ODEW Updates Model Policies and Seeks Input on Revised Forms

ODEW Updates Model Policies and Seeks Input on Revised Forms

by | Apr 17, 2025 | Special Education

On April 4, 2025, ODEW re-released its Special Education Model Policies with changes that were adopted with input from school board attorneys such as your team at Ennis Britton and the Ohio Council of School Board Attorneys (“OCSBA”). These changes follow the decision by ODEW to push back the deadline to adopt new policies and procedures to May 30, 2025. We appreciate the seriousness with which ODEW has sought and acted on feedback from stakeholders in refining the Model Policy.

The changes that were made to the Model Policy include removing a sentence that would have added “emerging skills” as a consideration for determining whether a student qualifies for Extended School Year (ESY) services and removing a sentence that said that would have had the effect of prohibiting reasonable cost criteria for Independent Educational Evaluations (IEEs). The latest revisions to the Model Policy bring it into alignment with the applicable law and cases governing Ohio schools.

In addition to revising the Model Policy, ODEW has also drafted revisions to the required and optional special education forms (e.g., IEP, ETR, prior written notice, etc.). The proposed revisions have been posted on the Office for Exceptional Children website, and ODEW is soliciting comments through May 23 using an online survey and through virtual sessions scheduled for April 24, May 6, May 8, and May 13 (registration required). Find the proposed forms, the survey, and virtual session registration here:

Ohio Required and Optional Forms | Ohio Department of Education and Workforce

What Does This Mean for Your District?

 ODEW was responsive to concerns raised by education stakeholders regarding the initial version of the Model Policy. This cooperation between ODEW and public education agencies is commendable and is key to insuring Ohio’s schools appropriately serve their communities and students. As ODEW solicits input on revisions to special education forms it is important for educators to advocate for appropriate revisions that ensure the forms are aligned with the law and support not just compliance, but also the effective operation of school districts.

Educational agencies are still required to adopt the model policies and procedures, or obtain approval from ODEW for alternate policies and procedures, by May 30, 2025. Especially for ESCs and CTCs, the adoption of the new policies and procedures could be interpreted as an expansion of your duties which were outlined in the changes to OAC 3301-51-05 in January.[1]

Some educational agencies may have already adopted and approved the prior version of the model policies and procedures. ODEW has stated that the adoption of the model policies and procedures prior to the update is still sufficient for their requirements. However, the meaningful changes in the revised Model Policy warrant consideration of additional action to adopt the latest revisions. Please contact your attorney at Ennis Britton if you have any questions or concerns regarding the adoption of the model policies and procedures.      

[1] See our article on the changes to OAC 3301-51-05 and the Model Policies and Procedures: https://ennisbritton.com/blog/2025/special-education-update-abrupt-changes-to-ohios-new-procedural-safeguards-rule-leave-educational-agencies-in-a-strange-place

 

 

 

HB 106: Paystub Protection Act To Require Detailed Paystubs

HB 106: Paystub Protection Act To Require Detailed Paystubs

by | Apr 17, 2025 | General, Labor and Employment

House Bill 106, the Paystub Protection Act, just recently went into effect April 9 and will require that employers provide detailed pay statements to employees on regular paydays. While employers may already be providing pay statements, there is a new level of detail required that may prompt changes for school paystubs and even require future changes in the state payroll system.

The act requires that you provide each employee with a written or electronic pay statement that includes the employee’s earnings and deductions for each pay period, on the employer’s regular paydays.

This pay statement must also include:
1. The employee’s name;
2. The employee’s address;
3. The employer’s name;
4. The total gross wages earned by the employee during the pay period;
5. The total net wages paid to the employee for the pay period;
6. A listing of the amount and purpose of each addition to or deduction from the wages paid to the employee during the pay period;
7. The date the employee was paid and the pay period covered by that payment; and
8. For an employee who is paid on an hourly basis, all of the following information:

a. The total number of hours the employee worked in that pay period;
b. The hourly wage rate at which the employee was paid; and
c. The employee’s hours worked in excess of 40 hours in one workweek.

The act gives a 10-day grace period if you fail to provide the pay statement on the employee’s payday. However, if you fail to provide the required paystub for more than 10 days after the employee requests their paystub, the employee may submit a report of the violation to the Ohio Director of Commerce. The Ohio Director of Commerce will investigate and may issue a written notice of violation to the district. Districts must then post the notice of violation for 10 days in a conspicuous place.

What does this mean for your district?

Districts should conduct a review of payroll processes to ensure that paystubs are consistently sent out on the district’s regular paydays, and that paystubs include the necessary details. If they do not, districts may want to review the requirements with your IT department for your billing software. Additionally, districts may need to make changes to how you toll and count employee leave. Contact an attorney at Ennis Britton if you have any questions or concerns about compliance with this act.

https://search-prod.lis.state.oh.us/api/v2/general_assembly_135/legislation/hb106/05_EN/pdf/

 

 

 

2024 Wage Settlement Report: A Look at Schools Wage Increases

2024 Wage Settlement Report: A Look at Schools Wage Increases

by | Apr 17, 2025 | General, Labor and Employment

School Employee Average Wage Increase Overall:

The Ohio State Employment Relations Board (SERB) released the annual wage settlement report for 2024 on March 1, 2025. The report shows wages increased more in 2024 than in any other year since 2015, nearly across the board. Teacher wages increased an average of 3.17% and non-teacher school employee wages increased an average of 3.07%. This is the first time since 2015 that school employee wage increases were 3% or higher; in 2023 the state saw an increase of 2.96% for teachers and 2.86% for non-teachers. However, put into context, of the categories of employees reported on (Police (Safety/Security), Fire, Blue-Collar, Other), school employees saw the smallest percentage of wage increase and the statewide average wage increase was 3.42%.

The report’s predictions for 2025 and 2026 show a slight slowdown in wage growth for school employees but the actual results will not be known until March 2026.

School Employee Average Wage Increase By Region:

The 2024 Wage Settlement Report also breaks down the average wage increases by state regions. Below are the average wage increases by region:

  1. Akron/Canton: 3.14%
  2. Cincinnati: 3.64%
  3. Cleveland: 3.29%
  4. Columbus: 3.66%
  5. Dayton: 3.34%
  6. Southeast Ohio: 3.67%
  7. Toledo: 3.59%
  8. Warren/Youngstown: 3.03%

Of the state regions, two regions saw wages increase at a slower rate in 2024 than in 2023. Akron/Canton 2023 average increase was 3.24% and Warren/Youngstown 2023 average increase was 3.07%.

Districts statewide are also carefully watching the state biennium budget bill. Initial projections on revenue from both the Governor’s proposal as well as the version of the budget bill adopted by the Ohio House show concerning numbers for many schools. The budget bill will also likely influence wages moving forward.

What does this mean for your school district?

With 2024 seeing the largest school employee wage increases since 2015, your school is likely feeling that as well and may feel it more if you’re in the process of, or about to begin bargaining for a new agreement. Going into bargaining, consider the region of your school as well to consider what other schools around you are potentially doing or considering doing for wage increases. Talk to your attorney if you have any specific questions regarding the 2024 wage settlement report and what it means for your school.

 

 

U.S. Department of Education Releases FAQ on February 14, 2025 Dear Colleague Letter Regarding Ending Racial Preferences, Demands that States and Public Schools Certify Compliance

U.S. Department of Education Releases FAQ on February 14, 2025 Dear Colleague Letter Regarding Ending Racial Preferences, Demands that States and Public Schools Certify Compliance

by | Apr 17, 2025 | Board Policy & Representation, General

The U.S. Department of Education (the “Department”) has mandated that all Local Education Agencies (LEAs), which include public school districts, provide certification of their compliance with certain legal obligations described in an April 3rd document titled “Reminder of Legal Obligations Undertaken in Exchange for Receiving Federal Financial Assistance and Request for Certification under Title VI and SFFA v. Harvard.” The certifications are due by April 24, 2025, and must be submitted to applicable State Educational Agencies (SEA). ODEW, as Ohio’s SEA is requesting that certifications be submitted by April 18 even though they are not due until April 24th. This order came from the federal government via executive orders issued on January 20 and January 21, 2025, and was clarified to schools via the Department’s February 14, 2025, “Dear Colleague” letter (“Letter”).

Failure to provide certification of compliance may result in a loss of school funding from the federal government. The original deadline was extended to April 24th pursuant to an agreement between the ACLU, National Education Association-New Hampshire (NEA-NH”), and the Department. This agreement came in response to an emergency Motion for a Temporary Restraining Order in a New Hampshire lawsuit by the ACLU and NEA-NH against the Department based on the February 14 Letter and request that the court find the Letter and the requirement to end DEI to be unconstitutional.

The plaintiffs in the New Hampshire lawsuit are seeking a nationwide injunction. A preliminary injunction hearing is scheduled for April 17th over the certification requirement. It is certainly possible that the court issues a ruling on the preliminary injunction by the April 24th deadline for certification. As a result, school districts may wish to wait until after April 17th to learn whether the New Hampshire court issues a nationwide injunction preventing the certification requirement.

On February 28, 2025, the Department Provided Some Clarification of the Letter

On February 28, 2025, the Department published frequently asked questions and answers (“Q&A”) in relation to the Letter. The Q&A provides some clarification on the Letter and the potential consequences schools may face if they fail to comply with the Letter.

The Letter stated that schools found out of compliance on February 28, 2025, would face a loss of funding. However, in the Q&A the Department clarifies that the Office of Civil Rights (“OCR”) will follow its normal process for determining is a school is out of compliance and at risk of a loss of funding.

Clarification Regarding DEI Programs:

As for DEI, the Department clarifies that OCR’s assessment of school policies and programs depends on the facts and circumstances of each case. Further, the Department states that “whether a policy or program [fails to comply] does not depend on the use of specific terminology such as ‘diversity,’ ‘equity,’ or ‘inclusion.’ Schools may not operate policies or programs under any name that treat students differently based on race, engage in racial stereotyping, or create hostile environments for students of particular races.”

Finally, in terms of “covert discrimination” which is neutral on its face but discriminatory in purpose, the Department clarified how OCR will make this determination. OCR may analyze different types of circumstantial evidence that, taken together, raise an inference of discriminatory intent. The Department outlined a simple test that OCR may utilize:
1. Did the school treat a student or group of students of a particular race differently from a similarly situated student or group of students of other races?
2. Can the school provide a legitimate, nondiscriminatory reason for the different treatment that isn’t pretextual?

Clarification Regarding What is Deemed Racial Preferencing:

The Q&A also outlines more specifics on the Supreme Court decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S. 181 (2023) (“SFFA”) upon which the Letter states that the Department is relying for the standard of compliance. The Court held that admissions programs violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and, coextensive with the Equal Protection Clause, Title VI of the Civil Rights Act by considering students’ race when making admissions decisions. With that, the Court found that the admissions programs were unlawful because they employed racial stereotypes, disadvantaged members of particular races, were not sufficiently measurable, and lacked a logical endpoint.
The Department states that the Court’s decision in SFFA has broad implications regarding racial preferences with students. The first of these implications being that schools cannot, in any competitive admissions process, or other competitive process for a benefit at an educational institution, legally treat membership in any racial group as a plus factor, because a plus factor for one racial group is necessarily a negative factor for those not in that racial group. Second, even when racial classifications or distinctions do not necessarily involve making conscious stereotypes about members of a particular race or placing members of a particular race at a disadvantage in a zero-sum process, they still raise constitutional concerns under the Fourteenth Amendment. The Department mentions that this applies both for admissions and hiring.

The Department also reiterates in multiple answers that schools are responsible for ensuring they are not partnering with third parties in race-based discrimination. They state that “schools may not administer or advertise scholarships, prizes, or other opportunities offered by third parties based on race” and that “[a] school may not engage in racial preferences by laundering those preferences through third parties.”
Clarification Regarding What is Considered Unlawful DEI:
The Department states that “schools must consider whether any school programming discourages members of all races from attending, either by excluding or discouraging students of a particular race or races, or by creating hostile environments based on race for students who do participate.” The Department also clarifies that First Amendment rights are not being restricted and control over curricula is not being exercised but “the First Amendment rights of students, faculty, and staff, and the curricular prerogatives of states and local school agencies do not relieve schools of their Title VI obligations not to create hostile environments through race-based policies and stereotypes; nor does it relieve them of their duty to respond to racial harassment that creates a hostile environment.”

The Department further states that “[i]n determining whether a racially hostile environment exists, OCR will examine the facts and circumstances of each case, including the nature of the educational institution, the age of the students, and the relationships of the individuals involved.” The Department provides examples of programs that would amount to creating a hostile environment such as ones that would act to bring shame or intrinsic guilt upon members of certain races or ethnicities. Finally, within this section, the Department warns that schools must not discriminate based on race with “how they discipline in response to complaints or allegations of harassment, or in response to speech that would be protected under the First Amendment, whether through use of bias response teams, mandatory trainings, or compelled statements.”

How This Affects Your District

Unless a court issues an injunction applying to Ohio, all districts have been directed to submit the certification of compliance by April 24, 2025.
However, for Ohio Districts, ODEW is requesting certification by April 18, 2025. This request does not appear to be a legal mandate since the Department has clearly given public school districts until April 24th to submit their certifications. Prior to providing your certification, consider the clarification the Q&A document provides.

Since this Q&A also provides more insight into what the DEI programs are, this gives your District a chance to ensure a “racially hostile environment” is not occurring via school programming or in disciplinary measures for harassment. As for racial preferencing in enrollment or employment decisions, the Department is asking your District to ensure that there is nothing in your practices or policies (or those of a third-party that your District utilizes) that takes race into consideration on its face or under the surface.

For inquiries specific to your school district, and situations you want to review as it relates to this Letter, please contact any of the attorneys at Ennis Britton if you have questions or concerns regarding the Department of Education’s letter and your compliance.

[1] Frequently-asked-questions-about-racial-preferences-and-stereotypes-under-title-vi-of-civil-rights-act-109530.pdf

[1] See our article on the February 14, 2025 Dear Colleague Letter: https://ennisbritton.com/blog/2025/u-s-department-of-education-gives-until-february-28-to-comply-with-new-federal-anti-discrimination-orders-of-risk-loss-of-funding

U.S. Department of Education Gives Until February 28 to Comply with New Federal Anti-Discrimination Orders of Risk Loss of Funding

U.S. Department of Education Gives Until February 28 to Comply with New Federal Anti-Discrimination Orders of Risk Loss of Funding

by | Feb 24, 2025 | General

The U.S. Department of Education (“Department”) sent out a “Dear Colleague” letter  (“Letter”) on February 14, 2025, detailing the federal government’s order for schools to “cease using race preferences and stereotypes as a factor in their admissions, hiring, promotion, compensation, scholarships, prizes, administrative support, sanctions, discipline, and beyond.”[1] The Letter goes on to talk more specifically about ending the use of Diversity, Equity, and Inclusion (DEI) in educational institutions.

In referencing the Letter, the Department stated that schools (preschool, elementary, secondary and postsecondary education institutions receiving federal funds from the Department) have until February 28, 2025, to comply. Any schools found out of compliance face an investigation and potential loss of federal funding.

To ensure compliance, the letter advises that all educational institutions should:

  1. “[E]nsure that their policies and actions comply with existing civil rights law;
  2. cease all efforts to circumvent prohibitions on the use of race by relying on proxies or other indirect means to accomplish such ends; and
  3. cease all reliance on third-party contractors, clearinghouses, or aggregators that are being used by institutions in an effort to circumvent prohibited uses of race.”

In determining what is a discriminatory practice, the Department states that the Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard (SFFA) provides a framework for evaluation. The Court in SFFA found the use of racial preferences in college admissions is generally unlawful, and provided that any use of “race” would only be lawful if narrowly tailored or necessary to achieve a compelling state interest (e.g. strict scrutiny test). . The Department clearly stated that racial balancing and diversity are not compelling state interests.

The Department states that it intends to use a simplified version of the test: “If an educational institution treats a person of one race differently than it treats another person because of that person’s race, the educational institution violates the law.” The Department states that further legal guidance will follow.

How this affects your District:

At this time, for public school districts in Ohio it is unclear how this Letter will impact the day-to-day operations within your school district. For instance, there are typically no considerations for admissions or enrollment relating to race. Race as a factor for consideration is specifically carved out of being considered for open enrollment applications. The Department does specifically mention DEI programs as being “insidious” and “deny[ing] students the ability to participate fully in the life of a school.”  Therefore, if your school district has a DEI program (undefined in the Letter), you could be at risk of losing federal funding should the program be investigated and allowed to continue.

For inquiries specific to your school district, and situations you want to review as it relates to this Letter, please contact any of the attorneys at Ennis Britton if you have questions or concerns regarding the Department of Education’s letter and your compliance.

 

[1] Press Release-U.S. Department of Education Instructs Educational Institutions Receiving Federal Funds to End Racial Preferences, U.S. Department of Education, February 15, 2025. https://www.ed.gov/about/news/press-release/us-department-of-education-directs-schools-end-racial-preferences