A month after Governor Kasich signed HB 59, Ohio’s two-year budget, the dust is starting to settle and certain issues are standing out as of particular concern to our clients. Over the coming days and weeks we will continue to address these issues in our blog posts and tweets, our School Law Review monthly newsletter, and in our presentations and advice to clients. Today we will start with an issue that is particularly time-sensitive: home school and private school student participation in extracurricular activities.
HB 59 created new law that allows home school and private school students who are not even partially-enrolled in a public school to participate in a public school’s extracurricular activities. There are numerous restrictions on this new right. For example, only a home school student’s district of residence is required to allow such participation, and the district may impose whatever normal requirements it does for its own students (e.g. pay to participate fee, academic eligibility, enforcement of prior expulsion periods, etc.). Granted, these normal requirements can be almost meaningless as applied to a home school student: Minimum g.p.a. requirements are the most frequently cited standards that will be impossible to impose for longer-term home school students.
Lost in much of the discussion about these new requirements is the fact that they are substantive law (e.g. not mere spending measures). Because of this, the new extracurricular requirements cannot take effect until 90 days after the Governor signed HB 59. That pushes the effective date to September 29. Why is this important? Because this means there is no law allowing strictly home schooled students to participate in extracurricular activities at this time, and there will not be until well into the fall sports season. It should be noted that prior law allows partial enrollment of home school students at the option of each school district, and OHSAA allows partially enrolled students to participate in extracurricular activities.
Because the law is not yet effective, districts should not allow home school students to participate in fall sports as they get under way in the coming days and weeks. Adding to the confusion is the fact that OHSAA has indicated by a press release that they are treating the law as effective retroactively to July 1. They acknowledge that this decision is not in line with the law, which unquestionably does not exist until September 29.
Regardless, districts should follow the requirements of the law, and until September 29 there is no law allowing strictly home schooled students to participate in extracurricular activities. Because many sports either have try-outs prior to September 29, or even if they do not have try-outs they do not allow students to begin participating halfway through the season, it is quite possible that no home school students will be eligible to participate in sports until the winter season. Please note that the new law applies to extracurricular activities other than sports, as well, and for other types of activities it may be appropriate to allow home school student participation starting on September 29.