It is probably not high on your list of New Year’s Resolution priorities, but special education staff at Ohio public schools should add this one: Send even more prior written notice forms.
For over a year, the Ohio Department of Education (ODE) had been floating the idea of changing the Individuals with Disabilities Education Act (IDEA) requirements regarding prior written notice (PWN) when parents agree with the Individualized Education Program (IEP) developed during an annual review meeting and the IEP involves a change in placement. State regulations in effect over the past several years did not require formal PWN on the PR-01 form in this circumstance. Rather, the IEP document itself served as PWN. On December 20, 2013 ODE announced an immediate change requiring PWN on the PR-01 form to be sent for all IEPs that involve a change of placement (including those that have parental consent).
Presumably the thinking behind the prior interpretation was that there is no need to send a notice to a parent informing her that the IEP she just agreed to is going to be implemented. It appears that the change in interpretation is to align with federal regulations that require PWN whenever a change in placement is proposed. There is an ongoing review of Ohio’s IDEA regulations, and once finalized the new regulations will incorporate this change. However, ODE has been clear that it will immediately be enforcing the change. Whether slight changes in IEP services constitute a change of placement is not always clear. Given this new requirement, it is best to err on the side of caution by sending too many PR-01 instead of too few.
ERF encourages school districts to take steps to minimize potential misunderstandings regarding PWN. The PR-01 form can be intimidating, and some parents mistakenly think it means a district is attempting to harass or provoke them. Some of the potential fallout of the decision to require even more PR-01 can be avoided by discussing PWN, the PR-01 form, and when they are required with parents prior to needing to use them in relation to an IEP. For example, a district could make it a practice to show a blank PR-01 form to a parent at the time a child is initially identified and to explain the purpose and requirements for the use of the form.
We have often said that PWN cannot be sent too often. With this new interpretation ODE has brought new meaning to that advice. Please contact a member of ERF’s Special Education Team with questions about this new requirement.
The federal Office for Civil Rights (OCR) issued a “Dear Colleague Letter” on January 25, 2013, that seemed to require school districts to offer alternative sports options for children with disabilities. OCR is charged with enforcing Section 504, among other laws. The letter suggested that wheelchair basketball, for example, might need to be offered when a wheelchair-bound child cannot be accommodated in the existing basketball program. Controversy ensued, and ERF advised clients that there is no requirement to create new activities to provide opportunities for those who cannot be reasonably accommodated in existing activities. This month OCR issued a letter that confirms ERF’s earlier advice. OCR’s letter explains that it does not believe that Section 504 requires the creation of new activities for children with disabilities (essentially rescinding its earlier guidance).
In its earlier letter, OCR wrote that:
“Students with disabilities who cannot participate in the school district’s existing extracurricular athletics program – even with reasonable modifications or aids and services – should still have an equal opportunity to receive the benefits of extracurricular athletics. When the interests and abilities of some students with disabilities cannot be as fully and effectively met by the school district’s existing extracurricular athletic program, the school district should create additional opportunities for those students with disabilities.
“In those circumstances, a school district should offer students with disabilities opportunities for athletic activities that are separate or different from those offered to students without disabilities. These athletic opportunities provided by school districts should be supported equally, as with a school district’s other athletic activities.”
It went on to explain that when there are not sufficient wheelchair bound athletes to support an activity a district could work with other districts to form a joint team, form co-ed teams, or encourage non-disabled students to participate. Beyond the logistics and time required by this mandate, districts were alarmed by the cost of funding new programs even as they are being forced to cut funding for existing programming.
With its recent letter OCR unequivocally steps back from the requirements set forth in its prior letter. It writes that while a district might choose to create new programs for children with disabilities, “it is not OCR’s view that a school district is required to do so.” Pressure from school districts and the organizations that work for and support them clearly had a significant role in forcing OCR to rethink its earlier letter. In fact, the letter earlier this month was in response to a request by the National School Boards Association for clarification. The new letter is being reported here not only because it puts to rest any notion that districts must create separate sports for children with disabilities, but also because it shows that school districts can effectively lobby for change. At a time of unprecedented new requirements and unfunded mandates this is an important lesson.
Both OCR letters on extracurricular activities are also a good reminder about the importance and scope of Section 504. This law is meant to “level the playing field” for children with disabilities. It applies to a broad range of disabilities – far more than those covered by IDEA. It also applies to all services, activities, and benefits offered by a school district. Regarding extracurricular activities, a qualified child with a disability has a right to reasonable accommodations to allow the child to try out for and participate in sports. Precisely what this means depends on the facts of each case, but suffice it to say that schools need to be creative about developing, and committed to providing, equal opportunities to children with disabilities both in the classroom and on the playing field. Please contact a member of our Special Education Practice Team for assistance in complying with Section 504.
On November 19, 2013, the Ohio Supreme Court concluded that, pursuant to R.C. 3319.16, acts of insubordination constitute “good and just cause” to terminate a teacher’s contract as long as the underlying rules or directives violated were themselves reasonable and valid. John Freshwater was an eighth grade science teacher at the Mount Vernon City School District. As early as 1994, Freshwater began to interject religious principles into his classroom instruction. Specifically, he supplemented school curriculum with religious handouts, showed videos on creationism and intelligent design, displayed religious materials in the classroom, made statements about the Bible, and awarded extra credit to students who attended religiously-based seminars that were critical of evolution. Although district administration occasionally directed Freshwater not to incorporate religious materials or teachings into his instruction, he generally received positive evaluations during the twenty-one years he taught in the district. His students also usually received the highest scores on state achievement tests.
In 2003, the Board of Education rejected Freshwater’s proposal to amend the district’s science curriculum by incorporating material that criticized the theory of evolution. However, Freshwater ignored the Board’s decision and continued to teach certain topics in accordance with his religious beliefs. A few years later, the district’s superintendent issued a written directive to Freshwater that he must delete all supplemental materials which were not scientifically accepted. Again, Freshwater chose not to comply with the directive.
Matters came to a head in the fall of 2007, when parents complained Freshwater used an electrical instrument to burn what appeared to be the sign of the cross into their son’s arm. Freshwater confirmed he used the instrument to mark the student, but denied the mark was intended to be a cross. The district responded by sending Freshwater a letter stating he could not use classroom instruments to shock students.
The following spring, Freshwater met with the school principal again to discuss issues related to his religious instruction. At the conclusion of the meeting, he received written orders in clear and unequivocal terms that he could not display religious materials in the classroom. Freshwater was specifically directed to remove the Bible displayed on his desk and a poster of the Ten Commandments that hung on his door. The written notice also stated “[u]nless a particular discussion about religion or religious decorations or symbols is part of a Board-approved curriculum, you may not engage in religious discussions with students while at school or keep religious materials displayed in the classroom.”
Freshwater refused to comply with the order despite several follow-up requests. Meanwhile, the parents of the student who was shocked in class sent a demand letter and filed suit against the district. In response, the district hired an outside investigator to observe Freshwater’s classes. The investigator reported that Freshwater taught creationism and intelligent design in class, discussed various other religious subjects, distributed religious materials, and made statements such as “science is wrong because the Bible states that homosexuality is a sin.” The investigator also discovered that Freshwater gave extra credit to students who viewed a movie on intelligent design.
Eventually by the end of the 2007-2008 school year, the Board decided to terminate Freshwater’s teaching contract pursuant to ORC 3319.16. At the public hearing, a referee addressed four specific grounds for termination set forth in the board’s resolution: (1) the burn incident, (2) Freshwater’s failure to adhere to curriculum, (3) Freshwater’s role in the Fellowship of Christian Athletes organization, and (4) his disobedience of orders. The referee concluded that claims (2) and (4) constituted just cause for termination.
Freshwater appealed the decision to court. Both the Court of Common Pleas and the Court of Appeals for Knox County upheld termination, and the Ohio Supreme Court granted review of the matter. The Court’s decision in the case was limited to whether the district met the just cause standard mandated by R.C. 3319.16. The Court provided only a cursory review of constitutional issues regarding Freedom of Religion and the Establishment Clause. Therefore, the Court did not provide any substantial guidance to school boards or teachers as to the constitutionality of teaching or displaying religious materials in a public school setting.
The Supreme Court ultimately held that in this case, Freshwater’s repeated acts of insubordination alone constituted “good and just cause.” The Court focused on Freshwater’s persistent disobedience and refusal to comply with administrative directives, and specifically on his refusal to remove religiously-oriented materials from class. According to the Court, “good and just cause” under ORC 3319.16 includes insubordination, which is defined as a willful disobedience of, or refusal to obey, a reasonable and valid rule, regulation, or order issued by a school board or by an administrative superior. The letter from Freshwater’s principal made clear that he could not “engage in any activity that promotes or denigrates a particular religion or religious beliefs while on board property, during any school activity” or while teaching, as mandated by Board policy and the law. The Court concluded that the district’s orders were both reasonable and valid, and further that Freshwater willfully refused to comply with the directives. The Court summarized their findings by stating that “Freshwater [was] fully entitled to an ardent faith in Jesus Christ and to interpret Biblical passages according to his faith, but he was not entitled to ignore direct, lawful edicts of his superior while in the workplace.”
The Supreme Court’s decision confirmed that insubordination alone may constitute just cause as long as the rule or directive is reasonable, and the employee willfully or intentionally refused to comply. However, it is important to note that the standard for just cause itself has not been lessened by the Court’s decision, and districts should be cautious to interpret the case otherwise.
Further, even though the Ohio Supreme Court did not address whether Freshwater’s actions violated the Establishment Clause of the U.S. Constitution to any great degree, school districts should be ever mindful of possible Establishment Clause infringements. The U.S. Supreme Court has interpreted the Establishment Clause to strictly forbid any law or act undertaken by a public entity that furthers religion, or attempts to disapprove of a particular religion or religion in general. The U.S. Supreme Court and lower courts repeatedly emphasize that a public entity must remain neutral on the subject of religion.
In this case, the extent to which Freshwater incorporated religious beliefs and displays into his classroom and instruction very likely constituted an Establishment Clause violation. Because of the many legal implications of such violations, we highly recommend that you contact legal counsel for advice on any issue that involves religion in schools.
Freshwater v. Mt. Vernon City School Dist. Bd. Of Edn., 2013-Ohio-5000 (November 19,2013).
The Strasburg-Franklin Local School District provided its teachers with school district laptops. A teacher asked if he could take his laptop home for the summer and was told that he could but that he needed to return it by June 30th. The teacher failed to return the laptop until late July.
The IT department inspected the laptop upon return because the teacher had previously downloaded a virus. The IT department discovered 84 thumbnails of graphic, sexual images in the laptop’s temporary internet files. The images were all cached within 23 minutes on one day.
The teacher claimed he had searched for the actor “Shane Diesel” on his computer because the actor was mentioned in a conversation earlier that day. He also claimed that “porn thumbnail pop-ups” appeared when he clicked on a link in a Wikipedia page.
The school district initiated termination proceedings and a hearing was held with a state referee. The referee found that the teacher’s actions could give rise to the suspension or termination of his teaching contract; but mitigating factors suggested a suspension rather than a termination (the teacher had good performance reviews). Therefore, the referee recommended a suspension of 45 days for the failure to return the laptop by June 30th and 45 more days for inappropriate use of a school computer.
The school district accepted the referee’s findings of fact but rejected the proposed discipline and terminated the teacher. The teacher appealed to the court of common pleas. The court of common pleas reversed the school district’s termination because it found that the images were not hostile to the community and this was private conduct that had no impact on his professional duties. The teacher was then reinstated with full back pay.
The school district appealed to the Fifth District Court of Appeals. The appellate court concluded that it could only overturn the lower court if the lower court’s decision constituted an “abuse of discretion” – a difficult standard of review for the school district to overcome.
The appellate court denied the school district’s appeal finding no abuse of discretion in the lower court’s ruling. The appellate court reviewed other termination decisions in Ohio and found that appellate courts will affirm a board of education’s termination decision when the teacher’s behavior had or could have had a serious effect on the school system. In this case, the appellate court found that the teacher’s actions did not occur on school property and did not involve any students. This also was not a criminal act. Therefore, the appellate court determined that the lower court did not abuse its discretion because the conduct had no impact on the teacher’s professional duties and his actions were not hostile to the school community.
The discovery of pornography on a school district computer is employment misconduct that is generally considered a “slam dunk” termination case (alcohol, drugs, violence, and sexual conduct are some others). The teacher was unquestionably wrong in using the school district’s laptop in this manner. In fact, readers are cautioned not to utilize their school computers or devices to Google “Shane Diesel” out of curiosity. Trust me, the Google results alone should have told this teacher that this was off-limits. Yet, the teacher clicked-away and the state referee and courts overturned the school district’s termination decision because the teacher’s behavior supposedly had no impact on his professional duties. This decision demonstrates that there really are no “slam dunk” termination cases. Every decision to terminate a teacher must be made with the understanding that the time and money invested in a termination case may not always result in the desired outcome – no matter how strong you think the case is.
Winland v. Strasburg-Franklin Local School District Board of Education, Fifth District Court of Appeals, Case No. 12 AP 10 0058