Since at least 2021, one Ohio litigant has questioned the propriety of consent agendas in public meetings.  In State ex rel. Ames v. Portage Cty. Bd. of Commrs., 165 Ohio St.3d 292, the Supreme Court of Ohio recognized the use of consent agendas does not appear to be prohibited by the Open Meetings Act.  The Supreme Court cautioned, however, that a board’s use of consent agendas could violate the Open Meetings Act in such a way that it constructively closes its public meetings.  Where the line is drawn and a violation occurs has been open to debate since then.

On September 5, 2024, the Court of Appeals for the Tenth Appellate District analyzed the 2021 Ames case and approved a procedure for the use of consent agendas.  In Ames v. Columbus City School Dist. Bd. Of Edn., 2024-Ohio-3411, the Court of Appeals affirmed the Trial Court’s granting of summary judgment dismissing Ames’s argument that the Columbus City School District violated the Open Meetings Act by utilizing consent agendas at its meeting. 

The Court of Appeals rejected Ames’s claim that the consent agenda procedure  “foreclosed discussion of the items on the consent agenda.” The court found it significant that the board published information regarding the items on the consent agendas prior to the board meetings.  Also, the consent agenda procedure utilized by the board permitted but did not require, members to discuss the items on the consent agenda.  Next, the court recognized that the board president gave members the opportunity to discuss any consent agenda item prior to a roll call vote.   Finally, the court found it important that any board member could ask to remove an item from the consent agenda so that it could be considered and debated separately.

Providing further guidance to Ohio public bodies, the court noted that “nothing in the Open Meetings Act requires a public body to discuss every issue on which the public body votes. The Open Meetings Act, instead, mandates that the public have meaningful access to the discussions that take place.”

While not binding in other district courts of appeals throughout the state, the recent decision from the Tenth District Court of Appeals provides a framework for the use of consent agendas to streamline board meetings.  Nonetheless, caution must be exercised to make certain that their use does not constructively close a meeting to the public.

O.R.C. Section 2950.035: Unlawful work with or supervision of minors

Districts routinely rely on volunteer community members to help run games, and scoreboards, substitute in for missing referees, and operate concession stands for school sporting events. Many of these individuals are not Board approved prior to such volunteer work and/or do not go through background checks like school employees. Under the changes from Senate Bill 16, schools may need to more closely scrutinize who they are allowing “onto the court.”

SB 16 went into effect on April 4th, 2023. Designed to address a previous loophole in Ohio law that placed no work restrictions on sex offenders who were no longer on parole, the amended bill declared that Tier II and III sex offenders are prohibited from volunteering with organizations that work extensively with minors, which includes schools and school events like sports competitions.

According to SB 16, no person who is in a restricted offender category shall, “commence service in a position as a volunteer with any person, group, or organization, in a capacity affording extensive contact with minor children.”
– “Capacity affording extensive contact with minor children” means any capacity in which a person would be working directly and in an unaccompanied setting with minor children on more than an incidental and occasional basis or would have supervision or disciplinary power over minor children.
– “Working directly and in an unaccompanied setting” includes, but is not limited to, providing goods or services to minors.

Although it’s unclear under the act if a single, spontaneous provision of assistance is enough to be considered “more than an incidental and occasional basis,” State Representative Al Cutrona, one of the architects behind the SB 16 amendment efforts, explicitly argued that the bill was designed to prevent these kinds of interactions from taking place through team sports. Representative Cutrona stated specifically: “Whether it’s volunteering through team sports or going on retreats, this will prevent it, the bill most importantly has teeth behind it.”

What this means for your district:
Although school districts are not subject to liability under the statute, actively seeking to comply with SB 16 is in a school district’s best interest. Coaches should avoid seeking spontaneous crowd assistance as much as possible. Screening volunteers and keeping up with background checks are important to keep students and staff safe and could help the district avoid some unnecessary headaches in the future.

“Stay put” is a procedural safeguard that provides that a student will remain in the “then-current” educational placement while a due process complaint is pending.

In a recently decided case, parents challenged a proposed IEP in 2023 for their student who was reenrolling in public school after a period of four years. They sought a stay put injunction pursuant to an IEP developed in 2019, the last time the child had attended public school. (J.L. v. Williamson County Tennessee Board of Education (124 LRP 29201).

The 14 year-old student had both ADHD and disruptive mood dysregulation disorder, and an IEP was developed for them. In 2019, the student was in 4th grade and placement at the time was in both regular and special education classrooms with behavioral supports to accompany them when with non-disabled peers.

The student’s behaviors included eloping, verbal and physical aggressive outbursts, and throwing furniture and other items. During 2019, when the behaviors escalated, the IEP team proposed changing the student’s placement to a therapeutic classroom to provide wraparound support with a goal of resuming a less restrictive setting if successful.

Parents disagreed with the proposed IEP and filed for due process, and stay put was implemented. During that time, the Board also filed for due process when behaviors escalated, seeking immediate removal due to the substantial likelihood they would injure either self or others.

The parents and district settled the stay put issue part of the due process in 2020, with the parents agreeing to three hours per week of homebound instruction. The parents then moved the student to a private school and settled the pending due process. The agreement provided that the private school would not be the stay put placement and that the district would reimburse the parents for expenses for attendance at the private school.

The private school was unable to manage the student’s behaviors and parents homeschooled the student for the 2021-22 school year. A second due process also was settled. Upon returning to public school, the parents again disagreed and filed a third due process complaint, alleging the district was denying the student a FAPE in the least restrictive environment.

At the third due process hearing, the hearing officer found in favor of the Board, also finding that the student was in elementary school when they left public school and now would be attending middle school. Because of the gap in public school enrollment and the fact that the parents had unilaterally removed to a private school, the hearing officer found that stay put placement rights were waived.

The parents appealed and filed for an injunction to enforce their stay put rights, which would require the student to be placed in a regular education classroom with peers. The district court denied the injunction and the parents appealed, again requesting an injunction to order the stay put placement.

The 6th Circuit Court of Appeals determined that stay put requires the child be maintained in the child’s “then-current educational placement.” The statute does not define “then-current educational placement.” The court reviewed other circuit court decisions and the legislative history, and determined that three factors are important in resolving stay put disputes.

First, the placement has to be agreed-upon (i.e. not unilateral). Second, the placement set forth in the last-implemented IEP is relevant but not dispositive. Third, timing is critical. On the third factor, the 6th Circuit panel noted that some courts define the timing of determining the stay put placement as the time when due process is filed while others refer to the last agreed-upon placement before the dispute arose.

The court determined that there was no agreed-upon placement for the student to remain in because the parents had unilaterally removed him from the agreed-upon homeschool placement to a private school in the first settled due process. The last agreed-upon placement was homeschool, and prior to that, the 2019 IEP general education setting was not a current placement at the time of filing the due process. No stay put rights were created by any court or hearing officer because the previous due process cases had been settled.

Therefore, “preserving the status quo” was difficult because there was no status quo to preserve. The student had been in three unilateral private placements since 2020. The 2019 IEP was not a “then-current” placement and was not a functioning IEP when the dispute arose, and it was also not “the last agreed-upon placement.”

The court held the parents were not entitled to an injunction providing that the stay-put placement was the 2019 IEP placement because the student had no “then-current educational placement” in which they could “remain.” The court noted that the issue here was not whether the parents had forfeited stay put rights. Rather, because of the prolonged gap in IEP services due to multiple unilateral placements by the parents, there was no stay put to begin with.

What this means for your district:

While the fact pattern in this case – multiple unilateral placements and a years-long gap in public school enrollment – should be fairly rare, some aspects of the court’s reasoning could apply more broadly. This case clarifies that a school district is not obligated to maintain a student’s previous IEP placement if the student has been withdrawn from the district for an extended period and has undergone multiple unilateral placements by the parents. ​ The purpose of IDEA’s stay-put provision is to preserve the status quo. ​ Consequently, if a student has not been continuously enrolled in the public school system and the last agreed-upon IEP has expired, the district possibly may not be required to revert to that placement. ​

House Bill 432 passed the House on June 12, 2024 and was referred to the Senate Education Committee on June 25, 2024. The bill proposes to amend RC 3319.229 to modify the way in which an individual may qualify for a career-technical license issued by the State Board of Education.

Under current law, the superintendent of the employing district would make a request to the State Board to issue the license. This required the individual applying for the license to have an offer of employment.
Under this bill, an individual may apply for a license without first having an offer of employment. Thus, the license would not be tied to teaching in a particular district.

Minimum requirements include the applicant being enrolled in a career-technical workforce development educator preparation program that is approved by the Chancellor of Higher Education. The program must provide classroom support, include at least three semester hours of coursework in the teaching of reading in the subject area, be aligned with career-technical education and workforce development competencies developed by the Department, use a summative performance-based assessment to evaluate knowledge and skills, and consist of at least 24 semester hours of coursework, or the equivalent.

An alternative path is created by the bill for those with an offer of employment and for whom the employing superintendent requests a license instead of the individual enrolling in a career-technical workforce development educator preparation program offered by an institution of higher education. A modified “educator preparation program” created by a lead district can be used instead.

A “Lead district is defined by RC 3317.023 as “a school district, including a joint vocational school district, designated by the department as a [career technical planning district] CTPD, or designated to provide primary career-technical education leadership within a CTPD composed of a group of districts, community schools assigned to the CTPD, and STEM schools assigned to the CTPD.”

To qualify, the alternative program must be aligned with standards developed by the Department and include both of the following:
(1) Not less than nine credit hours or three semester hours of coursework in the area to be taught;
(2) Not less than forty-five hours of local professional development designed by the employing district.

Another alternative exists for those who have an offer of employment as a classroom teacher. Under this second alternative, the employing district provides a two-year mentorship program created by one or more lead districts. The program must be aligned with standards developed by the Department and include all of the following:
(1) An assigned mentor who holds a teaching license, or who has served in the capacity of an administrator;
(2) A competency-based self-assessment developed and approved by the state board of education, in consultation with individuals in the career-technical education field;
(3) A personal learning plan approved by the lead district, or the district’s designee;
(4) Participation in a structured mentoring program aligned to the individual’s personal learning plan and consisting of ninety clock hours of professional development during the initial two-year license period.

The bill also adds an alternative path to obtain the advanced career technical workforce development educator license. This alternative can be accomplished by completing either of the programs for teachers who have an offer of employment described above, as indicated by the supervisor of the program, AND, the individual has taught under the license for four years.

Finally, the bill proposes to enact RC 3319.2212. This statute would provide for a two-year career-technical educator license to an individual who meets all of the following conditions:
(1) The individual holds a valid educator license.
(2) The individual has at least five years of work experience in the subject area the individual will teach, or the individual’s work experience has been affirmed by a panel of experts as required by the state board of education.
(3) The superintendent of the employing school district has made an informal recommendation of appointment for the individual to a position as a career-technical educator.

A mentor must be assigned by the employing district. The license is renewable only once to enable the license holder to apply for a professional career-technical workforce development educator license. An advanced license would be available after completion of four years of teaching. The advanced license would be valid for five years and would be renewable.

Ennis Britton will continue to monitor this bill and keep you posted.

While courts across the country issue injunctions and debate the politics and definitions surrounding the 2024 Title IX regulations, the U.S. Department of Education, Office for Civil Rights (“OCR”) continues to consider “classic” gender inequities in schools.

On August 8, 2024, the OCR announced a resolution of its Title IX investigation into the Minneapolis Public School District’s high school athletics programs. As part of the voluntary agreement, the district committed to:
• Conducting a full assessment of how the district can accommodate athletic interest and abilities to provide equal opportunities for female students;
• Develop a plan to increase participation opportunities for female students;
• Create a Stakeholder Committee to work collaboratively with the district to create new policies and procedures addressing interscholastic athletics programs;
• Assess and develop a plan with respect to the provision of locker rooms, practice, and competitive facilities at each high school in the district that equally and effectively accommodates the athletic interests and abilities of all students; and
• Training its Title IX coordinators, athletic directors, principals, and coaches on their responsibilities under Title IX.

The OCR’s investigation revealed a disparity between the female enrollment rate and their participation in interscholastic athletics. Despite this disparity, the district acknowledged that they had not completed a student athletic interest survey in over a decade, nor did they have any policies or criteria for the addition of sports or levels to their existing programs.

The investigation also revealed significant disparities between the existing athletic facilities, and student access to said facilities, between male and female students. For example, many of the softball fields used by the district were not up to regulation for high school fast pitch and they lacked permanent fencing around the field. The girls’ softball teams were also regularly displaced from competition because the district allowed a men’s adult softball league to use the facilities after 6 p.m. The OCR also raised concerns that a higher proportion of female athletes had maintenance and preparation responsibilities for their sports, such as setting up nets and fencing prior to practice or games, with some teams even being required to set up spectator seating for their home competitions.

Similar issues were prevalent when comparing locker rooms between male and female students. At least two of the high schools reported that the girls’ locker rooms lacked hot water. Others provided additional locker rooms specifically for male athletes, with no offsetting benefits for female participants, and many female athletes across the district reported that their locker rooms were locked throughout the school day while the boys’ locker rooms were regularly available.

What this means for your district:
Regardless of the status of the 2024 Regulations, Title IX continues to be in effect. Districts cannot ignore their basic obligation to prevent sex discrimination in educational programs and activities. In the context of athletics, this generally means districts must demonstrate that they provide opportunities that are substantially proportionate to their enrollment, or if a gender is currently underrepresented, that they can show program expansion that is responsive to addressing that underrepresentation. Districts should consider regular reviews or internal audits for equity among programs considering schedules, practice and competition facilities, utilities, expectations of participants, displacement of teams, involvement of students, etc. It is clear through this resolution that OCR values a proactive approach to equal opportunity in interscholastic athletics programs.