On the Call: When the 504 Plan Falls Short

Navigating the complexities between a 504 that is not working and Child Find under IDEA can feel like walking a very thin tightrope.  Erin and Jeremy discuss the legal framework surrounding The Rehabilitation Act, how to differentiate the disabilities covered by 504 versus IDEA, and a District’s obligations when the 504 plan falls short. The discussion includes a recent case in Ohio that serves as a cautionary tale and highlights the importance of regularly reviewing the data to ensure the 504 plan is being implemented correctly. As always, they provide some thoughtful tips to help you stay balanced during the process so you can get to solid ground. 

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

To Block or Not to Block: U.S. Supreme Court Issues A Free Speech Decision Regarding Social Media

To Block or Not to Block: U.S. Supreme Court Issues A Free Speech Decision Regarding Social Media


 On Friday, March 15, 2024, the United States Supreme Court weighed in on the ability of public officials to block critics on social media accounts.

In Lindke v. Freed, a unanimous U.S. Supreme Court established a test or factors to consider when determining if a public official had a right to block critics on social media accounts. The record of the case showed that Freed maintained a private Facebook account, which was updated to include his appointment to city manager of Port Huron, Michigan in 2014. He utilized his Facebook account to post about his personal life, information related to his job, soliciting feedback on issues of concern, and communicating matters from other areas of the city. Freed would comment to posts on his account and occasionally deleted posts he considered “derogatory” or “stupid.”
During the COVID-19 pandemic, community member Lindke posted his displeasure with how the city was handling the pandemic on Freed’s Facebook page. Freed deleted these posts and eventually blocked Lindke from commenting on Freed’s Facebook page. Lindke sued alleging Freed violated his First Amendment Rights.

In its decision, the U.S. Supreme Court set a standard that a public official’s social media activity could be considered state action only if the official:
(1) possessed actual authority to speak on the State’s behalf, and
(2) purported to exercise that authority when he spoke on social media.

The Court clearly indicated “[w]hile public officials can act on behalf of the State, they are also private citizens with their own constitutional rights.” The Court provided guidance on what public officials could do to do to avoid having their social media pages, and the actions on the same, called into legal question.

Board of Education members and other public employees can assist by making matters clear to the community and courts (if challenged) through:
1. Considering single-use social media (only an official page and only a personal page). The Court highlighted the concern with “mixed-use” social media.
2. Clearly designating social media pages as personal or official.
3. Consider a disclaimer (e.g., “the views expressed are strictly my own”) to create a presumption that posts are personal.
4. Review of policies and actions (i.e. past practice) to consider who is responsible for the official messaging of the board of education.






























































































































































































































































































































































































Special Education Update: DEW Faces Challenges on Multiple Fronts for Systemic Complaint

Special Education Update: DEW Faces Challenges on Multiple Fronts for Systemic Complaint

On February 14th, 2024, the nonprofit advocacy group Disability Rights Ohio (“DRO”) filed a due process complaint against the Department of Education and Workforce (“DEW” or “Department”) for its alleged mishandling of a systemic complaint that involves forty-four school districts and an educational service center (“ESC”) in southwest Ohio. The systemic complaint was initially filed by DRO back in 2022, and included broad allegations that the ESC and districts of residence failed to provide a free appropriate public education (“FAPE”) in accordance with the Individuals with Disabilities Education Act (“IDEA”).

After conducting an internal investigation, the Department, which was still the Ohio Department of Education at that point, issued corrective action against the districts involved. Corrective action was also issued against the ESC. The corrective action included compensatory education of up to 100 plus hours in some circumstances, as well as mandated training, implementation of an internal audit process for outside placed special education students, and adoption of policies or procedures that govern placement of students in outside programs.

Districts raised a number of serious concerns about how the Department’s investigation was conducted. As a result, the Department paused its enforcement efforts and agreed to reconsider its decisions. Revised decisions were issued this past year. DRO apparently disagreed with these modifications and subsequently filed its due process complaint against the DEW.

Meanwhile, the ESC filed a legal challenge of its own on February 20th, 2024 in the county common pleas court. The legal action sought a restraining order against the DEW to prevent it from enforcing the corrective action finding against the ESC. The ESC acknowledged that the DEW is the state educational agency for Ohio as required by IDEA, but contested the DEW’s authority to issue corrective action against the ESC. The court found the ESC’s arguments compelling and granted a restraining order on February 22nd. The order specifically enjoined the DEW and its agents from enforcing its corrective action against the ESC temporarily pending further legal review.

The actions filed by DRO and the ESC raise interesting legal questions about the DEW’s authority and process for investigating systemic complaints and issuing corrective action as well as the legal standards upon which actions are based. It is apparent that both the ESC and DRO believe the DEW mishandled the complaint process and exceeded its authority in this case. We will continue to monitor this situation as it evolves. In the meantime, districts are encouraged to promptly contact legal counsel if they receive notice that an IDEA state complaint has been filed against them.

Court Dismisses Teacher’s Complaint Regarding Wrong Step Level

Court Dismisses Teacher’s Complaint Regarding Wrong Step Level

A teacher brought an action against a board seeking to be placed at the appropriate step level on its teacher salary schedule. The teacher was initially placed at the pay grade of “Masters” and “Step 10.” However, she received notice that the HR director improperly authorized the ten years of service credit and was offered a new contract reflecting six years of service credit. The teacher alleged that she felt compelled to accept the offer due to the proximity to the school year; however, she never filed a grievance.

 The teacher argued that she could not invoke the grievance procedure because she was not a union member when she signed the contract. The court rejected this argument, holding that she could have filed her grievance when she received her official contract and became a member of the union, as well as up to 25 days after. This finding was supported by the fact that the teacher had admitted that she was aware of the problem when she signed the contract, as she had stated that she felt “compelled” to do so. Her awareness of the issue further supported that she could have filed a grievance when she became a union member, which would have provided her with an adequate remedy.

 The teacher also alleged that even if she were to file a grievance, it would not provide her a remedy for the past five years that she worked without pursuing it. The court rejected this argument on policy grounds, noting that if a party to an arbitration could use their own delay to exempt themselves from arbitration, then no arbitration agreement would be enforceable because “a party could simply wait it out until the right to arbitrate expired and pursue a claim in court.”

 The court ultimately dismissed the teacher’s complaint, holding that because claims of improper placement on the salary schedule come within the definition of a grievance, the teacher should have filed her grievance as soon as she received her official contract and became a union member. 

State ex rel. Johnston v. N. Olmsted City School Dist. Bd. of Educ. | 2024-Ohio-677 | 8th Appellate District

What You Need to Know About Delta-8 and Potential Legislation

What You Need to Know About Delta-8 and Potential Legislation

Delta-8, a cannabinoid found in the Cannabis plant and also synthesized in labs, is in the news again.  Because Delta-8 is largely unregulated throughout the United States (including in Ohio), it is sometimes legally purchased and used by students.  A national study published in March 2024 in the Journal of the American Medical Association found that 11.4% of surveyed 12th-grade students had used Delta-8 in the past year.  This was the first national estimate of Delta-8 usage.

Governor DeWine has called on the Ohio General Assembly to regulate Delta-8.  Currently, seventeen states ban Delta-8, and another seven states regulate it.  Governor DeWine has suggested that Delta-8 regulations could be a part of marijuana regulation that has been under consideration by the General Assembly since voters approved recreational marijuana in November 2023.

Delta-8 is sometimes packaged like candy or other food products.  This can both aid in evading detection in schools and increase the risk of students unwittingly using it.  It can also be used in vapes, as a tincture, and smoked.  If it seems like Delta-8 is a relatively recent concern, that is partly due to the 2018 federal legislation which allowed for a minimal level of THC in hemp plants when farmed.

Because Delta-8 is not banned or regulated in Ohio, there is nothing to stop a store from selling it to school-age children.  In fact, the Ohio Department of Health conducted a limited test, and two fifteen-year-old students were able to buy Delta-8 gummies from a gas station within 3 miles of their school.  In recent years Ohio has averaged about 100 Delta-8 poisonings annually, and the medical community warns that use of Delta-8 is especially harmful to the developing brains of children.

School districts should revisit their student codes of conduct to ensure that any drug infractions are defined in a way that includes Delta-8 and other synthetic or derivative-type drugs.  It is important that policies and codes of conduct are carefully written to put students (and employees) on notice of prohibited substances, but to do so in a way that allows flexibility to include future variations of intoxicating substances as possible infractions.  It is not enough to simply ban illegal drugs because the law is not keeping up with the development of drugs.  Additionally, special education discipline questions can arise when a student is being disciplined for the use of newer drugs such as Delta-8.  Districts should consult with legal counsel to ensure student safety and legal compliance.