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).
by Erin Wessendorf-Wortman | Feb 14, 2018 | Board Policy & Representation
On February 12, 2018, BuzzFeed News issued an article detailing an interview with U.S. Department of Education (USDOE) officials wherein the USDOE spokesperson outlined the department’s policy on how it would handle transgender student complaints. The details of this article, and statements made by the USDOE spokesperson, were later confirmed by NPR’s Education News Desk. (Please note that although BuzzFeed is not typically a news source for Ennis Britton, the details of the interview and the fact that the details were confirmed by another news source renders this information useful and informative.)
Essentially, the USDOE spokesperson has said that the USDOE will not investigate or take action on any complaints filed by transgender students who are banned from restrooms that match their gender identity. If the complaint alleges that the transgender student has been bullied, harassed, or punished due to his or her gender nonconformity, the USDOE will investigate and possibly take action against a school district.
|
Substance of Complaint
|
|
USDOE Action
|
| Alleges harassment, bullying, or punishment for failing to conform to sex-based stereotypes |
|
Will be accepted and possibly investigated by the USDOE |
| Alleges transgender student was denied access to accommodations such as restrooms and locker rooms |
|
Will not be accepted by the USDOE |
The USDOE has been noticeably silent on issues dealing with transgender students since it withdrew the May 13, 2016, Dear Colleague Letter on transgender students on February 22, 2017. The withdrawal letter can be found here. This recent interview with the USDOE spokesperson does nothing other than lay out how the USDOE will handle complaints from transgender students. This does not mean that transgender students can never bring a claim for discrimination based on their gender identity or their failure to conform to sex-based stereotypes, but it does mean that such claims will be filed in the courts as opposed to the USDOE.
This is a rather strange parsing for the USDOE and a fine line to walk in terms of what will be classified as bullying, harassment, and punishment. (See the Seventh Circuit Court case discussed below.) Districts need to be aware that if a student claims that he or she has been bullied, harassed, or punished because of being transgender or because of failure to conform to sex-based stereotypes, such a complaint must be processed and investigated pursuant to the school district’s anti-discrimination policies. Failure to do so or to take such complaints seriously could result in complaints filed with and investigated by the USDOE.
The remaining issue is accommodations – specifically, bathroom and changing/locker room access. The USDOE’s statement has made clear that this battle will occur in courts around the country as opposed to the USDOE. Therefore, it is important to see where the courts’ decisions are falling with respect to this issue around the country.
Remember, the U.S. Supreme Court canceled oral arguments in G.G. v. Gloucester County School Board, 82 F.3d 709 (4th Cir. 2016), vacated and remanded, 137 S. Ct. 1239 (U.S. 2017), remanded, 869 F.3d 286 (4th Cir. 2017), after the U.S. Departments of Education and Justice revoked the May 13, 2016, guidance from the previous administration. Based on the rescission, the U.S. Supreme Court remanded the case back down to the Fourth Circuit Court of Appeals to be reconsidered. The student in that case graduated in June 2017 and has since withdrawn his motion for a preliminary injunction and filed an amended complaint for nominal damages. The former student seeks a declaration that the school board violated his rights under Title IX and the Equal Protection Clause, as well as a permanent injunction preventing the school board from excluding him from using the restrooms when he is on school grounds.
In December 2016, the Sixth Circuit Court of Appeals, relying on the now-rescinded advice, agreed with a lower court decision from the United States District Court for the Southern District of Ohio regarding how an Ohio school district treated an eleven-year-old transgender student. The courts found that the eleven-year-old student had a strong likelihood of success in her claims against the Ohio school district and therefore should be allowed to use the school restrooms that correspond to her gender identity and otherwise be treated like other female students during the pendency of the lawsuit. However, please note although these courts have great impact and control in Ohio, they relied on the now-rescinded guidance from the USDOE, and how these courts will rule on the same issue is uncertain now that the guidance has been rescinded. Further, this case still remains to be fully and finally litigated; both the Southern District of Ohio and the Sixth Circuit ruled only on motions for an injunction; they have not yet ruled on the substantive issues at hand. This case is still pending.
Additionally, although not controlling in Ohio, the Seventh Circuit Court of Appeals issued a decision in May 2017 (after the USDOE rescinded its previous guidance) that may be informative both in Ohio and around the country. The Seventh Circuit Court found that a school district was sex stereotyping a transgender student when it required the transgender male student to use the girls’ restroom or a private restroom. In its decision, the court held that a “policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non-conformance, which in turn violates Title IX” (emphasis added). The school district filed a petition for a writ of certiorari with the U.S. Supreme Court requesting that the Court overturn the lower court’s decision. The U.S. Supreme Court granted this petition; however, the parties have since settled their dispute, agreeing on a payment of $800,000 to the student (and presumably the attorneys for fees), as well as permission for the student to use the men’s restroom if he returns to the district as an alumnus (the student graduated and no longer would be in daily attendance). As a result, although the U.S. Supreme Court will not be ruling on this case, the Seventh Circuit Court’s decision in favor of accommodating the transgender student stands.
Conclusion
In sum, the “new” information out of the USDOE does not change anything for school districts. The USDOE has simply communicated how it will handle complaints from transgender students. If the complaint deals with accommodations (restrooms, locker rooms, etc.), the USDOE will not accept the cases; but if the complaint has to do with bullying, harassment, or punishment based on transgender status, it will.
Instead, the question of whether and how to provide accommodations to transgender students will be a matter to be litigated through the court system in the years to come. For additional advice on handling requests for accommodations for transgender students or working through complaints of discrimination, please contact an Ennis Britton attorney for assistance.
by Erin Wessendorf-Wortman | Jun 6, 2017 | Board Policy & Representation, Labor and Employment
Reversing the decision of two lower courts, the Ohio Supreme Court recently ruled that absent negotiated language in a collective bargaining agreement (CBA) limiting an arbitrator’s authority to modify a disciplinary action for just cause, an arbitrator has authority both to review the disciplinary action and to fashion a remedy that is outside the scope of the CBA.
A City of Findlay police officer was first disciplined in 2012 for conduct unbecoming. This discipline was grieved, taken to arbitration, and then modified by the arbitrator to be in line with the city’s use of a discipline matrix.
Later that same year, the same officer was found to have violated the department’s sexual harassment policy, and termination of the officer’s employment contract was recommended. The termination was grieved and taken to arbitration. The arbitrator determined that the city did not present evidence to support termination, and therefore he set aside the termination. Instead, the arbitrator determined that the disciplinary matrix could not be used, stated that a “lengthy disciplinary suspension [was] warranted,” and imposed a five-month suspension. The city appealed this decision to the county common pleas court. Both the common pleas court and the appeals court agreed with the city and found that the arbitration award did not draw its essence form the CBA and was arbitrary, capricious, and unlawful (i.e., the arbitrator overstepped his authority and power). However, the Ohio Patrolmen’s Benevolent Association, on behalf of the officer, appealed these decisions to the Ohio Supreme Court.
The Supreme Court was left to determine whether the just cause discipline provision in the CBA authorized an arbitrator to change the disciplinary action recommended by the employer (in this case, the police chief using a disciplinary matrix). Key to this case was the fact that the disciplinary matrix used by the department to discipline the officer was not part of or mentioned in the CBA. Furthermore, the CBA neither mentioned the department’s disciplinary procedures nor restricted an arbitrator’s authority to review the appropriateness of the type of discipline imposed upon finding just cause for discipline. Absent this limiting language in the CBA, the arbitrator was free to fashion a remedy that he believed was appropriate.
Only Chief Justice Maureen O’Connor dissented from the court’s majority opinion, noting that the case should not have been accepted by the Supreme Court in the first place and that the majority’s decision could have unintended consequences as it seems to throw out the consideration of past practice(s). She noted that the department used the matrix as a past practice as the basis for disciplinary action, and the inability to rely on this or throw it out of consideration is dangerous. O’Connor concluded that under the majority opinion, even if a past practice is established related to disciplinary outcomes, an arbitrator could modify the discipline if the practice is shown as not specifically bargained for and incorporated into the CBA. This, in her opinion, is an undesirable result.
School districts should be aware that this holding by the Supreme Court could impact arbitrations and the review of the same by courts in Ohio. The court concluded, “Any limitation on an arbitrator’s authority to modify a disciplinary action pursuant to a CBA provision requiring that discipline be imposed only for just cause must be specifically bargained for by the parties and incorporated into the CBA.”
Ohio Patrolmen’s Benevolent Assn. v. Findlay, Slip Opinion No. 20147-Ohio-2804.
by Erin Wessendorf-Wortman | May 31, 2017 | Board Policy & Representation, Labor and Employment
In our May issue of School Law Review, we covered important dates and procedures for teacher nonrenewal, including the required May dates for evaluations. Unless a collective bargaining agreement provides otherwise, a board of education that wishes to nonrenew a teacher must evaluate the teacher in accordance with R.C. 3319.111, which provides that observations for teacher evaluations must be completed by May 1 and that teachers must receive a written report of their evaluation results by May 10.
In June and July are other important dates on teacher nonrenewal and resignation. Check your collective bargaining agreement for any additional requirements or timelines that must be met. Below are important dates and procedures on handling changes in teaching staff.
- June 1: Deadline for employers to submit written notice of intent to nonrenew a teacher.
- July 10: Deadline for teachers to submit notice of resignation. After this date, a board of education is not obligated to release teachers from their contract.
Resignations
A teacher may rescind notice of resignation only if it has not been formally accepted by the board. After the board accepts a resignation, the teacher may not withdraw the resignation.
Licensure of New Hires
New teachers’ licenses must be effective as of their first day on the job, regardless of whether class is in session. A board of education is not authorized by law to pay a teacher unless the teacher holds an effective state-issued license. Treasurers and superintendents should check each newly hired teacher’s license for verification of the effective date of licensure. Contact an Ennis Britton attorney if your district has any issues with teacher licenses in pending status.
Nonrenewal Procedure: Timeline
- The nonrenewal process begins when the board of education passes a resolution not to renew a contract and the treasurer sends notice of the decision to the teacher.
- Within 10 days of receipt of the notice of nonrenewal, a teacher may file with the treasurer a written demand for a description of the circumstances that led to the board’s decision to nonrenew the teacher.
- Within 10 days of receipt of the written demand, the treasurer must provide the teacher with this written statement of circumstances. This statement sets forth the substantive basis for the nonrenewal and must also expressly state the reasons for the nonrenewal.
- Within 5 days of receipt of the statement of circumstances, the teacher may file with the treasurer a written demand for a hearing before the board of education.
- Within 10 days of receipt of written demand for a hearing, the treasurer must provide the teacher with a written notice of the time, date, and place of the hearing. The hearing must be conducted within 40 days of the date on which the treasurer received the demand for a hearing (see below for more on the hearing).
- Within 10 days of the hearing, the board must issue a written decision to the teacher either affirming or vacating its intention not to renew.
- Within 30 days after receipt of the written decision, the teacher may file an appeal in the court of common pleas.
Nonrenewal Hearings
A nonrenewal hearing before the board of education must be conducted by a majority of the members of the board of education. The statute does not permit a designee to conduct the hearing. The hearing must be held in executive session unless both the board and the teacher agree to hold it in public. The board members, teacher, superintendent, assistant superintendent, legal counsel for the board, legal counsel or other representative of the teacher, and any person designated to make a record of the hearing may attend the hearing held in executive session.
The content, purpose, and procedures for the hearing are not addressed in the Ohio statute. However, the Ohio Supreme Court has held that the hearing should be more than an informal opportunity for the teacher to express objections to the board’s decision. Therefore, the nonrenewal hearing should contain, at a minimum, the presentation of evidence, the examination of witnesses, and a review of the parties’ arguments. Other Ohio courts have held that evidence is not limited to the current school year but may include that from previous school years as well. Based on the hearing, the board will either affirm or vacate its intention not to reemploy the teacher.
Appeals
If the board affirms its intention to nonrenew, the teacher may appeal the board’s decision to the court of common pleas. The court of common pleas is generally limited to determining if the district made procedural errors during the nonrenewal. The teacher may not challenge the board’s decision, and the court may not consider the merits of the board’s reasons. Therefore, the court may order that the teacher be reinstated only if it finds that the evaluation procedures were not followed or that the teacher was not provided with written notice of intent to nonrenew by June 1. If the court finds that either of these violations has occurred, it may reinstate the teacher but is not required to do so.
