UPDATE: Revised Ohio HB 126 Heads to Senate

UPDATE: Revised Ohio HB 126 Heads to Senate

We previously wrote about HB 126, which sought to impose additional hurdles on school districts when challenging property valuations. As passed by the House, this bill would require a school board to authorize each valuation complaint or counter-complaint at a board meeting before they can file a complaint or counter-complaint with the county board of revision. It also requires the school board to notify the property owner of the challenge 14-days in advance of the board meeting. These onerous steps make it difficult to meet the deadlines for filing complaints and counter-complaints and appear to attempt to politicize the process by providing advance notification of coming complaints to property owners. 

In November, this bill received two hearings in the Senate. An amendment was even floated that would have completely eliminated the right of school districts to participate in the board of revision process.  Under that amendment, not only would school districts be prohibited from filing complaints to increase valuations, but they would also have no right to file a counter-complaint to contest valuation reductions being sought by property owners. Although that amendment was never formally introduced, the Senate continued with proponent and opponent testimony concerning HB 126 as passed by the House. OASBO, BASA and OSBA have been working with school districts to oppose this legislation. 

With little notice, the Senate Ways and Means Committee adopted a revised bill on December 7, 2021.  The revised bill prohibits school districts from filing original complaints to challenge the values assigned by county auditors. Although it permits districts to continue filing counter-complaints to challenge reduction requests sought by property owners, the revised bill requires that boards of education adopt separate resolutions for each counter-complaint. In addition, it prohibits districts from appealing decisions of county boards of revision.

The revised bill out of the Ways and Means Committee will now proceed to consideration by the full Senate. If passed by the Senate, the bill will head back to the House for re-consideration. We will continue to update our clients as this bill progresses through the Senate. In the meantime, administrators are encouraged to contact their legislators to voice their positions on this bill.    

Can Parents Opt-out of District Curriculum or Instructional Materials?

Can Parents Opt-out of District Curriculum or Instructional Materials?

Many districts have seen an increase in parental complaints about the curriculum and programs in Ohio’s public schools. This is a result of the national debate about critical race theory and a belief that it is being taught in public schools. Some parents have submitted opt-out forms to schools that state they do not consent to their child’s participation in any instruction or discussion of racially divisive topics or social-emotional learning programs. Must Ohio schools honor these opt-outs?

Although the State of Ohio has a large say over the academic standards in grades kindergarten through twelve, R.C. 3313.60 requires each board of education to adopt a curriculum for all schools under its control. Provided that boards of education satisfy state academic standards and requirements, courts have granted boards of education broad authority to determine the curriculum taught in school and the instructional methods and materials that are utilized.

Generally, parents do not get to pick and choose the required courses or curriculum their children must take or satisfy in Ohio public schools. Such an option would likely be unworkable for districts. Thus, parents generally cannot opt their children out of required courses or curriculum. 

Ohio law does provide parents with the ability to opt their children out of some items in the curriculum, including surveys, personal safety and assault prevention in grades kindergarten through six, suicide awareness and prevention and safety training and violence prevention in grades six through twelve, instruction in social inclusion, venereal disease education, and cardiopulmonary resuscitation.

Additionally, R.C. 3313.60(G) grants parents the right to promptly examine, with respect to their own child, any survey administered to their child; any textbook, workbook, software, video, or other instructional material used by the district in connection with the instruction of their child; any completed and graded test taken or survey filled out by their child; and copies of statewide academic standards and each model curriculum that is developed by the state board of education.

As for textbooks and library books, Ohio law and the courts generally leave it to the discretion of each board of education to select them. However, as for their removal, First Amendment considerations are necessary before books are removed because courts generally hold that they cannot be removed on the grounds that they are found to be offensive to a board of education or the board of education dislikes their ideas. It is permissible to remove books for a variety of other reasons, including because of their poor condition and a lack of shelf space. 

What this Means for Your District 

In general, opt-out forms need not be honored unless a parent is opting out of one of the items in the curriculum that the law gives them the authority to opt-out of. As complaints about the curriculum, textbooks, and library books are made, districts are advised to consult and follow board policies that give parents the right to complain about the curriculum or instructional materials. In addition, districts should consult with legal counsel over First Amendment concerns before removing books as a result of complaints or a general dislike for their ideas.  

Managing Contracted Employees when a Reduction in Force is Necessary

Managing Contracted Employees when a Reduction in Force is Necessary

A Court of Appeals recently reinstated a lawsuit brought by four Dayton Public School employees who were laid off pursuant to a reduction in force (RIF). Under district policy, the former employees were required to receive written notice of open positions they qualified for within two years of the date of their layoff.

In May 2016, the employees signed two-year contracts to continue their employment as a “Transportation Supervisor II” in the transportation office. Shortly after their contracts were signed, the superintendent recommended a RIF through reorganization and consolidation due to long-term declining enrollment and a corresponding loss of funding. By November 2016, the board voted to abolish their positions.

Under the restructuring plan, the Transportation and Fleet Services Department was created which would oversee all district-owned vehicles. The district made job announcements for the new positions in December 2016 that would include more responsibilities and come with a higher salary. In addition, the new hires would receive significant training to help them navigate the new role.

The trial court ruled in favor of the school district, finding that the essential duties of the new position of Associate Director of Transportation and Fleet Services substantially differed from the original position of Transportation Supervisor II. The new position, for example, would supervise, purchase, and dispose of the motor fleet for the entire district, not just yellow school buses.

State law authorizes a school board to adopt its own policies for the suspension of administrator contracts as part of RIF, but any adopted policy must include the following:

  • Reasons for a RIF, which may include the financial conditions of the school district or educational service center
  • Procedures to determine the order of suspension of contracts
  • Provisions requiring a right of restoration for employees whose contracts are suspended if and when any positions become vacant or are created for which any of them are or become qualified

The former employees argued that they were entitled to recall rights for two years and receive vacancy notices by mail for open positions, but claim they were never notified even though they believe they were qualified for the newly created positions.

The Director of Human Resources testified that recall rights existed only if the exact same position was posted and that the terminated employees had no right to be notified of openings unless it was the exact same as their previous job. The Director admitted not knowing whether the terminated employees were qualified, inferring that the appellants were not considered as candidates for the new position.

The Board said the RIF was necessary due to restructuring, but the appellate court found that the salary for the new position was significantly more than the old one resulting in no cost savings. If the newly created position did involve some added responsibilities, it does not appear that those responsibilities were taken away from another employee who was eliminated by the RIF.

The appellate court also found that initial testimony from board members supported a reasonable inference that their inclusion in the RIF was a matter of housecleaning rather than reducing headcount. During depositions, board members stated “the department was in such disarray… beyond dysfunctional… an embarrassment” and acknowledged having discussions amongst themselves about “getting rid of the transportation supervision because of all the issues that were going on.”

The appellate court ultimately found that the employee affidavits support a finding that the new jobs functionally were the same as their old jobs and the evidence suggested that they were qualified for the new positions. Therefore, it ruled that the trial court erred in entering summary judgment for the Board of Education and reinstated the lawsuit for further proceedings.

What this means for your district

This case demonstrates that courts will review the alleged rationale behind a RIF to determine if a layoff was justified. In situations where a RIF is implemented and no new employees or positions are created and filled, a RIF will stand. However, courts will heavily scrutinize RIFs whenever positions similar to those that were abolished are created and filled. School districts must be sure to offer recall rights to laid-off administrators who are qualified for the positions.

In situations like this where it’s arguable that former employees are qualified for newly created positions, courts are likely to let a jury decide whether recall rights should have been offered. That creates a substantial amount of risk because an adverse ruling means that the former employees will be reinstated with back pay. At that point, the employees that were hired to replace them will either need to be maintained and moved to different positions or subjected to another RIF. 

Can schools discipline students for offensive social media posts? The U.S. Supreme Court will decide in B.L. v. Mahanoy Area School District

Written by: Liz Hudson

The U.S. Supreme Court recently agreed to hear a First Amendment case about student social media use related to extracurricular activities. In June, 2020, the Third Circuit Court of Appeals affirmed a lower court’s ruling in favor of a student who was removed from the cheer team after making offensive social media posts.  

Frustrated with her lack of advancement on the cheer squad, the freshman student posted to Snapchat “F*** school f*** softball f*** cheer f*** everything” to her 250 followers.When peers on the cheer team reported the message to a coach, the student was removed from the team, but later told she could try out again the following year. Her parents filed suit in a federal court on her behalf arguing that MAHS violated her First Amendment rights. 

The school district contends that U.S. Supreme Court precedent justified its disciplinary action, especially a school’s prerogative to discipline students’ use of vulgar or plainly offensive speech established in Fraser.1 School policy elevated expectations of behavior for student athletes, preventing them from tarnishing the school’s image. Furthermore, cheer team rules discouraged “foul language” and required students to act with respect for the school, coaches, and others on the team. Negative internet posts about cheer were also prohibited.  

The Third Circuit decided for the student because the Snapchat post was off-campus speech, and, thus, Fraser did not apply. It refused to give schools discretion to regulate vulgar speech in extracurricular activities while outside of school. The court also extended previous precedent — ultimately concluding that Tinker, which allows schools to discipline disruptive speech, “does not apply to off-campus speech.” The court determined that students’ vulgar social media posts about school or school activities fall outside parameters of school discipline. Though the court recognized possible discipline for violent posts, it punted that question to another day.  

On January 8, 2021, The U.S. Supreme Court agreed to hear the case. The question certified by the Court was: 

“Whether Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), which holds that public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school, applies to student speech that occurs off campus.”  

Legal arguments have yet to be filed, and oral arguments have not been scheduled. Look for updates from Ennis Britton as this case progresses. 

What does this mean for your district? 

Schools struggle to determine appropriate student social media regulation, and courts have offered conflicting First Amendment guidance. While the Third Circuit decision is not binding for schools in Ohio, the Supreme Court decision will be, and Ohio schools will have to abide by it when it is issued. In the meantime, Ohio schools should consider using restraint when disciplining students for social media posts outside of school, even those that could potentially disrupt the education environment or extracurricular activities. 

Ohio Court Upholds Picketing at Homes and Places of Employment of Public Officials

The Ohio Court of Appeals for the Eleventh Appellate District recently addressed a dispute between the Portage County Educators Association for Developmental Disabilities-Unit B, OEA/NEA and the Portage County Board of Developmental Disabilities.   During a labor dispute, members of the union picketed on sidewalks outside the private residences of six Board members and outside the employer of one Board member.  The State Employment Relations Board (SERB) determined that was an unfair labor practice based on language in R.C. 4117.11(B)(7), which makes picketing related to a labor relations dispute at the residence or place of private employment of any public official an unfair labor practice.  

The union argued that the statute was an unconstitutional restriction on speech because the picketing in question took place on public sidewalks and streets.  Those are quintessential public forums where speech enjoys a great deal of protection.  

The court of appeals needed to first determine if the unfair labor practice statute was “content-based” or “content-neutral.”  Content-neutral restrictions enjoy intermediate scrutiny and are presumed valid.  Content-based restrictions are subject to strict scrutiny review and are presumed invalid.  In this case, the court found that the statutory restriction was content-based because it prohibited picketing in certain locations only when that picketing was related to a labor relations dispute. 

Given the determination that the statute was a content-based restriction on speech, the presumption of unconstitutionality could only be overcome by a showing that the regulation is (a) necessary to serve a compelling state interest; and (b) narrowly tailored to achieve that interest by the least restrictive means.  Ultimately, the court found that SERB failed to show that the statute served a compelling state interest or that it was narrowly tailored.  As a result, the court held that the statutory language was unconstitutional, and the union did not commit an unfair labor practice.

What this means for your District?

Picketing outside the homes or places of employment of school board members is permissible in certain counties in Ohio.  The Eleventh Appellate District has jurisdiction over Ashtabula, Geauga, Lake, Portage and Trumbull Counties.  This decision is binding in those counties.  The Eighth Appellate District, which serves Cuyahoga County, previously reached the same conclusion in 1998.  At least in those counties, an unfair labor practice will not be found if union members picket on public streets or sidewalks in front of board of education members’ homes or places of employment.  

The Seventh Appellate District reached the opposite conclusion in 2016.  Given the conflict among these courts, it is not clear throughout Ohio whether it is an unfair labor practice to picket outside the homes or places of employment of public officials.  It is possible that this decision will be appealed to the Ohio Supreme Court where a definitive answer can be had.  We will certainly update our clients if this case is appealed and decided by the Ohio Supreme Court.