by Jeremy Neff | Jun 2, 2014 | Board Policy & Representation, Student Education and Discipline
As school children prepare for summer break, school administrators begin turning their attention to long-term projects that are deferred during the regular school year. Consider adding a review of your student disciplinary code to your summer to do list.
In January, the Office for Civil Rights (OCR) and the Department of Justice issued joint guidance regarding discipline and racial discrimination. Following that guidance, various disability advocacy groups pointed to disparities in discipline of disabled students as another problem area.
While intentional discrimination in schools is rare, disparate impact is almost universal. In the vast majority of school districts a greater percentage of expulsions and suspensions are imposed on minority and disabled students (relative to their percentage of the student body). OCR investigations related to this are on the rise, and a common issue being identified is that vague disciplinary codes make it hard to do apples-to-apples comparisons of discipline outcomes.
For example, Student A and Student B fight each other, but Student A gets 5 days suspension while Student B is suspended 10 days with a recommendation for expulsion. Both violated the same rule that prohibits “fighting.” On paper this looks problematic. Only by reviewing administrator narratives, or by OCR coming onsite to conduct interviews, does the explanation become clear: Student A stopped fighting immediately when directed by an administrator, while Student B cursed at and struck an administrator.
Consider refining your code of conduct to more precisely account for common scenarios such as the above. For example, “fighting” might be broken up into “fighting, ceased immediately upon directive” and “fighting, failed to cease immediately upon directive.” Likewise, “disruption” might be broken up into “disruption, verbal outburst,” “disruption, physical outburst,” etc. Upon inspection of your code of conduct and discipline records you will likely identify other rules that are too broad to capture important details of misconduct.
By making your code of conduct more precise, you will make it easier to explain differences in disciplinary outcomes. This is especially important when OCR is investigating disparate impact claims. This is a case where an ounce of prevention is worth much more than a pound of cure.
Please contact an ERF attorney for assistance with reviewing student codes of conduct and other disciplinary matters.
by Jeremy Neff | Dec 30, 2013 | Special Education, Student Education and Discipline
It is probably not high on your list of New Year’s Resolution priorities, but special education staff at Ohio public schools should add this one: Send even more prior written notice forms.
For over a year, the Ohio Department of Education (ODE) had been floating the idea of changing the Individuals with Disabilities Education Act (IDEA) requirements regarding prior written notice (PWN) when parents agree with the Individualized Education Program (IEP) developed during an annual review meeting and the IEP involves a change in placement. State regulations in effect over the past several years did not require formal PWN on the PR-01 form in this circumstance. Rather, the IEP document itself served as PWN. On December 20, 2013 ODE announced an immediate change requiring PWN on the PR-01 form to be sent for all IEPs that involve a change of placement (including those that have parental consent).
Presumably the thinking behind the prior interpretation was that there is no need to send a notice to a parent informing her that the IEP she just agreed to is going to be implemented. It appears that the change in interpretation is to align with federal regulations that require PWN whenever a change in placement is proposed. There is an ongoing review of Ohio’s IDEA regulations, and once finalized the new regulations will incorporate this change. However, ODE has been clear that it will immediately be enforcing the change. Whether slight changes in IEP services constitute a change of placement is not always clear. Given this new requirement, it is best to err on the side of caution by sending too many PR-01 instead of too few.
ERF encourages school districts to take steps to minimize potential misunderstandings regarding PWN. The PR-01 form can be intimidating, and some parents mistakenly think it means a district is attempting to harass or provoke them. Some of the potential fallout of the decision to require even more PR-01 can be avoided by discussing PWN, the PR-01 form, and when they are required with parents prior to needing to use them in relation to an IEP. For example, a district could make it a practice to show a blank PR-01 form to a parent at the time a child is initially identified and to explain the purpose and requirements for the use of the form.
We have often said that PWN cannot be sent too often. With this new interpretation ODE has brought new meaning to that advice. Please contact a member of ERF’s Special Education Team with questions about this new requirement.
by Jeremy Neff | Dec 23, 2013 | General, Special Education, Student Education and Discipline
The federal Office for Civil Rights (OCR) issued a “Dear Colleague Letter” on January 25, 2013, that seemed to require school districts to offer alternative sports options for children with disabilities. OCR is charged with enforcing Section 504, among other laws. The letter suggested that wheelchair basketball, for example, might need to be offered when a wheelchair-bound child cannot be accommodated in the existing basketball program. Controversy ensued, and ERF advised clients that there is no requirement to create new activities to provide opportunities for those who cannot be reasonably accommodated in existing activities. This month OCR issued a letter that confirms ERF’s earlier advice. OCR’s letter explains that it does not believe that Section 504 requires the creation of new activities for children with disabilities (essentially rescinding its earlier guidance).
In its earlier letter, OCR wrote that:
“Students with disabilities who cannot participate in the school district’s existing extracurricular athletics program – even with reasonable modifications or aids and services – should still have an equal opportunity to receive the benefits of extracurricular athletics. When the interests and abilities of some students with disabilities cannot be as fully and effectively met by the school district’s existing extracurricular athletic program, the school district should create additional opportunities for those students with disabilities.
“In those circumstances, a school district should offer students with disabilities opportunities for athletic activities that are separate or different from those offered to students without disabilities. These athletic opportunities provided by school districts should be supported equally, as with a school district’s other athletic activities.”
It went on to explain that when there are not sufficient wheelchair bound athletes to support an activity a district could work with other districts to form a joint team, form co-ed teams, or encourage non-disabled students to participate. Beyond the logistics and time required by this mandate, districts were alarmed by the cost of funding new programs even as they are being forced to cut funding for existing programming.
With its recent letter OCR unequivocally steps back from the requirements set forth in its prior letter. It writes that while a district might choose to create new programs for children with disabilities, “it is not OCR’s view that a school district is required to do so.” Pressure from school districts and the organizations that work for and support them clearly had a significant role in forcing OCR to rethink its earlier letter. In fact, the letter earlier this month was in response to a request by the National School Boards Association for clarification. The new letter is being reported here not only because it puts to rest any notion that districts must create separate sports for children with disabilities, but also because it shows that school districts can effectively lobby for change. At a time of unprecedented new requirements and unfunded mandates this is an important lesson.
Both OCR letters on extracurricular activities are also a good reminder about the importance and scope of Section 504. This law is meant to “level the playing field” for children with disabilities. It applies to a broad range of disabilities – far more than those covered by IDEA. It also applies to all services, activities, and benefits offered by a school district. Regarding extracurricular activities, a qualified child with a disability has a right to reasonable accommodations to allow the child to try out for and participate in sports. Precisely what this means depends on the facts of each case, but suffice it to say that schools need to be creative about developing, and committed to providing, equal opportunities to children with disabilities both in the classroom and on the playing field. Please contact a member of our Special Education Practice Team for assistance in complying with Section 504.
by Jeremy Neff | Aug 5, 2013 | General
A month after Governor Kasich signed HB 59, Ohio’s two-year budget, the dust is starting to settle and certain issues are standing out as of particular concern to our clients. Over the coming days and weeks we will continue to address these issues in our blog posts and tweets, our School Law Review monthly newsletter, and in our presentations and advice to clients. Today we will start with an issue that is particularly time-sensitive: home school and private school student participation in extracurricular activities.
HB 59 created new law that allows home school and private school students who are not even partially-enrolled in a public school to participate in a public school’s extracurricular activities. There are numerous restrictions on this new right. For example, only a home school student’s district of residence is required to allow such participation, and the district may impose whatever normal requirements it does for its own students (e.g. pay to participate fee, academic eligibility, enforcement of prior expulsion periods, etc.). Granted, these normal requirements can be almost meaningless as applied to a home school student: Minimum g.p.a. requirements are the most frequently cited standards that will be impossible to impose for longer-term home school students.
Lost in much of the discussion about these new requirements is the fact that they are substantive law (e.g. not mere spending measures). Because of this, the new extracurricular requirements cannot take effect until 90 days after the Governor signed HB 59. That pushes the effective date to September 29. Why is this important? Because this means there is no law allowing strictly home schooled students to participate in extracurricular activities at this time, and there will not be until well into the fall sports season. It should be noted that prior law allows partial enrollment of home school students at the option of each school district, and OHSAA allows partially enrolled students to participate in extracurricular activities.
Because the law is not yet effective, districts should not allow home school students to participate in fall sports as they get under way in the coming days and weeks. Adding to the confusion is the fact that OHSAA has indicated by a press release that they are treating the law as effective retroactively to July 1. They acknowledge that this decision is not in line with the law, which unquestionably does not exist until September 29.
Regardless, districts should follow the requirements of the law, and until September 29 there is no law allowing strictly home schooled students to participate in extracurricular activities. Because many sports either have try-outs prior to September 29, or even if they do not have try-outs they do not allow students to begin participating halfway through the season, it is quite possible that no home school students will be eligible to participate in sports until the winter season. Please note that the new law applies to extracurricular activities other than sports, as well, and for other types of activities it may be appropriate to allow home school student participation starting on September 29.
by Jeremy Neff | Feb 25, 2013 | Legislation
Earlier this month spreadsheets were released that showed anticipated funding for each school district under Governor Kasich’s budget proposal. These revealed that a majority of districts will not experience any increase in funding. Questions have arisen regarding how the districts were chosen that will receive increases. Representatives of the Governor defended his plan in General Assembly hearings, and a group of senators introduced a competing school funding reform plan. It has been a busy month for school funding, and realistically the issue will likely remain in flux at least through the end of June and the adoption of a state budget.
The Governor and his staff caution that what appears to be “wealthy” districts receiving increases and “impoverished” districts being flat-funded is simply a reflection of rural property values increasing in recent years, while suburban values have decreased. Moreover, they point to guarantee funding as something that has artificially inflated funding in some impoverished districts that have lost student population. They argue that by effectively leveling up each district’s per pupil property valuation the Governor’s plan helps close the gaps between “rich” and “poor” districts. The Governor’s staff has testified that there was no intention in his plan to determine what is required for a quality education, or what a quality education would actually cost.
Critics of the Governor’s plan are concerned that most districts do not see increased funding, and some of those that receive increases are not the impoverished districts that initially were thought to benefit most from the plan. They further argue that the economy is turning around but the Governor’s plan fails to bring funding back up to the level maintained before Governor Kasich took office – this despite a sizeable budget surplus. They also point to a reduction in the state “foundation amount” to only $5,000. They argue that by reducing the foundation amount, and remarking that the guarantee is unsustainable, the Governor is opening the door to significant funding cuts in the future.
An alternative school funding plan – Senate Bill 15 – was introduced in the Senate on February 12. This plan is similar to the reforms endorsed several years ago by all of the major education organizations (e.g. OSBA, OASBO, BASA, OESCA, PTA, OEA, OFT, OAPSE). SB 15 requires the General Assembly to identify the components of a Constitutional education system and to cost them out. Every 6 years the components would be reevaluated, and in between the costs would be adjusted for inflation. Every district would be funded at the level required to provide these components. The local share, or charge off, for this funding level would be decreased over a span of several years. The major concepts of SB 15 would be placed before Ohio voters for approval in the November 2013 general election. No spreadsheets are available for SB 15 because it describes a concept for determining funding, but does not specify funding levels.
Because Governor Kasich’s proposal is part of the state budget it will be thoroughly considered by the General Assembly. In all likelihood the budget will not be finalized until late June. Nonetheless, many important votes will take place well in advance of June so school officials should provide input to their legislators sooner rather than later. SB 15, on the other hand, is unlikely to receive serious consideration unless legislators hear from their constituents that a different plan from the Governors must be considered.
