by Erin Wessendorf-Wortman | Mar 12, 2020 | COVID-19 (Coronavirus), Special Education, Student Education and Discipline
It should come to no one’s surprise that the state and federal laws do not allow for exceptions to the required timelines for ETRs, IEPs, etc. As discussed in other posts, in December 2009, in response to the H1N1 pandemic, the U.S. Department of Education issued a memo titled “Guidance on Flexibility and Waivers for SEAs, LEAs, Postsecondary Institutions, and other Grantee and Program Participants in Responding to Pandemic Influenza (H1N1 Virus)” which plainly stated that the U.S. Department of Education would not waive the requirements for school districts to evaluate and assess during school closures. While the U.S. Department of Education issued a “Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak,” the Department did not issue any comments regarding IEP and 504 timelines at this time.
The Ohio Department of Education has issued its own Considerations for Students with Disabilities During Ohio’s Ordered School-Building Closure originally on March 17th, and updated on March 27th.
Proper planning on your school district’s and case manager’s part will be essential in determining how your school district needs to act as schools are currently (as of March 30, 2020) closed until May 1st during which you would may be required to have an ETR or IEP meeting.
My school district is in the middle of conducting an ETR on a student. Do we continue with this evaluation?
Based on the Guidance and Considerations, you continue with the evaluation of the student. Your district may want to consider how much of the evaluation and assessments can be held remotely. If you can hold the ETR evaluations remotely, then you can hold the ETR meeting during the time of the closure via telephonic or video conference means. If pieces of the evaluation cannot be conducted because school is closed, the evaluation would need to be delayed and a prior written notice for the same should be sent. If you have not yet conducted the evaluation and assessments, another option to consider is waiving the reevaluation and delaying it until return to the in-person education with parental consent or to conduct a records review. The guidance from the Ohio Department of Education indicates that all services should still be provided if parents consent to waive reevaluation.
Are we required to hold in-person meetings for ETRs and IEPs during a school closure?
If school closes, IEP teams are not required to meet in person. However, according to the Guidance, schools must continue working with parents and students with disabilities, to develop required documents – ETRs, IEPs, 504s, etc. If a plan or evaluation for a student expires during the time of school closure due to COVID-19, IEP/504 teams should offer to meet via telephone conference or videoconference with the parents. School personnel should attempt to determine the specific services that can be provided during the ordered school-building closure period. If the parent does not agree with meeting via telephone or video conference, then the meeting should be delayed until school reopens according to the Guidance.
What about evaluations and plans developed under Section 504?
The same principles apply as discussed above for ETRs and IEPs to those activities conducted by schools for a student with a disability under Section 504 according to the Guidance. You will want to review your school district’s 504 polices to determine 504 plan review and reevaluation timelines, as there is no requirement in federal law for how often must occur.
How do we help our staff in planning for this potential?
School district personnel should look at their evaluation and IEP timelines to determine which items may expire during the next few weeks/months of the 2019/2020 school year. It would be prudent to plan how items may be advanced or to begin discussions now with parents on what the plan will be in the event of a school closure.
by Erin Wessendorf-Wortman | Jan 6, 2020 | Board Policy & Representation, General, School Management
The Eleventh District Court of Appeals was recently faced with the issue of whether Ohio’s Open Meetings Act requires the meeting minutes of a public body to be accurate enough to show the specific reasons a Board has entered into executive session.
In State of Ohio ex rel. Ames v. Brimfield Township Board of Trustees, Ohio App. 11th Dist., No. 2019-P-0017, 2019-Ohio-4926, Ames alleged that the board wrongfully entered into executive session for matters not contained in the exceptions listed in R.C. 121.22(G). The basis of Ames claim was that the Board’s meeting minutes failed to state the specific purpose for which they entered into executive session. The Board argued that they were only required to make a specific reference to the reason for entering into executive session in the motion and the vote held during the open meeting, but were not required to provide a description of the applicable exception in their meeting minutes.
The Open Meetings Act requires all public officials to take official action and conduct all deliberations in open meetings unless excepted by law. R.C. 121.22(A). These exceptions are listed in R.C. 121.22(G), which allows a Board to enter into executive session in order to consider any of the matters listed in R.C. 121.22(G)(1)-(8). In this instant case, the Board claimed they entered into executive session in accordance with R.C. 121.22(G)(1) in order to consider the appointment, employment, dismissal, discipline, demotion, promotion… of a public employee. Furthermore, if a board enters into executive session pursuant to R.C. 121.22(G)(1), the motion and vote to do so must state the purpose for doing so. In this case, a member of the Board testified that at each of the meetings referenced in the complaint, the Trustee making the motion to move into executive session referenced the relevant exception stated in R.C. 121.22(G)(1). Thus, the Board believed that they were in compliance with the Open Meetings Act.
However, not only does the motion and vote to enter into executive session need to state the purpose for doing so, Ohio law requires the Board’s meeting minutes to reflect the “general subject matter” of discussions in executive session. R.C. 121.22(C). Thus, the court in this case was required to determine whether the meeting minutes must reflect the specific reason a Board entered into executive session, or whether the action taken properly in the meeting was enough to prove legality. The court determined that the meeting minutes must reflect the specific reason for entering into executive session. In doing so, they concluded that when a Board enters executive session, not only must the motion and the vote to enter into executive session need to state the purpose for doing so, the Board’s minutes must specifically reference each of the purposes for which the executive session was held. Therefore, if the Board enters into executive session pursuant to one of the exceptions listed in R.C. 121.22(G), the minutes should reflect one or more of the eight purposes listed therein, but need not provide any further specificity.
This case serves as a great reminder for school boards of education, and school treasurers, to ensure that the reason(s) for entering executive session are explicitly stated upon the motion and vote to enter into executive session, and for such reasons to be included with the same specificity in the meeting minutes. The failure to include the permissible reasons for entering into executive session within meeting minutes, even if appropriately motioned and voted on in a meeting, could result in technical violations of the Open Meetings Act, which may result in unfavorable court decisions and awards of attorneys fees.
by Erin Wessendorf-Wortman | Jan 3, 2020 | Board Policy & Representation, General, Labor and Employment, School Management
Like students, teachers do not shed their constitutional right to free speech while at school. However, their rights are not without limits as the Sixth Circuit demonstrated recently when it issued a ruling upholding termination of a teacher. In Sensabaugh v. Halliburton, the District’s head football coach posted concerns on Facebook about the conditions he found when visiting an elementary school (a visit unrelated to his job). One of these posts included photos of a classroom and one included the faces of several students. District officials tried to contact Sensabaugh in an effort to explain their concern that this post could violate school policy as well as FERPA. However, they were unable to get in contact with him.
Meanwhile, Sensabaugh posted a separate entry on Facebook discussing his concerns with prisoners working at the high school. Again, school administration reached out to Sensabaugh to discuss their concerns over the posts. During their conversation, the administration informed Sensabaugh that he did not need to delete the post, but instead asked him to remove only the picture of the students accompanying the post. Sensabaugh yelled at members of the administration and informed them that he would not take the post down.
Following the conversation, administration drafted a “Letter of Guidance” which addressed Sensabaugh’s failure to remove the photos from Facebook, his conduct during the phone call, and other previous misconduct. This letter stated that the administration was not requiring Sensabaugh to remove his comments from his posts but directed him to remove the picture displaying the minor students. The letter clearly stated that failure to follow its directives could lead to discipline up to and including termination. Finally, Sensabaugh agreed to remove the photos from Facebook.
Following the Letter of Guidance, Sensabaugh’s behavior and actions continued to cause problems in the District. This led the administration to issue a Letter of Reprimand which placed Sensabaugh on administrative leave pending investigation. It was alleged that Sensabaugh accused the Athletic Director of coming to work under the influence of prescription pills, as well as threatening a football player and athletic trainer. The administration hired an independent law firm to investigate the alleged misconduct.
The investigator’s report concluded that Sensabaugh had engaged in unprofessional, insubordinate, threatening, and retaliatory behavior towards supervisors, students, and staff. It concluded that Sensabaugh’s actions had intimidated and undermined his coworkers and supervisors. The investigators went on to conclude that Sensabaugh’s repeated, belligerent, and confrontational speech to coworkers made it inconceivable for them to maintain an ongoing employment relationship. As a result, the investigator recommended that Sensabaugh’s employment with the district be terminated.
Administration notified Sensabaugh that the independent investigator had submitted their findings and recommended his termination. Sensabaugh was offered the opportunity to provide any statement or evidence in support of a less severe punishment. However, Sensabaugh never responded. The District then terminated Sensabaugh’s employment.
Sensabaugh sued, arguing that the District retaliated against him for exercising his First Amendment right to free speech. In order for a teacher to prevail on a First Amendment retaliation claim, he must show that: 1) he engaged in protected conduct; 2) an adverse action was taken against him that would deter a person of ordinary firmness from continuing to engage in that conduct; and 3) that the adverse action was motivated at least in part by the protected conduct. Bell v. Johnson, 308 F.3d 594, 602 (6th Cir. 2002).
The Sixth Circuit Court of Appeals first determined that the Letter of Guidance was not an adverse action. The letter did not impose any discipline, but instead simply imposed directives that Sensabaugh needed to follow in order to avoid discipline. Likewise, the Court also found that the Letter of Reprimand was not an adverse action. Though the letter resulted in paid administrative leave, this still did not result in an adverse action. Ehrlich v. Kovack, 710 F.App’x 646, 650 (6th Cir. 2017).
There is no dispute that the termination was an adverse action. However, Sensabaugh must show that the Facebook posts were a substantial or motivating factor in the adverse employment action. Though the Letter of Guidance, Letter of Reprimand, and termination came within six months after the Facebook posts, temporal proximity alone is rarely, if ever, sufficient to establish the causation requirement. Here, there was no other indication to demonstrate that Sensabaugh was terminated because of his Facebook posts. The court noted that at no time leading up to the termination did the administration ask or require Sensabaugh to remove the Facebook posts. Instead, the letters acknowledged Sensabaugh’s right to comment on public concerns. He was asked to remove the content from his posts that violated FERPA. Additionally, the independent investigation substantiated other allegations of misconduct that supported termination.
Ultimately, the court determined that when deciding to end Sensabaugh’s employment, the District relied on several instances of misconduct which were unrebutted by Sensabaugh. There was no indication that the viewpoints expressed in his Facebook posts (other than the FERPA-protected images of students) played any part in the District’s decision to terminate. Therefore, the District did not violate his constitutional rights.
Sensabaugh v. Halliburton, 937 F.3d 621 (6th Cir.2019)
by Erin Wessendorf-Wortman | Aug 14, 2019 | General
It is no secret that board of education members and school employees often communicate with one another through their personal cell phones. However, board members and employees rarely consider that these private text messages could potentially be disclosed to the public. Two recent decisions have highlighted the need for board members and school employees to proceed with caution as these text messages may be considered public records subject to disclosure upon request.
On May 15, 2019 a special master determined that a school district did not deny a requester public records when it declined to provide her with the cell phone call and text detail logs of particular district employees. (Paule v. Woodmore Local Schools, 2019-Ohio-2625.) The requester in this case argued that the administrators conducted district business through calls and texts with their personal cell phones that the district paid for. The special master found the district did not require the administrators to provide copies of their wireless bills or expense reports related thereto, and therefore had no obligation to disclose documents that did not exist and were not in their possession.
The special master also went on to conclude that the call and text message logs were not records subject to disclosure because a “record” is defined as
Any document, device, or item, regardless of physical form or characteristic, *** created or received by or coming under the jurisdiction of any public office of the state or its political subdivisions, which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.
R.C. 149.011(G). The special master stated that there was no evidence that the district required their administrators to document their cell phone usage or that this usage information would document the organization, functions, policies, decisions, procedures, operations, or other activities of the district. Therefore, the personal cell phone call and text detail logs were not records subject to disclosure.
However, shortly after this report and recommendation was handed down, a similar case reached the Ohio Court of Claims. In this case, the presiding Judge concluded that the text messages on personal cell phones of city council members were subject to the Public Records Act. (Sinclair Media III, Inc. v. Cincinnati, 2019-Ohio-2623) In this case, the plaintiff requested text messages of particular public officials in which the employment status of the city manager was discussed. The city argued that the text messages did not meet the definition of a “record” subject to disclosure and that the messages were not “kept by” a public office because they were located on the personal cell phones of the city council members.
In rejecting the city’s argument, the court noted that Ohio courts generally treat text messages and emails sent by public officials in the same manner as other records, regardless of whether they are on privately-owned or publicly-issued devices. The issue is not whether the text messages were sent or stored on personal devices, but whether they document the functions, policies, procedures, operations, or other activities of the city. The court determined that the text messages reflecting on the employment decisions of public offices clearly document the operations and activities of that office. Therefore, the text messages in this case were public records subject to disclosure.
In each of these cases, the decisions focused on whether or not the messages document the functions, policies, procedures, operations or other activities of the public office. The key is the content of the messages not the device on which they are sent. If the messages document the functions, policies, procedures, operations or other activities of the school district, these messages could be subject to a public records request even if located on a personally owned device. As a result of these decisions, school districts should inform and educate their board of education members and employees that their text messages could be subject to disclosure depending on the content of the message. Boards of education may need to update their current records and retention policies to ensure compliance in accordance with these decisions.
by Erin Wessendorf-Wortman | Feb 21, 2018 | Special Education
As many in education are aware, on March 22, 2017, the U.S. Supreme Court published an opinion in a significant special education case: Endrew F. v. Douglas County School District RE–1, 580 U.S. ___ (2017). This decision clarified the standard for a free appropriate public education (FAPE) for students with disabilities:
To meet its substantive obligation under IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.
This decision confirmed that the standard of “merely more than the minimum” was too low. Essentially, the Court established two standards:
| Supreme Court Decision |
Student Circumstances |
FAPE Standard |
| Rowley |
Student who is fully integrated in the regular classroom and able to achieve on grade level |
IEP must be reasonably calculated to enable the student to receive passing marks and advance from grade to grade |
| Endrew F. |
Student who is not fully integrated and not able to achieve on grade level |
IEP must be appropriately ambitious / reasonably calculated to enable the student to make progress appropriate in light of the student’s circumstances |
However, when the U.S. Supreme Court issued its decision on March 22, the case was not finished. The case was remanded back down to the lower courts to apply the new standard and determine whether Endrew’s parents were entitled to tuition reimbursement for the unilateral placement of their son in a private school.
On February 12, 2018, in relying on the new standard from the Supreme Court, Judge Babcock of the United States District Court for the District of Colorado held that Endrew’s parents were entitled to tuition reimbursement for the unilateral placement of their son in a private school. The judge decided that the IEP did not satisfy the Court’s revised FAPE standard. Minor changes in Endrew’s IEP were noted throughout the years – including updating and making minor or slight increases in the objectives, carrying over the same goals from year to year, or abandoning goals if they could not be met – but these minor changes were unacceptable as they provided the basic floor of opportunity, not progress appropriate in light of Endrew’s circumstances. (Note: Prior to the Supreme Court’s Endrew F. decision, these same IEP changes were found to meet the FAPE standard in Colorado by the same judge.)
Additionally, the judge determined that the school district could not hide behind the fact that the student’s severe behavioral problems prevented him from making appropriate progress because the school district failed to conduct a functional behavior assessment; to implement appropriate positive behavioral interventions, supports, or strategies; or to develop an appropriate behavior intervention plan. This failure on the school district’s part to appropriately address Endrew’s behaviors “cuts against the reasonableness of [his] IEP.” The court held that Endrew could have made greater progress had the school district implemented appropriate behavioral supports.
Although following Endrew F. back through the court system allows us to see how courts around the country will apply this new legal standard, the legal standard applied by the Sixth Circuit Court of Appeals (controlling in Ohio) of “meaningful benefit” has not changed and is similar to “progress appropriate in light of the child’s circumstances.” Ohio school districts should likely not see a significant change in their IEPs and services.
Ohio school districts should, however, take away additional learning opportunities from this recent Endrew F. decision:
- Review IEPs to ensure that each is reasonably calculated to enable the student to make appropriate progress in light of the student’s circumstances.
- IEPs should change from year to year as the student changes, learns and grows.
- IEPs should be specifically tailored to the student’s needs and geared for progress.
- Goals should be measurable annually, reflecting appropriate achievements for the student given his/her unique situation.
- IEP teams should be reminded that that behavior management can play an incredibly important role in providing FAPE to students.
- When a student’s behaviors are so severe that they impede progress toward IEP goals, the behaviors should be addressed through timely functional behavior assessments, behavior intervention plans, and, when appropriate, behavior goals.
Endrew F. v. Douglas Cty. Sch. Dist. RE-1, No. 12-cv-2620, 2018 WL 828019 (D. Colo. Feb. 12, 2018).
