A public records request was filed with Columbus City Schools (CCS) on December 29, 2020, seeking information about teacher absences and its substitute coverage. The request specifically asked for information for the school years ending in 2018, 2019, and 2020.
On January 22, 2021, a follow-up email was sent stating the records had not yet been received and on February 8, 2021, a complaint was filed alleging the denial of access to the requested public records. The school district filed a motion to dismiss the complaint, arguing that the requested records do not exist, and the case went into mediation. Let’s break it down.
What Constitutes a Record?
When requesting public records, the requestor must first show that the items sought meet the statutory definition of “records,” and that the records were kept by CCS. “Records” are defined as documents, items within them, and reports or files aggregated from separate records.
CCS does not dispute that the requested data is in its computers Substitute Employment Management System (SEMS). Rather, they argue that the requested data report does not exist because SEMS is not designed to create reports with the exact information requested. To satisfy the request, the database information would have to be manually manipulated.
The Database Rule
A public office is only required to produce existing records and has no obligation to create new records, including new compilations of dispersed data. In this case, the request is “new” in the sense that CCS has not used the database software to compile this specific kind of information in the past. However, if an electronic database used by a public office has existing programming that can produce the output sought in a public records request, then that output already “exists” for the purposes of the Public Records Act.
Does the Requested Data Exist?
CCS asserts that producing the report in the matter requested would require SEMS to create datasets that would then need to be manually manipulated, i.e., create a new record. However, it is not a valid excuse to deny a requestor the use of the database functionality to “create” a record. CCS attests that information must first be extracted from the database to an Excel spreadsheet and then manipulated with the Excel function of “pivot tables,” a data manipulation option not available in SEMS. Although the district admitted it could manipulate the data with what appears to be a minimal additional effort, they claim that the requested monthly statistics are technically not a record the database was already programmed to produce.
Ultimately the requestor failed to prove by clear and convincing evidence that the output can be produced, nor could they show that CCS had a duty to produce it, and the request was denied.
Further, CCS asserted that the initial request was “overly broad” by not identifying an existing compilation of records. However, CCS failed to respond in a timely manner which denied the requestor the opportunity to properly revise the request and avoid litigation.
What this Means for Your District
First and foremost, regardless of whether you intend to honor the request, you’ll need to respond in a timely manner, which is subjective to the pertinent facts and circumstances of the request. Additionally, if the data program you are using can produce a document to satisfy a request, you must do so. If ever there is a question about what records may be released and the timeliness the information should be given, a member of the Ennis Britton legal team would be happy to guide you.
A Court of Appeals recently reinstated a lawsuit brought by four Dayton Public School employees who were laid off pursuant to a reduction in force (RIF). Under district policy, the former employees were required to receive written notice of open positions they qualified for within two years of the date of their layoff.
In May 2016, the employees signed two-year contracts to continue their employment as a “Transportation Supervisor II” in the transportation office. Shortly after their contracts were signed, the superintendent recommended a RIF through reorganization and consolidation due to long-term declining enrollment and a corresponding loss of funding. By November 2016, the board voted to abolish their positions.
Under the restructuring plan, the Transportation and Fleet Services Department was created which would oversee all district-owned vehicles. The district made job announcements for the new positions in December 2016 that would include more responsibilities and come with a higher salary. In addition, the new hires would receive significant training to help them navigate the new role.
The trial court ruled in favor of the school district, finding that the essential duties of the new position of Associate Director of Transportation and Fleet Services substantially differed from the original position of Transportation Supervisor II. The new position, for example, would supervise, purchase, and dispose of the motor fleet for the entire district, not just yellow school buses.
State law authorizes a school board to adopt its own policies for the suspension of administrator contracts as part of RIF, but any adopted policy must include the following:
Reasons for a RIF, which may include the financial conditions of the school district or educational service center
Procedures to determine the order of suspension of contracts
Provisions requiring a right of restoration for employees whose contracts are suspended if and when any positions become vacant or are created for which any of them are or become qualified
The former employees argued that they were entitled to recall rights for two years and receive vacancy notices by mail for open positions, but claim they were never notified even though they believe they were qualified for the newly created positions.
The Director of Human Resources testified that recall rights existed only if the exact same position was posted and that the terminated employees had no right to be notified of openings unless it was the exact same as their previous job. The Director admitted not knowing whether the terminated employees were qualified, inferring that the appellants were not considered as candidates for the new position.
The Board said the RIF was necessary due to restructuring, but the appellate court found that the salary for the new position was significantly more than the old one resulting in no cost savings. If the newly created position did involve some added responsibilities, it does not appear that those responsibilities were taken away from another employee who was eliminated by the RIF.
The appellate court also found that initial testimony from board members supported a reasonable inference that their inclusion in the RIF was a matter of housecleaning rather than reducing headcount. During depositions, board members stated “the department was in such disarray… beyond dysfunctional… an embarrassment” and acknowledged having discussions amongst themselves about “getting rid of the transportation supervision because of all the issues that were going on.”
The appellate court ultimately found that the employee affidavits support a finding that the new jobs functionally were the same as their old jobs and the evidence suggested that they were qualified for the new positions. Therefore, it ruled that the trial court erred in entering summary judgment for the Board of Education and reinstated the lawsuit for further proceedings.
What this means for your district
This case demonstrates that courts will review the alleged rationale behind a RIF to determine if a layoff was justified. In situations where a RIF is implemented and no new employees or positions are created and filled, a RIF will stand. However, courts will heavily scrutinize RIFs whenever positions similar to those that were abolished are created and filled. School districts must be sure to offer recall rights to laid-off administrators who are qualified for the positions.
In situations like this where it’s arguable that former employees are qualified for newly created positions, courts are likely to let a jury decide whether recall rights should have been offered. That creates a substantial amount of risk because an adverse ruling means that the former employees will be reinstated with back pay. At that point, the employees that were hired to replace them will either need to be maintained and moved to different positions or subjected to another RIF.
The U.S. Department of Education’s (DoE) Office of Special Education and Rehabilitative Services (OSERS) issued a dear colleague letter on August 24 reiterating its commitment that children with disabilities and their families have successful early intervention and educational experiences for the 2021-22 school year.
As it did last year in a Q&A document released on September 28, 2020, OSERS asserts that “with few exceptions” there is no authority vested in DoE to waive IDEA requirements. The only “notable” exception identified by OSERS relates to waiving maintenance of effort funding requirements. The lack of requirement waivers applies regardless of the primary instructional delivery approach – both virtual and in-person learning are held to the same standard.
The letter reports that “the Department expects that all [school districts] will provide every student with the opportunity for full-time, in-person learning for the 2021-2022 school year.” Both the letter and accompanying Q&A document indicate a focus on the transition from remote to in-person learning. While the vast majority of Ohio students made this transition at some point during the 2020-2021 school year as vaccines became available, in some other states it is happening for the first time this fall. A successful transition includes ensuring that IEPs are in effect for children with disabilities at the start of the school year, and all other rights of children with disabilities under IDEA are protected.
The guidance reaffirms the importance of appropriate implementation of IDEAS’s child find obligations, which requires the identification, location, and evaluation, of all children with disabilities in the states, including those enrolled in homeschool. An effective child find system is an ongoing part of each state’s responsibility to ensure that FAPE is made available to all eligible children with disabilities. The Q&A document provides some specific ideas related to child-find during the pandemic, including a warning to “not rely solely on referrals by parents” as the primary child find tool, and the precaution that traditional child find strategies may not be adequate during remote learning. Increased community outreach and education is strongly encouraged by OSERS.
A theme underlying much of the guidance, and one emphasized by recent Department of Education actions, is that COVID precautions are “of utmost importance.” Not only does COVID pose a direct threat to individual students – especially disabled students with medical fragility – but the fear of COVID may result in parents turning to private schooling and homeschooling for perceived safety. This can make IDEA compliance more challenging. As a result, OSERS looks to COVID precautions as key element of IDEA compliance. The letter points to the CDC recommendation that everyone in K-12 schools wear a mask indoors, including teachers, staff, students, and visitors, regardless of vaccination status. The guidance encourages schools to put in place layered prevention strategies including promoting vaccination and proper universal mask-wearing.
What does this mean for your district?
Adjustments to “normal” IDEA compliance, such as child find procedures, will be essential during this school year as OSERS increases its expectations while continuing to assert that no waivers will be issued. While the initial Q&A focuses on child find, OSERS has indicated that additional guidance will be forthcoming. As was the case last school year, the new guidance is expected weeks or months after school resumes. Unfortunately, schools cannot point to this delay by OSERS as a defense against any alleged IDEA violations. As a result, careful planning and informed, proactive legal guidance are key.
School resource officers (SRO) play a vital role in ensuring that schools are safe and welcoming places where all students can learn. So how much information do they really need to know about school records of the children for which they serve? The answer may seem obvious, but let’s take a look into the fine print of FERPA.
SPPO acknowledged that a district may nonconsensually disclose education records to school officials who have a legitimate educational interest in the records, but noted that, in this instance, the district had not designated a SRO or any other law enforcement officer as a “school official.” Since the disclosure did not fall under the exceptions to the parental consent rule or any other applicable exception, they determined that the district did violate FERPA laws.
The district made assurances to the SPPO that it had scheduled training for its administrators and officials from law enforcement agencies who work with the district on FERPA’s privacy and nondisclosure provisions and the complaint was closed.
What does this mean for your district?
If your district hires a law enforcement official or contracts with local law enforcement for its SRO(s), consider including your SRO in individuals who have a legitimate educational interest in student records. That way, the district may disclose personally identifiable information to the SRO without parental consent if there is an altercation or serious disciplinary incident on campus. It’s not unreasonable to assume SROs should be privy to student records, but laws are tricky. It is even advisable to train SROs and building administration on appropriate access to student records and information. If you’re ever in doubt, don’t hesitate to reach out to an Ennis Britton attorney for further clarification.
U.S. DOE’s Office for Civil Rights Enters the Fray by Initiating Discrimination Investigations Against States with Mask Prohibitions
On Monday, August 30, the U.S. Department of Education’s Office for Civil Rights (OCR) opened investigations into five states that prohibit schools from setting universal mask mandates.Letters were sent to the chief state school officers of Iowa, Oklahoma, South Carolina, Tennessee, and Utah. Several state school chiefs who received the letter said they agreed that their school districts should have the flexibility to set mask requirements if they deem them necessary.
OCR will specifically investigate whether statewide prohibitions on universal indoor masking discriminate against students with disabilities who are at heightened risk for infection of COVID-19 by preventing them from safely attending in-person education.Specifically, they will determine whether these prohibitions are a violation of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act which collectively mandate that schools are required to provide a free and adequate public education (FAPE) to students with disabilities and also provide programs and facilities that are accessible to individuals with disabilities.
Education Secretary Miguel Cardona had previously sent letters to each of the states who will be subject to the OCR’s investigations. In it, he noted that “the safe return to in-person instruction requires that school districts be able to protect the health and safety of students and educations, and that families have confidence that their schools are doing everything possible to keep students healthy.”
The Department will continue to monitor, but did not launch an official investigation into, Florida, Texas, Arizona, or Arkansas as they have voluntarily suspended enforcement of their policies while litigation is ongoing as described below.
Florida Judge Invalidates Governor’s Executive Order
On Friday, August 27, a Florida judge ruled that school districts can legally require their students to wear masks to prevent the spread of COVID-19. He stated Governor Ron DeSantis overstepped his executive order by banning school districts from requiring students to wear masks.
The governor has argued that a new Florida law gives parents the ultimate authority to oversee health issues for their children. However, the judge noted, it exempts government actions that are needed to protect public health and are reasonable and limited in scope. A school district’s decision to require student masking to prevent the spread of the virus falls within that exception.
Through his opinion, the judge cited Florida Supreme Court decisions which found that individual rights are limited by their impact on the rights of others. For example, adults have the right to drink alcohol but not drive drunk, and that there is a right to free speech, but not to harass or threaten others. As a result, he said that school boards could reasonably argue that mask-less students endanger the health of other students and their teachers, and mask policies should be up to them to determine.
Despite the ruling, the Florida Department of Education on August 30 began withholding school board member salaries from two school districts that require masks in classrooms. Florida Education Commissioner, Richard Corcoran, said he is following through on the orders of the State Board of Education and stated funds would continue to be withheld monthly until each school board complied with state law and rule.
Lawsuit in Texas Filed
On Tuesday, August 17, a lawsuit was filed in Texas claiming that the state is discriminating against medically vulnerable students by failing to accommodate their disabilities. The parents filed suit on behalf of their disabled children, all of who are under age 12 and ineligible to receive a COVID-19 vaccine.
The parents claim that the ban violates Section 504 and Title II of the ADA by excluding students with underlying medical conditions from district programs and failing to make reasonable accommodations that would allow those students to attend school. In addition, they are asking a judge to issue a temporary restraining order that would allow districts to implement mask mandates and prohibit the state from withholding funds from districts that choose to make them mandatory.
The lawsuit challenges an executive order by Governor Greg Abbott that declares school systems cannot require students or staff to wear a mask. It also noted that districts must allow individuals to wear a mask if they choose to do so. As a result of ongoing litigation, the Texas Education Agency issued an updated public health guidance that stated it would not be enforcing the mask provisions in the interim, but would make additional guidance once the court issues are resolved.
Other Actions Afoot
In Arkansas, a judge pressed pause on the state law that prohibits local officials from setting mask mandates, meaning school districts can – at least for now – set their own local mask requirements. Tennessee’s governor has signed an executive order requiring schools to allow families to opt out of mask mandates. In Utah, local health departments can issue 30-day school mask mandates with approval from the state or county government.