Ohio Supreme Court Asked to Review Guidance Counselor’s Right to Retain Outside Attorney During Arbitration

Ohio Supreme Court Asked to Review Guidance Counselor’s Right to Retain Outside Attorney During Arbitration

On January 1, 2022,An Ohio guidance counselor who opted out of the union has asked the Ohio Supreme Court to overturn a decision of the 11th District Court of Appeals which found she did not have a right to use her own attorney during an arbitration hearing.

Revised Code 4117.04 requires public employers to extend and recognize the right of a designated union representative to serve as the exclusive representative of the bargaining unit included in a CBA. In the event that an employee wishes to obtain their own attorney at their own expense, unions will typically have procedures for the employee to waive their right to protection and representation under the CBA. If a district allows private representation in meetings such as predisciplinary hearings, they may face an unfair labor practice charge.

The employee contends that denying her choice of legal counsel infringes on the First and Fifth Amendments of the United States Constitution. The lower court held that the employee’s constitutional rights were not violated because the arbitration process was established in a collective bargaining agreement between the school district and the union. The court found that the employee herself was not legally entitled to initiate the grievance and arbitration process so her rights to free speech and due process were not violated. By requesting that the union submit the grievance to arbitration, as required by the collective bargaining agreement, the employee “ceded her standing to adjust the grievance.”

The Ohio Supreme Court is not required to take this case. If it decides not to hear the appeal, then the 11th District Court’s decision will remain prevailing law. We will monitor it for further developments.

How this affects your district? The employee in this case is represented by the Buckeye Institute, which has been involved in collective bargaining litigation since the U.S. Supreme Court issued its decision in Janus declaring that fair share fees were unconstitutional. Ennis Britton has seen an increase in the number of employees who request to use their own legal counsel rather than the representation provided by public sector unions. This can put a school district in the middle of a fight between its employee and the union representing bargaining unit members, which may even result in the filing of an ULP charge against the District with the State Employment Relations Board. Districts should contact legal counsel before proceeding with any meeting which is attended by an employee’s non-union attorney.  


































Decision on State Board of Education Resolution on Transgender Protections Delayed

Decision on State Board of Education Resolution on Transgender Protections Delayed

 A “Resolution to Support Parents, Schools, and Districts in Rejecting Harmful, Coercive, and Burdensome Gender Identity Policies” was proposed at the September meeting of the State Board of Education. It was placed on the State Board agenda for its Oct. 11th and 12th meeting dates.

This resolution declares the board’s “unequivocal opposition to the proposed regulatory changes released by the U.S. Department of Education on June 23, 2022.” Specifically, the proposed changes would prohibit schools that receive federal funds from adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with their gender identity. The resolution opposes these changes and declares support for a lawsuit seeking to invalidate rules concerning the continued receipt of federal nutritional assistance adopted by the Department of Agriculture, which was joined by the Ohio Attorney General and 21 other state attorneys general.

The resolution directs the Superintendent of Public Instruction to mail a copy of the resolution to every public school district as well as elementary and secondary schools and preschools receiving federal funds, with a cover letter from the Ohio Department of Education stating the agency opposes Title IX regulatory changes, considers the United States Department of Education guidance documents without legal force and nonbinding, and urges districts not to amend policies and procedures based on USDOE guidance documents.

The final paragraph declares that the State Board rejects harmful, coercive and burdensome gender identity policies, procedures and regulations.

This resolution garnered a lot of state and national attention. The State Board heard four hours of public testimony before deliberating on the resolution. In the end, the State Board voted 12-7 to send the resolution to an executive committee for further consideration.

What this means for your district? The resolution was not passed so the State Board’s action in October to send the resolution to an executive committee for further consideration has no impact on your school district. If passed, the resolution as written would not be binding on local school districts. In the event the resolution passes, school districts should consult with legal counsel before taking any action in accordance with the resolution because doing so may subject your district to liability for failing to comply with federal law.











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.

Prepare for Increased Property Valuation Challenges

The COVID-19 pandemic has impacted our lives and businesses in ways we never envisioned.  The real estate market has certainly not been spared.  Office space, hotels, restaurants and retail establishments have been particularly hard hit.  Demand for office space is likely to decline given our adaptation to working at home.  As of July 30th, the American Hotel and Lodging Association reported that more than half of hotel rooms were empty across the country with many hotels being completely closed.1  Many of our favorite restaurants and retail establishments have also been forced to close during the pandemic.  All of this is likely to affect real estate values for years to come.    

Starting in January, property owners will have the option to file complaints with their county boards of revision seeking to lower the county auditor’s value assigned to their properties (and their tax bills).  We anticipate that many property owner’s will take advantage of this opportunity.  However, their complaints may be premature.  That is because real estate taxes are paid one year in arrears.  Thus, any complaint filed next year is for valuation during the 2020 tax year.  By law, boards of revision must establish value next year as of January 1, 2020.  As of that date, the COVID-19 pandemic had not greatly impacted our lives or the real estate market.  Nonetheless, many property owners will not realize this distinction and will file anyway.  

County boards of revision understand and appreciate this aspect of the law.  However, the individuals who sit on those boards, which sometimes include elected officials, are often empathetic toward property owners who face significant challenges with their commercial businesses or properties.  For that reason, it is not uncommon for boards of revision to grant relief even though they technically should not do so under law.  They are easily able to do so when property owners are unopposed.

Faced with similar issues during the great recession, the Ohio Board of Tax Appeals made it clear that general references to decreased real estate values will not be enough to sustain a reduction in property value.  In Price v. Summit County Board of Revision, 2012 WL 440783 (February 7, 2012), a property owner sought to reduce the value of his properties due to the recession and foreclosure crisis.  The BTA rejected his request because it “has consistently rejected the notion that real property values must necessarily rise or fall commensurate with some preconceived notion of ‘historical trending’ or inflationary/deflationary rates.”

To help ensure county boards of revision uphold the law, school districts are advised to strongly consider filing counter-complaints against requests for reduction that appear unwarranted.  Under R.C. 5715.19, boards of education are entitled to notice of all valuation complaints that seek to decrease the value of real property by $50,000 or more.  Boards of education have the option to file counter-complaints contesting those decrease requests within 30 days of receipt of that notification.

What this means for your district?

Decreases in value through the county board of revision process directly impact the tax revenue received by school districts.  Any decrease in valuation will result in a refund issued to the property owner.  Those refunds are directly taken from school funding via the county treasurer settlement statements. We anticipate that school districts will face many decrease complaints next year, some of which are sure to be unwarranted.  Ennis Britton attorneys can help school districts determine when it is appropriate to file counter-complaints to contest unwarranted decrease complaints to help maintain the tax valuation of the district.