2014 Mid-Biennium Education Bill Signed into Law

House Bill 487, the mid-biennium education bill, reviewed in last month’s ERF School Law Review newsletter, was signed into law on June 16, 2014.  Except as indicated otherwise in the statute, HB 487 becomes effective September 15, 2014.  Some of the upcoming changes in the law include the following:

  • College and Work-Ready Assessment System-
    • For students entering the 9th grade on or after July 1, 2014, the OGT requirement will be replaced by the College and Work-Ready Assessments System, which is comprised of two assessments:
      • (1) Nationally standardized assessment measuring college and career readiness and
      • (2) End-of-Course Exams.
  • High School Graduation Requirements-
    • For students entering the 9th grade on or after July 1, 2014, the OGT is no longer a requirement for graduation.
    • Instead, students must meet one of the following options:
      • (1) Score at “remediation-free” levels in English, math, and reading on the nationally standardized assessment;
      • (2) Obtain a minimum cumulative performance score on end-of-course exams; or
      • (3) Obtain a passing score on a nationally recognized job skills assessment andobtain either an industry-recognized credential or a state agency- or board-issued license for practice in a specific vocation.
  • Statewide Curriculum Requirements-
    • Extends exemption from the Ohio core curriculum requirements for graduation (now referred to solely as “requirements for graduation”) until July 1, 2016
    • For students entering 9th grade for the first time on or after July 1, 2014 (Class of 2018), in addition to the current requirements, the following changes must be satisfied for the exemption to apply:
      • The student has a Student Success Plan (previously called “individual career plan”) and
      • The student meets the other graduation requirements, including the following curricular changes:
        • 4 units of math (instead of 3 under current law),
          • One must be probability and statistics, computer programming, applied mathematics, quantitative reasoning, or any other course approved by ODE before October 1, 2014;
          • 5 elective units (instead of 6 under current law); and
          • 3 units of science which are inquiry-based laboratory experience that engage students in asking valid scientific questions and gathering and analyzing information.
  • Third-Grade Reading Guarantee-
    • Allows school districts to submit an alternative staffing plan for the 2014-2015 or 2015-2016 school years if the school district is unable to provide the number of teachers who meet the criteria needed to teach 3rd grade students below grade level.
    • Establishes the English-language arts assessment to be administered to 3rd graders during the 2014-2015 school year:
      • Fall- Same assessment administered during the 2013-2014 school year;
      • Spring-
        • For students who failed to obtain the minimum score on the assessment and would be subject to retention—same assessment administered during the 2013-2014 school year; and
        • For students who have obtained the needed minimum score and would not be subject to retention—the PARCC assessment.
  • Online Administration of Assessments-
    • For the 2014-2015 school year, school districts are not required to administer assessments through an online format.
    • School districts have the option to administer the assessments in any combination of online and paper format.
  • Safe Harbor for the 2014-2015 School Year-
    • School districts may enter into an MOU with the teachers’ union stating that the value-added progress dimension score from the 2014-2015 school year will not be used to make decisions about teacher dismissal, retention, tenure, or compensation.
    • Prohibits various penalties and sanctions due to a school district’s report card rating.
    • Prohibits from assigning an overall letter grade to schools and school districts.
  • Emergency Management Plan-
    • Changes the name of School Safety Plan to Emergency Management Plan.
    • Requires the administrator of a school district to develop and adopt a comprehensive Emergency Management Plan including a floor plan, site plan, and emergency contact information, as well as protocols for threats and emergency events.
      • “Administrator” means superintendent, principal, chief administrative officer, or other person having supervisory authority over the school district.
    • Requires the administrator to review and certify the accuracy of the plan to ODE by July 1st of each year.
    • In addition to current requirements, the plan must be updated whenever the emergency contact information changes.
    • Requires the administrator to schedule an annual emergency management test.
      • “Emergency management test” means a regularly scheduled drill, exercise, or activity designed to assess and evaluate the Emergency Management Plan.
    • The State Board must adopt standardized rules and standardized forms for Emergency Management Plans.
    • Because it is unlikely that the State Board will have adopted rules and standardized forms prior to the effective date of September 15, 2014, the expectations for the 2014-2015 school year are unclear at this time.
  • Career-Technical Education-
    • Expands requirement to provide career-technical education to students in grades 7-12.
    • If a Board of Education decides not to provide career-technical education for students enrolled in grades 7-8 in a particular school year, the Board must adopt a resolution and submit it to ODE by September 30th of that school year.

U.S. Supreme Court limits fair-share fees on labor unions

In a 5-4 decision, the U.S. Supreme Court ruled today that partial-public employees could not be required to pay fair-share fees when the only reason the partial-public employees were deemed to be “public” employees was solely for union formation and collection of dues.  The case arose out of Illinois, where lawmakers classified home health care workers, paid by federal Medicaid dollars, as State employees.  The home health care workers were then required to pay dues/fair-share fees to the Service Employees International Union.  SEIU was the exclusive union to bargain with Illinois over wages, hours, working conditions, and other terms and conditions of employment.

However, and key to the Court’s decision in this case, the home health care workers were controlled by the customers they served, not the State of Illinois. The job duties of the home health care workers were set by customers and the customers’ physicians. Customers have complete discretion in hiring any home health care worker meeting the State’s criteria and qualifications.  Customers control all supervision and evaluation(s) of the home health care workers, and the State has no power to enter a customer’s home to evaluate job performance.  The customer had the sole authority of discharge of the home health care workers; the State could not discharge a home health care worker from a customer’s home for substandard performance.

In relying on the terms of their employment, the Court found the home health care workers to be partial-public employees, and therefore, different than public-school teachers or police officers who work directly for the government or a political subdivision.  Because states often set wages for partial-public employees, like home health care workers, and because unions often do not conduct collective bargaining for them, the Court determined that the home health care workers could not be required to pay union fees.

The Court found that, except in the exceptional circumstances, “no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”



For the full opinion click here.

Law Enforcement Must Have a Warrant to Search a Cell Phone

The U.S. Supreme Court issued an opinion on two cases on June 25, 2014, which prohibits law enforcement from searching the contents of cell phones without warrants.  Riley v. California, 573 U.S. _____ (2014); U.S. v. Wurie, 573 U.S. _____ (2014).   In these cases, police officers did not have probable cause to search the individuals’ cell phones, but instead relied on the exception law enforcement has of a search incident a lawful arrest.  This exception allows police officers to conduct a search of a person and area within his/her immediate control during an arrest for the safety and protection of law enforcement personnel and for the preservation of evidence.

However, when considering whether cell phones could be searched without a warrant utilizing the exception of a search incident to a lawful arrest, the Court focused on the prevalence of cell phones in modern society and the vast quantities of personal information stored on cell phones.  The Court even indicated that cell phones “are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”

The Court found that the vast amount of personal information stored on cell phones, and the inherent privacy of that personal information, outweighed any of the government’s concerns for police officer safety or protection of data.  It reasoned that digital data on a cell phone could not itself be used as a weapon to harm an arresting police officer or to effectuate the escape of the arrestee.  Further, the Court indicated that any concern of data destruction, either through remote wiping or data encryption, could be alleviated through a police department’s own means of data recovery once a warrant was obtained.  In the end, the Court indicated while “[p]rivacy comes at a cost”, cell phones are still capable of being searched, once warrants are appropriately acquired.

While these cases only apply to law enforcement officers, it will have an impact in school districts looking to involve their school resource officers in searches of students’ cell phones.  School resource officers should not be searching students’ phones without warrants given this ruling from the U.S. Supreme Court.  However, these cases do not impact how school administrators conduct investigations and searches related to school discipline.  School districts are still held to a reasonableness standard when conducting searches of students: the search must be justified at inception and reasonable in scope.

If a school administrator believes that a student has violated school policy(ies) through utilizing his/her cell phone while on school campus, the school administrator may search the student’s cell phone for evidence of the violations.  However, school administrators must use caution when searching a student’s phone.  For example, a student simply possessing a cell phone on school property in violation of Board policy will not permit an administrator to search the student’s cell phone.  If a student has a cell phone out in his/her lap during a test, this may permit an administrator to search the student’s phone for evidence of cheating in appropriate and reasonable areas of the phone.  If evidence of a criminal violation is believed to be found on a student’s cell phone during an administrator’s search, the evidence should be turned over to the school resource officer after the search has been conducted.

State Legislators Tweak Teacher Evaluations . . . Again!

Ohio legislators have once again modified the Ohio teacher evaluation system this month through passage of House Bill 362. The bill, which still awaits the Governor’s signature, reduces the frequency of evaluations for certain teachers and also creates an optional alternative evaluation framework that districts may elect to use as early as the 2014-2015 school year. Changes from the bill include the following.

First, HB 362 modified ORC 3319.111 by granting a board of education the discretionary authority to evaluate teachers who receive a rating of “Accomplished” on their most recent evaluations every three years. Likewise, Boards may also choose to evaluate “Skilled” teachers every two years. The law further specifies that in order to qualify for either of the above, a teacher must receive a student growth measure score of average or higher on the most recent evaluation (note that under the state-approved rubric, a teacher cannot receive a summative rating score of “Skilled” or “Accomplished” unless he or she received a SGM score that was average or higher). If a board elects either option, a credentialed evaluator must conduct at least one observation and hold at least one conference in each year that a teacher is not formally evaluated. The new law is silent as to whether a district must also gather student growth measure data in off years.

Additionally, the bill permits a board of education to elect not to evaluate teachers who have been on leave for at least fifty percent (50%) of the school year, and/or who have submitted a notice of retirement which has been accepted by the board no later than December 1st.

Finally, HB 362 establishes an alternative teacher evaluation framework under a new statute, ORC 3319.114. The alternative framework reduces the value of the teacher performance and student growth measure scores, and incorporates an additional measure derived from one of the following: student surveys, teacher self-evaluations, peer review evaluations, or student portfolios. The statute specifies that should a board elect to use the alternative framework for 2014-2015, a teacher’s final summative rating must be based on the following:

  • 42.5% teacher performance rating;
  • 42.5% student growth measure; and
  • 15% from one of the additional measures listed above

For 2015-2016 and beyond, a school board has some discretion to determine the value of the three components. However, the teacher performance and student growth measures must each count for at least 42.5% of the score. And, the new law requires that an equal percentage of the final summative rating be allocated to teacher performance and student growth. The remaining percentage of the summative rating will be derived from the chosen alternative tool.

Under the new statute, the Ohio Department of Education must compile a list of approved instruments for districts to use with the alternative framework. School districts are required to select evaluation instruments from amongst that list.

As with previous OTES and OPES modifications, a number of questions remain about whether the changes will actually improve the process and ease the burden of evaluations for school administrators and teachers, or whether they will merely create additional traps that snare the unwary. One of the primary concerns is the fact that the bill will not become effective until mid-September, nearly one month after most districts begin the 2014-2015 school year. And, in order to roll out the new system by 2014-2015, the Department has only a few months to select alternative evaluation tools, and even less time to determine the validity of the data each tool captures. Finally, while the prospect of reducing the frequency of evaluations is enticing, this practice may weaken the validity of future evaluation results for teachers, which will ultimately impact a board of education’s ability to make solid employment decisions. For these reasons, districts should be cautious to embrace the new changes until additional analysis is conducted. In the least, districts should contact legal council before adopting evaluation policy changes for this upcoming school year.

To review HB 362 in its entirety, click here.

Precision in disciplinary codes protects against disparate impact claims

As school children prepare for summer break, school administrators begin turning their attention to long-term projects that are deferred during the regular school year. Consider adding a review of your student disciplinary code to your summer to do list.

In January, the Office for Civil Rights (OCR) and the Department of Justice issued joint guidance regarding discipline and racial discrimination. Following that guidance, various disability advocacy groups pointed to disparities in discipline of disabled students as another problem area.

While intentional discrimination in schools is rare, disparate impact is almost universal. In the vast majority of school districts a greater percentage of expulsions and suspensions are imposed on minority and disabled students (relative to their percentage of the student body). OCR investigations related to this are on the rise, and a common issue being identified is that vague disciplinary codes make it hard to do apples-to-apples comparisons of discipline outcomes.

For example, Student A and Student B fight each other, but Student A gets 5 days suspension while Student B is suspended 10 days with a recommendation for expulsion. Both violated the same rule that prohibits “fighting.” On paper this looks problematic. Only by reviewing administrator narratives, or by OCR coming onsite to conduct interviews, does the explanation become clear: Student A stopped fighting immediately when directed by an administrator, while Student B cursed at and struck an administrator.

Consider refining your code of conduct to more precisely account for common scenarios such as the above. For example, “fighting” might be broken up into “fighting, ceased immediately upon directive” and “fighting, failed to cease immediately upon directive.” Likewise, “disruption” might be broken up into “disruption, verbal outburst,” “disruption, physical outburst,” etc. Upon inspection of your code of conduct and discipline records you will likely identify other rules that are too broad to capture important details of misconduct.

By making your code of conduct more precise, you will make it easier to explain differences in disciplinary outcomes. This is especially important when OCR is investigating disparate impact claims. This is a case where an ounce of prevention is worth much more than a pound of cure.

Please contact an ERF attorney for assistance with reviewing student codes of conduct and other disciplinary matters.