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Category: Education

New Ohio Law Fosters Much Needed Educational Options in the COVID Era


December 10, 2021

Updated: December 14, 2021

Ohio Governor Mike DeWine signed Senate Bill 229 (SB 229) into law on December 14, 2021, which enacts several temporary law provisions that give school districts greater flexibility to deliver alternative learning models for the 2021-2022 school year. The law is enacted as an emergency so it takes effect immediately. The three learning models addressed by SB 229 are blended learning, an extension of the remote learning plans initially instituted last year by HB 164, and online learning schools created under Ohio Revised Code (R.C.) 3302.42. This flexibility will be important going forward as districts consider new ways to provide instruction during the continuing COVID-19 pandemic.

Blended Learning Models

SB 229 allows districts to submit a declaration to the Ohio Department of Education (ODE) by April 30, 2022 to implement or discontinue the use of a blended learning model during the 2021-2022 school year. Although notification to ODE is required, a district’s use of blended learning for the 2021-2022 school year is not subject to ODE’s approval.

Additionally, SB 229 revises the definition of “blended learning” in the Ohio Revised Code to include “non-computer based opportunities.”

Districts that choose to implement a blended learning model for any portion of the 2021-2022 school year must also do the following:

  • Ensure students have access to the internet and devices to enable them to participate in online learning, including providing access or devices at no cost to students who do not have appropriate access (i.e. providing a wireless hot spot);
  • Monitor and assess student achievement and progress, providing additional services if necessary to improve student achievement;
  • Periodically communicate with parents or guardians on student progress;
  • Submit certain reports to ODE on the number and duration of students engaged in blended learning, including students with disabilities; and
  • Comply with the blended learning requirements of R.C. 3302.41.

Remote Learning Plans

In addition to blended learning models, SB 229 allows certain districts to reinstate their remote learning plans previously submitted through HB 164, which went into effect in July 2020. The remote instruction authorized by SB 229 is only for the remainder of the 2021-2022 school year and only to students whose parents or guardians submit a written request for this option. It is important to note that the bill specifically prohibits districts who have already created an online school under R.C. 3302.42 (HB 110) from being able to reinstate their remote learning plans.

In order to continue instruction through a district’s remote learning plan, districts are required to adopt a Board resolution and notify ODE by December 15, 2021. Similar to blended learning models, notification to ODE is required, but the plan itself is not subject to approval by ODE.

A district that chooses to continue to offer remote instruction for the remainder of the 2021-2022 school year must update their remote learning plan to include similar assurances and requirements as those for blended learning plans as indicated above. In addition, districts must also do the following for remote learning plans:

  • Meet all minimum school year requirements;
  • Track and document all remote student learning participation including online and offline activities;
  • Report student attendance based on student participation;
  • Develop a statement describing the school’s approach to address nonattendance and compliance with truancy procedures; and
  • Submit the remote learning plan to ODE and publish it on the district website.

Online Learning Schools

SB 229 does not make any changes to the requirements for online learning schools created under R.C. 3302.42, but it does add the following two provisions affecting these schools:

  • Students required to quarantine may participate in a district’s online learning school for the duration of that student’s quarantine; and
  • Online learning schools are exempt from the emergency management plan requirements so long as students are participating in in-person instruction or assessments at a location that is not covered by an emergency management plan.

Additional Provisions Affecting School Districts

SB 229 puts forth a series of other requirements affecting districts as well:

  • COVID-19 Remediation Plans: Districts are required to submit to ODE and publish on its website a remediation plan to address the loss of learning experience by students as a result of the COVID-19 pandemic. ODE will be developing standards and a template for the remediation plans.
  • Online Services for Special Education Students: For the 2021-2022 school year and upon request of a parent, an individual who holds a valid license with a licensing board is permitted to provide services electronically or through telehealth.
  • Withdrawal of Students for Failure to Take Assessments: Revises the requirements on automatic withdrawal of students by internet and computer-based schools so that the new starting point for considering two years of failure is the 2021-2022 school year.
  • Financial Literacy Instruction: Districts are required to integrate the study of economics and financial literacy into one or more existing social studies credits for students who enter ninth grade for the first time between July 1, 2010 and July 1, 2022.
  • Third Grade Reading Guarantee: Districts are exempt from retaining students under the third grade reading guarantee for the 2021-2022 school year.

As always, please contact legal counsel should you have questions regarding instructional options or the impact of these decisions on your specific district’s practices.

Sara G. Katz is an associate at Walter | Haverfield who focuses her practice on education law. She can be reached at skatz@walterhav.com or at 614.246.2274. 

U.S. Department of Education Releases “Roadmap” to Return to In-Person Learning


August 3, 2021

Christina PeerAugust 3, 2021

On August 2, 2021, the U.S. Department of Education (Department) released the “Return to School Roadmap,” a resource to students, educators, school districts and parents in preparation for the return to in-person learning for the 2021-2022 school year. As schools begin to reopen nationwide, the roadmap is intended to serve as a guide outlining strategies suggested by the Centers for Disease Control and Prevention’s (CDC) for K-12 schools. It also lays out actionable steps for schools to take in order to both minimize virus transmission and to help sustain long-term, in-person learning.

  • In addition to the roadmap, the Department has already issued several supportive resources to help guide both educators and students this fall:
    • Prioritize the health and safety of students, staff, and educators
    • Build school communities and support students’ social, emotional, and mental health
    • Accelerate academic achievement
  • A fact sheet on the Return to School Roadmap, reviewing the three “Landmark” priorities listed below.
  • The White House also released a fact sheet highlighting the Administration’s efforts to safely reopen schools and support the nation’s students in conjunction with the launch of the roadmap.

The Department has announced that it will soon provide additional resources to students, educators, school districts and parents as part of the Return to School Roadmap. These additional resources include:

  • Providing implementation tools for schools, educators, and parents to address the areas of health and safety, student well-being, and academics in the following areas: supporting schools in their efforts to address lost instructional and extracurricular time, providing information on how American Rescue Plan funds can be used to expand access to mental health supports for students and educators, and providing additional academic supports.
  • Updating Volumes 1 and 2 of the Department of Education’s COVID-19 handbooks to reflect the recently updated CDC K-12 guidance.

With the 2021-2022 school year about to begin, school districts continue to face difficult decisions and challenges related to COVID-19. Districts are encouraged to work closely with their local departments of health and, if necessary, legal counsel as they navigate the latest COVID-19 guidance.

Christina Peer is chair of the Education Law Group at  Walter | Haverfield. She can be reached at cpeer@walterhav.com or at 216-928-2918.

 

Guidance Issued Regarding Districts’ Obligations to Students Suffering from “Long COVID” Under the IDEA and Section 504


August 2, 2021

Christina PeerAugust 2, 2021

On July 26, 2021, the U.S. Department of Education’s Office for Civil Rights (OCR) and the Office of Special Education and Rehabilitative Services (OSERS) published a joint resource to provide information about school districts’ obligations to students for whom COVID is a disability, also referred to as “long COVID.”  Per the Centers for Disease Control and Prevention (CDC), there are numerous post-COVID conditions that can create new, returning, or ongoing health problems that people sometimes experience more than four weeks after a COVID-19 infection.  Some symptoms that can occur in children include:

  • Tiredness or fatigue
  • Difficulty thinking or concentrating (sometimes referred to as “brain fog”)
  • Headache
  • Changes in smell or taste
  • Dizziness on standing (lightheadedness)
  • Fast-beating or pounding heart (also known as heart palpitations)
  • Symptoms that get worse after physical or mental activities
  • Chest or stomach pain
  • Difficulty breathing or shortness of breath
  • Cough
  • Joint or muscle pain
  • Mood changes
  • Fever
  • Pins-and-needles feeling
  • Diarrhea
  • Sleep problems
  • Changes in period cycles
  • Multi-organ effects or autoimmune conditions
  • Rash

Long COVID can be a disability under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973 (Section 504).  Depending on the severity and impact of long COVID symptoms, and the necessity of specially designed instruction, students suffering with long COVID could also be eligible under the Individuals with Disabilities Education Improvement Act (IDEA).  In determining whether to evaluate a student under Section 504 or IDEA, districts should consider the following:

  • Students can qualify for Section 504 protections even if their impairment does not substantially limit learning, as long as that impairment limits some other major life activity.
  • To qualify under the IDEA, however, the impairment must adversely affect the student’s educational performance and require specially-designed instruction.

If presented with a student suffering from long COVID symptoms, districts should:

  • Determine if a disability is suspected under Section 504 or the IDEA.
  • If a disability is suspected, notify the parent that the district suspects a disability and would like to evaluate the student to determine eligibility.
  • Obtain parental consent for the evaluation (or document the parent’s decision not to consent to the evaluation).
  • If consent is obtained, conduct the evaluation and make an eligibility decision (using the applicable Section 504 or IDEA eligibility criteria).
  • If the student is eligible, create and offer a Section 504 plan or IEP.

If you have any questions, please reach out to us. We are happy to help with any challenges your district may be experiencing.

Christina Peer is chair of the Education Law Group at  Walter | Haverfield. She can be reached at cpeer@walterhav.com or at 216-928-2918.

HB 110 Changes to Blended Learning


July 30, 2021

Megan GreulichJuly 30, 2021

One of the many changes associated with Ohio’s Biennial Budget, House Bill (HB) 110, includes revisions to the statutes addressing implementation of a Blended Learning Model. It’s important to be aware of these changes, as they are likely to impact district plans for implementation of blended learning models during the 2021-22 school year.

HB 110 revised the definition of “blended learning” as set forth in Ohio Revised Code (ORC) Section 3301.079(J) to require that the combination of instructional delivery under a Blended Learning Model include time primarily in a supervised physical location away from home. While a combination of time spent via delivery of in-person and online instruction still is required, the HB 110 change removes flexibility from districts to allow for implementation of a Blended Learning Model that includes a majority of the time spent in online learning. While the addition of one word to the definition may seem minor, this change creates additional limitations on online learning at a time when districts already are struggling with limited options for continuation of online learning into the 2021-22 school year. In addition to this limitation, the definition of blended learning also has been revised to include a definition of “online learning,” which the statute defines to mean students working primarily from their residences on assignments delivered via an internet- or other computer-based instructional method.

HB 110 also revises ORC Section 3302.41 to remove the exemption from minimum school year or day requirements set forth in ORC Sections 3313.48 and 3313.481 that formerly applied under implementation of Blended Learning. Under the new language, schools opting to implement a Blended Learning Model now will be required to maintain an annual instructional calendar of not less than 910 hours.

In addition to the changes set forth in HB 110, the Ohio Department of Education (ODE) has released guidance regarding implementation of blended learning and online schools. Districts were required to submit Blended Learning Declarations by July 1, 2021, and the ODE Online & Blended Learning Considerations for 2021-22 School Year FAQ notes that if a district has submitted a Blended Learning Declaration and decides not to use a Blended Learning Model, the district should rescind its Blended Learning Declaration prior to August 31, 2021. As a result, districts that have submitted a Blended Learning Declaration should consider whether the HB 110 changes will result in a change of plans that might necessitate rescission of that Blended Learning Declaration and/or changes to district plans for implementation of a Blended Learning Model.

Megan Greulich is an associate at Walter | Haverfield who focuses her practice on education law and labor and employment law. She can be reached at mgreulich@walterhav.com or at 614-246-2263.

CDC and State Department of Health Issue New COVID Guidance for Ohio School Districts


July 28, 2021

Christina Peer

July 28, 2021 

On July 27, 2021, the Centers for Disease Control and Prevention (“CDC”) issued this update recommending “universal indoor masking for all teachers, staff, students and visitors to K-12 schools, regardless of vaccinations status.” The update comes one day after the Ohio Department of Health (“ODH”) released this COVID-19 guidance for Ohio K-12 Schools (“ODH Guidance”). The CDC’s Guidance is in line with the latest recommendation from the American Academy of Pediatrics which, on July 19, 2021, recommended universal masking in schools for students over age 2, unless contraindicated by medical or developmental conditions.

The ODH Guidance, which has been updated for the 2021-2022 school year, leads with the stated goal to “keep students back in school, in-person five days a week.”  It also addresses three primary measures to help prevent the spread of COVID-19: vaccination (for all eligible individuals for whom vaccination is not medically contraindicated); wearing masks; and additional measures including proper ventilation, physical distancing, good hygiene practices, etc.

Promoting Vaccination

The ODH Guidance encourages all eligible individuals to obtain the COVID-19 vaccine, citing vaccination as “the leading public health prevention strategy to end the COVID-19 pandemic.” The ODH Guidance suggests the following strategies for school districts to promote vaccination:

  • Encourage teachers, staff, students and their families to get vaccinated and share information regarding COVID-19 vaccine locations
  • Consider partnering with vaccine providers to host vaccination clinics on-site before, during or after school or in the summer leading up to the return to school
  • Consider hosting information sessions or pop-up vaccination clinics in partnership with vaccine providers
  • Provide flexibility with respect to excused absences for students who are absent to get vaccinated or who might have side effects from the vaccine

Masking in Schools

While the ODH  Guidance “strongly recommends that those who are unvaccinated wear masks while in school,” it does not mandate facial coverings in schools. Rather, this decision is being left to each individual school district. The ODH Guidance recommends masks in indoor settings. But for outdoor settings, it states masks are not necessary, including when participating in outdoor play, recess and physical education activities. The ODH Guidance also notes that exceptions should be made for individuals who cannot wear a mask because of a developmental delay or disability and for individuals for whom wearing a mask would create a workplace health/safety risk.

In making the decision of whether facial coverings will be required, districts must be aware of Ohio H.B. 244, which was signed by Governor DeWine on July 14, 2021 and becomes effective on October 13, 2021.  Per this new state law, public school districts are prohibited from (1) requiring receipt of a vaccine that has not been granted full FDA approval and (2) “discriminating” based on whether an individual has received a vaccine that has not received full FDA approval. Under H.B. 244, “discrimination” includes requiring individuals who have not been vaccinated to engage in or refrain from engaging in activities or precautions that differ from those applicable to vaccinated individuals. In other words, H.B. 244 prohibits school districts from requiring that only unvaccinated individuals wear masks. Importantly, as noted above, H.B. 244 is not effective until October 13th, and once the COVID-19 vaccines receive full FDA approval, the provisions of H.B. 244 will not apply.

Masking on Transportation

Although the ODH Guidance leaves the decision regarding masks in school to individual school districts, districts do not have this flexibility with respect to transportation. On January 29, 2021, the CDC issued this order requiring masks for all individuals, regardless of vaccination status, on public transportation.  This includes school busses and all students/staff members traveling by school bus. The ODH Guidance includes a reference to the CDC Order and its applicability to school busses.

Improving Ventilation

The ODH Guidance goes into significant detail about improving ventilation, calling it a “critical intervention that can help slow the spread of the virus.” Districts are encouraged to consider using ESSER funds to upgrade air quality systems in school buildings. Additional guidance from the U.S. Department of Education regarding the use of ESSER funds for this purpose is available here.

Additional Mitigation Strategies

The ODH Guidance includes information on additional mitigation strategies, particularly physical distancing between individuals. The ODH Guidance recommends:

  • Maintaining at least 3 feet of physical distance between students in classrooms;
    • When this is not possible, it is particularly important to layer other prevention strategies such as masking, testing, cohorting, improved ventilation, regular cleaning and hand washing, etc.
  • Maximizing physical distancing as much as possible during mealtimes in food service lines and indoor eating areas
  • Limiting non-essential visitors and volunteers, particularly in areas where there is moderate to high COVID-19 community transmission

The ODH Guidance also addresses symptom assessment, contracting, isolation and quarantine.  Specifically, the ODH Guidance recommends:

  • Educating teachers, staff and families about COVID-19 symptoms and when they or their children should stay home and when they can return to school
  • Monitoring daily attendance patterns of staff/students for trends
  • Continuing contact tracing and notification of close contacts of COVID-19 exposure as soon as possible after a positive test is reported

The ODH Guidance also provides modified quarantine procedures. Specifically, the ODH Guidance states: “unvaccinated students who have been exposed to COVID-19 in school settings can continue to attend school and participate in sports and extra-curricular activities if both students were wearing masks consistently and correctly, and other layered prevention strategies including appropriate distancing were in place.”  The ODH Guidance goes on to state that “fully vaccinated students do not have to quarantine,” but it does not indicate how this distinction can be squared with the requirements of H.B. 244. While not explicitly stated in the ODH Guidance, it appears that, if both students were not wearing masks or if other mitigation strategies were not in place, quarantine would be required. School districts should seek guidance from their local departments of health regarding contact tracing, isolation and quarantine requirements.

With the 2021-2022 school year about to begin, school districts continue to face difficult decisions and challenges related to COVID-19.  Districts are encouraged to work closely with their local departments of health and, if necessary, legal counsel as they navigate the latest COVID-19 guidance.

Christina Peer is chair of the Education Law Group at  Walter | Haverfield. She can be reached at cpeer@walterhav.com or at 216-928-2918.

Sixth Circuit Issues Opinion on School District’s Public Participation Policy


July 22, 2021

Megan GreulichJuly 22, 2021 

On July 7, 2021, the Sixth Circuit Court of Appeals issued a decision in Ison, et al. v. Madison Local School Dist. Bd. of Edn., regarding a challenge to the public participation policy adopted by the Madison Local School District Board of Education (Board) and the Board’s implementation of that policy. After a 2006 school shooting in the Madison Local School District (District), several community members frequently appeared at Board meetings expressing criticism of the Board’s handling of gun-related issues.

The individuals were twice prevented by the Board from speaking for failure to comply with the Board’s public participation policy. Those individuals sued, asserting both that their First Amendment rights had been violated in the instances when they were prevented from speaking, and also that portions of the Board’s policy as written violated the First Amendment.

The District Court granted the Board summary judgment, finding no First Amendment violations. The individuals appealed, arguing that (1) the policy’s restrictions on “personally directed,” “abusive,” and “antagonistic” statements and applications of those restrictions were impermissible and viewpoint-specific; (2) the in-person preregistration requirement for public participation and the Board’s implementation of that requirement, which prevented certain individuals from speaking during public participation at meetings, was impermissible; and (3) the policy was unconstitutionally vague as was the Board’s discretion in implementing the policy.

In making its determination, the Sixth Circuit noted that board meetings constitute a limited public forum, and in a limited public forum, the government has the authority to place content-neutral, reasonable time, place, and manner restrictions on speech.  These restrictions must be  narrowly tailored to serve a significant governmental interests and leave open ample alternative channels for communication of information. In applying these standards, the Sixth Circuit held that in-person preregistration requirements constitute permissible restrictions and that the policy was not unconstitutionally vague.

However, with regard to the policy’s restrictions on “personally directed,” “abusive,” and “antagonistic” statements, the Sixth Circuit found that these restrictions violated the First Amendment because they limited speech based on whether the content of the speech offended  the Board or members of the public.  As a result, the Sixth Circuit affirmed the District Court’s decision in part and reversed and remanded the decision for proceedings consistent with its opinion on the impermissible restrictions.

While public participation at board meetings remains a privilege, not a right, nearly all boards of education in the state of Ohio offer some form of public participation at board meetings. It is vitally important that boards consider not only whether currently adopted language is legally compliant and limited to reasonable time, place, and manner restrictions, but also whether implementation of any such reasonable time, place, and manner restrictions is carried out consistently and accurately. Boards should consider reviewing existing language and practices to ensure legal compliance.

Please reach out if you have questions about allowable First Amendment restrictions or for assistance in the review of your existing policies and practices for legal compliance.

Megan Greulich is an associate at Walter | Haverfield who focuses her practice on education law and labor and employment law. She can be reached at mgreulich@walterhav.com or at 614-246-2263.

HB 244 and COVID Considerations for the 2021 School Year


July 21, 2021

Megan Greulich

July 21, 2021

On July 14, 2021, Governor DeWine signed Ohio House Bill (HB) 244, which prohibits public school districts and state institutions of higher education from requiring an individual to receive a vaccine that has not been granted full United States Food and Drug Administration (FDA) approval. Because existing COVID-19 vaccines are currently operating under emergency FDA approval, they fall within this category.

In addition to the prohibition against requiring such vaccinations, the new language also prohibits discrimination against an individual who has not received a vaccine that does not have full FDA approval. This prohibition includes requiring the individual to engage in or refrain from engaging in activities or precautions that differ from the activities or precautions of an individual who has received such a vaccine.

HB 244 becomes effective on October 13, 2021, nearly two months after many schools return in the fall, meaning that the restrictions will not be applicable to schools until that date. It also is important to note that the restrictions are tied directly to vaccinations that do not have full FDA approval, and as a result, if COVID vaccines are granted full FDA approval, the restrictions no longer will apply for purposes of COVID planning.

Ultimately, the implementation of HB 244 is likely to reduce school districts’ flexibility in implementing the guidance and recommendations from health and other agencies, instead requiring more of an all or nothing approach to implementation of COVID precautions. With the return to school quickly approaching, both the Centers for Disease Control and Prevention (CDC) and the American Academy of Pediatrics (AAP) have released updated guidance, with continued revisions to guidance from other agencies anticipated.

CDC Guidance

While many of the recommendations are familiar, including the emphasis on the importance of returning to in-person learning and implementing a layered approach to COVID precautions, the July 9 updates to the CDC K-12 guidance focuses in part on the importance of monitoring vaccination status and rates of transmission within each community. The guidance further recommends that where a school plans to reduce existing precautions due to high vaccination rates and low transmission rates, precautions should be reduced one at a time, with the impact of such reduction monitored prior to implementing subsequent precaution reductions.

Additionally, the revised guidance provides for differing standards in certain circumstances depending on vaccination status. Due to the passage of HB 244, beginning in mid-October, Ohio school districts will need to make difficult decisions about how to address this guidance in order to avoid differentiating between individuals who have and who have not received a COVID vaccine. As a result, in order to remain in compliance with HB 244, school districts should work with board counsel to ensure that any differing restrictions are not based on vaccination status.

AAP Guidance

While the AAP guidance released on July 19 also emphasizes the importance of in-person learning, the organization takes a more stringent approach to recommendations for schools, particularly with regard to masking recommendations. In doing so, the AAP specifically notes that its recommendations are based in part on the fact that students under the age of 12 are not yet eligible for vaccination, and it notes the challenges associated with monitoring and verifying vaccination status of individuals who currently are eligible to receive the vaccine. As a result, the AAP recommends universal masking in schools at this time. More specifically, the AAP recommends that all students older than two years and all school staff wear face masks at school except where a medical or developmental condition prohibits mask use. In addition to masking recommendations, AAP also urges school districts to continue to take a multi-layered approach to COVID precautions and work closely with state and local health authorities to coordinate their efforts.

Ohio Department of Health (ODH) Guidance

While ODH has yet to release revised guidance for the 2021-2022 school year, it appears that such guidance is imminent and expected to be released within the next few weeks. In addition to forthcoming state-level guidance, local health departments also have begun releasing guidance to address HB 244 and revised agency recommendations. As a result, districts should remain vigilant in keeping up with the changing standards and recommendations as we continue to move toward students’ return to school.

United States Department of Education (USDOE) Guidance

In addition to the health agency guidance, it also bears noting that USDOE has acknowledged the CDC’s recently updated guidance and is in the process of updating the 2021 ED Covid-19 Handbook, Volume 2 accordingly to address any necessary changes in light of the CDC’s revised guidance for K-12 schools.

As always, we will continue to keep you updated on any legal and/or guidance-related developments. In the meantime, please reach out to any W|H education attorney here if you have questions about your district’s plans for the 2021-2022 school year.

Megan Greulich is an associate at Walter | Haverfield who focuses her practice on education law. She can be reached at mgreulich@walterhav.com or at 614-246-2263.

 

Ohio Budget Bill Includes Sweeping Reforms for School Districts


July 19, 2021

July 19, 2021 

Ohio’s operating budget for fiscal years 2022-2023 is now law after Governor Mike DeWine signed House Bill 110 (HB 110) on July 1, 2021. Included in the bill are a number of policy changes affecting the state’s K-12 schools, with some of the key changes explained below. Please reach out to us here if you have questions.

Online Learning Schools

HB 110 allows local, city, exempted village and joint vocational school districts an “online learning model” through the creation of an “online learning school.”

  • Online learning is defined as a scenario where students work primarily from home on assignments delivered via an internet or computer-based instructional model.
  • An online learning school will be a separate school with its own IRN number.
  • Students must be assigned to the online learning school for EMIS reporting and school funding purposes.
  • Additionally, to operate an online learning school, a school district must:
    • Provide students enrolled in the online learning school with a computer that is equipped with a filtering device (or software) that protects against internet access to materials that are obscene or harmful to juveniles at no cost;
    • Provide internet access to all students enrolled in the online learning school at no cost;
    • Provide a comprehensive orientation to students and their parents/guardians prior to enrollment in the online learning school;
    • Implement a learning management system that tracks the time students participate in online learning activities; and
    • Document all student learning activities that are completed offline with participation record checks and approved by the teacher of record.
  • Districts wishing to open an online learning school must submit an application to the Ohio Department of Education by August 1, 2021.
  • More information on this topic is available here.

New School Transportation Provisions

HB 110 makes several notable changes to school transportation:

  • Payment in lieu of transportation (ORC Section 3327.02)
    • New deadline for districts to determine payment in lieu of transportation: 30 calendar days prior to first day of student instruction in the district.
      • The deadline for district determination for students enrolling after the first day of student instruction in the district is 14 calendar days after student enrolls.
  • District superintendent has the authority to issue determinations regarding payment in lieu of transportation pending board of education approval at the next subsequent board of education meeting.
    • Payment amounts must be at least fifty percent (50%) of the amount established by the Ohio Department of Education as average cost of pupil transportation for previous school year.
  • New requirement for board of education to issue letter to parents, community/non-public school, and state board of education stating reasons for determining payment in lieu of transportation is appropriate.
  • New provision allowing parents to designate community/non-public school to act on parents’ behalf in regards to payment in lieu of transportation process, including mediation.
  • If Ohio Department of Education determines district failed to provide required transportation to student, then district will pay parent of student fifty percent (50%) of the cost of providing the transportation to the student as determined by the district, but no more than two thousand five hundred dollars ($2,500).
  • Ohio Department of Education monitoring of compliance with district responsibility to provide student transportation (ORC Section 3327.021):
    • The Ohio Department of Education will now monitor district compliance with responsibilities to provide pupil transportation.
    • Through its monitoring efforts, if the Ohio Department of Education determines that a district is non-complaint with its responsibilities for a consistent or prolonged period of time, then the Ohio Department of Education will deduct from district payment for pupil transportation the total daily amount as determined by the Department for each day of non-compliance.
  • (New – Codified Provision of HB 164 – Online classroom portions of required bus driver training):
    • The Ohio Department of Education will develop online bus driver training program, which will substitute for the classroom portion of both the pre-service and the annual in-service training required for bus driver certification.
      • Note: on bus training requirements are not changing.

Health Curriculum

  • School districts must include instruction on the harmful effects of – and legal restrictions against – vaping devices in their health curriculum. This is in addition to current educational requirements relating to tobacco, drug and alcohol abuse.
  • School districts must notify parents and guardians of their intent to provide instruction in sex education or venereal diseases over and above the current education codified in ORC 3313.60 and ORC 3313.6011. Such notice must include identifying the names of instructors, vendors, as well as the curriculum being used. Districts must obtain written parental consent before providing such instruction and must also provide instructional materials to parents upon request. The Ohio Department of Education will be required to conduct annual audits to ensure compliance.

Disciplinary Actions for Educator Licenses

  • HB 110 adds trafficking in persons as addressed in ORC 2905.32 to the list of offenses for which the State Board must revoke or deny teacher licensure pursuant to ORC section 3319.31.
  • Additionally, HB 110 adds ORC 3319.319 to the Ohio Revised Code. This section permits a district in Ohio or in another state to request any report of misconduct received by the Ohio Department of Education regarding an individual under consideration for employment.
    • The language provides that if the Ohio Department of Education receives any such report, the Ohio Department of Education is required, upon request, to provide the contents of the report to the requesting officer and notify the officer that the provided information is confidential and may not be disseminated to any other person or entity.
    • The new language further requires the Ohio Department of Education to document the information provided in the record of any investigation undertaken pursuant to ORC Section 3319.311 based on the report. More specifically, the Ohio Department of Education documentation must include: a list of the information provided, the date the information was provided, and the name and contact information of the appointing or hiring officer to whom information was provided.

Pre-Employment Applications and Screening

  • HB 110 creates a new provision requiring certain pre-employment actions and screening by public and chartered nonpublic schools.
  • In particular, the new provisions require schools to include the following written notice on all employment applications in boldface type:
    • “ANY PERSON WHO KNOWINGLY MAKES A FALSE STATEMENT IS GUILTY OF FALSIFICATION UNDER SECTION 2921.13 OF THE REVISED CODE, WHICH IS A MISDEMEANER OF THE FIRST DEGREE.”
  • Additionally, the new provision requires each district and nonpublic school to consult the “educator profile” database maintained on the Department of Education’s website prior to making any hiring decision.
  • Further, once the “educator profile” database has been consulted, the statute grants the district further discretion to determine employment, disciplinary, or criminal record of an applicant for employment in either or both of the following ways:
    • By consulting with the Ohio Department of Education’s Office of Professional Conduct to determine whether an applicant has been subject to disciplinary action by the department; or
    • By consulting with any prior education-related employers of the individual.
  • The statute also provides that a district may require additional background checks beyond the criminal records checks already required by statute for any application for employment or potential volunteer.
  • Finally, the new statute provides for conditional employment of an individual pending receipt of information sought after consulting the “educator profile” database. The statute further provides that a district may release an individual from employment if information is received during the individual’s conditional employment due to the district’s consultation with the Office of Professional Conduct, or with a prior education-related employer indicating that the individual has engaged in conduct unbecoming of the teaching profession, or if information indicates that the individual has committed an offense that prevents, limits, or otherwise affects the applicant’s employment with the district.

School Funding

Ohio House Bill (HB) 110 makes significant changes to school funding. It changes how students are counted  toward a district’s enrollment, which, in turn, impacts school funding. It also creates a base cost model that largely relies on statewide employee compensation data and staff-to-student ratios to calculate base cost per pupil amounts for each district that are then used to establish state funding. The current average base cost amount of $6,020 per pupil will increase to approximately $7,200 per pupil. This increase translates to a 4% increase for FY 2022 compared to FY 2021 and a 6% increase for FY 2023, or about $2 billion in additional state spending. Due to the high price tag, funding will be phased in and could change for FY 2024 and beyond.

The new model also contains an equalizing mechanism to ensure higher poverty districts receive more state aid than those that can raise more revenue through local taxes.

For school district funding wonks, please read on.

Enrolled ADM

HB 110 fundamentally changes how students are counted and how a district’s ADM is calculated. Currently, districts use “formula ADM,” which counts students in the district in which they reside even if they attend a non-public school under a state scholarship program (e.g., Educational Choice Scholarship Program, Autism Scholarship Program, etc.), another public school district via open enrollment, a community or STEM school or a joint vocational school.  HB 100 replaces “formula ADM” with “enrolled ADM,” which counts students in the district in which they are educated. “Enrolled ADM” excludes students participating in a community school, STEM school or in a state scholarship program from the school district’s calculation.

HB 110 amends ORC § 3317.022, for fiscal years 2022 and 2023, to provide different funding formulas for various “funding units” which are (1) city, local and exempted village school districts; (2) community and STEM schools; (3) educational choice scholarship providers; (4) autism scholarship providers; and (5) Jon Peterson Special Needs scholarship providers.  Different formulas are provided for these “funding units” for fiscal year 2024 and beyond.

Additionally, for “funding units” that are city, local and exempted village school districts, a formula is provided to calculate additional funding for special education students, the amount of which is dependent on the student’s category. Similarly, a new formula is provided for economically disadvantaged students, English language learners and gifted students. For all of these categories of students, formulas are provided for fiscal years 2022 and 2023, and a different formula is provided for fiscal year 2024 and beyond.  The specific formulas can be found in the updated statutory language.

Base Cost Model

HB 110 replaces the “uniform per pupil formula amount” with a “variable per pupil base cost” to be computed for each school district. Each district’s “variable per pupil base cost” is made up of the following components: (1) teacher base cost; (2) student support base cost; (3) district leadership and accountability base cost; (4) building leadership and operations base cost; and (5) athletic/co-curricular activities base cost. These components are calculated using various inputs, such as statewide average staff and teacher salary data, district-paid insurance costs, district spending data, and certain pupil-to-staff ratios.  The average salaries and costs for the base cost computations are calculated using data from FY 2018.

A district’s base cost enrolled ADM is used for those factors of the base cost computation that are paid on a per pupil basis.  A unique “base cost per pupil amount” is established that is equal to the district’s base cost divided by the district’s base cost enrolled ADM. The “statewide average base cost per pupil” for FY 2022 and FY 2023 is the sum of the aggregate base cost calculated for all school districts for FY 2022, divided by the sum of the base cost enrolled ADMs of all school districts in the state for FY 2022.

The base cost, including state and local shares, amounts to an estimated $10.9 billion in each fiscal year, with the estimated statewide average base cost per pupil being $7,202 and $8,334 for career-technical students.

State Share Index Replaced by Per Pupil Local Capacity Amount

The current “state share index” formula used to equalize payments based upon a district’s capacity to raise local revenues is replaced with a district-specific “per pupil local capacity amount.” A “per pupil local capacity amount” is based on three factors: 1) a district’s base cost enrolled ADM; 2) property valuation; and 3) income.

But before calculating the “per-pupil local capacity amount,” a district’s “per-pupil local capacity percentage” must be determined. A district’s “per-pupil local capacity percentage” is calculated by a two-step process. First, all districts are ranked using each district’s ratio of the district’s median federally adjusted gross income (FAGI) and the statewide median FAGI, from the highest ratio to the lowest ratio. Using those ratios, a district’s “per-pupil local capacity percentage” is established as follows: 1) if the district’s ratio is less than the ratio of the district with the 40th highest quotient but greater than 1.0, then the district’s “per-pupil local capacity percentage” is equal to a percentage between 2.25% and 2.5% and to be calculated based on a sliding scale; 2) if the district’s ratio is less than or equal to 1.0, then the district’s “per pupil local capacity percentage” is equal to the district’s ratio times 2.25%; and 3) if the district’s ratio is greater than or equal to the ratio of the district with the 40th highest quotient, then the district’s “per-pupil local capacity percentage” is equal to 2.5%.

After a district’s “per-pupil local capacity percentage” is determined, it can be plugged into the following formula to calculate the district’s “per-pupil local capacity amount.” The district’s “per-pupil local capacity amount” is equal to the sum of the following three factors, which are calculated using the district’s base cost enrolled ADM: 1) the “valuation per pupil,” which is calculated by multiplying the per-pupil local capacity percentage by 60% of the minimum of (a) the average valuation for the three most recent tax years and (b) the district’s taxable value; 2) the “FAGI per pupil,” which is calculated by multiplying the per pupil local capacity percentage by 20% of the minimum of (a) the average of the total FAGI of the district’s residents for the three most recent tax years and (b) the total FAGI of the district’s residents for the most recent tax year; and 3) the “adjusted FAGI per pupil,” which is calculated by multiplying the per pupil local capacity percentage by 20% of the per pupil amount of the product of (a) the median FAGI of the district’s residents for the most recent tax year and (b) the number of state tax returns filed by taxpayers residing in the district for the most recent tax year.

The statewide average per pupil local capacity amount is estimated to be $4,121 in FY 2022 and $4,457 in FY 2023.

Funding for Community Schools, STEM Schools and State Scholarship Programs

HB 110 fundamentally alters how community schools, STEM schools and state scholarship programs (i.e., Autism Scholarship Program and Jon Peterson Special Needs Scholarship Program) are funded.  Important changes include:

  • Students attending community schools, STEM schools or other schools through state scholarship programs will no longer be included as enrolled in their school district for Average Daily Membership (ADM) calculations.
  • Community school, STEM school and state scholarship program payments will no longer be deducted from school districts’ core foundation aid. However, school districts will no longer receive state funding for students enrolled in community schools, STEM schools or enrolled with scholarship providers.
  • Payments for these students will be made directly to private schools by way of a “funding unit” to be implemented by the Ohio Department of Education.

Autism Scholarship Amount and Services Providers

HB 110 increases the amount for the Autism Scholarship. However, based on the change to “enrolled ADM” from “formula ADM,” the scholarship amount is not being deducted from the funding provided to public school districts. Rather, school districts simply will not receive any funding for students who are utilizing a scholarship program because these students are not enrolled in the district.

  • Autism Scholarship
    • $31,500.00 for the 2022 fiscal year
    • $32,445,00 for the 20223 fiscal year and beyond
  • Autism Scholarship Services Providers
    • The bill subjects any registered and approved Autism Scholarship Program private provider and its employees to criminal records check requirements and requires submission of the results to the Ohio Department of Education. The Ohio Department of Education must use the submitted records checks to enroll those individuals employed by registered private providers in the Retained Applicant Fingerprint Database (“rapback”) in the same manner as licensed educators.
    • The bill adds a “registered behavior technician” and “certified Ohio behavior analyst” to the list of qualified, credentialed providers that may offer intervention services under the Autism Scholarship Program.

Jon Peterson Special Needs Scholarship Amount

HB 110 increases the amount for the Jon Peterson Special Needs Scholarship.  However, as with the Autism Scholarship, based on the change to “enrolled ADM” from “formula ADM,” the scholarship amount is not being deducted from the funding provided to public school districts. Rather, school districts simply will not receive any funding for students who are utilizing a scholarship program because these students are not enrolled in the district.

  • Jon Peterson Special Needs Scholarship
    • Going forward, the Peterson Scholarship amounts are calculated as the least of the following options:
      • The amount of fees charged by the student’s provider; or
      • The base amount of $6,217 for fiscal year 2022 and $6,414 for fiscal year 2023 plus
        • Category 1 $1,514 for fiscal year 2022 and $1,562, for fiscal year 2023;
        • Category 2 $3,841 for fiscal year 2022 and $3,963, for fiscal year 2023;
        • Category 3$9,465 for fiscal year 2022 and $9,522, for fiscal year 2023;
        • Category 4 $12,644 for fiscal year 2022 and $12,707, for fiscal year 2023;
        • Category 5 $17,193 for fiscal year 2022 and $17,209, for fiscal year 2023;
        • Category 6 $24,591 for fiscal year 2022 and $25,370, for fiscal year 2023; or
        • $27,000.00.
  • HB 110 also requires the base amount for the Peterson Scholarship to increase (after FY 23) by the same percentage that the statewide average base cost per pupil increases in future fiscal years. Additionally, the dollar amounts for the special education categories must increase (after FY 23) by the same percentage calculated by the General Assembly for each special education category.

EdChoice Scholarship

HB 110 overhauls the existing system of funding for EdChoice vouchers and implements a number of important changes:

  • EdChoice scholarship payments will no longer be deducted from school districts’ core foundation aid. These payments will be made directly to private schools by way of a “funding unit” to be implemented by the Ohio Department of Education.
  • Students attending private schools through the EdChoice vouchers will no longer be included as enrolled in their school district for Average Daily Membership (ADM) calculations.
  • EdChoice vouchers will increase from $4,650 to $5,500 for grades K-8 and from $6,000 to $7,500 for grades 9-12.
  • The number of EdChoice scholarships will no longer be capped at 60,000.
  • EdChoice scholarships will be available to more students. Specifically, this legislation phases in eligibility for students who are currently homeschooled or attend private schools.
  • Criteria for performance-based vouchers are slightly changed to include district buildings ranked in the lower 20% for 18-19 and 21-22 year for scholarships sought for the 2023-2024 year.
  • School districts will not be permitted to contest the Ohio Department of Education’s determination of student eligibility.
  • School districts will be required to provide attendance zones for buildings that meet performance-based voucher criteria to the Ohio Department of Education by January 1 of each year.

Auxiliary Service Funds

HB 110 makes a number of fundamental changes to the allocation of auxiliary service funds. Specifically, it:

  • Permits all chartered nonpublic schools, instead of only nonreligious schools, to receive auxiliary service funds directly from the Ohio Department of Education instead of through the local public school district.
  • Requires religiously affiliated chartered nonpublic schools that elect to receive auxiliary service funds directly from the Ohio Department of Education to submit an affidavit certifying the funds will be used for a permissible purpose.
  • Requires a chartered nonpublic school choosing direct auxiliary service fund payments to notify the Ohio Department of Education and the public school by July 31, 2021.
  • Clarifies that materials purchased with auxiliary service funds paid directly to a school may be acquired under a contract with a school district, ESC, the Department of Health, city or general health districts or private entities.

Career-Technical Educator License Requirements

  • HB 110 extends the standards and requirements for obtaining a two-year initial career-technical workforce development educator license and a five-year advanced career-technical workforce development educator license.
  • These licenses are valid for teaching career-technical education or workforce development programs in grades four through twelve.
  • Former statutory language required applicants for such licenses to have a high school diploma, but HB 110 expands issuance of such licenses to include individuals who have a certificate of high school equivalence awarded under ORC Section 3301.80 or the equivalent of such certificate as recognized under ORC Section 3301.80(C).

School Counselor Standards

  • HB 110 expands knowledge required to be incorporated into the school counselor standards by the Educator Standards Board.
  • More specifically, the revised language now requires the Educator Standards Board, in consultation with the Chancellor of Higher Education, to include knowledge of the credit transfer program (Career-Technical Assurance Guide (“CTAG”)) in the Board’s standards for school counselors.
  • CTAG is the result of the career-technical education credit transfer criteria, policies, and procedures established under ORC Section 3333.162 and has the purpose of ensuring transfer of career-technical course credit to any state institution of higher education and having coursework apply to majors and degrees at any other state institution of higher education without unnecessary duplication or institutional barriers.

Cheating on Assessments

  • HB 110 expands and clarifies prohibitions against assisting students in cheating on assessments and State Board action against school employees who do so.
  • In addition to the existing prohibition against revealing specific questions to students known to be a part of an assessment, or in any other way assisting students in cheating on an assessment, ORC 3319.151 now specifically prohibits an individual from doing the following:
    • Obtaining prior knowledge of the contents of an assessment;
    • Using prior knowledge of the contents of an assessment to assist students in preparing for an assessment; and
    • Failing to comply with any rule adopted by the Department of Education regarding security protocols for an assessment.
  • In addressing State Board action, HB 110 removes the formerly required one-year suspension of a teacher’s license after an investigation, and replaces it with language providing that the State Board shall take any action against the employee under ORC Section 3319.31 that it considers appropriate, based on the nature and extent of the violation.
  • Adjustments to State Board action after investigation provide the State Board flexibility in applying licensure suspension, revocation, or limitation at its discretion based upon fact-specific circumstances.
  • Additionally, the revised language requires the State Board to notify the employee of an allegation upon commencing an investigation and provide the employee an opportunity to respond prior to taking any disciplinary action.
  • Notably, although the State Board now has flexibility in applying disciplinary action less severe than the previously required one-year suspension, the statute still includes language providing that violation of the listed prohibitions serve as grounds for termination of employment of non-teaching employees under ORC Section 3319.081(C) or ORC Section 124.34 and termination of a teaching contract under ORC Section 3311.82 or ORC Section 3319.16.

Changes to Nationally Standardized College Admission Assessments

  • HB 110 permits the parent or guardian of a high school student to opt the student out of the requirement to take a nationally standardized college admission assessment (currently, the ACT or the SAT) beginning with the class of 2026.
  • A district or school is prohibited from administering these tests to students who opt out.

Kindergarten Assessment Administration Windows

  • HB 110 adjusts the period of time in which a school must administer the kindergarten readiness assessment and the kindergarten reading skills assessment (for the Third Grade Reading Guarantee) to July 1st through the twentieth (20th) day of instruction per the school calendar.

Academic Distress Commissions and Phase-Out of Control

  • HB 110 establishes a process by which a school district for which an academic distress commission (ADC) was established may be relieved from the oversight of its ADC before meeting the conditions prescribed by continuing law.
  • The process includes the following:
    • Requires the district to develop and implement a three-year academic improvement plan and submit annual reports on its improvement progress (the district is permitted to apply for up to two, one-year extensions of the improvement plan).
    • Requires the State Superintendent to review the plan and approve or suggest modifications to it.
    • Specifies that the ADC will continue to exist – with the removal of the chief executive officer (CEO) – and provide assistance, but the ADC will relinquish operational and managerial control of the district.
    • Specifies that if the district meets the majority of the plan’s improvement benchmarks at the end of the initial or extended evaluation period, the ADC is dissolved; in contrast, if the district does not meet the majority of the plan’s improvement benchmarks, the district once again becomes subject to an ADC, including oversight by a CEO.
    • Permits the district’s board of education to employ as superintendent the individual who previously held the CEO position.
    • Requires the district’s ADC to appoint a new CEO if the district again becomes subject to the ADC.
  • Requires the Auditor of State, once during the three-year implementation period for the improvement plan, to complete a performance audit of a school district to which the bill applies (at the Auditor’s expense) and submit the audit results to the district board and its ADC.
  • These provisions are exempt from the referendum and take effect immediately when HB 110 becomes law.

The Walter | Haverfield Education Group ensures you, as clients, have the knowledge you need to effectively manage your workforce and educate your students. We proudly provide attentive, cost-effective counsel on legal issues to Ohio public school districts of all sizes with a focus on collective bargaining, general counsel services, labor and employment, special education, student issues, sunshine law and public records. To learn more about our team, please visit our website here. If you have questions, please reach out to us here. We look forward to hearing from you.

Ohio H.B. 110 Allows for Creation of Online Learning Schools


July 12, 2021

Christina PeerJuly 12, 2021

On July 1, 2021, Governor DeWine signed H.B. 110, Ohio’s 2022-2023 biennial budget, into law, which allows local, city, exempted village and joint vocational school districts (“school districts”) to request to use an “online learning model” through the creation of an “online learning school.” Online learning is defined as a scenario where students work primarily from home on assignments delivered via an internet or computer-based instructional model. An online learning school, operated by a school district, is a new concept that differs from Remote Learning Plans utilized during the 2020-2021 school year. An online learning school also differs from a blended learning model or an alternative school (information on these learning models is available here).

While an online learning school could function in a similar manner to the remote learning plan used by school districts during the 2020-2021 school year, districts should carefully consider the requirements for an online learning school. First and foremost, an online learning school will be recognized by the Ohio Department of Education as a separate school that is being operated by the local, city, exempted village or joint vocational school district. The online learning school will have its own IRN number, and students must be assigned to the online learning school for purposes of EMIS reporting and school funding. Additionally, to operate an online learning school, a local, city, exempted village or joint vocational school district must:

  • Provide students enrolled in the online learning school with a computer that is equipped with a filtering device (or software) that protects against internet access to materials that are obscene or harmful to juveniles at no cost;
  • Provide internet access to all students enrolled in the online learning school at no cost;
  • Provide a comprehensive orientation to students and their parents/guardians prior to enrollment in the online learning school;
  • Implement a learning management system that tracks the time students participate in online learning activities; and
  • Document all student learning activities that are completed offline with participation record checks and approved by the teacher of record.

Furthermore, the state board of education has been tasked with revising the operating standards that are applicable to school districts to include standards for online learning. These standards must include:

  • Student-to-teacher ratio of no more than 1:125 per online learning classroom;
  • The ability of all students, at any grade level, to earn credits and advance to the next grade upon demonstrating mastery or knowledge through competency-based learning models;
  • Requiting that online learning schools have an annual instructional calendar of no less than 910 hours;
  • Provisions for:
    • The licensing of teachers, administrators and other professionals;
    • Effective instructional materials and equipment; and
    • Supervision of each school, including regulations for the preparation of all necessary records and reports, admission of pupils, etc.

While H.B. 110 provides districts with a mechanism to continue providing online instruction, districts should carefully consider all of the obligations and guidelines before opening and operating an online school. Districts must also consider staffing issues and collective bargaining obligations. Finally, districts should determine how the needs of students with disabilities who enroll in the online learning school will be met. Any school district that wishes to develop an online learning school must complete the School District Online Learning School Notification, which can be downloaded here, and submit it to this email address by August 1, 2021.

Christina Peer is chair of the Education Law Group at  Walter | Haverfield. She can be reached at cpeer@walterhav.com or at 216-928-2918.

State Supreme Court Ruling Requires Training for Armed Staff in Ohio Schools

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June 28, 2021

Megan GreulichJune 28, 2021

On June 23, 2021, the Supreme Court of Ohio made the long-awaited ruling in Gabbard v. Madison Local School District Board of Education that teachers and school staff members must meet state peace officer training or experience requirements prior to being permitted to go armed while on duty.

Until Gabbard, Ohio schools had limited guidance related to arming teachers or other school staff members. However, some Ohio districts have passed resolutions in recent years approving teachers and other school staff members to go armed while on duty.

Ohio’s Madison Local School District (the “District) is one such school district whose Board of Education (the “Board”) passed a resolution in 2018 authorizing certain District employees to carry a deadly weapon or dangerous ordnance on school property for the welfare and safety of its students. Upon the passing of this resolution, a group of parents filed a lawsuit against the Board stating that the resolution did not comply with Ohio law in that it did not require the employees authorized to carry weapons to obtain the required peace officer training or 20 years of active duty as a peace officer as set forth under Ohio Revised Code Section (RC) 109.78(D). Also at issue in the case was interpretation of RC 2923.122(D)(1)(a), which exempts school employees authorized to carry weapons on school property from criminal penalties set forth in RC 2923.122.

In its analysis, the Court focused heavily on the language of RC 109.78, which states that a district shall not employ a person as a “special police officer, security guard, or other position in which such person goes armed while on duty” unless that person has completed a peace officer training program or has 20 years of active duty as a peace officer. The court held in favor of Madison parents and finding that the RC 109.78 language was unambiguous and therefore applicable to school district employees. The Court further held that the phrase “other position in which the person goes armed while on duty” is applicable to school district employees, whether or not being armed is part of their job description as teachers or other staff members and whether or not they volunteer to be armed in addition to their regular job duties.

With this decision, many districts are left wondering about its impact on their operations. If your district has approved arming of staff members, for now those staff members must meet the training or experience requirements in order to be armed while on duty. However, it remains to be seen whether there will be legislative changes dictating different training and experience requirements for school staff members down the road. In the meantime, Districts should adjust practices to comply with the RC 109.78 training or experience requirements.

Megan Greulich is an associate at Walter | Haverfield who focuses her practice on education law. She can be reached at mgreulich@walterhav.com or at 614-246-2263.

Sara G. Katz is an associate at Walter | Haverfield who focuses her practice on education law. She can be reached at skatz@walterhav.com or at 614.246.2274. 

Title IX Protection Extends to Students Who Are Gay & Transgender


June 23, 2021

Christina PeerJune 23, 2021 

The U.S. Department of Education’s (DOE) Office for Civil Rights (OCR) will fully enforce Title IX to prohibit schools that receive federal financial assistance from discriminating against students based on their sexual orientation and gender identity. The DOE recently issued this revised interpretation in a federal notice. Prior to the notice, OCR’s stance on whether Title IX’s protections encompassed discrimination based on sexual orientation or gender identity was less than clear.

The revised interpretation comes after the 2020 U.S. Supreme Court ruling in Bostock v. Clayton County. In Bostock, the Court concluded that treating individuals differently based on sexual orientation and gender identity is discrimination based on sex. The Court decided Bostock  based on Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment. However, courts often rely on interpretations of Title VII to interpret Title IX.

The U.S. Department of Justice’s Civil Rights Division is applying Bostock’s analysis to Title IX, which extends Title IX’s prohibition on sex discrimination to discrimination based on sexual orientation and gender identity. As a result, the DOE will use the Bostock analysis in processing future complaints alleging discrimination based on sexual orientation or gender identity and in investigating these complaints. Therefore, school districts should ensure that their policies and practices do not discriminate against students who are gay, lesbian, or transgender based on these students’ sexual orientation and/or gender identity.

Students alleging sex discrimination can bring complaints to the U.S. Department of Education’s Office for Civil Rights or in federal courts. If a school district is found to have violated Title IX, it may face a range of severe penalties including a complete loss of federal funding.

Please reach out to us here if you have questions or need further clarification. We are happy to assist you.

Christina Peer is chair of the Education Law Group at  Walter | Haverfield. She can be reached at cpeer@walterhav.com or at 216-928-2918.

Navigating ESSER Funds in an Ever-Changing COVID-19 Landscape

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June 2, 2021

James McWeeny

June 2, 2021

Although the pandemic is seemingly subsiding in the U.S., public school districts in Ohio still face the challenge of how to use multiple forms of pandemic-related government funding. Notably, the task of navigating the permissible uses of COVID-19 funds, and the procedures school districts must follow with respect to them, pose a number of complex legal issues.

The Funds

By way of background, the federal government has made three main sources of funds available to state educational agencies, which local school districts may in turn apply for and use for certain enumerated purposes.  These federal funds include:

  • The Elementary and Secondary School Emergency Relief Fund I (“ESSER I”), as authorized by Section 18003 of Division B of the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, enacted on March 27, 2020 and available for obligation by school districts through September 30, 2021. The general purpose of ESSER I funds is to provide funding for the prevention, preparation for, and response to the COVID-19 pandemic;
  • The Elementary and Secondary School Emergency Relief Fund II (“ESSER II”), as authorized by the Coronavirus Response and Relief Supplemental Appropriations (“CRRSA”) Act, enacted on December 27, 2020 and available for obligation by school districts through September 30, 2022. The general purpose of ESSER II funds is to provide funding to address learning loss, preparation for the reopening of schools, as well as projects to improve the air quality in school buildings; and
  • The American Rescue Plan Elementary and Secondary School Emergency Relief Fund (“ARP ESSER”), as authorized by the American Rescue Plan (“ARP”) Act, enacted on March 11, 2021 and available for obligation by school districts through September 30, 2023. The general purpose of ARP ESSER funds is to provide funding to address learning loss as well as the reopening and operation of schools in a way that maintains the health and safety of students, educators, and staff.

Permissible Uses of Funds

According to the U.S. Department of Education (“U.S. DOE”), a school district is permitted to use the various funds for a “wide range of activities.”  However, there are parameters. With respect to ESSER funds, the primary question most schools have asked is, “What kinds of programs, projects, and/or purchases can our district use the various funds for?”  Importantly, each of the funds can be used for the same allowable purposes. However, for ARP ESSER funds, a school district must do the following:

  • Reserve at least twenty percent (20%) of its total ARP ESSER award to address learning loss through the implementation of evidence-based interventions;
  • Ensure that such interventions respond to the students’ academic, social, and emotional needs; and
  • Address the disproportionate impact of COVID-19 on underrepresented student groups, including students from low-income families, students of color, children with disabilities, English language learners, migratory students, students experiencing homelessness, and youth in foster care.

Permissible uses of ESSER funds include, but are not limited to, the following:

  • Any activities authorized by the Elementary and Secondary Education Act , the Individuals with Disabilities Education Act , the Adult Education and Family Literacy Act , the Perkins Career and Technical Education Act ; and the McKinney-Vento Homeless Assistance Act;
  • Repairing and improving school facilities to reduce the risk of virus transmission and exposure to environmental health hazards, which includes remodeling, alterations, and renovations necessary to prevent, prepare for, and respond to COVID-19. However, the U.S. DOE discourages the use of funds for new construction projects, if the use of these funds for new construction limits a school district’s ability to support other essential needs or initiatives;
  • Activities to improve indoor air quality, such as upgrades to a school facility’s HVAC system as well as related projects that promote social distancing and safe in-person instruction;
  • Activities to address the unique needs of children from low-income families, children with disabilities, English language learners, racial and ethnic minorities, students experiencing homelessness, and foster care youth;
  • The purchase of personal protective equipment, cleaning and sanitizing materials, portable air purifiers, as well as emergency supplies necessary to adequately respond to COVID-19;
  • Providing COVID-19 testing and vaccinations to district educators, staff, and eligible students;
  • Implementing evidence-based interventions to support students who have suffered lost instructional time due to COVID-19;
  • Activities to support students’ social, emotional, mental health, and academic needs, including the hiring of support personnel such as nurses, counselors, and social workers to effectuate these goals;
  • The purchase of educational technology, including hardware, software, connectivity, assistive technology, and adaptive equipment, for students that aids in regular and substantive educational interaction between students and their classroom instructors, including students from low-income families and children with disabilities;
  • To provide support for summer learning and enrichment programs; and
  • Other activities that are necessary to maintain operation of and continuity of services, including continuing to employ existing or hiring new school staff.

Other Legal Issues

School districts must also be cognizant of various state and federal laws when using ESSER funds.  For instance, if schools use funds for renovation, repair, improvement, and/or construction projects, they must comply with both state and federal procurement laws. As such, schools must follow the dictates of Ohio Revised Code 3313.46 as well as federal procurement laws, including but not limited to, those identified in the Uniform Grant Guidance. Schools must also comply with federal prevailing wage laws for all contracts over $2,000 for the construction, alteration, or repair of public buildings and must comply with the Americans with Disabilities Act as well as state and local design standards. Further, schools must track and separately account for each of the ESSER funds as well as describe, identify, and maintain in their records the COVID-19 “connection” for which the various funds are used.

Moreover, districts should be mindful of the timelines associated with any projects under these grant funds to ensure they are consistent with the timelines associated with the ESSER funds.  Likewise, school districts should keep in mind that certain activities may be subject to approval by the Ohio Department of Education.

If you have questions regarding the allowable use of funds under ESSER I, ESSER II, or ARP ESSER, please contact us here.

James McWeeney is a partner at Walter | Haverfield who focuses his practice on education law, labor and employment and litigation. He can be reached at jmcweeney@walterhav.com or at 216-928-2959.

Sara G. Katz is an associate at Walter | Haverfield who focuses her practice on education law. She can be reached at skatz@walterhav.com or at 614.246.2274.