On May 6, 2020, we reported to you that a panel of the U.S. Court of Appeals for the Sixth Circuit issued a decision holding that there is a fundamental right to a “basic minimum education” that is potentially violated when the state fails to provide adequate public schools. As a follow up to that post, on May 19, 2020 the Sixth Circuit vacated that ruling so that it can be considered by the entire Sixth Circuit bench. The ruling allowed students from five of the lowest-performing schools in Detroit to sue Michigan officials over their inability to read. There was some speculation about whether a rehearing before the entire Sixth Circuit bench (en banc) would be sought by the Attorney general, who had publicly praised the decision. However, the Sixth Circuit did so itself (sua sponte) under rules granting it the power to vacate panel decisions for consideration by the entire bench. This is done so where there is a potential for “a precedent-setting error of exceptional public importance” or direct conflict with Sixth Circuit or Supreme Court precedent. As reported in the blog post, the U.S. Supreme Court has not expressly held that the U.S. Constitution provides a fundamental right to a basic minimum education. As the dissent noted, the Court held in Plyler v. Doe, that “p]ublic education is not a ‘right’ granted to individuals by the Constitution.” The effect of the ruling is that the opinion of the three-judge panel is vacated and of no force and effect. We will keep you posted on any developments in this important case.
In light of ongoing bans on mass gatherings, many school districts are moving to a graduation ceremony plan that involves a video or other online elements (e.g. video, PowerPoint, etc.). While virtual commencements may be almost unheard of prior to this spring, there are long-standing legal requirements that apply to this format just as they would to traditional, in-person ceremonies.
Traditional graduation ceremonies include many features aimed at making them accessible to students, family and friends, and school employees who have disabilities. Because school facilities are already subject to Americans with Disabilities Act design requirements everything from the parking lots, building entrances, restrooms, and seating areas are already accessible. Specific to the graduation ceremony itself, a school might have wheelchair ramps to access the stage, a sign language interpreter, and other accommodations.
The same anti-discrimination laws that inform the accommodations described above also apply to online services offered by school districts. In recent years, disability rights activists have filed hundreds of complaints regarding school district website accessibility. In many cases, the activists had no connection at all to the district against which the complaint was filed. They were simply scouring the internet for websites with obvious accessibility concerns. It is entirely possible that a similar approach may be used in relation to this year’s virtual graduation ceremonies. In any event, it makes good sense for districts to address website accessibility, irrespective of the pandemic.
As such, and in our experience assisting school districts that were subject to website accessibility complaints, it seems that there are certain “red flags” that may have caused some websites to be targeted for complaints while others were not. Applying this lesson to virtual graduation ceremonies, there are some basic steps that can still be taken to reduce the risk of receiving an investigation letter from the Office for Civil Rights:
- Investigate practical captioning options: Many online platforms have captioning already built-in, so it may just be a matter of enabling this feature and editing the automatic captioning. Captioning can stand in the place of a sign language interpreter if that is normally offered at your district’s ceremonies. Of course, many graduation ceremonies in the past did not have an interpreter and this has not caused widespread complaints. The idea now is to investigate what options are available in the online platform that you use for the ceremony and to use available tools to reduce your risks.
- Pay attention to color contrast: School colors are a source of pride and frequently used in important rituals like graduation. However, if the school colors are low contrast (e.g. red and orange, green and blue) it may cause problems for people with vision-related disabilities. Consider pairing neutral alternative colors like black or white with a school color to avoid low contrast pairings.
- Ensure announcements of the ceremony details are formatted for screen reader use: People with vision-related disabilities sometimes use screen readers to access electronic written information. Some file formats are less screen reader-friendly. PDF files and other picture type files can be problematic. Simpler can be better when it comes to conveying information in writing. A basic email or attached Word document is less likely to cause challenges.
- Make access to the virtual ceremony accessible: A common challenge with school websites is that they are not easily navigated by individuals with physical challenges that prevent them from using a mouse. Consider emailing students and their families a link that goes directly to the virtual ceremony. The more steps that must be taken to get to the virtual ceremony, the more risk there is of an accessibility issue (e.g. a drop-down menu that cannot be easily accessed using keyboard tabbing, a link button that is not tagged, etc.).
The efforts taken by school districts to offer something special for seniors graduating under the current conditions are admirable. Paying close attention to accessibility for people with disabilities will help ensure that these celebrations do not lead to legal headaches down the road.
On May 13, 2020, the Ohio Supreme Court upheld House Bill (HB) 70, which was passed in 2015 by the 131st General Assembly. HB 70 is a school takeover bill that gave sweeping powers to an appointed CEO in districts that struggled to meet overall state report card requirements.
The Youngstown City School District Board of Education argued that HB 70 was unconstitutional. HB 70 originally authorized schools to create community learning centers where academic performance was low. It was considered by the House on three separate days, after which it was ultimately passed by the House and went to the Senate for consideration.
The Senate considered the bill on three separate days also but made two amendments, one of which modified the structure of academic-distress commissions. Among other items, the amendment included a requirement that for any district that has received an overall grade of “F” on its state report card for three consecutive years, a commission must appoint a CEO who has “complete operational, managerial, and instructional control” over the school district. The Senate passed the amended bill and the House quickly concurred in the Senate amendments. The Governor signed the bill into law.
The Board of Education (along with its employee unions) sought a declaratory judgment and permanent injunction by challenging the constitutionality of the bill and the legislative process in enacting it. The Board of Education argued that the law violated an Ohio Constitutional provision that requires that every bill “be considered by each house on three different days,” and another provision that states that a city school district has the power “by referendum vote to determine for itself the number of members and the organization of the district board of education.”
The trial court ruled against the Board of Education, as did the Tenth District Court of Appeals. The Ohio Supreme Court agreed to hear the Board of Education’s appeal.
The Supreme Court found that the three-consideration provision in the Ohio Constitution was not violated. The Board of Education argued that the bill was substantially changed in the Senate from its original purpose of creating community learning centers. The Board of Education claimed that the amended bill must also satisfy the three-consideration provision of the Constitution. The Supreme Court disagreed. It found that a bill need not contain the exact same language in each of its three readings to be valid. “[A]mendments which do not vitally alter the substance of a bill do not trigger a requirement for three considerations anew of such amended bill.” Only where the subject or proposition of a bill is wholly changed must an amended bill satisfy the three-consideration provision.
In this case, the House and Senate each considered HB 70 on three different days. The Supreme Court found that the amended bill had a common purpose to the original bill of seeking to improve underperforming schools. Therefore, the amended bill that included the additional academic-distress commission provisions did not also need to satisfy the three-consideration provision of the Constitution.
As for the Board of Education’s other argument, the Supreme Court found that the Ohio Constitution governs the size and organization of school boards, not the power and authority conferred to them. Although HB 70 removed most of the Board of Education’s power, the Supreme Court found that the Constitution does not prevent that. Accordingly, the Supreme Court upheld HB 70 and affirmed the judgments of the lower courts that ruled against the Board of Education.
HB 70 does not apply to the vast majority of Ohio school districts. However, it has been declared constitutional and will remain valid Ohio law until such time as the legislature amends it. Recent legislation has been proposed seeking to end school takeovers such as this (SB 89) or dissolve the academic-distress commission overseeing Lorain City Schools (HB 9). Neither of those legislative attempts have become law. Members of the General Assembly have indicated that they will continue to address the status of academic-distress commissions and school takeover. We will monitor those efforts and keep you updated.
A panel of the U.S. Court of Appeals for the Sixth Circuit issued a 2-1 decision holding that the Fourteenth Amendment’s Due Process Clause protects a fundamental right to a “basic minimum education” that is potentially violated when the state fails to provide adequate public schools. The Sixth Circuit has jurisdiction over Ohio, Michigan, Kentucky, and Tennessee.
Judge Clay, who wrote the majority opinion, summarized the crux of the Plaintiff’s case. The Plaintiffs are students at several of Detroit’s worst-performing public schools. They credit this substandard performance to poor conditions within their classrooms, including missing or unqualified teachers, physically dangerous facilities, and inadequate books and materials. Taken together, the Plaintiffs say these conditions deprive them of basic minimum education, meaning one that provides a chance at foundational literacy.
In 2016, the Plaintiffs sued several Michigan state officials, who they say are responsible for these abysmal conditions in their schools. Plaintiffs allege that state actors are responsible, as opposed to local entities, based on the state’s general supervision of all public education, and also on the state’s specific interventions in Detroit’s public schools.
The Plaintiffs’ claims are all based on the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Plaintiffs argue that while other Michigan students receive an adequate education, the students in Plaintiffs’ schools do not, amounting to a violation of their right to equal protection of the laws. They also argue that the schools they are forced to attend are schools in name only, and so the state cannot justify the restriction on their liberty imposed by compulsory attendance. And in their most significant claim, Plaintiffs ask this Court to recognize a fundamental right to basic minimum education, an issue the Supreme Court has repeatedly discussed but never decided.
The District Court found that the Defendants (various state officials including the Governor, Members of the State Board of Education, the State Interim Superintendent of Public Instruction, Director of the MI Dept of Technology, and the State School Reform/Redesign Officer, in their official capacities) were in fact the proper parties to sue, but it dismissed Plaintiffs’ complaint on the merits.
First, it found that the Plaintiffs had not alleged a proper comparator for their equal protection claim, nor had they highlighted any state policy or action that was not supported by a rational basis. Second, it found that the Plaintiffs had not sufficiently pleaded their compulsory attendance theory, and so the court only viewed their due process claim as seeking an affirmative fundamental right. Third, the court held that basic minimum education is not a fundamental right, and so Plaintiffs’ due process claim was dismissed. The plaintiffs then appealed.
The Sixth Circuit panel agreed that the Plaintiff’s equal protection and compulsory education claims were not properly pleaded and were therefore rightfully dismissed by the District Court. However, the panel agreed that the Plaintiffs had “been denied basic minimum education, and thus have been deprived of access to literacy.”
Judge Clay, seeming to understand the gravity of declaring a new fundamental constitutional right, wrote the following:
“The recognition of a fundamental right is no small matter. This is particularly true when the right in question is something that the state must affirmatively provide. But just as this Court should not supplant the state’s policy judgments with its own, neither can we shrink from our obligation to recognize a right when it is foundational to our system of self-governance.
Access to literacy is such a right. Its ubiquitous presence and evolution through our history have led the American people universally to expect it. And education—at least in the minimum form discussed here—is essential to nearly every interaction between a citizen and her government. Education has long been viewed as a great equalizer, giving all children a chance to meet or outperform society’s expectations, even when faced with substantial disparities in wealth and with past and ongoing racial inequality.
Where, as Plaintiffs allege here, a group of children is relegated to a school system that does not provide even a plausible chance to attain literacy, we hold that the Constitution provides them with a remedy. Accordingly, while the current versions of Plaintiffs’ equal protection and compulsory attendance claims were appropriately dismissed, the district court erred in denying their central claim: that Plaintiffs have a fundamental right to basic minimum education, meaning one that can provide them with a foundational level of literacy.“
The dissent argued that a holding such as this is beyond the court’s role and is something best left to the Legislature and the citizens at-large. Judge Murphy wrote in dissent: “The Due Process Clause has historically been viewed, consistent with its plain text, as a negative limit on the states’ power to “deprive” a person of “liberty” or “property.” U.S. Const. amend. XIV, § 1. It has not been viewed as a positive command for the states to protect liberty or provide property. A state’s decision “not to subsidize the exercise of a fundamental right” has never been thought to “infringe the right,” even in areas where the states have long provided that assistance.”
Judge Murphy also noted the practical difficulties with attempting to enforce a right and its impact on the separation of powers issues. “How should those courts remedy the schools that they conclude are not meeting the constitutionally required quality benchmarks? May they compel states to raise their taxes to generate the needed funds? Or order states to give parents vouchers so that they may choose different schools? How old may textbooks be before they become constitutionally outdated? What minimum amount of training must teachers receive? Which HVAC systems must public schools use?”
The U.S. Supreme Court has not expressly held that the U.S. Constitution provides a fundamental right to basic minimum education. As the dissent noted, the Court held in Plyler v. Doe, that [p]ublic education is not a ‘right’ granted to individuals by the Constitution.” Accordingly, there is good reason to speculate that this decision would not survive an appeal to the U.S. Supreme Court. However, it is not certain where the case goes from here. The State Attorney General could seek a re-hearing before the entire Sixth Circuit bench (en banc). This may not occur as the Michigan Attorney General has already praised the decision. It is also possible that the State Legislature may seek to intervene and ask for a re-hearing. That request may have to go to the same panel that made this decision. Finally, the Sixth Circuit could decide itself (sua sponte) to re-hear the matter en banc.
We will, of course, keep you apprised of this matter as it progresses. While this case focuses on State officials, the next suit to enforce this new right could include local and County officials as well. This would put courts in the role of making independent judgments about the adequacy of all aspects of the educational services provided by schools in Ohio. This would be a significant break from the normal legal environment in which courts are reluctant to second guess the discretionary decisions of elected officials in the state, focusing instead on whether there are procedural violations to remedy.
Gary B., et al. v. Whitmer, et al 2:16-cv-13292
On April 30th, 2020, the Ohio Department of Health Director, Dr. Amy Acton, issued two revised orders that will impact school operations at least in the short term. These orders will cover school operations through June 30th at a minimum.
It’s a wrap – concluding school operations for 2019-2020.
The first order directs schools to remain closed to students through June 30th, 2020. However, the Director clarifies that the order does not prohibit administrators, teachers, staff, vendors, or contractors from showing up for work. Rather, administrators are tasked with determining who will have access to the buildings and are encouraged to promote practices such as social distancing and frequent hand washing. The order encourages administrators to consider remote work options when possible.
The order also specifically excludes a number of activities and events that may occur at schools, such as voting, food services, health services, and charitable works, as well as “targeted” and other educational programs and activities. While schools have the discretion to determine what types of programs and services may be provided, it should do so with caution and only after consulting with the local health department and legal counsel. Further, a school district must obtain written approval from the local department of health before the activities may be held and then must submit a copy of the written approval to both the Ohio Department of Health and the Ohio Department of Education.
Schools are expected to follow the social distancing guidelines published by the Ohio Department of Health while conducting activities. Local law enforcement and other officials who are tasked with enforcing the order are also directed and encouraged to contact local health departments with questions and for opinions about implementation.
Because there are many practical and legal implications as you determine what operations will resume, it is very important to consult with your administrators, local health departments, and legal counsel as you make plans. Click here to review the order.
Business as Usual? Not so fast!
The second order, which will remain in effect through May 29th, 2020, addresses how residents and the majority of businesses will operate during much of May. The stay-at-home requirement remains for residents, although they are permitted to engage in business activities authorized by the order. Individuals who are returning to the state are encouraged to self-quarantine for fourteen days.
The order allows most businesses to resume operations as long as they meet workplace safety standards. These standards changed several times, but as of May 1st included the following:
- Employees must wear face masks or “face coverings” at all times unless an exception applies; it is recommended that visitors do as well.
- Employers and employees will conduct daily health assessments to determine if someone is “fit for duty.”
- Employees who report for work will maintain social distancing (people will stay 6 feet apart) and will also sanitize and wash hands regularly.
- Worksites will be cleaned throughout the workday (for high touch surfaces), as well as at the close of each day or between shifts.
- To meet social distancing guidelines, buildings will limit the number of visitors and employees to 50% of the building capacity established by the fire code.
There are specific rules about face coverings and masks, including when employees are not required to wear them in the workplace. The exceptions include the following:
- Masks/coverings are prohibited by law or regulation.
- Masks/coverings are in violation of a documented industry standard.
- Masks/coverings are not “advisable” for health reasons.
- Masks/coverings violate a business’s documented safety policy.
- Employees are working alone in an area and coverings are therefore not necessary.
- There is a practical/functional reason why an employee should not wear a covering or mask.
At a minimum, facial masks or coverings should be made of cloth and should cover an individual’s mouth, nose, and chin. An employer must be able to provide written justification for any exception if requested to do so.
Employers are expected to “immediately report” when any employee is diagnosed with COVID-19 and will work with the local department to identify others who may have been exposed. They are also expected to send employees home when they show signs of the illness. When possible, a building site will be closed until it can be professionally cleaned. Buildings may be reopened in consultation with the local health department.
Paragraph 20 of the order contains a more specific list of steps that businesses are expected to comply with as operations resume, broken down by type of business. The order specifies requirements for manufacturing, construction, consumer retail and services, and general office environment. Of course, schools are governed by the separate order summarized above.
Finally, the order includes a list of businesses that must remain closed for the time being, including schools (at least as to student attendance), most childcare services, beauty salons, entertainment and recreation facilities, and restaurants/bars. These businesses may only engage in minimum basic operations as defined by the businesses.
Click here to review the order.
Possible Challenge to Orders Being Proposed in the House
State Rep. John Becker of Clermont County plans to introduce a bill that would repeal the current health orders, and make any future orders issued by the Director of Health advisory unless and until those orders are approved by the General Assembly. The bill would focus on speeding up Ohio’s return to normal business operations. Stay tuned for more information about this and other efforts to change the state’s direction.
We Can Help!
Many challenges and opportunities continue to present themselves during this pandemic – it is critical that you rely on credible sources of information to remain up-to-date. It is also important for you to consider your district’s specific needs as you develop plans, and remember that there is no “one size fits all” approach. Make sure you discuss your details and situation with legal counsel to determine how you can effectively implement these and other orders that arise.