Doe v. Ohio Department of Education

The long-running Doe v. Ohio Department of Education litigation was back in the news earlier this month. The settlement became final and effective nearly three decades after the lawsuit was initially filed. Ennis Britton previously notified clients of the proposed settlement in December when the Ohio Department of Education’s Chief Legal Counsel sent a notice to districts that a proposed settlement has been reached. To be clear, no individual school district was a defendant in this case. Defendants included the State of Ohio, the Governor, the State Superintendent of Public Instruction, and the Ohio Department of Education. The plaintiffs – parents of students with disabilities and the students themselves – alleged that the defendants failed to ensure that students with disabilities were adequately educated in compliance with the law. 

A hearing was held on February 11, 2020, to determine whether final approval would be given to the proposed settlement that circulated in December 2019. The settlement has been approved and took effect earlier this month. The settlement covers a five year period and will focus on eleven priority districts (Canton City, Cleveland Metropolitan, Columbus City, Cincinnati Public, Toledo Public, Dayton Public, Akron Public, Youngstown City, Lima City, Zanesville City, and East Cleveland City School Districts). During the settlement period, ODE will develop a plan to improve inclusion and outcomes and will implement and monitor the implementation of the plan in the priority districts.

Ennis Britton’s Special Education Team anticipates it is very likely that ideas and expectations from the plan for the eleven priority districts will have broader application in the long run. Thus, even districts that are not initially prioritized by the settlement are likely to feel the effects of the settlement. It will be important for all school districts to monitor the implementation of the settlement and to advocate for both reasonable expectations and appropriate additional funding to support whatever aspects of the settlement plan are given broader application to all of Ohio’s school districts.

Ennis Britton’s Special Education Team will continue to update our clients on the implementation of the Doe settlement.

COVID-19 Update: Services for Special Education Students

UPDATE (3/12/20 at 6:20 PM): At 6 PM on March 12 the US Department of Education released new guidance on special education and COVID-19 that is available here.

In the past 48 hours it seems as if the already rapidly developing story of COVID-19, or novel coronavirus, has accelerated even more. With major spectator events being postponed, universities and colleges moving to online instruction, escalating infection rates around the globe, and the declaration of a pandemic by the WHO it seems inevitable that at least some Ohio public school districts will experience extended closures. These closures will raise important questions both in terms of employment and education. Given the unique and unprecedented challenges involved, we encourage you to work with legal counsel in real time to ensure effective and compliant responses.

What flexibility can we expect in meeting federal requirements for education?

We can look to official guidance issued during the 2009 H1N1 pandemic to get a sense of what we might expect with COVID-19. On December 1, 2009, the US Department of Education (ED) issued a memo titled “Guidance on Flexibility and Waivers for SEAs, LEAs, Postsecondary Institutions, on other Grantee and Program Participants in Responding to Pandemic Influenza H1N1 Virus” (“SEA” refers to State Education Agencies like ODE, and “LEA” refers to Local Education Agencies like individual school districts). The guidance document discussed in generalities the willingness of the US Department of Education to offer flexibility regarding the requirements of the Elementary and Secondary Education Act (now referred to as ESSA). It is reasonable to assume that flexibility will likewise be offered as COVID-19 has begun to force school closures. We will continue to update clients as specific guidance is issued.

Specifically regarding students on IEPs and 504 plans, what services must we provide during a closure?

We are receiving many calls related to the delivery of instruction during possible closures, and specifically regarding the delivery of instruction to students with IEPs and 504 Plans. Here is what ED said on this topic in 2009 regarding H1N1:

Must an LEA continue to provide FAPE to students with disabilities during a school closure caused by an H1N1 outbreak?

The IDEA, Section 504, and the ADA do not specifically address a situation in which elementary and secondary schools would be closed for an extended period of time because of exceptional circumstances; however, LEAs must be sure not to discriminate on the basis of disability when providing educational services.

If an LEA closes its schools because of an outbreak of H1N1 that disrupts the functioning or delivery of educational services, and does not provide any educational services to the general student population, then an LEA would not be required to provide services to students with disabilities during that same period of time. Once school resumes, however, a subsequent individualized determination is required to decide whether a student with a disability requires compensatory education to make up for any skills that may have been lost because of the school closure or because the student did not receive an educational benefit.

If an LEA continues to provide educational opportunities to the general student population, then it must ensure that students with disabilities also have equal access to the same opportunities and to the provision of FAPE, where appropriate. SEAs and LEAs must ensure that, to the greatest extent possible, each student with a disability receives the special education and related services identified in the student’s individualized education program (IEP) developed under IDEA, or a plan developed under Section 504.

There is no guarantee that ED would issue the same guidance today for COVID-19, but given the parallels between the concerns in 2009 and those today, this 2009 guidance is a reasonable starting point for planning a compliant response to a potential school closure for COVID-19.

What are the special education implications of providing online instruction during a closure?

It is notable that the approach that creates the most risk for a school district, per the 2009 ED guidance, is to offer online instruction during a closure. The reason this can become a problem is that students with disabilities will need to be offered accessible instruction that meets their unique needs. It is difficult to imagine how a district might provide “regular prompting,” a common accommodation, to a child who is sitting alone at a computer. And what of the child who does not have a computer or internet access? Per the 2009 ED guidance it would be more legally compliant to not offer any instruction at all than to offer online instruction without an adequate plan for students with special needs.

This does not mean that online instruction should be ruled out. It just means that if online instruction is used there will need to be a plan for how this will serve students with disabilities. You should also consider the possibility of not immediately implementing online instruction. Given the mild winter and the fact that most schools significantly exceed minimum hours of instruction on their regular calendars, it is likely that a few days of closure (without online instruction) will not violate state minimum hours law. Even if a closure is longer lasting, pausing before implementing online instruction could provide important breathing room for student services to plan for serving students with disabilities.

Will we be required to provide compensatory education to students on IEPs and 504 plans following a closure?

The 2009 ED guidance points to the fact that a discussion of whether compensatory education may be required should follow any period of closure regardless of what services are provided. Unless a child is already assigned to home instruction at the time of the closure, any set of services during a closure will in some ways not be in compliance with the child’s IEP. While proactive amendments to account for anticipated closures could minimize the risks, it would be ambitious for most districts to secure consent for amendments for all IEPs. A more realistic approach could involve identifying students who are most at risk of significant regression during a closure, and working with parents to develop a plan to minimize that regression. Not only is this educationally sound, it would be an important part of any legal defense related to IDEA or Section 504 complaints. Once school resumes after a closure you can revisit whether other compensatory services are appropriate.

Please continue to follow the Ennis Britton blog for updates on COVID-19, and do not hesitate to call any of our attorneys with questions or concerns.

Ohio’s School Funding System

A complaint challenging the constitutionality of Ohio’s school funding system was filed in the Perry County Court of Common Pleas in 1991. The plaintiffs alleged that vast disparities and shortfalls in per pupil funding, among other concerns, meant the State of Ohio was failing in its Constitutional obligation to ensure that there is a “thorough and efficient system” of public schools throughout the state. In his 1994 decision in the DeRolph case, Judge Lewis agreed.

Over the course of the next decade there were several more court rulings, including several rulings by the Ohio Supreme Court finding the system to be unconstitutional. While some changes in funding occurred during that time, including the creation of the Ohio School Facilities Commission (now Ohio Facilities Construction Commission) and the funding of billions of dollars of new and renovated school facilities, the underlying per pupil funding system remains largely unchanged.

Over the course of the past year Representative Bob Cupp and John Patterson convened workgroups of stakeholders throughout the state and developed a new school funding plan. This plan was introduced as House Bill 305 in the Ohio House on June 26, 2019. The bill was referred to the Finance Committee and hearings have taken place over the past two months with testimony from legislators and educators from across the state.

Recently, stakeholders and legislators have raised concerns about whether HB 305 does enough to address and fund the needs of impoverished students. Witnesses testified before the Finance Committee citing several studies showing that the cost of educating an impoverished child is about 30% higher than non-disadvantaged students. This indicated that additional funding ranging from $85 million to $350 million may be required on top of the current estimate of $1.5 billion per year of increased funding under HB 305.

Following that testimony, House Speaker Larry Householder stated that “we need to do something about those economically disadvantaged students. Maybe we need to find a new way, that I don’t know what it is yet, of funding our schools.” Speaker Householder raised the possibility of imposing a uniform tax “effort” across the state, meaning a comparable property tax rate in all districts, and pooling the funding at a state level for redistribution based on need. He offered this as a way to address inequities arising from widely varying per pupil property tax valuation across the state. Speaker Householder also raised the possibility of putting a new funding plan before Ohio’s voters next year.

Because HB 305 already has bipartisan and majority sponsorship in the House, many see this as the most viable proposal to alter school funding since DeRolph was filed. Now is the time for interested parties to provide input and raise concerns with their legislators. Any Ennis Britton attorney can discuss HB 305 and its implications with interested parties. Hollie Reedy, an attorney in our Columbus office, is a registered lobbyist and can provide support for representatives of client districts and entities that may wish to provide testimony on HB 305. Legislators should hear your district’s story; bringing the real numbers and local challenges in your district helps them understand how the complicated formula and system is (or is not) working for you.

Restraint and Seclusion

The use of restraint and seclusion in schools continues to be a high priority for state and federal policy makers. Ohio’s first regulations specifically addressing restraint, seclusion, and positive behavior intervention and supports took effect in 2013 as Ohio Administrative Code (OAC) 3301-35-15. In June 2018, the General Assembly passed House Bill (HB) 318, also known as “the SAFE Act”. This law addresses a variety of student discipline issues, including a requirement to rewrite Ohio’s restraint and seclusion regulations.

Ohio Administrative Code 3301-35-15 was due for review by August 2018, but the process has not been completed. HB 318 set a deadline for revision of OAC 3301-35-15 by early February 2019. Again, no revisions were made. However, work is ongoing at the Ohio Department of Education (ODE) and various stakeholder groups are being presented with draft rule revisions this summer. It is anticipated that in the coming months, there will be a proposed rule presented for public comment and consideration by the State Board of Education.

In the meantime, existing requirements for the use of restraint and seclusion remain in place. This includes absolute restrictions on certain practices, and significant data tracking and reporting requirements. The summer “break” is a good time for administrators to review existing training programs, plan for which staff members may require additional training due to student assignments and program changes, and review reporting data for the recently completed school year to determine if there are any patterns or gaps that need to be addressed.

While the use of restraint and seclusion generally should be rare, consistent reports of zero incidents may raise a red flag. A recent report from the federal Government Accountability Office (GAO) found that nine of the nation’s 30 largest school districts reported no incidents of restraint or seclusion in the last reported year (2015-2016). The GAO and U.S. Department of Education presume that such reports are inaccurate, with the GAO reporting that, “We are encouraged that Education recognizes the seriousness of this issue and the data quality issues it has allowed to persist when districts inappropriately and inaccurately report zero incidents of restraint and seclusion.”

In addition to whatever new requirements might be rolled out by the U.S. Department of Education to address its concerns, long-proposed federal legislation is expected to be reintroduced later this year. The bill, called the “Keeping All Students Safe Act,” is likely to overlap significantly with Ohio’s restraint and seclusion regulations.

Religion in Public Schools

This time of year questions can arise in schools and the communities they serve regarding religion in public education. Community members may question the inclusion of Christian Christmas music in a winter choir concert, or parents may scoff at calling the upcoming days off “Winter Break” instead of “Christmas Break.” A Jewish employee might question why Christmas is a paid holiday, but she does not get paid time off for Hanukkah. An enterprising student may mount a campaign to ensure that a Christmas tree in the office is surrounded by symbols of other winter celebrations.

These issues are ultimately about the first two clauses of the First Amendment to the U.S. Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” Over the years the separation of church and state has been repeatedly litigated. In one case, the U.S. Supreme Court allowed the display of a city-owned nativity scene, reasoning that it did not constitute an endorsement of any particular religion because it was part of a display celebrating a secular holiday (other parts of the display included a tree, Santa Claus, and a banner that read “Season Greetings”) and it merely highlighted the origins of the Christmas holiday. Lynch v. Donnelly, 465 U.S. 668 (1984). Just five years later, the Court prohibited the display of a privately owned nativity scene on the steps of a courthouse. County of Allegheny v. ACLU, 492 U.S. 573 (1989). In the latter case, the display stood on its own and was placed at a major government building. The Court concluded that a reasonable person might understand this to be an endorsement of Christianity.

Many other cases have been decided over the years. These disputes are not limited to December. Cases involving prayer at football games, reciting the Pledge of Allegiance at the beginning of the school day, funding private schools with tax-dollar-supported vouchers, and displaying the Ten Commandments and images of Jesus are among the cases that have directly involved schools and the First Amendment.

While these cases are highly fact-dependent, a few themes emerge relevant to winter holidays and public schools. The courts are willing to treat Christmas as a secular (nonreligious) holiday. Polling indicates more than 80 percent of non-Christian Americans celebrate Christmas. As a result, many symbols of Christmas do not implicate the First Amendment. A Christmas tree in a school building lobby is unlikely to be successfully challenged. Also, context matters. A high school choir concert that includes religious pieces among other songs is likely to be viewed as an artistic event rather than as an endorsement of religion. On the other hand, a first-grade reading assignment of the Biblical Christmas story is more problematic, especially given the age and impressionability of the students.

Finally, the courts are generally willing to protect the religious speech of students even as they limit that of school officials. The Supreme Court ultimately declined to hear a case arising in Texas involving a third-grade student who was prohibited from distributing candy cane pens with the message “Jesus is the Christ” at a class party. By passing on the case, the Court left in place the appellate court decision, which found that the child’s First Amendment rights were violated. Morgan v. Swanson, 659 F.3d 359 (5th Cir. 2011).

Constitutional questions are complex matters and are very fact-dependent. It is best to be proactive and consult legal counsel when questions arise. With this in mind, we hope you enjoy the final days of school before your winter break. Happy holidays!