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.

Districts are now prohibited from suspending and expelling

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 cpeer@walterhav.com.

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 jmcweeney@walterhav.com.

 

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 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.

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.

Sara Markouc is an associate in the Education Law Services Group of Walter | Haverfield LLP.

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).”