it’s not a recording device, the device does have a “listen-in” feature, which is raising red flags for many schools.
The ability of a third party to listen in to another conversation without his/her consent is a privacy concern. Some states require consent from all parties to a conversation before such a “listen-in” device can be used. However, in Ohio, only one party’s consent is required. But there are other legal issues that a school district must consider when faced with a request for student use of AngelSense (or similar device). For example, there are numerous laws that protect students from discrimination, especially a child with a disability. Those include the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973. Schools must be cautious not to deny a child with a disability a service or privilege that other students can access. With this in mind, when an AngelSense request is made, a school may permit or deny the request in accordance with the district’s policies. It is important to consider relevant policies (such as those for recording/transmitting information) as well as the capabilities of other electronic devices, such as smartphones (don’t forget those have pesky features like GPS and recording, too) that non-disabled students utilize at school. Then, be sure that the school’s response to the request is applied uniformly and in alignment with such policies.
Additionally, schools may need to consider the Individual with Disabilities Education Act, Section 504 and corresponding state obligations as to whether the child requires use of the device in order to receive a free appropriate public education (FAPE). This may become an especially important analysis when elopement is a significant concern for a child. Also, be sure to document the team’s consideration of the request, including whether the device would be appropriate assistive technology for the child.
Lastly, the school may request that listen-in devices be disabled during school hours. This request can be placed into a formal agreement with the family, with specific hours set for the listen-in schedule. To enact this agreement, the school will use the school dashboard feature once it is set up by the family. While it is important to note that only a primary guardian for the device will have automatic access to edit the listen-in schedule, AngelSense can, and will, remove the primary guardian’s ability to edit the listen-in schedule should the school request it. Moreover, once a parent/guardian agrees, AngelSense can send notifications to the district when the listen-in feature is deactivated or activated.
Regardless of the route the school takes, remember to conduct appropriate consideration of a request, apply policies uniformly and analyze whether the device is necessary to provide a FAPE on an individual basis. Ultimately, districts may even find that they need to develop appropriate policies to address similar requests in the future.
The Ohio Attorney General’s office (AG) has issued an opinion regarding the obligations of education costs for students placed in out-of-state residential facilities. And while the opinion is not controlling on the courts, they may refer to it when making decisions.
There has long been confusion regarding financial responsibility for the education costs of a child in the custody of a public service agency who is placed in a private residential facility outside the state of Ohio. Is it the responsibility of the board of education of the student’s home school district, the board of education of the school district the student is moving to, or another public entity in Ohio?
The AG concluded that when an abused, neglected or dependent child is in the custody of a public agency and then placed in a private, out-of-state residential facility, in a state that is a member of the Interstate Compact on the Placement of Children, the school district designated by the court will be responsible for the costs of educating that child. The court will decide which school district holds that responsibility, based on which district is the student’s “school district of residence” under the Ohio Revised Code. Depending on a number of variables, including whether the child receives special education, different provisions of the Ohio Revised Code apply to determine which school district is the child’s “school district of residence.”
The AG based this conclusion on the Interstate Compact on the Placement of Children, which was adopted by Ohio in 2006. The Interstate Compact continues the care provided by a public agency when a child is placed in another state. The state that sends the child retains jurisdiction over related custody matters. The Interstate Compact does not determine the distribution or division of costs for educating the child. However, it does provide that such costs should be divided and assessed as they would have been if the child was placed in Ohio. For children residing in Ohio, who are in the custody of a public agency, the Ohio Revised Code designates the child’s “school district of residence” as the district responsible for the child’s educational costs. Therefore, the AG concluded the child’s “school district of residence,” as determined by the applicable provisions of the Ohio Revised Code, would likewise be responsible for the educational costs of a child’s out-of-state placement.
Although the opinion is informative, it is only general guidance. It does however highlight the need for school districts to ensure that, if they are designated the “school district of residence” for a child, the court’s determination is correct. If the school district determines that it is not the child’s “school district of residence,” steps should be taken immediately to rectify the situation due to the potential costs involved. Additionally, school districts should remember that different provisions of the Ohio Revised Code apply to “school district of residence” determinations depending on the circumstances (e.g., child requiring special education, incarcerated parent, etc.). Districts should work directly with legal counsel regarding specific situations.
The Family Policy Compliance Office (“FPCO”) now offers school districts a tentative framework for responding to parents’ requests for videos. Often such footage – a security video of a cafeteria fight, for example – includes images of multiple students, which may all be individually protected by FERPA, the Family Educational Rights and Privacy Act. For years, school districts struggled with how to handle such requests, what to release, to whom, and what to redact, if anything.The FPCO’s long-awaited guidance document (Letter to Wachter) describes a school district that received a records request for video footage of a hazing incident. The incident involved six perpetrators and two victims. The request came from a parent of a perpetrator, but the district noted that it did not have the resources to redact other students’ images. The FPCO explained that the video footage was an educational record for both the victims and the perpetrators, but would not be considered a record for bystanders who were not involved in the incident. Further, the FPCO explained that if redaction was impossible or would destroy the record’s meaning, the district may allow the parent to inspect and review the video, even if other students are pictured. Notably, FERPA requires districts to allow parents (or eligible students) the opportunity to inspect and review the record, but does not require – in most circumstances – districts to provide parents with a copy.
In determining whether to release video footage depicting multiple students, districts can begin by considering the following questions:
- Is the video footage an educational record for any student? If not, FERPA does not apply.
- If the video is an educational record of multiple students, will parents of the other students featured in the footage consent in writing to the release of the unredacted educational record? If they would, this may be the simplest way to comply with FERPA requirements.
- Is it possible to redact the video footage so as to conceal the other students’ identity but also maintain the record’s meaning? If not, the district may allow parents to view the unredacted record even if other students are pictured.
- Must the district provide a copy of the video to the requesting parent? Districts are not obligated to provide copies unless requiring parents to come in and review the video effectively prevents them from accessing the record. This might occur if a parent lives far away or is disabled.
Although the FPCO guidance is informative, it remains unclear how these directives will interact with other statutes affecting student records, including Ohio’s Sunshine Laws. Issues related to the release of video footage that contains student images are extremely fact specific, and the information in this alert is intended to provide general guidance. School districts should work directly with legal counsel regarding specific situations.
Miriam Pearlmutter is an attorney at Walter | Haverfield who focuses her practice on education law. She can be reached at firstname.lastname@example.org or at 216-619-7861.
The advent of legalized medical marijuana in Ohio has prompted parents to request that school districts administer cannabidiol (CBD) oil to their children during the school day. CBD is currently used as a homeopathic alternative to prescription medications for treating attention and anxiety issues.
On the surface, the process for implementing the request is simple: after completing a request form, parents provide the substance to school officials who then administer the drug as directed.
Yet, a recent decision from the Ohio State Board of Pharmacy has spurred questions over the legality of these requests. Although CBD oil is sold in some stores around the state, the Board of Pharmacy issued a statement in August declaring all CBD oil (even that derived from hemp) illegal in Ohio unless it is sold through properly licensed Ohio dispensaries.
An argument can be made that a categorical ban against all CBD oil is too broad because some forms and manufacturing techniques may still be legal. However, the Board of Pharmacy’s definitive statement leaves little room for creative interpretations of the law.
Further, defending against an accusation that a school district improperly possessed or administered CBD oil would be costly. That’s because it would require proof that a particular CBD oil is legal which would entail intense research into the product, including toxicology tests. The risk of a citation, the likelihood of negative publicity and the cost of defending a district’s actions all weigh against any potential benefit to allowing the use of CBD oil in schools at the present time.
While many school districts have policies for administering over-the-counter medicines, including homeopathic remedies, such policies should not be relied upon to administer CBD oil. Even a doctor’s order of administering CBD oil would not be a defense if the substance is illegal and not properly issued through one of the state’s budding dispensaries.
In this context, the most well-intentioned school district can find itself on the wrong side of the law. However, school districts must also be cognizant of their obligations to students with disabilities under the Individuals with Disabilities Education Improvement Act (IDEIA) and Section 504 of the Rehabilitation Act of 1973. These laws require school districts to provide the accommodations, modifications and services necessary for students with disabilities to receive a free appropriate public education. One such service can be the administration of medication at school. If a student with a disability requests the administration of CBD oil at school, the district could find itself in a “Catch-22” between the state’s medical marijuana law and federal laws protecting the rights of disabled students.
School districts should tread carefully in all situations involving the use of medical marijuana – particularly those involving individuals with disabilities – until the laws catch up with the use of medical marijuana and its derivatives in schools.
The Board of Pharmacy’s statement on CBD oil is available here.
The Ohio State Bar Association (OSBA) has certified Walter | Haverfield attorney Margaret O’Bryon as a specialist in workers’ compensation law. O’Bryon is the only Ohio attorney to have received such certification in 2018.
The OSBA certification program is accredited by the Ohio Supreme Court. Attorneys seeking certification must devote at least 25 percent of their practice to their particular field of law, submit five professional references, complete a minimum of 36 hours of specialized continuing legal education and pass a written exam.
“Receiving this certification is a testament to my hard work over the last two decades,” said O’Bryon, who represents a variety of public and private employers in the health care, manufacturing, construction and education industries. “I’m honored to be recognized, and I have every reason to believe that being a certified workers’ compensation specialist will further my practice.”
“This is an exceptional achievement, and not one many attorneys in the state share,” said Susan Anderson, partner at Walter | Haverfield and O’Bryon’s colleague. “We all applaud Margaret on this accomplishment.”
Attorneys who have earned specialty certification must file annual reports showing they comply with program requirements. They must also be recertified every four years.
There are currently 130 OSBA-certified workers’ compensation specialists in Ohio, which has a total of 44,856 licensed, registered active attorneys.
Since 1932, Walter | Haverfield attorneys have served as strategic counselors to private businesses, public entities and high net-worth individuals, providing creative and customized solutions that deliver outstanding results at an exceptional value. Our track record has allowed us to sustain year-after-year growth. Walter | Haverfield has doubled its size in the past decade to become one of the top ten Cleveland-based law firms. Today, our team of nearly 80 attorneys is focused primarily in the areas of corporate transactions, real estate, intellectual property, labor and employment, education, tax and wealth management, liquor control law, litigation and public law.
On Friday, November 2, 2018, HB 318 goes into effect, which implements new school discipline procedures for students. It also mandates particular qualifications and specialized training requirements for school resource officers (SRO).
Changes to Student Discipline
HB 318 changes student suspension, expulsion and emergency removal procedures. These revised student discipline procedures are divided into two general categories: (1) provisions affecting all students regardless of grade level and (2) provisions applicable to students in grades pre-K through three.
Suspension, Expulsion and Emergency Removal Procedures for All Students, Regardless of Grade Level
HB 318 specifies several changes to suspension, expulsion and emergency removal procedures for all students, regardless of grade level:
- A student may be expelled for bringing or possessing a knife only if it is “capable of causing serious bodily injury,” as defined by the school district or school governing authority.
- A district or school is required (rather than permitted as under former law) to allow a student to complete classroom assignments missed during suspensions.
- An “in-school suspension” must, in its entirety, be served in a supervised learning environment.
- A superintendent or principal is no longer required to notify the treasurer within one school day after a student’s suspension. But, the requirement that the treasurer be notified within one school day after a student’s expulsion remains.
- If a student is emergency removed because his/her presence poses a danger to others or a threat of disrupting the classroom, the post-removal hearing must be held the next school day after removal.
Suspension, Expulsion and Emergency Removal Procedures for Students in Grades Pre-K through Three
HB 318 identifies significant procedural changes with respect to suspension and expulsion of students in grades pre-K through three:
- Schools are prohibited from issuing an out-of-school suspension or expulsion for a student in grades pre-K through three, except for serious offenses or as necessary to protect the immediate health and safety of the student, classmates, classroom staff and teachers, or others. This prohibition will be phased in over time with out-of-school suspensions for “minor offenses” for students in grades pre-K through three being completely eliminated by the 2021-2022 school year.
- Schools are still permitted to issue in-school suspensions so long as the suspension is served in a supervised learning environment.
- A student in grades pre-K through three who is emergency removed must be permitted to return to curricular and extracurricular activities on the school day following the day of the student’s removal. If the student returns to activities in accordance with this requirement, the district or school can forego the written notice and one-day post-removal hearing requirements. The school district may not initiate suspension or expulsion proceedings against the student unless (1) the student committed a serious offense, or (2) it is necessary to protect the immediate health and safety of the student, the student’s classmates or the classroom staff and teachers.
Changes to SRO Requirements
HB 318 defines the responsibilities of an SRO to include: providing a safe learning environment, fostering positive relationships, developing problem resolution strategies, assisting schools in adopting, implementing and amending comprehensive emergency management plans (including required consultation with local law enforcement and first responders), and providing resources to school staff. Most significantly related to SROs, HB 318 requires:
- 40 hours of specialized training for any SRO appointed on or after November 2, 2018. The training must be offered by the National or Ohio Association for School Resource Officers or a peace officer certified to conduct an SRO training course. This training includes information on the SRO’s role in discipline and communication with students; developmentally appropriate interview, interrogation, de-escalation and behavior management strategies; classroom management and support tools for students (including those with special needs); and drug use identification and prevention. Previously appointed SROs are exempt from these new specialized training hours, but require basic training approved by the Ohio Peace Officer Training Commission pursuant to Ohio law.
- Any school district that utilizes SRO services to enter into a Memorandum of Understanding (MOU) with the appropriate law enforcement agency. The MOU should clarify the purpose and goals of the SRO program as well as the roles and expectations between participating entities. For previously appointed SROs, school districts have until November 1, 2019 to enter into the required MOU.
School districts are encouraged to learn the changes of HB 318 and implement the new requirements in a timely manner. It is also advisable to seek the input of legal counsel to proactively avoid any liability issues that may arise.
James McWeeney and Lisa Woloszynek are attorneys at Walter | Haverfield who focus their practices on education law. James can be reached at email@example.com or at 216-928-2959. Lisa can be reached at firstname.lastname@example.org and at 216-619-7835.
Ohio recently passed a law that requires a wide range of professionals who interact with impaired seniors to immediately report suspected cases of neglect, abuse or exploitation. Those professionals include health care workers, attorneys and CPAs.
The law identifies seniors, 60 years or older, who are handicapped due to aging or have physical or mental impairments that prevent self-care and protection.
The law also seeks to identify people who take advantage of aging seniors and expressly forbids deception, threats and intimidation. Plus, it classifies exploitation as someone who benefits from an elderly person’s resources for monetary or personal gain. According to Cuyahoga County, there are more than 3,500 cases of elder abuse in the county each year.
Professionals who suspect any form of abuse must immediately file a report in person or online with the county department of jobs and family services. They will be asked to include the victim’s name, address, approximate age, the person responsible for the senior’s care, extent of abuse and reasons for the report.
Reports remain confidential, regardless of the type of professional who speaks out. They are also excluded from public records requests. The law grants civil and criminal immunity to those who report, and employers are prohibited from retaliating against whistleblowers.
Professionals who have a duty to report:
Attorney and accountants
Real estate brokers
Doctors, dentists, nurses and chiropractors
Hospital and outpatient facility employees
Psychologists, social workers and therapists
Pharmacists, dialysis technicians
Health agency employees
County humane society agents
Nursing home and residential care employees
Firefighters, ambulance drivers, first responders and EMTs
Building department employees
Police officers and police employees
Members of clergy
Notaries and bank employees
Investment and financial planners
More information on reporting abuse in Cuyahoga County can be found here.
Kevin McKinnis is an attorney at Walter | Haverfield who focuses his practice on federal, state and local tax planning and controversies as well as mergers and acquisitions, estate planning, and probate and trust administration. He can be reached at 216-928-2965 or at email@example.com.
Ruling could foretell issues to come in Ohio and the rest of the country
While questions remain about student use of medical marijuana in Ohio schools, a California administrative law judge (ALJ) ruled that a kindergartner be allowed to bring cannabis oil to school for use as needed.
The ALJ made the ruling in September, which included a directive for the school district to provide a one-on-one nurse for the student to administer the oil. The young recipient has Dravet Syndrome, a severe form of pediatric epilepsy.
Dravet Syndrome causes unpredictable, life-threatening seizures, which can be controlled with THC oil (a form of cannabis oil) shortly after a seizure begins. The student was allowed to take cannabis oil on the bus and to school while attending a private preschool, which was funded by the Rincon Valley Union Elementary School District, located in Santa Rosa, California.
A nurse for the student at the preschool administered the cannabis oil in the event of a seizure. However, when the student transitioned to kindergarten, the district prohibited the oil both on the bus and on school district property, deeming it an illegal substance.
The student’s Individualized Education Plan (IEP) team determined that home instruction constituted the student’s Least Restrictive Environment (LRE) in order to legally allow her access to the cannabis oil. The student’s parents disputed the ruling and filed a due process request under the Individuals with Disabilities Education Act (IDEA).
At the hearing, the school district argued that both federal and state law prohibited the student from bringing cannabis oil to school for any purposes. Citing the federal Drug-Free Workplace Act of 1988, the district argued that allowing cannabis oil on campus jeopardized its ability to receive federal funding because it would no longer be considered a drug-free campus.
The judge found the district’s argument unpersuasive. Citing California’s Compassionate Use Act, which allows for use of medical marijuana, the judge determined that state law allowed the student’s use of cannabis oil at school and on the bus, as needed.
The ALJ further held that the district’s decision to place the student on home instruction violated the IDEA. Specifically, the ALJ found that the district failed to provide the student with a Free Appropriate Public Education (FAPE) in her LRE.
In deciding that home instruction was not the student’s LRE, the ALJ’s decision noted that she demonstrated significant social and academic growth while in preschool. District witnesses at the hearing confirmed the student’s progress and argued that, but for the legality issue with her cannabis oil, the IEP team would have agreed that she attend kindergarten at the public elementary school.
Given the limited guidance about student use of medical marijuana in schools, the decision will likely be cited as precedent in future cases. Ohio school districts should contact their legal counsel when issues of medical marijuana on school property arise.
The steady uptick in the economy means property values are on the rise. While this translates to more money in a school district’s coffers, it also means residents and commercial property owners are preparing their offensives to ensure their property values remain low despite a better economy. As the new year gets underway, school districts should be aware of and prepare for an increase in the number of challenges to property values.
When the real estate bubble popped spurning the “Great Recession,” school districts were hit with ad valorem tax complaints filed by property owners asserting that a steep economic downturn necessarily means their assessed property values were too high. Some county boards of revision were more sympathetic than others, but few could argue that a reduction was not warranted to some extent. With limited resources to put toward a defense, many school districts had to grin and bear the loss.
Fortunately, the pendulum is now swinging the other way and property values are on the rise. As each county conducts a reappraisal every six years, property values will be increased, or at least “corrected.” Property owners are not pleased when they open notices reflecting new and higher values. Indeed, 2018 is a reappraisal year for Cuyahoga County, and the fiscal officer is already anticipating an onslaught of complaints.
Districts, especially board treasurers, are encouraged to keep an eye out for notices from their county auditors and fiscal officers regarding property tax complaints. If the district hasn’t done so previously, it may want to be more involved in board of revision proceedings this time around and hire legal counsel to ensure the tax base is protected. The district should also remind the board of revision hearing officers that it is closely monitoring the proceedings.
Complaints must be filed by March 31st and counter-complaints in response must be filed shortly thereafter. If a deadline is overlooked, a school district may lose its chance to participate in the proceedings or challenge the property owner.
Peter Zawadski is an attorney at Walter | Haverfield who focuses his practice on education law as well as labor and employment matters. He can be reached at firstname.lastname@example.org and at 216-928-2920.
The Ohio General Assembly recently enacted House Bill 491, which contains significant legal changes affecting school treasurer and superintendent liability. Traditionally, public officials have been strictly and individually liable for the loss or misuse of public money under their control. This liability rule applied regardless of blame or intent to commit wrongdoing.
However, the new legislation offers treasurers more legal protection, as it provides that they will not be held liable for the loss or misuse of public funds unless they are lost as a result of their negligence or other wrongful act. This legislative change will likely lessen the ability of school districts to recover the costs of improper payments.
House Bill 491 goes into effect on March 19, 2019 and includes other changes as well. It prohibits the Ohio Department of Education from considering the loss of public funds as a violation of a school treasurer’s professional duties, so long as the treasurer has performed all required official duties with reasonable care. And, it protects treasurers and superintendents from the loss of public funds stemming specifically from the payment of a teacher who does not have the proper paperwork (i.e., a valid educator license). That’s unless the loss results from the treasurer’s or superintendent’s negligence or wrongful act.
House Bill 491 changes the procedure for payment of teacher services, which now dictate that a treasurer receive statements from the superintendent. Those statements need to indicate that the teacher has filed the (1) required reports and (2) a valid license with the superintendent to teach the subjects or grades taught with dates of validity. This change may increase the efficiency of processing teacher paperwork. In terms of timing, school district treasurers must implement this procedure before the effective date of the bill, March 19, 2019.
The provisions of House Bill 491 will likely impact findings of recovery issued by the Auditor of State. Generally, when an audit determines that public money has been expended illegally, the Auditor issues a finding of recovery against the liable public official and the official’s bonding company. Nonetheless, the legislation’s limits on school treasurer and superintendent liability will probably prevent the Auditor from issuing a finding for recovery against those individuals when a loss is due to negligence or a wrongful act. Indeed, the Auditor may first need to determine whether the loss of money resulted from negligence or a wrongful act before issuing a finding for recovery. Without a determination of school treasurer negligence and/or wrongful act, the school district will be unable to recover from the bonding company any amounts improperly paid. Though the amount of a district’s unrecovered losses will vary based on the facts of each individual case, it could be more than minimal.
Ohio school districts need to familiarize themselves with the liability and procedural changes associated with House Bill 491 as the law is fast approaching. School districts are encouraged to contact their legal counsel to ensure they comply with the legislation.
James McWeeney is an attorney at Walter | Haverfield who focuses his practice on education law. He can be reached at email@example.com at 216-928-2959.
As Ohio medical marijuana dispensaries begin to open, a new medication with marijuana plant derivatives, Epidiolex, is causing some confusion for Ohio school districts. Epidiolex is a cannabidiol oral solution medication for the treatment of seizures associated with Lennox-Gastaut syndrome or Dravet syndrome. This uncharted territory now leaves school districts to interpret how to address parental requests for the administration of Epidiolex and how it differs from the other cannabis plant medications.
Most significantly, Epidiolex has been approved by the Federal Drug Administration. The FDA’s placement of Epidiolex on Schedule V of the Controlled Substances Act makes it distinct from both medical marijuana and CBD oil in Ohio. Even if the marijuana product is properly obtained through recommendation by a registered doctor and dispensary, school districts in Ohio are currently unable to legally administer medical marijuana or CBD oil to a student. Primarily, Ohio’s medical marijuana laws do not accommodate dosing by school personnel, and federal law and Ohio’s drug-free school zone law can still be interpreted as prohibiting the use and possession of medical marijuana in schools.
While the Ohio State Board of Pharmacy generally treats all marijuana products and derivatives the same, it has expressly identified Epidiolex as distinct. The Ohio State Board of Pharmacy has specified that “[e]ffective September 27, 2018, the Drug Enforcement Administration (DEA) placed Epidiolex in Schedule V. Epidiolex is a drug that contains cannabidiol (CBD), a chemical constituent of the cannabis plant (marijuana). Per ORC 3719.43, Epidiolex is considered legal in Ohio as a Schedule V controlled substance.” The DEA has also indicated that “Marijuana and CBD derived from marijuana remain against the law, except for the limited circumstances that it has been determined there is a medically approved benefit. In those instances, such as here, the drug will be made appropriately available to the public for medical use.”
These features make Epidiolex divergent from medical marijuana in Ohio. As school districts address parental requests for school personnel administration to a student, it is imperative that the district understand that Epidiolex is FDA-approved and should not simply be grouped with medical marijuana for administration analysis. If a physician orders its administration, it is advisable that school districts treat Epidiolex as all other medications under Board Policy and continue to seek out legal counsel as the cannabis landscape evolves.
Lisa Woloszynek is an attorney at Walter | Haverfield who focuses her practice on education law. She can be reached at firstname.lastname@example.org and at 216-619-7835.
As the snow melts and the trees begin to blossom, our thoughts turn naturally to spring and even summer. But if you’re a special education administrator or intervention specialist, your pre-summer list is probably a mile long, even as early as March. One of those to-do items is planning Extended School Year (“ESY”) services for qualifying IEP students, a sometimes confusing and daunting task. Who decides which students qualify for services and how? Do we need to provide yoga and horseback riding if that’s what a parent requests? Can we just copy ESY goals and objectives from the IEP? Here are some best practices in planning ESY to make your team’s preparations just a bit easier this year.
• ESY Basics
The law requires school districts to provide ESY to qualifying students over the summer to prevent or lessen regression. ESY is not camp, child care, enrichment, or summer school. ESY services are specially-designed instruction and/or related services tied to specific goals on the student’s IEP. Every IEP includes an ESY section which requires the team to decide if a child is eligible for services.
• ESY Qualifications
School districts must provide ESY when a child’s IEP team determines that ESY services are necessary to offer a free appropriate public education (FAPE). Common eligibility mistakes include qualifying children just because summer services will benefit them, because they’ve failed to make progress during the year, or because they fall within a particular disability category.
Generally, ESY services are only appropriate if the student will experience significant skill loss or regression during the summer break without those services. For each child, the IEP team should consider whether – without ESY – the student: (1) will not adequately recoup skills lost to summer regression; (2) will lose emergent skills; or (3) will be severely hampered in progressing towards IEP goals. If the answer to any of the above is yes, the student is eligible for ESY. Notably, a student does not have to actually experience regression to qualify, but there must be a reasonable basis to conclude that regression would result without ESY. A child’s regression – or lack of it – after shorter school breaks is often considered a reasonable basis for making ESY decisions.
• Data Collection
Because ESY determinations are typically data-driven, teachers and other providers should collect data before and after school breaks. Specifically, educators should document levels of performance immediately before and after the break, as well as recording the amount of time the child needed to regain lost skills upon return. In analyzing before-and-after data, be sure to use an apples-to-apples comparison. For example, don’t compare a child’s score on a fifth-grade reading passage in August with a May score on a fourth-grade selection. Also, don’t limit this data collection to summer or the two-week winter vacation. Instead, collect data for Thanksgiving, spring break and any extended breaks in instruction. Without this data, denying a parent’s ESY request is legally challenging, so be sure to collect data for every potential ESY student on every goal.
• ESY Goals and Services
Because ESY services seek to prevent regression and avoid jeopardizing progress, ESY goals – unlike those on an IEP – are not written to enhance existing abilities or learn new ones. In fact, ESY goals and objectives should focus on skills that the child does not recoup in a reasonable time, or skills needed to avoid significantly jeopardizing progress. Outcomes should center on reducing skill loss in a critical area and positively impacting recoupment within a reasonable amount of time. The team decides specific ESY services needed for each child individually based on their particular FAPE needs. So, no, unless proficiency in yoga and horseback riding are critical skills subject to regression in your particular district, ESY in those areas would be unnecessary for FAPE. Don’t forget that raw data must be collected on ESY goals as well; make sure your ESY providers are competent in data collection and documentation.
• Working with Parents
In working with parents on ESY determinations, remember to meet early and explain the decision-making process clearly, along with referencing the specific data that the team reviewed. Consider parents’ input and suggestions, and be sure to consider the child’s individual needs every step of the way. ESY cannot be provided on a one-size-fits-all basis or categorically limited only to students with certain disabilities. Above all, don’t forget to document the team’s process and decisions through a prior written notice!
Careful forethought and planning with your teams in the spring will lead to an easier and more relaxing summer for everyone.
As the year draws to a close, many special education teams conduct their annual reviews and Individualized Education Program (IEP) meetings in April and May. Teams should keep in mind that IEP accommodations and modifications should be documented throughout the year. Many school districts skip this step, because documenting each time a child receives extra time or is offered preferential seating, for example, can be tedious and time-consuming. The Ohio Department of Education (ODE), however, will likely find a violation if a district cannot demonstrate that its staff provided IEP accommodations and modifications. In other words, if a parent files a complaint alleging that her child has not received extra time, class notes, or any other accommodation listed on the IEP, ODE will open an investigation. In doing so, ODE generally requests that the district submit proof that the accommodation in question was actually provided, and – in the absence of any records to that effect – will most likely find a violation. School districts can avoid this issue by following these steps:
- As a team, determine which accommodations and modifications each student needs for a free appropriate public education. The annual review is a perfect time to make this team decision.
- Assess the best way to document implementation for each child. Options include:
- A separate chart or checklist initialed and dated each time an accommodation or modification is implemented
- Periodic summaries provided with progress reports
- Notes in a home-school journal
- Any other user-friendly and clear system
- Determine and document which staff member(s) will be responsible to record when a particular accommodation is provided.
- Retain these records for a minimum of two years
By preparing and planning how IEP accommodations and modifications will be documented, your district will be in a better position to demonstrate compliance and successfully navigate an ODE investigation.
Student records. FERPA. State law. These are just some of the things to keep in mind when developing a policy for video surveillance cameras on your school buses, said Peter Zawadski, a school attorney at Walter Haverfield LLP in Cleveland.
If your district already has a policy on surveillance cameras in school buildings, the easiest thing to do would be to look at what you already have in place and apply it to school buses, Zawadski said. Here are a few things to keep in mind.
• Consider state-specific stipulations. Make sure to comply with state laws as they apply to security cameras, surveillance cameras, and invasion of privacy issues, Zawadski said.
• Include FERPA provision. Make sure to include a provision stating that bus security footage is subject to FERPA, Zawadski said. Cross-reference your policy on student educational records. Once the camera on the bus records an incident that results in student discipline, that video will most likely become an educational record of that student, he said. That means it is confidential and cannot be shared with an outside party without written parental consent, unless a FERPA exception applies, he said.
Refer to FERPA guidance on how to handle requests for video records that are also student records. “It’s not entirely straightforward, so the district should talk to its legal counsel,” Zawadski said.
• Don’t give copies of video footage to requesting parties. If parents request to see school bus video footage, you may be able to give them an opportunity to inspect and review the video, but “out of an abundance of caution, don’t burn them a copy on a disc and say, ‘here you go,”‘ Zawadski said.
Instead, have the parent come to the school to view the video. Exceptions may include parents who live far away and cannot get to the school to view the footage, or parents who are homebound. In these instances, you may provide them a copy of the video, Zawadski said.
• Name a record-keeper. You don’t want bus drivers to have access to the video recording system that allows them to delete or stop the recording, Zawadski said. Instead, name someone in the policy to be the keeper of the records, he said.
• Notify drivers and parents of surveillance camera use. Tell parents if you are using security cameras on their child’s bus, Zawadski said. And, subject to your state law, inform the drivers as well. “Make sure everyone is on notice that the district has security cameras on the buses, and that everybody is going to be on camera. I don’t see any reason why it needs to be secretive. It’s a deterrent once everyone knows they’re on camera. Students will be better behaved, and so will employees.”
• Revisit policy annually. Consider doing this in the summer, which might be a less busy time, Zawadski said. “Every year, it seems like the U.S. Education Department releases new guidance on districts’ obligations under FERPA,” he said. “Having the board or the administration review those policies that concern FERPA on an annual basis is best practice so you can take in new guidance.”
Florence Simmons covers Section 504, paraprofessionals, and transportation for LRP Publications.
April 25, 2019
Copyright 2019© LRP Publications
Reprinted with permission from: Special Ed Connection®. ©2019 LRP Publications.
The U.S. Department of Education (DOE) has recently outlined parameters to enforce a key limit of one form of alternate testing for students with disabilities. The Individuals with Disabilities Education Improvement Act (IDEIA) and the Every Student Succeeds Act (ESSA) provide two options for alternate assessments for students with disabilities, based on:
• grade-level academic achievement standards (which measures a student’s achievement against typical grade-level standards) with necessary accommodations, or
• alternate academic achievement standards (for students with the most significant cognitive disabilities – the alternate standards option in Ohio is Ohio’s Alternate Assessment for Students with Significant Cognitive Disabilities (AASCD)).
The ESSA requires states to ensure that the total number of students who are assessed with the AASCD (in each subject) does not exceed 1% of the students in the state who took the state’s achievement tests. While this ESSA requirement took effect for the 2017-2018 school year, the DOE has recently released guidance (through a March 28, 2019 Dear Colleagues Letter) that specifies potential sanctions that may be enforced if a state exceeds the 1% threshold and did not receive a noncompliance waiver.
The Dear Colleagues Letter acknowledges that many states may need time to adjust their systems to reach the 1% compliance. Therefore, waivers were available for the 2017-2018 school year, and more than 20 states were granted waivers for exceeding the threshold (including Ohio, which received waivers for reading/language arts, mathematics, and science, with some Ohio school districts utilizing AASCD for more than 3.5% of students). For states that did not receive a waiver for the 2017-2018 school year, and exceeded the 1% threshold, the DOE will review each state’s context and information. It will then consider actions that range from a letter with a requirement that the state submit a plan to reach compliance to withholding a state’s Title I Part A administrative funds. This would be coupled with the district’s execution of a plan for compliance while participating in a mandatory joint OESE/OSEP monitoring class pending compliance.
The Dear Colleagues Letter makes clear that this framework will guide the DOE’s actions in future years. The letter also points out that the most severe consequences are not contemplated until after the 2019-2020 school year. Therefore, while these potential sanctions will not be imposed on Ohio for the 2017-2018 school year because it received a waiver, it is not clear how/if waivers will be granted in future years. It is imperative that districts work to reach compliance with the 1% administration rate.
Ohio currently requires school districts that exceed 1% AASCD administration to complete a Self-Review Summary Report, an Improvement Plan, and submit district documentation of SST training. As districts continue to navigate which students should utilize the AASCD, maintain compliance, or implement a district Improvement Plan, it is important to keep in mind:
– Students who do not have a significant cognitive disability are not eligible for the AASCD.
– Participation in the AASCD should not be determined based on student attendance, disability eligibility category, education setting, English language status, behavior, a general need for accommodations.
– AASCD eligible students often require extensive and substantial support and instruction.
– The AASCD is aligned to Ohio’s Learning Standards – Extended.
In a recent surprise ruling, the Sixth Circuit held that a school district’s failure to mainstream a student with Down Syndrome violated special education law, entitling his parents to tuition reimbursement.
Although their son was considerably behind his second-grade peers, his parents refused a self-contained setting and insisted that the team use the standard curriculum in a general education classroom. The district initially acquiesced and developed an IEP with goals closely aligned to the general education curriculum – goals that were overly ambitious and unrealistic. That year was difficult for everyone, and for the following year, the district developed an IEP for a self-contained setting using an online curriculum geared toward children with intellectual disabilities. His parents rejected this IEP, enrolled their child at a Montessori school instead, and filed a due process complaint asking for tuition reimbursement. Although the hearing officer ruled in the school district’s favor, the Federal District Court in Tennessee did not.
On appeal, the court found that the school district was obligated to mainstream the student unless: (1) he would not benefit at all from a general education classroom; (2) any regular-education benefits would be far outweighed by those benefits of special education that could not be provided in a mainstream setting; or (3) the student would be a disruptive force in the regular class. The court analyzed these factors and found that none applied to this student: He derived some benefit from his general second-grade classroom, was not overly disruptive, and the special education advantages of a self-contained unit did not outweigh the benefits of mainstreaming. The court, however, found that Montessori was not an appropriate placement for this child and denied tuition reimbursement.
Both parties appealed to the Sixth Circuit, which held for the boy’s parents on all counts. The Sixth Circuit determined that mainstreaming provides enough benefit when a student makes “some progress” toward his IEP goals in the general education setting in light of his circumstances. Deciding a child’s least restrictive environment, the court explained, is not a decision that requires as much educational expertise as selecting a particular instructional methodology. In certain situations, the court emphasized, a placement which would be preferable for academic reasons should be rejected if it fails to provide for mainstreaming. The court also critically reviewed the curriculum that the district used in the self-contained setting, noting that it was not peer-reviewed as required by the Individuals with Disabilities Education Act (IDEA). Finally, the Sixth Circuit found that the Montessori placement offered an education reasonably calculated to enable this child to make progress, and required the district to reimburse the parents for tuition costs.
In light of this decision, school district IEP teams should:
- Consider any outstanding parent requests for mainstreaming in line with the above analysis;
- Review the continuum of services offered by teams to ensure compliance with legal preference for mainstreaming;
- Consider additional push-in and pull-out services instead of a self-contained setting when appropriate;
- Determine whether the curricula offered to students with special education needs are peer reviewed and tied to Ohio’s standards.
Senate Bill 216, recently signed into law, requires the Ohio Department of Education to revise the current framework for teacher and administrator evaluations, adopting a new version by May 2020. The revised framework will:
- Be subject to at least one public hearing
- Eliminate the former requirement that student academic growth count for half of each evaluation. Instead school boards must use “high-quality” student data, such as standardized assessments and end-of-course examinations, in addition to any applicable value-added progress dimensions.
- Prohibit the use of student learning objectives
- Prohibit use of shared attribution of student performance data
- Eliminate the alternative evaluation framework
- Require a professional growth or improvement plan based on the evaluation results
The revised framework will be piloted in a number of districts during the 2019-2020 year, and will take effect statewide for the 2020-2021 school year. Boards will need to update their policies by July 1, 2020, and such policies will become operative at the end of any CBA in effect at that time.
Walter | Haverfield’s Christina Peer and Peter Zawadski are advising school districts to review their policies following a recent federal court decision on the use of recording devices in classrooms. Read more here on the Best Lawyers website.
On May 28, 2019, the United States Supreme Court declined to review a Pennsylvania school district’s policy allowing transgender students to use locker rooms and restrooms based on their gender identity. The Court declined this case without comment.
In 2017, a Pennsylvania federal court upheld a Boyertown Area School District policy allowing transgender students to use restrooms and locker rooms of the sex with which they identify. Several non-transgender students opposed this policy, alleging that sharing restrooms with their transgender peers violated various constitutional and privacy rights. The federal court disagreed and declined to interfere with the school policy. On appeal, the Third Circuit upheld the school district’s decision, finding that students protesting this policy were unlikely to succeed on the merits of their claim. The Courts specifically found that the school policy was one of inclusion and promoted acceptance. The policy also featured various safeguards, including requiring transgender students to meet with a guidance counselor before accessing locker rooms and restrooms that did not correspond to their biological sex.
Because the Supreme Court declined to hear the challenge, the school district’s policy remains in place. Until the Supreme Court opts to hear a case on this issue, school districts are bound by local and state statutes and case law.
Currently, Ohio school districts are bound by the Sixth Circuit’s decision in Board of Education of Highland Local School District v. United States Department of Education. The United States District Court for the Southern District of Ohio issued a preliminary injunction requiring a school district to permit transgender students to use their preferred restrooms and pronouns. The Sixth Circuit denied a motion to stay this injunction, which effectively affirms the District Court ruling.
As this area is in flux, school districts should continue to watch for further developments and consult with legal counsel as any issues arise.
Some Peace Officers – including School Resource Officers (“SROs”) – wear body cameras, which occasionally capture images of children. The statute clarifies that images of children – and any information that could lead to identifying prominently featured children – do not have to be produced in response to a public records request. Under this law, even a parent’s consent does not authorize the release of these images in response to a public records request. Importantly, however, this statute does not affect school districts’ obligation to provide parents with educational records as required by the Family Educational Rights and Privacy Act (FERPA). If a parent requests educational records, which include body camera images of their own child, the district is likely obligated to provide access to said footage following FERPA requirements. This, of course, assumes that the video has been shared with the district. If the video was not shared with the district by the SRO (or the police department), it is not “maintained” by the district and cannot be an educational record under FERPA.
A person seeking public records which include such student images may ask the Ohio Court of Claims to consider whether the public interest outweighs the child’s privacy. If the court finds that the public interest in the recordings substantially outweigh student privacy interests, it will order the records released.
The new law also exempts school districts’ infrastructure records from mandatory disclosure. Specifically, the configuration of critical systems – ventilation, water, security codes, electrical, mechanical, communication, computer, or the infrastructure or structural configuration of a building – do not have to be produced in response to a public records request. However, simple floor plans depicting only the spatial relationship of components of the building may be disclosed.
In light of HB 425, school districts may want to review and update policies and guidelines relating to public records.
The Ohio Board of Education recently adopted changes to rules for students who ride in school transportation vehicles (O.A.C. 3301-83-08) and established clearer policies for bus drivers (O.A.C. 3301-83-13). These changes will go into effect for the 2019-2020 school year, so districts and their transportation departments are required to work collaboratively to ensure they are compliant.
O.A.C. 3301-83-08, which was a tobacco ban, has been expanded to include nicotine products. Vape pens are considered a nicotine product, even though the “e-juice” inside may be tobacco and nicotine free. Additionally, the 16 policies and procedures that used to be required under O.A.C. 3301-83-08 are now listed as “best practice recommendations.” This puts more responsibility on districts to have administrators and transportation personnel work together to develop the policies of transporting students within the district.
O.A.C. 3301-83-13 now affirmatively states that school bus stop locations must be in safe locations. This addition could be problematic for districts if a student is hurt while waiting for the school transportation vehicle. Any complaint arising from a student injury at a bus stop will almost certainly delve into whether the administrators/transportation personnel looked at known or implied dangers before selecting a pick-up/drop-off location.
Additionally, O.A.C. 3301-83-13 now requires that a driver wait for students if they are ahead of schedule. This means that even though students are supposed to be at the stop ahead of time, the driver must wait until the established departure time. No longer can a driver leave early with the excuse that the students weren’t where they should have been.
Districts should consult with legal counsel if they have issues implementing these changes.
As one of the few full-service law firms in Ohio with a dedicated education law practice, Walter | Haverfield is proudly adding two new attorneys to its team in the firm’s Columbus office. Both attorneys will serve an increasing client base of school districts in Central and Southern Ohio.
Lisa Burleson joins Walter | Haverfield as a partner after seven years working in education law. Previously, she led her own education law practice in Columbus, was associated as Of Counsel with two other law firms in Columbus and served as Deputy Director of Labor Relations for the Ohio School Boards Association. Burleson works closely with school districts as general counsel and provides various types of legal services including labor negotiations, labor relations, employment, special education, Title IX, student issues, litigation and Board governance issues.
“This move is a fantastic opportunity for my clients to have access to a broad support base with Walter | Haverfield’s Education Law group, and I’m excited to grow the firm’s Columbus practice,” said Burleson, who lives in Upper Arlington with her husband and two children. “I’m proud to be a part of such a distinguished firm and work with such talented education attorneys.”
Megan Greulich joins Walter | Haverfield as an associate. Previously, she worked at the Ohio School Boards Association in Columbus for nine years, most recently as a senior staff attorney. There, Greulich provided legal information, guidance and policy recommendations to boards of education, attorneys and administrators across the state via the association’s statewide legal hotline, presentations and publications.
“I’m thrilled to join such a reputable education law team,” said Greulich, who lives in Westerville with her husband and three children. “It gives me the chance to utilize my skills in new ways and continue to assist school districts, which is what I love.”
“Lisa and Megan bring a wealth of knowledge to our group,” said Christina Peer, head of Walter | Haverfield’s Education Law team. “Their assistance and counsel will give us an excellent opportunity to better serve school districts throughout the state. We are truly excited to have them on board.”
Burleson is very active as a volunteer in her community and her children’s school. She also serves on the Columbus Bar Association Admissions Committee.
Greulich currently serves as Chair of the Ohio State Bar Association’s Education Law Committee, is an Ohio State Bar Foundation Fellow and has volunteered with the Columbus Urban League, her children’s school and the Columbus City School District’s Reading Buddies program.
Both Burleson and Greulich are graduates of Capital University Law School and are members of the Ohio State Bar Association as well as the Columbus Bar Association.
Since 1932, Walter | Haverfield attorneys have served as strategic counselors to private businesses, public organizations and high-net-worth individuals, providing creative and customized solutions that deliver outstanding results at an exceptional value. Today, our team of nearly 80 attorneys is focused primarily in the areas of business services, real estate, intellectual property, labor and employment, education, tax and wealth management, hospitality and liquor control, litigation and public law.
Ohio’s two-year state budget calls for funding for new support services outside Ohio’s public school classrooms, changes how money is spent on low-performing school districts and places new graduation requirements on the class of 2023. And though the budget contains additions and changes, the governor’s signature came with vetoes which will also impact districts.
The budget includes funds directed for “Student Wellness and Success Funding” (SWSF). These wrap-around funds must be used on programs that address the non-academic barriers to student success, including mental health services, family engagement and support services, and mentoring – as well as services for homeless youth. Districts are also required to coordinate with at least one community partner in utilizing the SWSF funds.
The budget makes funds available to any school implementing positive behavior intervention and support (PBIS) frameworks for any school servicing students K-3. The priority of receiving these funds is outlined in the bill, with the highest priority being economically-disadvantaged districts. This section aims to provide supports outside of the classroom, curriculum for within the classroom, professional development for faculty and the ability to partner with community organizations that promote positive behaviors.
The status of Academic Distress Commissions continues to be contentious. While HB 154 looks to return local control of school districts, the budget bill revises the law regarding interventions for persistently low-performing school districts and places a moratorium on new Academic Distress Commissions. It also places new limits on the Chief Executive Officer’s powers, removing his/her ability to implement innovative education programs and requiring that any personnel changes made by the CEO be approved by the commission. As HB 154 makes its way to a vote, it is anticipated that additional provisions will be debated by the legislature.
Students of the class of 2023 must show competence in English and math skills, but they are given more options in other areas by having criteria of 12 “seals.” That means students can earn such seals in areas like job-readiness, biliteracy, science, citizenship, technology and more. This plan was developed by a mix of private and public school districts and a statewide business group that works with various educators. The new graduation requirements aim to replace the old testing requirements, but students will still need to earn passing credits by completing certain requirements. Those requirements will be rolled out later with the goal to make an Ohio diploma more enticing to future employers and colleges.
And, as an added benefit for those districts dealing with vaping and “juuling” in their student population, the age to purchase tobacco, including e-pens, has been increased to 21 years old.
Out of Governor Mike DeWine’s 25 vetoes in the budget, the “Per Pupil Funding Guarantee” is sure to garner attention. It is designed to guarantee a base amount of per-pupil funding to all public school districts. But, in his veto summary, DeWine said that this guarantee would benefit wealthier districts more when Ohio’s funding system should offer the most support to the districts that are least able to provide adequate services on their own. Another veto seeming to generate positive commentary maintains the requirement that teachers be properly certified by the Ohio Department of Education for the content area they teach, with DeWine calling teachers the “most important school-based factor impacting student achievement.” Under the “Accredited Nonpublic Schools” section, DeWine also vetoed a provision that allowed a non-public school associated with a specific organization based in another state to operate without the oversight of the Ohio State Board of Education. As DeWine pointed out, Ohio has an interest in ensuring schools that receive public funds are providing an education that meets Ohio’s standards and are overseen by Ohio agencies.
If you have any questions about how the new budget impacts your school district, please reach out. We’re happy to help.
On July 30, 2019, Governor Mike DeWine signed Ohio Senate Bill (SB) 57 legalizing the possession, purchase or sale of hemp and hemp products. The bill included an emergency provision making it effective immediately, which means that school districts are likely to see an increase in requests for administration of cannabidiol (CBD) oil, a hemp derivative. School districts should be aware of Ohio’s legalization of hemp and hemp products and how the new provisions impact the use of derivatives like CBD oil.
Many people associate CBD oil with marijuana, but SB 57 distinguishes the two by defining “hemp” and “hemp products,” and affirmatively excluding those items from the statutory definition of “marijuana.” “Hemp” is now defined as, “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol (THC) concentration of not more than .3% on a dry weight basis.” Hemp and marijuana both come from cannabis plants, but hemp plants have a very low concentration of THC. Marijuana has higher levels of THC, which is the active ingredient in marijuana that has the potential to create a “high” or intoxicating effect.
The new provisions define “hemp products” as any products made with hemp and containing .3% or less THC, including “cosmetics, personal care products, dietary supplements or food intended for animal or human consumption, cloth, cordage, fiber, fuel, paint, paper, particleboard, and any other product containing one or more cannabinoids derived from hemp, including cannabidiol.” The language specifically excludes hemp and hemp products from the statutory definition of “drug,” and removes THC found in hemp and hemp products from Ohio’s list of Schedule I controlled substances.
As a result of hemp and hemp product legalization, the Ohio State Board of Pharmacy released a statement Tuesday, clarifying that in light of the bill, hemp products, including CBD oil now may be sold outside of licensed medical marijuana dispensaries. The Board of Pharmacy also stated that other Ohio Medical Marijuana Control Program (OMMCP) requirements do not apply to the use of hemp and hemp products, including CBD oil. The Board and the Ohio Department of Commerce plan to release future guidance regarding any OMMCP restrictions on licensed dispensaries selling hemp-derived CBD products.
Another important factor is the status of hemp legalization at the federal level. In 2018, the Federal Farm Bill removed hemp from the definition of “marijuana” in the Controlled Substances Act. But in its guidance document titled, “What you need to know (and what we’re working to find out) about products containing cannabis or cannabis-derived compounds, including CBD,” the U.S. Food and Drug Administrations (FDA) notes that CBD oil still is subject to the same laws and requirements as other FDA-regulated products. To date, the FDA only has approved one CBD prescription drug product for treating certain forms of epilepsy, and currently is working to study the overall effects of CBD use. The guidance also highlights that while some products are marketed to add CBD oil to food or label it as a dietary supplement, marketing CBD oil in this manner remains illegal under federal law.
So what’s a district to do? Now that hemp and hemp products like CBD oil are no longer considered “marijuana” or “drugs,” and their possession, purchase and sale are legal, districts should not treat them as illegal substances. Requests for administration of CBD oil to students should be treated the same as any other request for administration of a homeopathic remedy under existing board policies and procedures. Legalization of hemp and hemp products does not prevent the board from setting reasonable standards for administration of medications or other substances within the school setting. Remember, only hemp and hemp products containing THC levels not to exceed .3% are legal. School districts should set reasonable expectations and standards for the use of hemp and hemp product derivatives, as well as for verification that maximum THC levels do not to exceed .3% prior to any product’s approval for use in the school setting.
On August 8, 2019, the Department of Labor released an opinion clarifying that attending an Individualized Education Program (IEP) meeting constitutes a reason for intermittent leave under the Family and Medical Leave Act (FMLA).
Under the FMLA, an eligible employee of a covered employer may take up to 12 weeks of job-protected, unpaid leave per year to “care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.” A “serious health condition” is defined as “an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider.” Under the FMLA, an employee may use this leave intermittently when medically necessary because of a family member’s serious health condition.
According to the Department of Labor, attending an IEP meeting would fall under “care for a family member with a serious health condition” as this can include making arrangements for changes in care. The Department of Labor has, under existing policy, stated that an employee is entitled to take FMLA leave to attend “care conferences related to a health condition” because attendance at these meetings would be essential to the employee’s ability to provide the necessary care to their family member with a qualifying condition. Therefore, the Department of Labor concluded attendance at an IEP meeting is essential to the ability of said guardian to provide “appropriate physical or psychological care” to a child with a serious health condition and would be a qualifying reason for intermittent FMLA leave.
An employer may require an employee to provide a copy of a certification supporting his or her request to take such leave. That may include information from the child’s doctor certifying that the child has a serious health condition and notification that an IEP meeting has been scheduled. The Department of Labor, however, has made it clear that the student’s doctor would not need to be present at the IEP meeting for the guardian’s leave to qualify under FMLA.
Employers should provide all FMLA required paperwork to employees who seek to take intermittent leave to attend IEP meetings for a disabled child. Additionally, all of the employers’ FMLA policies would be applicable and should be followed in cases of intermittent leave. Given the fact-specific nature of FMLA inquiries, employers are encouraged to contact their legal counsel if questions arise regarding a particular situation.
Since 2017, Ohio school districts have been required to calculate student hours of absences, including those with or without a legitimate excuse. Previously, medically excused absences were included in the calculation to determine when the excessive absence threshold had been met. The threshold triggers parental notification and absence intervention implementation obligations.
When the change goes into effect, a student will continue to be considered excessively absent when the student’s non-medical and unexcused absences exceed 38 hours in one school month or 65 hours in a school year. Additionally, a student will continue to be considered habitually truant when the student’s unexcused absences exceed 30 consecutive school hours, 42 hours in one school month, or 72 hours in one school year. These thresholds will continue to trigger school district parent notification and absence intervention team obligations. However, absences that are medically excused cannot be utilized when calculating the total hours of absence for H.B. 410 purposes.
School districts should ensure that their policies regarding student absences are up to date and that staff members responsible for completing H.B. 410 absence calculations are aware of this change.
The Ohio Court of Claims has confirmed that text messages between public officials using personal devices can be public records. Although the question has previously been open to interpretation, this decision clarifies the answer and serves as a warning for all public employees.
In Sinclair Media III, Inc. v. Cincinnati, a reporter issued a public records request to the city seeking all text messages for a six-week period that were sent from any city council member, the mayor or the city manager discussing the city manager’s employment. When the city did not comply, the news outlet filed an action with the Ohio Court of Claims.
The city asserted that the request was ambiguous, overly broad, and that the records were not public records. Despite the city’s objections, the court found that because the request was limited to text messages sent by specific public officials on a specific topic and within a six-week time period, it was not ambiguous or overly broad. The court also confirmed that the text messages of city officials concerning another official’s employment were public records because they were records created, received by or under the jurisdiction of the city, even though they were maintained on the personal, privately paid devices of city officials.
The court emphasized that the important question is: Do the text messages about an employee document the functions, policies, procedures, operations, or other activities of the city? The court found that they did, and it therefore compelled the city to provide the text messages.
So when it comes to responding to public records requests for text messages, maintaining objections will be much more difficult due to this decision. Therefore, all public employees are urged to use caution when texting. Even if the text is on a private device, and even if you think the text is insignificant or does not serve to document the functions, policies, procedures, operations, or other activities of your district, it is very likely a public record if it’s work-related. In sum, whatever work-related texts you send, make sure you’re comfortable with a media outlet publishing those messages.
Peter Zawadski is an associate at Walter | Haverfield who focuses his practice on education law as well as labor and employment matters. He can be reached at email@example.com and at 216-928-2920.
*An expanded version of this article appears in Crain’s Cleveland Business.
March 10, 2020
COVID-19, also known as coronavirus, (a new respiratory virus strain), is spreading rapidly. In the span of just a few short months, the virus has spread around the globe to our doorstep here in Ohio. On March 9, 2020, the Ohio Department of Health announced three positive cases of COVID-19 in Cuyahoga County. This number is expected to rise. For now, COVID-19 is here to stay.
Ohio school districts are on the front lines of the COVID-19 fight. School districts must be proactive and timely prepare for the spread and impact of COVID-19. Preparation should include prospective consideration of and planning for how best to address various COVID-19 challenges that are likely to arise in schools. For example, school districts should:
- Review, become familiar with, ask questions about, and be ready to implement school safety/emergency management plans. These plans establish procedures for determining when to close a school; how to communicate information to families, students, and staff about school closings; and decontamination of school facilities.
- Contact the district’s local health department and county emergency management agencies to establish or refresh connections with those armed with facts. These agencies can help ensure that the district’s safety plan is current, effective, and suited to respond to COVID-19 in schools.
- Learn and share with students, staff, and families – in visible and easily understandable language – precautionary measures called for by the Centers for Disease Control and Prevention, the Ohio Department of Health, and local health departments.
- Prepare for staff and student absences as well as school closings. The Ohio Department of Education recently announced that, when dealing with COVID-19-related absences and school closings, district leaders should work with local health departments to make decisions that prioritize the health and safety of students and the community. This means that anyone (students or staff) with COVID-19 symptoms should stay home and receive testing and treatment. According to the Ohio Department of Education, instructional time, student testing, and other related issues will be addressed down the road when it is safe.
- Review and if necessary revise impacted district policies, including non-discrimination and student/employee absence policies (such as those rewarding “perfect attendance”).
- Assess existing collective bargaining agreements, particularly terms affecting employee absence, and evaluate the ongoing need for contract amendments, understandings, or other contract “work-arounds” that are necessary in the wake of COVID-19.
- In conjunction with local health departments, plan for and implement protocols for students and staff who – in light of the upcoming spring break – are returning to school from international and national travel as well as students and staff who attend school with COVID-19 symptoms and/or attended school before testing positive for COVID-19.
- Request that parents and staff members proactively report any potential exposure (e.g., contact with an individual who has tested positive) so that appropriate measures can be taken. Set up a system to review information received and make decisions regarding the impact of this information.
Now more than ever, Ohio school districts are tasked with actively monitoring, preparing for, and responding to COVID-19. Legal counsel can help. Contact your attorneys to help navigate the many different challenges presented by the novel COVID-19.
Peter Zawadski is an associate at Walter | Haverfield who focuses his practice on education law as well as labor and employment matters. He can be reached at firstname.lastname@example.org and at 216-928-2920.
Although the economy has improved, money remains tight for school districts. While all school districts vigilantly guard their revenue, not all districts are engaged in protecting their tax base through property tax complaints. Getting involved in the property tax process now is a good way to protect against the erosion of revenue later.
If your district files complaints against the valuation of real property, then keep in mind that the deadline to file complaints is March 31. Ohio law requires that attorneys file complaints on behalf of school boards. So be sure to give legal counsel plenty of time to prepare complaints.
If your district has not been involved in ad valorem tax proceedings, but you are curious about the strategy or process, then reach out to legal counsel. Your attorney can provide guidance on best practices, preparing complaints or countering those complaints filed by property owners who try to reduce their property values.
Treasurers are also reminded to keep an eye out for notices from their county auditors or fiscal officers regarding property tax complaints filed by property owners. The deadline to file counter-complaints in response is only 30 days. So when you receive such notices, be sure to promptly forward them to legal counsel.
If a deadline is overlooked, a school district may lose its chance to participate in the proceedings or challenge the property owner.
Peter Zawadski is an associate at Walter | Haverfield who focuses his practice on education law as well as labor and employment matters. He can be reached at email@example.com and at 216-928-2920.
March 12, 2020
Ohio’s Open Meetings Act and COVID-19
With many questions circulating regarding the application of Ohio’s Open Meetings Act (OMA) in light of Governor Mike DeWine’s recent guidance on COVID-19 and mass gatherings, Ohio Attorney General Dave Yost hosted a Facebook Live video this afternoon to help shed some light on the situation.
Yost referenced Ohio Revised Code (R.C.) 5502.24, which provides certain alternate arrangements for conducting public affairs when they are imprudent, inexpedient, or impossible due to an emergency. The provision also provides that “such powers and functions may be exercised in the light of the exigencies of the emergency without regard to or compliance with time-consuming procedures and formalities prescribed by law pertaining thereto, and all acts of that body and officers shall be as valid and binding as if performed within the territorial limits of their political subdivision.”
As a result of the Governor’s declaration of a state of emergency, Yost made it clear that while R.C. 5502.24 does not allow for suspension of OMA requirements, it does allow for public bodies to adjust practices with regard to items such as meeting notices. In regard to board meetings, Yost reinforced that board members of public bodies still must meet in person in order to deliberate, vote, and be counted for quorum. He did, however, note that there is no requirement that boards of education allow the public to be physically present at such meetings. Yost stated that electronic access to a board meeting, such as a live feed, would be sufficient to serve as appropriate access by the public to an open meeting of a board of education.
Each year, the Ohio Attorney General’s Office (AG) releases a revised version of its Ohio Sunshine Laws Manual (commonly referred to as the “Yellow Book”) prior to Sunshine Week. In light of the increase in questions surrounding OMA and COVID-19, the AG released the revised 2020 Yellow Book on Thursday, March 12, 2020. Pages 108-109 address OMA issues related to these questions. The Yellow Book is available for download on the AG’s website here.
In light of COVID-19 guidance, Governor DeWine announced during his afternoon press conference that schools will be closed for an extended spring break beginning at close of the school day on Monday, March 16, 2020 and extending for three (3) weeks until April 3, 2020. During this period, DeWine noted that local boards of education will have the ability to make local decisions with regard to both the extent to which building access may be allowed for certain individuals and the extent to which programming may be provided electronically/remotely to students.
In addition to these announcements, Governor DeWine also noted that his office and the Ohio Department of Education will be working together to ensure that any deadlines and requirements that may be missed as a result of the closure or other COVID-19-related precautions will be addressed and waived where possible. This includes any state testing requirements. Additional guidance with regard to precautions to slow the spread of COVID-19 are available on the Ohio Department of Health’s website.
We will keep clients informed as guidance is updated from the U.S. Department of Education, Ohio Governor’s Office, Ohio Attorney General’s Office, Ohio Department of Health, Ohio Department of Education, and other government entities. As always, feel free to contact any Walter | Haverfield attorney if we can be of assistance.
March 13, 2020
In a press conference on March 12th, 2020, Governor Mike DeWine directed that, in order to prevent the spread of coronavirus (COVID-19), all elementary and secondary schools, including public, private, and charter schools, close for a three-week period beginning at the end of the school day on March 16th, 2020. We understand that many of you may be proactively closing in advance of this deadline, and we want to take the earliest opportunity to share with you general guidelines regarding the provision of continued services and educational opportunities to students with disabilities following the March 12th, 2020 release of the U.S. Department of Education’s (DOE) question and answer document that addresses how to provide services to children with disabilities during a COVID-19 outbreak.
While it is important to note that neither the IDEA, Section 504 of the Rehabilitation Act of 1973, or Title II of the Americans with Disabilities Act specifically address requirements for the provision of services to students with disabilities during extended and unexpected school closures, it is equally important to remember that students with disabilities do not automatically lose their rights, or have those rights suspended, during an extended closure. During the press conference, Governor DeWine stated that school districts will have the ability to make local decisions regarding whether, and to what extent, programming may be provided electronically/remotely to students. Once a district determines that it is providing distance learning services to regular education students, it must provide commensurate services to students with disabilities. In the event that a district is providing no services to any students during the closure, per the March 12th DOE guidance, it remains obligated, once school resumes, to convene the IEP team to determine “whether compensatory services are needed under applicable standards and requirements.” The Ohio Department of Education’s Office for Exceptional Children (ODE/OEC) has not yet issued guidance regarding this issue.
Because districts are required to provide commensurate services, once a district determines it is providing distance learning services to all students during an extended break, district staff and IEP teams must make determinations regarding appropriate services to be delivered to students with disabilities that will allow them to continue to access the curriculum and make progress on IEP goals in a fashion commensurate to the opportunities being provided to non-disabled students. Service providers should carefully document services provided during this time. Where this is not possible through distance learning, teams should make individualized determinations, in concert with the department of health and individual health care providers as appropriate, about whether direct services are viable, and to what extent. Where direct services and distance learning are both inappropriate, teams should reconvene after school reopens to determine what level of compensatory services may be required to meet the FAPE requirement.
At this point, neither the DOE nor ODE/OEC has provided any relief from adherence to the IDEA’s mandated timelines for the completion of IEP annual reviews and evaluations. Districts are urged to remember that remote meetings are acceptable if properly noticed through the formal meeting invitation. Every effort should be made to adhere to applicable deadlines, including deadlines for IEP annual reviews. Staff should be reminded to document all attempts to obtain parent participation in the annual review meeting. In the event an evaluation of a student with a disability is underway or coming due, teams should assess whether the evaluation can safely continue in light of the COVID-19-related closure. If completion is not feasible, the team can consider conducting a records review, in order to adhere to deadlines, followed by completion of the evaluation, as indicated in the planning form, upon the resumption of school. For initial evaluations, districts are encouraged to consult with counsel as the specific facts of each case will guide the appropriate course of action. Importantly, all decisions made regarding IEPs and evaluations must be documented in a prior written notice. Prior written notices should be comprehensive and include details regarding the decision and the basis for the decision – including documenting all attempts to include parents in the process.
It is also worth noting that DOE guidance allows for the use of IDEA part B funds for activities that directly relate to providing, and ensuring the continuity of, special education and related services to children with disabilities, such as dissemination of COVID-19 information or the development of emergency plans for students with disabilities during the closure or in relation to the outbreak. Situations involving students in outside placements that may not be subject to the mandated closure, or whose particular health conditions require that they remain excluded from school once it resumes are also important to consider, but given the nuances of such situations, consultation with counsel is suggested.
As indicated in prior alerts, we will keep clients informed as guidance is updated from the U.S. Department Of Education, Ohio Governor’s Office, Ohio Attorney General’s Office, Ohio Department of Health, Ohio Department of Education, and other government entities. As always, feel free to contact any Walter | Haverfield attorney if we can be of assistance.
March 16, 2020
On Friday, March 13, Ohio Attorney General Dave Yost (Yost) released a letter to local officials regarding the applicability of Ohio’s Open Meetings Act (OMA) during the COVID-19 pandemic. In his letter, Yost stated that “under this very limited fact pattern, there may be a basis for local public bodies to use electronic means to meet and comply with the law.”
During prior communications, Yost noted that OMA does not contain an exception to the “in person” requirement for public officials during a declared emergency, but his most recent letter highlights the Order issued by Dr. Amy Acton Director of the Ohio Department of Health (ODH), which gives ODH “ultimate authority in matters of quarantine and isolation.” The Order prohibits mass gatherings and recommends social distancing, which is defined as staying approximately six feet away from other people. Yost’s letter also highlights recommendations from recent press conferences held by Dr. Acton and Ohio Governor Mike DeWine at which Ohioans were urged to stay home and avoid unnecessary contact with each other to the extent possible. Additionally, the United States Centers for Disease Control also issued recent guidance with regard to the COVID-19 pandemic suggesting use of videoconferencing for meetings when possible. As a result of the Order and subsequent recommendations, Yost notes that a public body’s ability to comply with terms of the Order and OMA may be compromised and because the business of government must continue, the two must be reconciled.
To that effect, Yost’s letter provides that in this limited circumstance, it is reasonable to read OMA’s “in person” requirement to permit a member of a public body to appear at a public meeting via teleconference or telephone. Yost notes that even though this interpretation is reasonable and applicable in this specific situation, all other OMA requirements still must be met. For instance, regardless of whether a meeting of a public body occurs in person or electronically, quorum must be met for a meeting to occur. Additionally, Yost recommends that a public body cease discussions and deliberations if a member appearing electronically inadvertently is disconnected, until such member can reconnect.
Yost also addressed the openness of public meetings with regard to provision of access to the public. In doing so, he reiterated the guidance provided earlier in the week, stating that OMA does not specifically define how a meeting must be made open to the public, and in complying with Dr. Acton’s Order, it is OMA-compliant to provide such public access via live-streaming through internet or television. Public bodies should note that where a public body is meeting electronically and access to the public is provided electronically, the public body must ensure that the public is able to hear all discussions and deliberations of all members, even those attending via telephone or other electronic means. Public bodies should keep in mind that even in light of this new guidance, all notice, executive session, and meeting minute OMA requirements still apply.
Yost noted that the above-described practices likely satisfy OMA requirements in light of Ohio Revised Code (RC) 5502.24(B), which was addressed in our March 12 client alert. Yost notes that during this declared emergency, certain OMA requirements are likely to fall into the category of “imprudent, inexpedient, or impossible” allowing governing bodies to “dispense with legal requirements that qualify as ‘time-consuming procedures and formalities.’” In closing, however, Yost cautioned against using such procedures and relying upon his guidance to enact changes unrelated to the instant emergency that could be reserved for a later date when the normal operations of government resume. In implementing this guidance, it is important for public officials to seek legal advice to ensure any actions that deviate from the normal operation of government are fully vetted for legal compliance in advance of such action.
To that end, please feel free to reach out to any Walter | Haverfield attorney if we can be of assistance. We will continue to keep clients informed as guidance is updated from the U.S. Department Of Education, Ohio Governor’s Office, Ohio Attorney General’s Office, Ohio Department of Health, Ohio Department of Education, and other government entities.
On March 14, 2020, the Ohio Department of Education (ODE) issued a Frequently Asked Questions (FAQ) document designed to “help school and district leaders think through important local-level decisions.” The FAQ document indicates it was developed in partnership with Ohio’s education associations as well as some of Ohio’s most trusted and innovative district leaders. The FAQ document will be updated on a regular basis as events unfold.
The FAQ document seeks to answer a number of questions that arose in the wake of Governor Mike DeWine’s announcement that schools would be on an “extended spring break” for the next three weeks. Questions immediately arose regarding what this “extended spring break” meant with respect to school operations. The FAQ document provides guidance from the Ohio Department of Health (ODH) indicating that the “closure does not include administrators, teachers, staff, vendors or contractors of a school.” Additionally, per ODH, “[t]he administration of each school shall determine the appropriate level of access to the school during the closure.” Moreover, the FAQ document notes that the term “closure” reflects the concept “closed to students.” This distinction is critical as schools determine how to proceed in the wake of this unprecedented situation.
The FAQ document makes clear Governor DeWine’s intention that schools will continue to provide educational opportunities, through alternate means, throughout the closure. It urges school leaders, boards of education and union leadership to “work in partnership to maintain continuity of educational services as much as practicable during this unprecedented health crisis.” Options covered in the FAQ document include the expanded use of “blizzard bags” and online learning. Further, all students will be counted as “in attendance” for EMIS purposes for all non-spring break days during the closure.
The FAQ document makes clear that teachers, and other district personnel, are expected to continue working during the closure. District leaders are urged to be “flexible” regarding how work is being completed, recognizing that some employees might have child-care issues or health-related issues that require additional flexibility. For hourly employees, the FAQ document indicates that these individuals should “continue to report to school and partner with their schools and be paid consistent with Collective Bargaining Agreements or employee contracts.” Employees are also urged to “be flexible in the manner in which they contribute to the continuity of operations.”
Not surprisingly, the FAQ document cannot answer all of the questions that have arisen due to the closure. However, the Ohio Department of Education (ODE) has affirmed its commitment to work with the Ohio General Assembly and/or federal agencies regarding numerous important issues including:
- State testing and the impact on state report cards;
- Minimum instructional hours required by state law; and
- Compliance with timelines for students with disabilities (e.g., completion of evaluations, IEP annual reviews, etc.).
At this juncture, there is no definitive guidance regarding these issues. With respect to teacher evaluations, school districts and unions are urged to develop a Memorandum of Understanding regarding timelines set forth in Collective Bargaining Agreements. No guidance was provided regarding statutory time frames.
School districts should continue to closely monitor developments and consult legal counsel as needed.
March 19, 2020
As we all continue to navigate the ever-evolving landscape of the COVID-19 crisis and review the various guidance documents from federal, state, and local officials, several guiding principles have begun to emerge in relation to the provision of services to students with disabilities. First, students with disabilities are entitled to commensurate distance learning opportunities as those being provided to their typical peers. Second, decisions relating to evaluations of and services for students with disabilities must be individualized; and third, documentation of decisions and the rationale for those decisions will be critical in establishing that a district did not discriminate and did the best it could under the circumstances to satisfy the obligation to provide a free, appropriate, public education to students with disabilities.
While districts are encouraged to continue to communicate with all families about the educational services being provided during the restriction on student attendance, documentation about specific decisions relating to students with disabilities should occur through the use of the Prior Written Notice form (“PR-01” or “Notice”). PR-01s must be issued by districts when they are proposing or refusing to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child. But there is no regulation restricting when PR-01s may be issued, and many of the individual decisions districts are now making will fall into this discretionary category, but are nevertheless highly recommended. Even where the PR-01 itself may arguably not be mandatory, the content of the Notice must still include the following:
- A description of the action proposed or refused by the school district
- An explanation of why the school district proposes or refuses to take the action
- A description of each evaluation procedure, assessment, record, or report the school district used as a basis for the proposed or refused action.
- A statement that the parents of a child with a disability have protection under the procedural safeguards. SeeA.C. 3301-51-05(H)(2).
As always, as teams prepare these PR-01s, remember to include thorough descriptions of the considerations and circumstances and avoid “boilerplate” responses.
Although recent guidance from the Office for Civil Rights suggests that certain blanket rules may be applied to the evaluation of students with disabilities, districts are encouraged to still make individualized decisions regarding whether and how to proceed with evaluations during this period of restriction on school attendance. Some factors to consider are:
- Is there another available means to gather similar information? Is there available data from tiered interventions and classroom performance? Are there any means to gather academic performance data through available online platforms (e.g. curriculum based assessments, progress monitoring tools, etc.)?
- Are there available assessment results? Historical data? Have assessments such as cognition been administered in the past? Were the results consistent?
- Is an observation truly necessary to determine special education eligibility and identify the student’s needs? Can an observation be conducted in the current learning setting and still provide pertinent information to the evaluation? Is there a way to observe through the online learning platform? Are teachers able to provide you observation information from recent classroom instruction (even though it will likely not be systematic observation data)? Can you gather similar information through interviews or rating scales?
As teams navigate these considerations, be sure to include parents in the team discussions and decision making and avoid unilateral decisions made by limited team members. While Ohio’s Operating Standards do not require parental consent for teams to conduct records reviews, parents should be involved in discussions regarding whether a record review will be used (in part or in whole) to complete the evaluation. Parental participation is an ongoing requirement and should be documented in the PR-01.
The Ohio Department of Education’s Office for Exceptional Children has issued new guidance which is available here. This guidance covers a wide array of topics. We will provide a further alert to clients as soon as possible.
March 23, 2020
On March 18, 2020, the Ohio Department of Education (ODE) issued guidance entitled Consideration for Students with Disabilities during Ohio’s Ordered School-Building Closure. The guidance, as currently written, raises significant questions and related issues as outlined below. School districts are encouraged to contact the ODE directly or through a professional organization with follow-up.
Evaluation Team Reports
The feasibility of completing both initial and reevaluations in a timely fashion is an issue districts are facing. Districts are urged to utilize conference calls and videoconferencing to complete evaluations whenever viable. Signatures can be collected via electronic means, and the meeting, including the means by which the team met and how signatures were collected, should be documented via a prior written notice. It will be important to carefully document how the electronic signatures were obtained to avoid any potential fraud or falsification claims. It will also be important to clearly document how the meeting was conducted in a remote setting to ensure FERPA compliance. The United States Department of Education (USDOE) issued guidance acknowledging that, in instances where face-to-face testing or observations are needed, evaluations will “need to be delayed” until schools reopen to students. Students who were already identified, for whom a reevaluation was pending, would continue to be deemed eligible and should continue to receive services under their individualized education plans (IEPs), although teams can consider whether completion of the evaluation by way of records review is most appropriate. This guidance has been issued by both the United States Department of Education and the Ohio Department of Education.
However, ODE’s March 18th guidance has created confusion regarding initial evaluations. The guidance states: “If the school was scheduled to conduct an evaluation team report review prior to the ordered school-building closure period but was unable to complete it, then consider the student eligible and provide services to students based on your school or district’s processes and procedures.” The language appears to indicate that students who are undergoing an initial evaluation that cannot be completed should be considered eligible under the IDEA until the evaluation can be completed and the team can meet. If this was the intent of the ODE guidance, it raises significant concerns. It would require school districts to provide IDEA services for students absent an evaluation, finding the student eligible. Plus, it would require the development of an IEP without an evaluation team report to drive the goals and services.
To be clear, despite this confusion, we are not recommending that districts make initial eligibility decisions unless the evaluation can be completed and the team can meet (either in person or via phone or videoconference). There may be some instances where an initial evaluation can be completed during the school closure. If the evaluation cannot be completed, a prior written notice indicating that the evaluation will be delayed should be sent. The prior written notice should also indicate that the reason for the delay is the need for face-to-face assessments or observations. Students who were receiving interventions during the evaluation process can, and should, continue to receive these interventions until the evaluation can be completed. The continuation of these interventions should also be noted in the prior written notice.
Amendments to Individualized Education Plans
ODE’s March 18th guidance has also created significant concerns regarding amendments to IEPs. ODE’s guidance states: “School or district personnel should review each IEP to determine the type and frequency of services each student will require during the ordered school building-closure period. If adjustments to specialized services are needed, school personnel should convene the IEP team to review and determine specific services that will be provided during the ordered school-building closure period and revise the IEP accordingly.” This guidance is contrary to the position taken by the USDOE which is not recommending that IEP teams reconvene to make amendments based on changes caused by school closures. Following ODE’s guidance in this area would require school districts to reconvene the IEP teams for every student on an IEP and make changes to the IEP based solely on changes caused by the school-building closure – not based on changes in the student’s needs. Teams would then need to reconvene when school buildings reopen to amend IEPs to reflect in-person services. As IEP services should be driven by student need, not which services can be provided due to outside circumstances, we are not recommending that districts reconvene all IEP teams to make amendments at this time. Instead, districts should continue to assess needs of students on an individual basis, including whether any changes to services are necessary due to the mandated school-building closure. Districts should also communicate with parents via prior written notice, or other means, regarding how and to what extent services will be provided during the mandated school-building closure. See the USDOE Supplemental Guidance issued March 21, 2020, linked here for guidance on amendments during this time.
Compensatory Services and Extended School Year Services
With respect to compensatory services, both the USDOE and the ODE have indicated that individual decisions will need to be made for all students regarding whether, and to what extent, compensatory services are needed based on the mandated school-building closure. However, at this point, no guidance has been provided regarding how to determine whether students on IEPs are entitled to compensatory services. When providing services during the school-building closure, service providers must keep accurate and detailed records of the services provided. We will continue to monitor for further guidance.
Regarding extended school year services, districts should note that the decision regarding extended school year eligibility is distinct from the decision regarding compensatory services. These decisions should be based on regression/recoupment data that has been gathered throughout the school year, including, as may be applicable and appropriate, recoupment data after the present closure comes to an end. While compensatory education and extended school year could be provided over the summer by the same service providers, these decisions are distinct. We will continue to monitor this issue for further guidance as well.
If you have any questions, please contact a Walter | Haverfield attorney. We are here to help.
Currently, Ohio is under a “Stay At Home” Order, which is effective March 23, 2020 through April 6, 2020. The Order, issued by Ohio Department of Health Director, Dr. Amy Acton, requires all individuals currently living within Ohio to stay at home or at their place of residence with certain exceptions. These exceptions permit individuals to leave home for essential activities, such as those for health and safety, to obtain necessary services and supplies, and to engage in certain outdoor activities. The Order’s intention is “to ensure that the maximum number of people self-isolate in their places of residence to the maximum extent feasible, while enabling essential services to continue, to slow the spread of COVID-19 to the greatest extent possible.” This Order also forces non-essential businesses and operations to cease operations during the period the Order is in effect, with only some very specific exceptions. Importantly, educational institutions, including public and private K-12 schools, are to continue to perform essential functions, and the Order does not change or supersede Dr. Acton’s March 14, 2020 Order suspending student attendance in all K-12 schools from March 17th through April 3rd.
Who determines a school’s essential functions?
While school boards are ultimately responsible for school operations, Ohio Revised Code 3310.01 designates the Superintendent as the executive officer of the board. As such, the Superintendent is responsible for ensuring the continuation of essential daily operations. In conjunction with the district’s Treasurer, the Superintendent should identify and manage the majority of essential school functions during the mandated Stay At Home Order, but should work with the Board to address any areas that are beyond the Superintendent and Treasurer’s express and implied authority.
What is considered an essential school function?
There are a variety of school functions that are clearly understood as essential from the Stay At Home Order and other recent Orders issued by Ohio Governor Mike DeWine and the Ohio Department of Health. At this time, the most important essential function of a school is to continue to provide and facilitate distance learning for its students. This will include activities that are necessary to allow employees to continue to work remotely or as may be properly designated by the Superintendent. Meal services for students will also remain essential. Schools should continue to consider creative alternate options to providing meals, such as a reduced frequency of meal preparation, providing families with a larger quantity of meals at one time, and distributing meals in a manner that limits exposure of school staff to community members. It will also be essential for schools to continue to process payroll and benefits for employees. Board meetings would also be considered essential; however, boards should utilize the latitude granted to them to hold meetings in a manner that limits in-person contact while remaining vigilant about public access requirements and participation in voting.
Other school functions may need further analysis to determine whether they are “essential” and will need to be identified by each individual school district. Those functions include management of employee issues, such as the completion of ongoing investigations, discipline proceedings, processing requests for leave and other human resources matters. Schools will also need to manage requests for public records and student educational records that might be made during the effective period of the Stay At Home Order. Additionally, it is important that school facilities are maintained during this time to ensure a safe and clean workplace for those essential employees who are still physically reporting to work. School districts need to exercise caution and not simply assume certain functions are or are not essential. For example, schools should consider available options like video conferencing for essential tasks, such as to continue mandated employee discipline procedures, or to complete interviews for complaint investigations.
What are the requirements while schools continue to operate for essential functions?
The Stay At Home Order requires that everyone continue to practice social distancing (six feet) as much as possible and employers implement a number of actions, including:
- Allowing as many employees as possible to work from home
- Actively encouraging sick employees to remain at home until, without any medication, they are fever-free without medication for at least 72 hours “AND symptoms have improved for at least 72 hours AND at least seven days have passed since symptoms first began”
- Ensure sick-leave policies are “up to date, flexible, and non-punitive”
- Limit group sizes to ten people or less
- Perform frequent cleaning of commonly touched surfaces such as workstations, counters, railings, door handles, and doorknobs
Ohio’s Superintendent of Public Instruction, Paolo DeMaria, has indicated that the Ohio Department of Education will continue to update information on its website. Also, Ohio Governor DeWine has conveyed that he intends to ask the Ohio General Assembly to approve a number of measures addressing issues ranging from forgoing state-mandated testing in schools for the rest of the school year to providing public entities with the ability to use electronic means for conducting official public meetings. State legislators are expected to continue work on these measures. We will continue to monitor and provide updates as warranted.
If you have questions regarding essential school functions or school district obligations during this uncertain time, please contact a Walter | Haverfield attorney. We are here to help and will continue to provide updates as we receive them.
On March 27, 2020, the Ohio Department of Education issued updated guidance clarifying its previously issued guidance document of March 18, 2020 entitled “Considerations for Students with Disabilities during Ohio’s Ordered School-Building Closure.” The updated guidance document attempts to clarify some of the concerns raised by stakeholders in an attempt to interpret the March 18 guidance document.
Some key points contained in the updated guidance document are:
- Schools should prioritize taking all necessary steps to protect the health and safety of students and discourage activity that could contribute to the spread of the coronavirus.
- Schools should work to provide education to all students through alternative means.
- Recognition that schools may not be able to provide all services in the same manner they are typically provided. However, schools should “continue to try to provide a Free Appropriate Public Education (FAPE) while balancing the need to protect the health and safety of students with disabilities during this national health emergency.”
- When using alternative delivery models, districts “should make a good faith effort within available capabilities” to determine how FAPE will be provided.
- Emphasis on the need for schools and parents to “work together collaboratively” to find ways to educate students with disabilities.
The updated guidance document also clarified, to some extent, a question regarding evaluations that were underway, but not complete, at the time of the ordered school-building closure. The updated guidance indicates that if a reevaluation was underway at the time school buildings closed and that reevaluation cannot be completed at this time due to the order, school districts should “continue to provide services in accordance with the information provided” in the guidance. Districts should interpret this to mean that students should continue to receive IEP services, to the extent feasible, as noted above, and consistent with the terms of such services that were in place prior to the ordered school-building closure.
Notably, no additional guidance was provided regarding initial evaluations.
The updated guidance also states that if a district shifts instruction to an alternative mode for all students due to the school-building closure, “it is not required to convene the IEP team or amend the IEP for the sole purpose of the school-building closure.” However, “if a student with a disability cannot access the alternative service delivery model being offered to general education students, the district should consult with the student’s parents to determine the needs of the student and identify the most appropriate means for meeting those needs during the ordered school-building closure.” The guidance goes on to note that if an IEP team meeting is necessary or requested, the meeting should be held virtually or by phone.
It remains unclear what, if any, relief will be granted to school districts from the IDEA’s procedural and substantive requirements. To date, there is also no guidance regarding what standards will be applied to claims for compensatory education that parents might raise after school operations return to normal. It is imperative that individuals, school districts and professional organizations advocate for the type of relief schools will need given the impact of the pandemic on the ability of educators to deliver instruction and related services. Please share with your elected representatives (federal and state) the efforts your school district is making to serve students with disabilities and the need for a commonsense application of the IDEA’s requirements given the unprecedented school-building closures.
If you have any questions about the updated guidance, please reach out. We are happy to help.
On March 27, 2020, Ohio Governor Mike DeWine signed into law emergency legislation that addresses the urgent needs of the State due to the COVID-19 pandemic. H.B. 197 goes into effect immediately. The new law addresses a wide range of issues, including the following:
Expectation of continuation of educational opportunities:
- School districts are expected to provide ways to keep students actively engaged in learning from March 17, 2020 through the end of the school year.
- School districts are also expected to grant students, who require access to in-person instruction in order to receive a diploma or complete a career technical program, access to these opportunities as soon as is reasonable after being deemed permissible by the Director of Health, even if this access occurs after the last instructional day of the school year.
Make-up days or hours:
- In order to make up days or hours that schools were closed during the 2019-2020 school year, per the Director of Health’s March 14, 2020 Order, schools may either:
- Amend an existing plan to require students to access and complete classroom lessons in order to make up hours in the 2019-2020 school year for which it was necessary to close schools based on the Director of Health’s Order; or
- Adopt a plan to require students to access and complete classroom lessons in order to make up hours for the 2019-2020 school year for which it was necessary to close per the Director of Health’s Order.
- Amending an existing plan or adopting a plan can occur at any time after March 27, 2020.
Authorization to extend or waive deadlines:
- Authorizes the Superintendent of Public Instruction to extend or waive most deadlines as necessary to ensure that the safety of students, families, and communities are prioritized while continuing to ensure the efficient operation of the Department and schools.
- Deadlines that may be extended or waived (but are not guaranteed at this time) by the State Superintendent include, but are not limited to, deadlines related to the following:
- Employee evaluations
- Notices of intent to not reemploy school personnel
- Conducting school safety drills
- Emergency management tests
- Filling board of education vacancies
- Updating teacher evaluation policies to conform with the new evaluation framework
- Identification and screening of gifted students
Provision of services via electronic delivery or telehealth:
- Allows for services, both educational and therapeutic, to be provided via electronic delivery method or telehealth to any student who was receiving those services at the time of the March 14, 2020 Order closing school buildings.
- This applies to students being served in public and private schools and students being served by providers under the Jon Peterson Special Needs Scholarship Program and the Autism Scholarship Program.
- Prohibits licensure boards from taking disciplinary action against a license holder who provides services to a student in this manner, including limiting, suspending, revoking or refusing to issue a license solely because the license holder provided these services during the time of the school closure.
- Applicable to individuals licensed by:
- Ohio Speech and Hearing Professionals Board
- Ohio Occupational Therapy, Physical Therapy, and Athletic Trainers Board
- State Board of Psychology appointed under section
- Counselor, Social Worker, and Marriage and Family Therapist Board
- State Board of Education with respect to intervention specialists
- Applicable to individuals licensed by:
K-12 School Testing, Accountability and Hours:
- State-mandated K-12 student assessments for the 2019-2020 school year are eliminated.
- This includes the Alternate Assessment for Students with Significant Cognitive Disabilities and the Ohio English Language Proficiency Assessment.
- Ohio’s school district and school building report cards for the 2019-2020 school year are also eliminated.
- The Ohio Department of Education is prohibited from:
- Assigning letter grades to buildings or districts
- Establishing rankings based on report card data
- The Ohio Department of Education is also authorized to create “safe harbor” for schools and districts to ensure data from the 2019-2020 school year will have no effect in determining sanctions or penalties.
Third-Grade Reading Guarantee:
- Prohibits the retention of students under the third-grade reading guarantee based solely on the student’s academic performance in reading during the 2019-2020 school year unless the student’s principal and teacher agree the student is reading below grade level and is not prepared to be promoted to fourth grade.
Achievement tests for homeschooled students:
- Prohibits requiring that the parent of any student who was instructed at home for the 2019-2020 school year to submit to the district superintendent the results of a standardized achievement assessment administered to the student as a condition of the district allowing the student to continue to receive home instruction for the 2020-2021 school year.
- Prohibits using value-added progress dimension data from the 2019-2020 school year to measure student learning for a teacher’s evaluation.
- For employee evaluations not completed by March 14th (the date of the Health Director’s order), the law allows school boards to elect not to conduct an evaluation for the 2019-2020 school year upon determining that doing so would be “impossible” or “impracticable.” If a board elects not to evaluate an employee, the employee must be considered not to have had evaluation procedures complied with for purposes of R.C. 3319.11, including non-renewal purposes.
- Authorizes school boards to collaborate with unions representing employees in determining whether to complete evaluations for the 2019-2020 school year.
- Permits districts to use evaluations completed prior to March 14th in employment decisions.
- Any licensure issued under the Ohio Revised Code (such as drivers’ licenses, vehicle registration, teachers’ licenses, educational aide permits, and CCW licenses) that is set to expire during the period of emergency declared by Executive Order 2020-01D on March 9, 2020, remains valid until the earlier of either ninety days after the date the emergency ends or December 1, 2020. That’s unless the licensure is otherwise revoked, suspended, or subject to discipline or limitation under applicable law for reasons other than maintaining its validity during the period of the COVID-19 emergency. Also, if a person is required by law to take action to maintain the validity of a license during the period of the emergency declared by Executive Order 2020-01D, issued March 9, 2020, the person shall take that action no later than the sooner of either ninety days after the date the emergency ends or December 1, 2020.
- The State Board of Education may issue a one-year, nonrenewable provisional license to any individual to practice in any category, type, and level if the individual has met all requirements for the requested license except for the requirement to pass an examination prescribed by the State Board in the subject area for which application is being made.
- Individuals receiving a provisional license under this language must take and pass the applicable subject area examinations prior to the expiration of the provisional license.
- Scholarship renewals are allowed.
- Prohibits any new performance-based voucher for the 2020-2021 school year, subject to certain stated exceptions.
- Maintains 60-day window beginning April 1, 2020 for performance-based scholarships for eligible students for the 2020-2021 school year.
- Processing performance-based EdChoice scholarships will begin on February 1, 2021 for the 2021-2022 school year.
- Income-based EdChoice scholarships are unaffected.
- Students enrolled in 12th grade in the 2019-2020 school year shall be granted a diploma in the following circumstances:
- The student was “on track” to graduate prior to the March 14, 2020 Order, but has not met graduation requirements.
- The student’s principal, in consultation with teachers and counselors, reviews the student’s progress toward meeting graduation requirements and determines that the student has successfully completed the curriculum in the student’s high school or the student’s individualized education program.
- No district shall grant a diploma under these circumstances after September 30, 2020.
- School districts with graduation requirements that exceed the state minimum requirements are authorized to utilize the state minimum requirements for the 2019-2020 school year.
- For the period of emergency declared March 9, 2020 but not beyond December 1, 2020, the Director of Agriculture may exempt a school from regulation as a food-processing establishment if two conditions are met:
- The school was issued a food-service license under ORC Chapter 3717
- The school is transporting food for purposes of Seamless Summer Option Program or Summer Food Service Program
- Members of a public body are granted the authority, during the period of the emergency declared by Executive Order 2020-01D, issued March 9, 2020, but not beyond December 1, 2020, to hold and attend meetings and to conduct and attend hearings by teleconference, video conference, or any other similar electronic technology (“electronic means”).
- The provisions extend to public bodies in counties, townships, municipalities at the local level as well as boards, commissions and other state-level entities.
- Hearings are defined as administrative hearings, hearings defined by Ohio Revised Code 119.01, or other hearings at which individuals may present written or oral testimony on a matter before the public body.
- Members attending meetings or hearings by electronic means are considered present as if they were attending in person, they are permitted to vote, and they are counted for the purpose of determining quorum.
- Any public action taken by electronic means under these provisions has the same effect as if it were taken in an open meeting or hearing of the public body.
- To comply with these emergency provisions, the following requirements must be met:
- The public body must provide public access to a meeting held by electronic means or to any hearing that the public otherwise would be entitled to attend. Such access must be provided in a method similar to that which the meeting or hearing itself is being conducted.
- Methods may include, but are not limited to, live-streaming via the internet, local radio, television, cable, public access channels, call-in information for a teleconference, or by any other similar electronic technology.
- The public body must ensure that the public can observe and hear the discussions and deliberations of all members of the public body, regardless of how such members are participating.
- The public body must provide notice of such meetings to the public and media that have requested such notice, and in the case of a hearing to parties required to be notified, at least 24 hours in advance of the meeting or hearing, by reasonable methods that allow for any person to determine the time, location, and manner by which the meeting or hearing will be conducted, except in emergency situations that require immediate official action.
- In an emergency situation requiring immediate official action, the public body must immediately notify the news media that have requested notification of a meeting or the parties required to be notified of a hearing of the time, place, and purpose of the meeting or hearing.
- When hearings are conducted via electronic means, the public body must use electronic equipment that is widely available to the general public to converse with witnesses and receive documentary testimony and physical evidence.
- All other Open Meetings Act requirements not in conflict with these emergency provisions must be met.
- Eliminates the work-search requirement during a declared public health emergency.
- Eliminates the one-week waiting period during a declared health emergency.
- Allows for benefits paid during a declared health emergency to be mutualized across employers.
2020 primary election:
- The new mail-in ballot deadline is April 28, 2020.
- No in-person voting is permitted.
The law also addresses various aspects of childcare access and state tax filing changes, among other changes.
If you have questions regarding these new measures, please reach out to a Walter | Haverfield attorney. We would be happy to assist you.