by Gary Stedronsky | Aug 29, 2014 | General
As students pack their book-bags and return to school, it’s important to keep in mind the law governing their entrance through your doors. In order to accommodate the registration process, schools much comply with the legal requirements of Ohio Revised Code 3313.64.
Ohio law requires that districts allow school age children to attend their district of residence free of charge. In general, residence for school purposes is determined using the residence of the child’s parent. Parent can mean either natural or adoptive parents, unless the parents are separated, divorced, or their marriage has been dissolved or annulled. Due to the complex nature of the family structure, there are several general guidelines to use when determining whether a child’s parent resides in the district.
Determining Residency when parents are separated and living in difference school districts:
- When parents are divorced, the term parent means either the parent who is the residential parent or the parent awarded custody in the action for divorce.
- In the case of shared parenting, unless a court specifically orders otherwise, both parents are considered parents for residential purposes; therefore, the child can attend either school district tuition free.
- If a child’s parents were never married, there is conflicting law, but it is generally best to consider the natural mother the parent for residency purposes.
Determining Residency when a child lives with persons other than the child’s parents:
- Under the Grandparent Caretaker law, grandparents may also acquire the legal status of parent for residency purposes when the child’s parents cannot be located or have lost parental rights and the grandparent provides a power of attorney signed by a parent, or a caretaker authorization affidavit (in such cases where parents cannot be located).
- When a child is in the legal custody of a governmental agency, the term parent means the parent who has residual parental rights or who has been divested of residual parental rights.
Determining Residency with Property Issues:
- If a child resides on property that straddles two school districts along a boundary line, residency is determined based on the location of the house of residence.
- The Superintendent of Public Instruction serves as the decision maker in any case of dispute and is given the task of analyzing the following: (1) where the parent sleeps the majority of the time, (2) where mail is received, (3) where meals are eaten, (4) the address of voter registration, (5) the address for bills or credit card statements, (6) the address of lease agreements, and (7) information in affidavits from the landlord, neighbors, or parent (to prove fraud).
Mandatory Exceptions to Residency Requirements, which allows a student to attend school in a district other than where the student’s parent resides:
- Student is between age 18-22, lives in the district apart from his parents, supports himself by his own labor, and has not successfully completed high school or the IEP developed for him.
- Student is under 18, married, and resides in the district.
- Student has been placed with a resident of the district for adoption and his parents reside outside Ohio.
- Student has a medical condition which may require emergency medical treatment and one of his parents is employed at a location within the school district.
- Student is residing in the district with a person other than his parent while his parent is serving in the armed forces outside of Ohio—Limited to a 12-month period.
- Student’s parent is having a “new” house built in the district—Limited to 90 days.
- Student’s parent is purchasing a house in the district—Limited to 90 days.
- Student is living in the district with a parent and is under the care of a shelter for victims of domestic violence.
- A power of attorney has been properly executed by a parent, guardian or other legal custodian under the provisions of the Grandparent Caretaker Law, the child resides within the district, and hardship is established. (discussed above)
- Child’s parent is a member of National Guard or reserve unit of armed forces and has been called to active duty or the child’s parent is a member of the armed forces and has been ordered to a temporary duty assignment outside the district.
- Child is living with a person who has been appointed to be the child’s caretaker under a military power of attorney or other comparable document in conformity with federal law while the parent is on active duty or a duty assignment outside the district.
- The district has adopted an inter-district open enrollment policy.
Residency decisions can be difficult because every situation is slightly different. To help resolve ambiguity, the law requires any parent awarded custody in an action for divorce, annulment, or dissolution to notify the child’s school of the custody arrangements by providing the school with a certified copy of the custody order at the time of enrollment or upon issuance of an arrangement. Thus, schools do not have a duty to investigate the details of court orders concerning parental rights.
When concerns about residency occur, a school district can use an SRO (or any other employee) to investigate residency or confirm residence. When completing an investigation into residency, school districts should be able to show that they have conducted a reasonable investigation to justify their decision. However, be careful with how this interacts with homelessness rules — you don’t want to appear to be intimidating the homeless from exercising their rights.
The mandatory exceptions to residency requirements listed above may allow the district to request documentation or limit duration. In addition to these mandatory exceptions, the law permits certain optional exceptions to residency requirements. For more information about a specific residency requirement or exception, please contact your attorney.
by Gary Stedronsky | Mar 6, 2014 | Labor and Employment
We’ve recently seen an increase in the number of FMLA “Health Care Provider” certifications that are completed by chiropractors. As many of you know, the FMLA grants eligible employees up to 12 weeks of unpaid leave for several reasons, including a serious health condition. An employer is permitted to request a certification from an employee’s health care provider to verify that the employee does indeed have a serious health condition Many school districts and other employers have been accepting these certifications from chiropractors without realizing that it is very rare that such a certification must be accepted.
Although many people seek treatment from chiropractors for very serious injuries and ailments, the Department of Labor has concluded that a chiropractor is not to be considered a health care provider unless the treatment provided consists of “manual manipulation of the spine to correct a subluxation.” This diagnosis must also be demonstrated by an X-ray to exist.
This means that school districts and other employers are not required to accept FMLA certifications from chiropractors unless an employee has seen the chiropractor for this one specific reason. We’ve found that many clients mistakenly accept certifications from chiropractors for many other ailments. So, the next time you see a FMLA Health Care Provider certification from a chiropractor you will likely be able to refuse to accept it unless it is for the limited treatment and diagnosis of manual manipulation of the spine to correct a subluxation. The certification must also indicate that such a diagnosis was confirmed to exist by an X-ray.
For more information on this topic and a list of other health care providers that can complete FMLA Health Care Provider certifications, please see the U.S. Department of Labor’s website at:
http://www.dol.gov/whd/regs/compliance/1421.htm
by Gary Stedronsky | Dec 12, 2013 | General, Labor and Employment
The Strasburg-Franklin Local School District provided its teachers with school district laptops. A teacher asked if he could take his laptop home for the summer and was told that he could but that he needed to return it by June 30th. The teacher failed to return the laptop until late July.
The IT department inspected the laptop upon return because the teacher had previously downloaded a virus. The IT department discovered 84 thumbnails of graphic, sexual images in the laptop’s temporary internet files. The images were all cached within 23 minutes on one day.
The teacher claimed he had searched for the actor “Shane Diesel” on his computer because the actor was mentioned in a conversation earlier that day. He also claimed that “porn thumbnail pop-ups” appeared when he clicked on a link in a Wikipedia page.
The school district initiated termination proceedings and a hearing was held with a state referee. The referee found that the teacher’s actions could give rise to the suspension or termination of his teaching contract; but mitigating factors suggested a suspension rather than a termination (the teacher had good performance reviews). Therefore, the referee recommended a suspension of 45 days for the failure to return the laptop by June 30th and 45 more days for inappropriate use of a school computer.
The school district accepted the referee’s findings of fact but rejected the proposed discipline and terminated the teacher. The teacher appealed to the court of common pleas. The court of common pleas reversed the school district’s termination because it found that the images were not hostile to the community and this was private conduct that had no impact on his professional duties. The teacher was then reinstated with full back pay.
The school district appealed to the Fifth District Court of Appeals. The appellate court concluded that it could only overturn the lower court if the lower court’s decision constituted an “abuse of discretion” – a difficult standard of review for the school district to overcome.
The appellate court denied the school district’s appeal finding no abuse of discretion in the lower court’s ruling. The appellate court reviewed other termination decisions in Ohio and found that appellate courts will affirm a board of education’s termination decision when the teacher’s behavior had or could have had a serious effect on the school system. In this case, the appellate court found that the teacher’s actions did not occur on school property and did not involve any students. This also was not a criminal act. Therefore, the appellate court determined that the lower court did not abuse its discretion because the conduct had no impact on the teacher’s professional duties and his actions were not hostile to the school community.
The discovery of pornography on a school district computer is employment misconduct that is generally considered a “slam dunk” termination case (alcohol, drugs, violence, and sexual conduct are some others). The teacher was unquestionably wrong in using the school district’s laptop in this manner. In fact, readers are cautioned not to utilize their school computers or devices to Google “Shane Diesel” out of curiosity. Trust me, the Google results alone should have told this teacher that this was off-limits. Yet, the teacher clicked-away and the state referee and courts overturned the school district’s termination decision because the teacher’s behavior supposedly had no impact on his professional duties. This decision demonstrates that there really are no “slam dunk” termination cases. Every decision to terminate a teacher must be made with the understanding that the time and money invested in a termination case may not always result in the desired outcome – no matter how strong you think the case is.
Winland v. Strasburg-Franklin Local School District Board of Education, Fifth District Court of Appeals, Case No. 12 AP 10 0058
by Gary Stedronsky | Oct 17, 2013 | General
A California jury recently awarded a father $2,850,000 after a school district released his son to an unauthorized person who kidnapped the child and took him to Mexico.
The school was aware that the student’s mother had been deported to Mexico in 2010. Thereafter, the child went to live with his father in California. One day a person identifying herself as the boy’s mother called the school and told the office manager that the child had a doctor’s appointment and that she was unable to take him because of work. She informed the school that her boyfriend would pick the boy up to take him to the appointment. The office manager noticed that the boyfriend was not listed as an emergency contact but told the mother that she would allow him to pick the child up anyway as long as he showed identification.
The supposed boyfriend of the mother appeared, presented identification, and was permitted to take the child from school. Unfortunately, the man kidnapped the child to Mexico where he is believed to be living with his mother.
The father sued the school district on behalf of himself and his son claiming deprivation of father-son contact, negligence, and intentional infliction of emotional distress. The jury awarded the father $2,000,000 and the son $850,000.
The main reason that the school district was found liable was because it failed to follow its policy concerning the release of students. The policy specifically stated that students would not be released to anyone who was not listed as an emergency contact. The school unsuccessfully argued that a parent’s verbal consent can override the specific policy.
This case represents the importance of steadfastly following school district policies and procedures. The failure to do so in this case resulted in the student’s kidnapping and the school district being responsible for nearly $3,000,000 in damages. The school district’s policy on the release of students was sound. In fact, our office recommends similar language in policy. Exceptions could also be permitted (for instance, written consent from a parent) but any such exceptions should be clearly delineated in policy and the policy must be strictly complied with, especially in the situation where both parents do not have legal and residential custody of the child. Even the best policy is worthless if it’s not followed.
by Gary Stedronsky | May 21, 2013 | General
The Tenth Circuit Court of Appeals in Denver recently upheld a school district’s use of a “timeout room” to discipline and briefly restrain a developmentally disabled student with disruptive behavioral issues. The student, J.M., was five years old and was known to throw tantrums, yell, spit, and kick in class. As a result, he was often placed in the timeout room, described as large enough for a student and teacher to fit comfortably and equipped with a light and window. The district stated that he was placed in the room around 30 times over a span of two school years and was never kept in the room longer than four minutes.
The student’s parents sued individual school officials, including teachers and the principal, and the school district, claiming that use of the timeout room was a violation of their child’s constitutional rights under a 14th Amendment due process “shocks the conscience” analysis. To succeed on this type of claim, the challenged behavior must amount to a “brutal and inhumane” abuse of official power literally shocking the conscience. This standard is applied in all school discipline cases, not just cases involving school-inflicted corporal punishment.
The parents’ claim was based upon the district’s use of the timeout room in general, as well as a specific incident in which the school principal forced J.M. into the room and placed a chair in front of the door. While the Court acknowledged these particular details surrounding use of the timeout room were “a careless or unwise excess of zeal,” it nonetheless held that no conscience-shocking events had occurred. Therefore, the Court found no constitutional violation.
Because the Court found that no individual officials had violated J.M.’s constitutional rights, it stated that the principal also could not be liable under a theory of supervisory liability and the district could not be liable because the challenged conduct was not pursuant to official policy or custom.
The parents also attempted to raise a Fourth Amendment claim that the timeout room was a “seizure” that should have been analyzed under a reasonableness standard. Analyzing a school discipline case under this standard is more favorable to plaintiffs because it is easier to prove than the “shocks the conscience” standard. While the parents did not properly raise the claim and thus were barred procedurally, the Court stated that it is not well settled law that a court has any obligation in a school discipline case of this nature to evaluate a Fourth Amendment claim. Thus, even if the parents had properly raised the claim, the Court would have declined to consider it.
Although in this case the Tenth Circuit remained faithful to the Fourteenth Amendment shocks-the-conscience standard and declined to even additionally consider the Fourth Amendment reasonableness standard, in recent years other circuits have begun to allow such claims in analyzing various types of school discipline. Cases from the Ninth and Third circuits have involved excessive force or detention by school officials. In the Seventh Circuit, the Fourth Amendment standard was applied when a teacher “seized” a student by attempting to drag her out of the classroom by her elbow. In these cases, courts will often allow both standards to be applied to the conduct at issue. Because a Fourth Amendment reasonableness standard is arguably more lenient and plaintiff-friendly, school districts should be aware of the potential consequences of discipline if analyzed under both the Fourteenth and Fourth Amendments.
