Masks and the Rights of Students with Disabilities

Masks and the Rights of Students with Disabilities

As COVID-19 continues to affect education, school district decisions about mask policies and exemptions have resulted in lawsuits about the rights of students with disabilities.

The claims arise under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. The students have conditions that make it particularly dangerous for them to be exposed to and contract COVID-19, alleging that their rights were violated by state laws, executive orders by Governors banning mandatory masking, and/or individual school board decisions.

The ADA affords that persons with disabilities have the right to reasonable accommodations that provide them with meaningful access to public programs, services, and activities. When a board of education fails to make reasonable modifications to enable access to its facilities, programs, and services, a person with disabilities may bring a “failure to accommodate” claim. A failure-to-accommodate claim asserts that the defendant “…could have reasonably accommodated a person with a disability, but refused to do so.” (S.B. v. Lee, Dist. Ct., E.D. TN)  2021 WL4755619)

Four cases with similar ADA and 504 claims have been decided in three federal circuits, including the 6th Circuit, with varying results. On October 12, in a case originating out of Tennessee, the Court of Appeals outlined the ADA’s “failure to accommodate” claim, stating “This case requires the Court to consider the ADA’s mandate of social integration in an unprecedented context by addressing how a board of education must reasonably accommodate medically-compromised students when COVID-19 is now part of daily life inside their schools’ walls.”

The court granted a temporary injunction to the students with disabilities against the Tennessee Governor’s order that all parents may opt-out of a mask requirement and the school board’s decision to allow optional masking. The school district was ordered to adopt the universal masking policy it had in 2020-21 as a reasonable accommodation for the students. It also required the school district to report any mask exemptions granted, including the specific reasons for those exemptions. 

The 6th Circuit also determined that the plaintiffs did not need to exhaust their remedies under IDEA. Recently, the court issued an additional ruling on the school district’s motion to amend that judgment, because it alleged students and staff were refusing to wear masks. The court denied that motion, noting the district had not offered sufficient evidence or supporting legal arguments. 

The 8th and 11th Circuits also considered similar claims by students with disabilities. In the 11th Circuit, which includes Florida, two different federal courts declined to issue injunctions on claims under the ADA and Section 504. In one decision issued on September 13, the court held that the student’s individual health claims and accommodations required exhaustion of their administrative remedies under IDEA. (Hayes v. DeSantis [Dist. Ct., S.D. FL] Case 1:21-cv-22863-KMM, Spt. 15, 2021)

In a separate 11th Circuit case, an ADA and Section 504 challenge to a school board’s decision to end most COVID-19 mitigation measures, the court refused to issue an injunction, finding that virtual school was a reasonable accommodation available to all students and that the preferred accommodation need not be provided.  

In the 8th Circuit, a challenge to the Iowa Governor’s order banning school districts from universal masking decisions alleged that the ADA and Section 504 preempted the Governor’s order. The federal district court did issue an injunction preventing the order from taking effect, ruling that universal masking is a reasonable accommodation. The court also held that the state ban does violate ADA and 504 by excluding disabled students and denying them the benefits of public schools’ programs, services, and activities to which they are entitled.

What this means for your District:

Case law on masking guidelines is still developing. The 6th Circuit decision, while arising in Tennessee, should inform decision-making in our federal circuit. These cases are all temporary restraining orders, meaning there will be further proceedings with evidentiary hearings which may alter the outcomes, settle or otherwise affect the rulings. Stay tuned and contact one of our attorneys if you have questions.

Ability of School Employees to Carry Weapons Affected by Ohio Supreme Court Decision

The Gabbard decision was announced on June 23, 2021 by the Ohio Supreme Court.  (Gabbard v. Madison Local Sch. Dist. Bd. Of Edn., Slip Op. No 2021-Ohio-2067)

After a 2016 school shooting in the district in which a student emptied a gun in school injuring several students, the school board acted in 2018 to adopt a “firearm authorization policy,” which allowed the superintendent to designate up to ten teachers to carry concealed weapons while in the course of their duties.  The Board also required the designated employees to possess a concealed handgun license, twenty-four hours of training in active shooter response, training on mental preparation to respond to active killers, and a handgun-qualification recertification every year.  However, none of the employees had the training required by R.C. 109.78. 

Parents sued the school district alleging that it did not comply with Ohio law. The case required the court to analyze the interaction between two Ohio statutes.  One statute allows school boards to designate in writing persons authorized to carry concealed weapons on school property, exempting them from criminal penalties for doing so (R.C. 2923.122).  The other statute (R.C. 109.78) stated that persons employed as school security officers, special police officers, or other employee goes armed while on duty requires either twenty years’ experience as a police officer or completion of Ohio peace officer training (over 700 hours of training.)

The court analyzed plain terms of both statutes independently.   The court found that the language of R.C. 109.78(D) requires any school employee authorized by a board of education to go armed while on duty must meet training-or-experience requirements of that statute.  The court rejected the attorney general’s argument (in an amicus brief on the case) that the phrase “other position” in the statute was limited to a position that is a law enforcement or school security function, stating:

While school employees may volunteer to be designated to carry a weapon pursuant to the resolution, the application of R.C. 109.78(d) is not dependent upon an employee being hired particularly for the purpose of carrying a weapon.  As we have already stated, the statute does not tie application of the training-or-experience requirement to the duties of an employee’s position.  That an employee might have been hired to teach, to coach, or to perform other primarily nonsecurity functions does not alter the fact that an employee who carries a weapon while performing his or her job “goes armed while on duty.  (Slip Op., at ¶21)

The court also found that the ability of school boards to authorize people (including school employees) to carry concealed weapons without criminal liability (R.C. 2923.122) was not an exception to the requirements of the training-or-experience requirements of R.C. 109.78.  The court found that the statute simply excludes certain people as designated by a board of education from criminal liability, and does not allow a board to disregard other statutory provisions that apply.  The court held:

We conclude that R.C. 2923.122(D)(1)(a) does not clearly constitute a legislative grant of power for school boards to authorize their employees to go armed so long as the employees undergo whatever training a board might deem advisable.” (Slip Op., at ¶33)

The court held the statutes were not incompatible, noting that the training-or-experience statute had been in effect for more than 20 years when the newer written authorization statute was enacted in 1992.  The court also noted that policy decisions and the desire or need to amend or reconcile the statutes is within the purview of the General Assembly, not the Ohio Supreme Court.  The court went on to state that, “…we bear in mind that the General Assembly likely did not contemplate at the time of those statutes’ respective enactments in 1969 and 1992 that they would address a board of education’s authority to arm its teachers and other school staff for protection against a school shooting.” (Slip Op., at ¶40).

What this means for your district:

First, if your district has authorized any school employee to carry concealed at school, this should immediately cease, unless they meet the training-or-experience requirements of being a police office or having completed the 700+ hours of Ohio peace officer training. Contact us if you have questions about this.  Second, the opinion mentions several times the role of the General Assembly in making policy decision or reconciling the statutes’ application.  There has been a bill introduced that would do this, HB 99: however, it was introduced in February of this past year, was referred to the House Criminal Justice Committee, and has received no hearings.  HB 99 would allow school districts to arm school employees with minimum training requirements, the same as obtaining a concealed handgun license.  It is unlikely that this bill will see immediate action. 

Regulations help explain use of ESSER and GEER funds

ESSER/GEER guidance highlights
In late May, The U.S. Department of Education released guidance to states and school districts about the use of the multiple federal funds authorized for pandemic response and relief. A review of this guidance clarifies some questions about use of the funds. The guidance itself is not law, but it outlines USDOE interpretation of the laws and how funds may be used.

ESSER and GEER funds may be used for a wide range of allowable activities, a full list of which is available in the guidance on pages 10-12. One clarification states that where funds are authorized to be used for “children with disabilities,” this means children eligible under IDEA and Section 504.

The last listed item on allowable uses of funds is, “Other activities that are necessary to maintain the operation of and continuity of services in the LEA and continuing to employ existing staff of the LEA.” A footnote explains this includes using ESSER funds to avoid layoffs.

The Department goes into more detail that both ESSER and GEER funds may be used to pay teacher salaries and prevent layoffs. This includes other supportable activities in Question D-1 (p.46). The next question, D-2, states that health support staff, such as “…counselors, nurses, social workers, and other health support staff” are included.

The guidance notes, “…an LEA should consider ways that will build short- and long-term capacity and be sustained after the funding is no longer available.” School districts may provide the services directly or by entering into a contract. Subgrants of these funds are not authorized.

Construction and ventilation
Funds may be used for new construction, renovation and remodeling, with the approval of ODE or the Governor’s office. Improvements must be for the purpose of preparing, preventing or responding to COVID-19. Improvements may include HVAC and ventilation testing and work to upgrade or alter existing systems.

If used for HVAC improvements, projects must comply with ASHRAE standards. Making improvements to improve cleaning, such as removing carpet, are approved. (See questions B-6 and B-7)

Modular units may be purchased using federal funds. All projects must comply with federal procurement standards and must pay prevailing wage.

Supporting special education students
The guidance provides specific examples of ways ESSER and GEER funds may be used to provide services and support students with disabilities, whether they have an IEP or 504 plan. These may include hiring additional people to conduct evaluations if they were backlogged or providing transition services.

One interesting suggestion is for transition services and programs, including “coordination of services with agencies involved in supporting the transition of children with disabilities to postsecondary activities.”

If your district had issues due to the pandemic of providing work experience, internships, workshops, or life skills training for students preparing to graduate, these funds may be used to provide those experiences now. This may occur through extended school year services, if necessary.

A (non-exhaustive) list of activities for which the funds may be used may be found at questions C-5 and C-6 of the guidance.

Students who are migratory, homeless, or in foster care
These students may have had trouble accessing instruction via the use of technology and may have simply stopped attending. ESSER and GEER funds may be used to provide outreach to ensure better engagement. This includes better access to technology, including broadband, and for lost instructional time, tutoring and even transportation.

Attendance issues
ESSER and GEER funds may be used to assist districts in developing data quality systems to track attendance, analyze and publish data, and monitor trends for early warning signs based on key student indicators.

Other miscellaneous guidance
The guidance make several interesting miscellaneous points for which ESSER and GEER funds may be used:

  • Food service (to the extent USDA or other federal program funds are not available), including packaging for grab and go meals, costs of transportation, and additional staff and equipment.
  • Paying college application fees for economically-disadvantaged students
  • For students who graduated in 2020 or 2021, districts may provide college or career counseling, assistance with entry to job training programs or college applications, financial literacy and more.
  • Re-engaging students who have not participated in remote learning and programs to reduce community violence to address social, emotional, mental health and behavioral issues.
  • Paying staff overtime to safely reopen schools and keep them open.

There are many specific questions which cannot be addressed in this format, as well as timelines for use of the various funds authorized under different programs.

The guidance may be reviewed here: https://tinyurl.com/4d3ykh2x

Pandemic relief bill Sub. HB 67

This won’t be the last of the pandemic response bills, but Sub. HB 67 recently was passed on a fast track through the Ohio House and Senate, sent to the Governor and signed by him on March 20, 2021.  The bill has an emergency clause, so it is effective immediately.  It provides numerous changes in response to the pandemic for schools.   What exactly was in this bill that will affect us? 

Report cards:  There will be no letter grades for districts, buildings or components for the 2020-21 school year, nor will districts need to submit preliminary data for the report cards by July 31.  There will be no rankings of districts, community schools or STEM schools.  The Department will report on September 15, 2021 the data it has on building and district performance.

Ratings, sanctions and penalties: For district ratings, this year will have no effect on a district’s status for sanctions or penalties, and will not be used as a starting point for new sanctions or penalties. Previous years or subsequent years will be used for ratings that are assessed over time.  For a district already subject to sanctions or penalties, (academic distress commissions, restructuring, Ed Choice scholarship eligibility for buildings, defining a “challenged district” for new start-up community schools, federal and state laws identifying schools for targeted  or comprehensive supports, etc.) will remain in effect next year, but will not advance.  The law specifically states that Ed Choice performance-based scholarships will be awarded the on the same basis as current law outlines in R.C. 3310.03 for 2021-22 and 2022-23.

American history testing: In a compromise on testing, only the end of course exam in American History will not be required to be administered in 2020-21. Any student in the district’s enrollment for whom the test was not administered must continue to be counted by ODE on the same basis.  If the test is not administered, it may not be used to determine whether a student is subject to withdrawal.  Students on Ed Choice, Jon Peterson or Pilot Project scholarships may renew them even if the test is not administered.

Graduation in 2020-21: For students in 12th grade or who are on track to graduate regardless of graduation cohort but have not completed the requirements for a diploma, may graduate if:

            1.) The principal, consulting with teachers and counselors, agrees that the student has successfully completed the curriculum or their IEP.  This option may not be used after September 30, 2021. 

            2.) A school district that has adopted more rigorous requirements for curriculum than the state minimum may require only the minimum curriculum, and after the superintendent reviews whether the student has met the minimum curriculum to determine whether they have successfully completed it. 

Additional graduation pathway added in 2020-21:  Student will qualify for graduation, this year only, if they complete the high school curriculum or their IEP, and earn the OhioMeansJobs readiness seal. 

End of course exam flexibility: 11 and 12th grade student who take and retake, or who were unable to take an end of course exam may use their final grade in the course instead of the end of course exam score to meet graduation requirements.  The grade in the course determines what level of skill; advanced, accelerated, proficient, basic, or limited.  A grade of “C” or higher qualifies as a competency score.

Testing time frames: For 2020-21 only, spring state assessments online will be done according to the following schedule:   

  • ELA assessments for all grades between March 22 – May 7, 2021. 
  • ELA assessments for all grades between March 22 – May 7, 2021. 
  • ELA assessments for all grades between March 22 – May 7, 2021. 
  • ELA assessments for all grades between March 22 – May 7, 2021. 
  • ELA assessments for all grades between March 22 – May 7, 2021. 
  • ELA assessments for all grades between March 22 – May 7, 2021. 
  • ELA assessments for all grades between March 22 – May 7, 2021. 

Home school academic assessment waiver: Superintendents may not require home school parents to submit an academic assessment for the 2020-21 school year as a condition of allowing continued home instruction.

ESEA waiver:  The law orders ODE to seek a waiver from the ESEA accountability and school identification requirements for this year.

Connect with EB at Capital Conference! #OSBACC

Connect with EB at Capital Conference! #OSBACC

The pandemic has presented many challenges for all of us this year, including that we will not have the opportunity to gather in person for the Ohio School Board Association’s Capital Conference. In spite of these challenges, the conference will still give us all “virtual” opportunities for connection, learning and conversation. Ennis Britton is proud to be a Gold Sponsor of the 2020 OSBA Capital Conference. We will be there with you virtually, and you will be able to see and interact with our team of attorneys and firm logo in many different places.

Take a look below at our list of our presentations and events, and find out how you can connect with us through our virtual booth at the Trade Show.

This is the first time we have participated in the Trade Show. Stop by and chat or leave a message for us. We would enjoy “seeing” you visit our booth, which will be staffed by our Columbus legal assistant Hannah Reichle. She can tell you about all of the exciting opportunities we have in the upcoming year, and can help you connect with a member of our team.

This year, Ennis Britton will also host a Coffee Chat on Monday morning, Nov. 9, where Ryan LaFlamme, Pam Leist, Bob McBride and Hollie Reedy will review 2020 Legal Lessons Learned. The spotlight session takes place from 9:30 a.m. to 10:00 a.m.

Finally, make sure you join our attorneys presenting at Capital Conference this year for exciting, informative (and entertaining!) track sessions. Here is when and where you can hear from us:

Monday, Nov. 9th

9:30-10:00 a.m. Coffee Chat: Thanks for the Memories: Legal Lessons Learned…Presented by Ryan LaFlamme, Pamela Leist, Robert McBride and Hollie Reedy

2:15 p.m.-3:15 p.m. Addressing Employee Absenteeism
Presented by John Britton

11:00 a.m.-12:00 p.m. Developing threat assessment teams for schools…Presented by Erin Wessendorf-Wortman

Tuesday, November 10th

2:15 p.m. Remote Control-Professionalism in the Digital Age…Presented by Jeremy Neff and Giselle Spencer

We will certainly miss hosting you at Ennis Britton’s Capital Conference reception this year. Stay tuned for next year, when we hope to gather in person and continue building the community of relationships we value now more than ever. Our reservation is already made.

We are proud to support OSBA as a Gold Sponsor, especially this year. We hope to connect with you next week!