On the Call Podcast: Extracurricular Activities

On The Call: Extracurricular Activities

by Jeremy Neff & Erin Wessendorf-Wortman

Go Team! Whether it’s cheerleading, football, e-sports or D&D, ensuring your coaches and club advisors have the proper game plan for extracurricular activity participation can keep you out of the penalty box. Erin and Jeremy cover some of the significant guidance provided under 504 related to extracurriculars and share a recent OCR matter from Georgia which highlights all the right things to do so you won’t have to yell D-E-F-E-N-S-E!

You can also listen here or wherever you get your podcasts. Look for new episodes on the second and fourth Tuesdays of the month.


Plan For Payment In Lieu of Transportation

Plan For Payment In Lieu of Transportation

Successful transportation programs have had to adjust their timelines for declaring transportation impractical and offering payment in lieu of transportation (PILOT) due to new statutory deadlines and processes enacted in 2021. Here are some reminders about those deadlines and practical tips on preparing for timely and effective PILOT determinations. A cost-efficient and legally compliant transportation program is a key component of district operations, especially with financial penalties for noncompliance.

Route Plans
Have the nonpublic and community schools in your district declared their start and end times by April 1? That’s a new deadline. If they have done so, the district’s obligation is to develop a transportation plan for those students in 60 days; i.e., June 1. This is much sooner than districts usually do routing.

If those schools have not yet done so, it is to a district’s benefit, as it plans routes for next year, to request that information, along with student rider names and addresses. Once provided, the district must attempt to respond with the transportation plan by August 1. It is in the district’s interest to get this information quickly so that routing can incorporate these students.

Impracticality Determinations
Districts must determine impracticality of transportation 30 days before school begins. This means most families must be notified by mid-July. Determining whether the costs of transportation for nonpublic or community school students are disproportionate must be made on a case-by-case basis. Districts must also consider the other factors for this determination outlined in R.C. 3327.02. Researching each factor and documenting the results will protect the district.

The Superintendent may make the determination after considering all the statutory factors, with the Board approving the same at its next scheduled Board meeting. A letter detailing the reasons supporting the determination of impracticality must be sent to the parents, the State Board, and the community/nonpublic school.

The Board may then offer payment in lieu of transportation (PILOT) to the parents by sending them the resolution, the reasons transportation was declared impractical, notice that the parent may accept or reject the offer and request mediation with ODE, and a contract for the parents to sign if they accept.

Attention to ensuring this process is well underway now is time well spent, with the goal of being ready to make decisions in July. Failure to do so risks missing deadlines, which could result in transporting students the entire year.

Values for payment in lieu of transportation for 2023-24 already have been announced by ODE- a minimum amount of $596.43 and maximum of $1,192.87.







































































































































































































































































































































































































































Special Education Update: Court Limits Federal COVID-19 Litigation

Special Education Update: Court Limits Federal COVID-19 Litigation


Simpson-Vlach v. Michigan Dep’t of Educ. (6th Cir. 5/11/23)

On May 11, 2023, the 6th Circuit Court of Appeals denied the request of a group of parents to issue an order governing special education services during future school closures like those that occurred due to COVID-19 in the spring of 2020.  The court acknowledged that the parents, all of whom had children might have claims related to past denials of FAPE for their individual children, though such claims would almost certainly be subject to IDEA’s requirement to exhaust administrative remedies.

All of the parents were from Michigan where, like throughout the country, schools were closed for several months starting in March 2020.  The parents all had children with IEPs, and argued that switching to remote learning during the initial response to COVID-19 amounted to a change of placement that violated IDEA and the Americans with Disabilities Act.  They pointed to the lack of prior written notices about the switch as well as the lack of meaningful parental participation in the switch and in the designing of services for remote learning.

Additional claims were based on state law, as well as the federal Racketeer influenced and Corrupt Organizations Act (“RICO”).  Notably, RICO is associated with prosecutions of organized crime (i.e. the mob).  The argument of the parents was that school district officials and the state department of education conspired to falsely claim they were complying with IDEA during COVID-19 in order to secure “millions of dollars” in federal funding.  Strangely, the only specific disbursement of IDEA funds cited by the parents was one made in August 2019 – well before COVID-19 caused school closures in March 2020.

This was not the first time that an IDEA lawsuit during COVID-19 made claims under RICO.  The other suit, previously covered in Ennis Britton’s School Law Review, was J.T. v. de Blasio (S.D.N.Y. 2020).  That case was effectively filed as a nationwide class action, and included districts in Ohio.  The case was swiftly dismissed and widely criticized.  The judge observed of the RICO claims “The utter implausibility of such a contention speaks for itself. No one knew that there was going to be a pandemic. It took the entire world by surprise.”

Returning to the recent 6th Circuit decision, the court observed that none of the IEPs for the students in effect at the time of the school closures specified that they were for in-person services.  The court also found it significant that the students with disabilities were on equal footing with their typical peers – all switched to remote learning and back to in-person learning on the same schedule.  While the complaint asserted RICO violations, the court focused on the basic legal standards to secure a court order regarding future closures. The court found that among other deficiencies, the parents failed to establish any meaningful likelihood of school closures in the future or of any particularized harm to the parents’ children. Without these elements, the parents’ suit could not proceed.

Regarding the RICO claims, one reason these types of claims have arisen in the unlikely area of special education law is that RICO grants treble (i.e. triple) damages. Along with attorney-fee shifting provisions in the involved federal laws this could allow for significant payments if such a lawsuit could manage to survive dismissal. As with the New York case, the Michigan case failed to advance to a point where an award of damages was considered.

What does this mean for your district?

The window for special education litigation related to the initial COVID-19 closures is largely closed.  It would take a very unique set of facts to overcome the different statutes of limitations that would apply to IDEA, Section 504, and ADA claims.  While more novel arguments, like those involving RICO, have been made, the courts have been quick to dismiss cases that seem to stretch the bounds of both the facts and the public policy purposes of the law.  Because Ohio is part of the 6th Circuit this most recent decision is further assurance that while a minority of parents may see the swift action of schools to abate the risks of COVID-19 in the spring of 2020 as a criminal enterprise, the courts do not.





















































































































































































































































































































































































































Career Tech Corner: Governor DeWine and the Ohio House Prioritize Career Technical Centers in Ohio Budget

Career Tech Corner: Governor DeWine and the Ohio House Prioritize Career Technical Centers in Ohio Budget

In the proposed budget awaiting Senate approval for the upcoming fiscal year, the Ohio House followed Governor Mike DeWine’s lead and made career technical centers a priority. H.B. 33 which passed the Ohio House on April 26, 2023, includes a $100 million appropriation to support career technical programs. H.B. 33 also includes a one-time appropriation of $200 million for construction projects that establish or expand career-technical education programs.

DeWine has said that he believes career technical centers are essential to preparing Ohioans for the jobs of the future. “The jobs of tomorrow are going to require more skills and training,” DeWine said. “Career technical centers are the best way to make sure that Ohioans have the skills they need to get good-paying jobs.” Both the Ohio Chamber of Commerce and the Ohio Education Association support the increased funding.

The budget proposal is now being considered by the Ohio Senate. It is expected to be debated and voted on in the coming weeks.