Pandemic relief bill Sub. HB 67

This won’t be the last of the pandemic response bills, but Sub. HB 67 recently was passed on a fast track through the Ohio House and Senate, sent to the Governor and signed by him on March 20, 2021.  The bill has an emergency clause, so it is effective immediately.  It provides numerous changes in response to the pandemic for schools.   What exactly was in this bill that will affect us? 

Report cards:  There will be no letter grades for districts, buildings or components for the 2020-21 school year, nor will districts need to submit preliminary data for the report cards by July 31.  There will be no rankings of districts, community schools or STEM schools.  The Department will report on September 15, 2021 the data it has on building and district performance.

Ratings, sanctions and penalties: For district ratings, this year will have no effect on a district’s status for sanctions or penalties, and will not be used as a starting point for new sanctions or penalties. Previous years or subsequent years will be used for ratings that are assessed over time.  For a district already subject to sanctions or penalties, (academic distress commissions, restructuring, Ed Choice scholarship eligibility for buildings, defining a “challenged district” for new start-up community schools, federal and state laws identifying schools for targeted  or comprehensive supports, etc.) will remain in effect next year, but will not advance.  The law specifically states that Ed Choice performance-based scholarships will be awarded the on the same basis as current law outlines in R.C. 3310.03 for 2021-22 and 2022-23.

American history testing: In a compromise on testing, only the end of course exam in American History will not be required to be administered in 2020-21. Any student in the district’s enrollment for whom the test was not administered must continue to be counted by ODE on the same basis.  If the test is not administered, it may not be used to determine whether a student is subject to withdrawal.  Students on Ed Choice, Jon Peterson or Pilot Project scholarships may renew them even if the test is not administered.

Graduation in 2020-21: For students in 12th grade or who are on track to graduate regardless of graduation cohort but have not completed the requirements for a diploma, may graduate if:

            1.) The principal, consulting with teachers and counselors, agrees that the student has successfully completed the curriculum or their IEP.  This option may not be used after September 30, 2021. 

            2.) A school district that has adopted more rigorous requirements for curriculum than the state minimum may require only the minimum curriculum, and after the superintendent reviews whether the student has met the minimum curriculum to determine whether they have successfully completed it. 

Additional graduation pathway added in 2020-21:  Student will qualify for graduation, this year only, if they complete the high school curriculum or their IEP, and earn the OhioMeansJobs readiness seal. 

End of course exam flexibility: 11 and 12th grade student who take and retake, or who were unable to take an end of course exam may use their final grade in the course instead of the end of course exam score to meet graduation requirements.  The grade in the course determines what level of skill; advanced, accelerated, proficient, basic, or limited.  A grade of “C” or higher qualifies as a competency score.

Testing time frames: For 2020-21 only, spring state assessments online will be done according to the following schedule:   

  • ELA assessments for all grades between March 22 – May 7, 2021. 
  • ELA assessments for all grades between March 22 – May 7, 2021. 
  • ELA assessments for all grades between March 22 – May 7, 2021. 
  • ELA assessments for all grades between March 22 – May 7, 2021. 
  • ELA assessments for all grades between March 22 – May 7, 2021. 
  • ELA assessments for all grades between March 22 – May 7, 2021. 
  • ELA assessments for all grades between March 22 – May 7, 2021. 

Home school academic assessment waiver: Superintendents may not require home school parents to submit an academic assessment for the 2020-21 school year as a condition of allowing continued home instruction.

ESEA waiver:  The law orders ODE to seek a waiver from the ESEA accountability and school identification requirements for this year.

Ohio Court Denies Temporary Restraining Order to Halt Return to In-Person Instruction

Earlier this month, a judge in Hamilton County sided with the Board of Education of the Cincinnati Public School District (“Board”) when she denied the Cincinnati Federation of Teachers’ (“Union”) motion for a temporary restraining order and preliminary injunction that sought to delay the return to in person learning. Cincinnati Fed. of Teachers v. Bd. of Education of the School District of Cincinnati, No. A2100376 (Feb. 1, 2021).

This case was the result of the Board voting to resume in-person instruction beginning February 1, 2021. As a result, the Union filed a motion for a temporary restraining order on the basis that the Board’s decision to resume in-person instruction violated provisions of their collective bargaining agreement (“CBA”). In particular one of the provisions of the CBA provides that the Board and the Union will cooperate with one another in making reasonable provisions for the health and safety of its teachers. Additionally, the CBA provides that if a teacher believes that they are being required to work under unsafe or unhealthy conditions beyond the normal hazards of the job, then they have a right to file a grievance. In return, the Board argued that the court should dismiss the case because it lacked jurisdiction and because the Board had the express authority to make decisions regarding in-person instruction.

In reaching its decision, the court looked to § 4 of the Norris-Laguardia Act, 29 U.S.C. § 104, which generally prevents courts from granting injunctive relief involving labor disputes. However, an exception to this general rule applies if the controversy involves a labor dispute, an evidentiary hearing is held, the underlying dispute is subject to the arbitration procedure of the collective bargaining agreement, and the basis for injunctive relief are satisfied.

In evaluating the union’s claim, the court relied on previous Supreme Court precedent which held that a union’s claim that a board failed to provide them with notice and opportunity to discuss the closure of a facility fell under the exclusive jurisdiction of the State Employment Relations Board (“SERB”). State ex rel. Wilkinson v. Reed, 99 Ohio St.3d 106 (2003). The court in this particular case analogized the union’s failure to cooperate claim to the claim in Reed. Thus, the court concluded that SERB had exclusive jurisdiction to the claim and it therefore was not subject to the arbitration process. Because they were not subject to the arbitration process, the union’s claim did not meet the exception to the general rule that prevents courts from granting injunctive relief in a labor dispute.

The teachers in this case also filed a grievance due to their belief that they were being required to work under conditions which were unsafe or unhealthy. Though the arbitration process with respect to this grievance was proceeding, the union asked the court to issue a status quo injunction while the grievance was being resolved. In evaluating this claim, the court looked to a particular section of the CBA which stated that the Board is invested with the governmental authority and control of Cincinnati Public Schools. The provision further stated that the Board’s authority includes the authority to make rules, regulations and policies that are necessary for the government of schools, the employees, and their students.

This court further noted that the Ohio legislature has vested superintendents and boards of education with almost unlimited reasonable authority to manage and control the schools within their districts. Courts will not interfere with grant of discretionary power, so long as it is exercised in good faith and is not a clear abuse of discretion. Here, the court determined that the return to in-person instruction clearly fell within the authority granted to the Board. Thus, the court concluded that the claims brought by the Union were not arbitrable and the court could not issue an injunction.

What this means for your district?

Ohio superintendents and boards of education have the ultimate decision-making authority in determining whether their schools return to in-person instruction. Courts recognize that Ohio has granted superintendents and boards of education with almost unlimited authority to manage and govern the schools within their districts. So long as boards and superintendents exercise this power reasonably and in good faith without violating the laws of the state of Ohio, courts will seldom interfere.