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

Governor DeWine signed House Bill 8 on January 8, 2025, and the law goes into effect on April 9, 2025. This bill, known as the “Parents’ Bill of Rights” not only adds to the decisions that parents can make regarding their children’s education but also contains new requirements for public schools.

New School Policy Requirements:

By July 1, 2025, all public schools must adopt a policy that promotes parental involvement in the public school system and establishes requirements regarding sexuality content, and school-provided healthcare services (including student mental, emotional, and physical health and well-being). This policy must be made publicly available and posted prominently on the school’s publicly accessible website.

In the policy, the school must provide assurances that sexuality content is age-appropriate and developmentally appropriate for the age of the student receiving the instruction, regardless of the age or grade level of that student. Parents must be provided with an opportunity to review any instructional material that includes sexuality content. The act also requires that each public school have a parental involvement policy adopting a procedure to obtain authorization from parents prior to providing any type of health care service to the student.

Each public school must also adopt a policy prohibiting school personnel from directly or indirectly encouraging a student to withhold from a parent information about the student’s mental, emotional, or physical health or a change in services or monitoring related to the student’s health. With that, the policy must prohibit school personnel from discouraging or prohibiting parental notification of and involvement in decisions affecting a student’s mental, emotional, or physical health or well-being.

The school policies must permit parents to file with the school written concerns related to topics addressed in the policy, notify parents of this permission, and establish a process for a principal or assistant principal to resolve the concern within 30 days of its receipt. A parent may appeal a principal’s or assistant principal’s decision to the district superintendent or equivalent official for a community or STEM school (“superintendent”).

Finally, all public schools must adopt a policy authorizing students to be excused from school to attend a released time course in religious instruction. The school board must also collaborate with the sponsoring entity of a religious released time course to identify a time to offer the course during the school day. When students are released for religious instruction, the sponsoring entity, not the school district, assumes responsibility of the student such as: transportation (including for students with disabilities), funding of the program (school districts cannot provide funding), maintaining records to be shared with the district, and liability for the student during release time. The student will be responsible for making up missed schoolwork for released time.

Furthermore, students who complete religious courses during released time may earn up to two units of high school credit.  HB8 states that, in determining whether to award credit for completion of such a course, the board shall evaluate the course based on purely secular criteria that are substantially the same criteria used to evaluate similar nonpublic high school courses, except there cannot be criteria requiring that released time courses be completed only at a nonpublic school. Finally, a school’s decision to award credit for a released time course of religious instruction must be neutral to religious content or denominational affiliation.

Parent’s Rights

Finally, HB8 amends R.C. § 3313.473 to expand upon parent’s rights regarding the education of their children, including record keeping and healthcare at school. Below is a list of the new parental rights that are listed in HB8:

• Parents have the right to review the materials of any sexuality content and excuse their children from instruction of any sexuality content. R.C. § 3313.473(B)(1)(b)
• Parents have the right to be notified of any substantial change in their child’s services, including counseling services, or monitoring related to the child’s mental, emotional, or physical health or well-being or the school’s ability to provide a safe and supportive learning environment for the child. R.C. § 3313.473(B)(2)
• Parents have the right to be notified of and choose whether to authorize a district to provide a health care service (physical, mental, and behavioral health care services) for their children, except for emergency situations, first aid, or minor unanticipated health care services. R.C. § 3313.473(B)(4)
• Parents have the right to uninhibited access to their children’s educational and health records maintained by the school R.C. § 3313.473(B)(2)
• Parents have a right to file with the school principal or assistant principal a written concern regarding a topic addressed in R.C. § 3313.473(B).

What does this mean for your district?

Obviously, public school district boards of education will need to adopt new policies by July 1, 2025. However, beyond the policy(ies), school districts will want to ensure their staff understand the language of HB8, the language of the district’s policies and procedures, and how practically this will play out within the schools of your district.

Meetings and training for guidance counselors and administrators are important to understand the practicalities for HB8, as well as implications for how this could affect the student services offered within the schools and to set a common standard for when and how parents will be notified of substantial changes in their student’s services.

As for religious release time instruction, the deadline for updating this policy is April 9th (the effective date of the law).  Practically, this may result in RRTI not being provided until the 2025/2026 school year, but entities could choose to seek applications to provide RRTI once the policy is in effect. Review of any entities seeking to provide RRTI must be neutral without favoring one religion over another, and should comply with the standards set in statute and board policy (background checks, not during “core” instruction (as defined by policy), etc.).

 If you have additional questions on the implications of HB8 or would like training for your staff on the same please contact your EB attorney for assistance.

On the spur of the moment, the Ohio Department of Education and Workforce (“ODEW”) refiled it’s new Ohio Operating Standards rule governing procedural safeguards. This meteoric move modifies the effective date from July 1, 2025 to January 24, 2025. The changes have been implemented through an amendment to OAC 3301-51-05.

The rule changes appear to significantly expand duties for other entities such as educational service centers (“ESC”) and joint vocational schools (“JVS”) to provide procedural safeguards protections for students with disabilities, where under current law the student’s district of residence (“DOR”) is responsible.

Specific procedural safeguards in the rule that incorporate this shift include:

• Adopting policies and procedures to ensure students with disabilities are given procedural safeguards
• Obtaining parent consent for initial evaluations, reevaluations, initial services, and change of placement
• Issuing a notice of transfer of parental rights at age of majority
• Appointing surrogates (an educational agency may appoint the surrogate if a request is made by the DOR)
• Providing an independent educational evaluation at public expense if requested by the parents, or filing due process if the entity wishes to contest the request
• Providing Prior Written Notice
• Participating in mediation
• Being named as a party in state complaints and due process complaints

As a result of this change for instance, it may now be possible for a family to name an ESC, JVS, or other entity as a party to a due process complaint, where under current law, a district of residence is the party which must answer a due process complaint.  

Interestingly, the regulations still declare that a district of residence is ultimately responsible for ensuring that students with disabilities receive a Free Appropriate Public Education (“FAPE”) in accordance with state and federal law. It is not clear what will happen if other agencies are named in a due process complaint, and found liable in some way. It is also not clear whether these other agencies might be held responsible for failing to adhere to procedural safeguards over the past few years while the current rule has been in effect.  

Along with this change to the procedural safeguards, ODEW has also recently released a new Special Education Model Policies and Procedures Manual for Educational Agencies. The Model Policies and Procedures can be found here:

ODEW states that for this school year, each Educational Agency is required to submit their model policies in whole, or alternatively submit their own version for approval by ODEW by March 30, 2025. Every year thereafter, the due date is November 30. The Policies and Procedures outline the Educational Agency’s responsibility for providing FAPE and procedural safeguards.

What does this mean for your Educational Agency? Thanks to this abrupt change in the rule’s effective date, educational agencies have about two months to draft new policies and procedures for your board to ratify and for ODEW to approve, or alternatively adopt ODEW’s model policies and procedures. It is important to recognize that the model policies were drafted largely from the perspective of a traditional school district. It may be worth an ESC or JVS district’s time and effort to consider developing their own policies before adopting what ODEW has published so that the policies better address the role these entities play as compared to a traditional school district. Contact a member of the EB team to discuss this further.