Court of Appeals Unanimously Rules “EdChoice” Voucher Program Unconstitutional

Court of Appeals Unanimously Rules “EdChoice” Voucher Program Unconstitutional

by | Oct 19, 2026 | General, Legislation

Columbus City School District et al. v. State of Ohio et al.

A panel of three judges from the 10th District Court of Appeals unanimously ruled that the Educational Choice Scholarship Program (“EdChoice”) violated Article VI, section 2 of the Ohio Constitution. The decision affirmed a lower court ruling that also declared EdChoice unconstitutional for the first time in June 2025. The Court of Appeals decision allows EdChoice to continue pending an anticipated appeal to the Ohio Supreme Court.

A link to the Court of Appeals’ full decision has been provided above.

This case is the first significant challenge to the state’s private school voucher programs in roughly thirty years. In Simmons-Harris v. Goff, 1999-Ohio-77, the Supreme Court upheld the Cleveland Pilot Program on the grounds that it was a narrow and experimental program to address the unique needs of a single school district, but cautioned that an “expanded school voucher program or similar program could damage public education” and therefore “be subject to a renewed constitutional challenge.” The pilot program has since evolved into the EdChoice voucher program we have today, expanding from an initial appropriation of roughly $5.25 million annually to over a billion dollars in fiscal year 2025 alone.

The Ohio Constitution requires the General Assembly to “secure a thorough and efficient system of common schools” while prohibiting “religious or other sects” from having “any exclusive right to, or control of, any part of the school funds of this state.” The Court of Appeals declared  that the current scope and funding level of EdChoice secures a separate system of non-public schools contrary to the mandates of the Ohio Constitution and laid out several additional concerns with EdChoice that violate the State’s requirement for a “common” school system:

  1. EdChoice gives broad discretion to private schools to admit or deny students and the lack of meaningful constraints imposed by the state. For example, ODEW acknowledged that a private school may discriminate on the basis of gender, sexual orientation, or physical or mental disability while receiving EdChoice funds.
  2. EdChoice provides little to no access to rural students. ODEW provided a list of 154 private schools where 75% or more of their students received vouchers. 44% of those schools are located in Cuyahoga, Franklin, and Hamilton County. That number expands to 89% when accounting for Ohio’s 16 “urban counties.” Despite being funded from statewide tax revenue, large portions of the State, particularly in the southeast and northeast, have little to no access to the program due to the lack of private schools in these areas.
  3. EdChoice lacks meaningful oversight regarding fiscal supervision, ratings and compliance, teacher evaluations, and public transparency. When questioned about how ODEW ensures that private schools comply with the few requirements that do exist, ODEW’s Director of Non-Public Educational Options testified that “there is no monitoring system.”

The Court went a step further to declare that EdChoice undermined the financial integrity of the public school system. By simultaneously diverting taxpayer funds to private schools and encouraging the departure of students from public schools, the judges opined that EdChoice effectively increased the per-pupil cost of educating students who remain in public schools while giving voters less reason to approve local school levies.

The judges concluded that the structure and funding level of the EdChoice voucher program “operates at the expense and detriment of Ohio’s public schools, and, consequently, the children who depend on those public schools for instruction, support, and opportunities that shape their future.”

Andy Wilson, Ohio’s Interim Attorney General, has already announced his intent to appeal the decision.

Stay Out of the Sand: Court Examines Physical Defects and Tort Liability for Districts

Stay Out of the Sand: Court Examines Physical Defects and Tort Liability for Districts

by | Jun 19, 2026 | Board Policy & Representation, School Management

Bossart v. Brecksville-Broadview Hts. City School Dist.

On May 21, 2026, Ohio’s Eighth Appellate District reversed a lower court ruling, allowing a lawsuit to proceed against a public school district after a student was injured during a track event while jumping into a sand pit. The case, centered on the district’s general immunity from tort damages, focused on whether the alleged defect with the sand pit was “perceivable.”

While participating in the long jump during a track meet held at the district’s facility, the student suffered a ruptured ligament in his leg. The student attributed this injury to the unusually cold weather at the time, which had caused the sand in the pit to harden. He further argued that the district did not rake or inspect the sand pit before holding the long jump event. In response, the district argued that it was immune from tort liability pursuant to Ohio’s laws granting broad immunity to political subdivisions.

Ohio courts apply a three-tiered analysis when examining whether a district is protected against tort liability.

  1. First, there is a general rule that political subdivisions have broad immunity from liability.
  2. This immunity may be lost if one of the five exceptions set forth in the law applies.
  3. Immunity may be reinstated if the political subdivision raises one of several affirmative defenses set forth in the law.

This case is focused on the second tier of analysis. Districts can lose their immunity protections for damages “caused by the negligence of their employees and that occur within or on the grounds of, and…due to physical defects within or on the grounds of” buildings connected to the performance of governmental functions. The district argued that a physical defect must be immediately perceivable to the naked eye, without further inspection by the district, before the defect eliminates liability protections. According to the district, it would not have been possible to perceive the “hardness” of the sand based only on the air temperature and an observation that the pit may not have been raked.

The court pushed back on this argument, citing a recent Ohio Supreme Court decision that did not consider perceivability as a factor. In that case, the Supreme Court held that a “physical defect” could be “reasonably understood as a tangible imperfection that impairs the function of an object.” And at least one other decision from Ohio’s Eighth  District considered the existence of a physical defect that would have been perceivable only upon physical inspection.

The court was also skeptical of the district’s argument that the sand pit was not defective because only one long jumper was injured. No evidence was introduced regarding the number of long jumpers who competed that day, only that the student in question was injured, and the student was not required to conclusively prove the long-jump pit was defective at this stage. His allegations about the condition of the pit (which were not disputed by the district), combined with his subsequent injury, were enough to allow the case to proceed.

What does this mean for your district? The existence of a physical defect on school grounds is one of several ways that a district, which is normally immune from liability, may be sued for damages under tort law. A physical defect is a tangible imperfection that impairs the function of an object, but it should not be assumed that districts are protected if the imperfection is not immediately perceivable to the naked eye. It is worth noting that the district in this case has not yet been found liable for damages. Rather, the ruling allows the case to proceed. Liability may be found if the student subsequently shows that the condition of the sand pit constituted a physical defect and no affirmative defenses are applicable.

 

 

 

ADA Reminder: Reasonable Accommodation Doesn’t Have to be the Preferred Accommodation

ADA Reminder: Reasonable Accommodation Doesn’t Have to be the Preferred Accommodation

by | Jun 19, 2026 | Labor and Employment

Andrea Tumbleson v. Lakota Local School Dist. Bd. of Educ., Case No. 25-3548 (6th Cir. 2026).

On May 13, 2026, the Sixth Circuit Court of Appeals ruled that an Ohio school district did not violate the Americans with Disabilities Act (ADA) or the Family and Medical Leave Act (FMLA) by requiring a teacher to use unpaid leave to attend a training course with her guide dog.

Tumbleson, an art teacher, had been diagnosed with a rare disease that caused gradual vision and hearing loss. Tumbleson applied for a guide dog in 2022. She was required to attend a five-day orientation and mobility training program, which required her to miss five days of school. The district approved her use of sick leave for this initial training session, as the human-resources director explained that employees were typically only required to complete FMLA paperwork for “extended absences” of ten or more days.

Tumbleson was eventually matched with a guide dog but was required to attend a three-week training course in May 2023, which meant she missed the end of the school year. Tumbleson requested the use of thirteen paid sick days to attend the training course. The request was granted in part by the district. Tumbleson was permitted to attend the training course using a mix of personal days and unpaid leave as an accommodation under the ADA. FMLA leave may be used only in limited circumstances, and district policy stated that sick leave could be used for “personal illness, injury or exposure to contagious disease.” The District did not believe that the training fit within either category even after Tumbleson received a letter from her doctor arguing the training was for “medical reasons” because the guide dog was part of her “treatment plan.”

The 6th Circuit Court of Appeals sided with the district on both the ADA and FMLA claims, upholding a lower court ruling that granted summary judgment to the district. The Court held that Tumbleson’s discrimination case failed because she did not demonstrate that the district treated “similarly situated” employees more favorably in their requests for paid leave. Tumbleson relied on the fact that the district “routinely” granted sick leave without going through the formalities and pointed to the fact that she previously had been granted sick leave for the earlier 5-day training. However, the Court argued Tumbleson’s own experience demonstrated that the district’s leave policy was neutrally applied. She benefited from the rule when she was permitted to take sick leave for her earlier, shorter training, and it was only when she requested an extended absence that the human resource department reviewed whether the training qualified.

The Court also argued that the use of unpaid leave was a reasonable accommodation under the ADA. Employers “need not provide” the specific accommodation that an employee wants. Rather, the employer has “discretion” to choose among alternative accommodations so long as they will permit the employee to perform the job. Because the unpaid leave allowed Tumbleson to obtain her guide dog, the Court concluded that the district met its obligation to provide a reasonable accommodation and the district had the “ultimate discretion” to choose a less expensive option, even if paid leave would have caused less hardship for Tumbleson.

Finally, the Court determined that Tumbleson also was not entitled to paid leave under the FMLA. To obtain paid leave, Tumbleson needed to show that the district “normally provided” paid leave for those in her situation. Citing 29 U.S.C. 2612(c) and 29 U.S.C. 2612(d)(2)(B). Here, the district testified that Tumbleson’s request did not fall within the definition of sick leave under Ohio law, the district’s collective bargaining agreement, or the school board’s sick leave policy and Tumbleson’s attorney failed to sufficiently challenge the district’s position.

What does this mean for your district? While districts must ensure that they are not discriminating against an employee on the basis of their disability, the ADA requires reasonable accommodation and nothing more. So long as the district’s policy is being consistently applied for all employees, unpaid leave is generally considered a reasonable accommodation and districts have discretion to choose the less expensive option even if it conflicts with the individual’s financial or other preferences.

Sunshine Laws for Subcommittees: Court Clarifies Requirements for Advisory Groups

Sunshine Laws for Subcommittees: Court Clarifies Requirements for Advisory Groups

by | May 5, 2026 | Board Policy & Representation, General

State ex rel. Zimmerman v. Avon Lake, 2026-Ohio-1090 (March 31, 2026)

On March 31, 2026, the Supreme Court of Ohio reaffirmed that committees and subcommittees of a public body are also public bodies under Ohio’s Open Meetings Act, and the City of Avon Lake was required to turn over the meeting minutes of an advisory committee that collected information related to the city’s redevelopment projects. The Court’s full opinion is available at the link provided above.

The city created the Avon Lake Community Improvement Corporation (“Avon Lake CIC”) to oversee economic-development activities within its jurisdiction. Avon Lake CIC then created the Brownfield funding Committee (“Brownfield committee”) to collect and evaluate information related to the CIC’s redevelopment projects.

A public records request was submitted to the city on October 29, 2024 requesting the Brownfield committee’s meeting minutes. The city’s law director denied the original records request, claiming that there were no meeting minutes for the Brownfield committee. The city went on to argue that the Brownfield committee was not a “public body” under Ohio’s Open Meetings Act because it was merely an “advisory group without delegated authority to act” on behalf of the Avon Lake CIC and it lacked decision-making authority.

The Court concluded that the lack of delegated authority by a public body is only one factor considered when evaluating whether a particular entity was a committee of a public body. The Brownfield committee was directly created by Avon Lake CIC, which itself is a public body under O.R.C. 121.22. The Court also noted that O.R.C. 121.22(B)(1)(b) does not require that a committee be a formal decision-making body, and several appellate courts had previously held that advisory committees may be a public body under Ohio’s Open Meetings Act. Citing to State ex rel. Mohr v. Colerain Twp., 2022-Ohio-1109 (1st Dist.); Kanter v. Cleveland Hts., 2021-Ohio-4318 (8th Dist.); Thomas v. White, 85 Ohio App. 3d 410 (9th Dist. 1992).

After concluding that the Brownfield committee was a public body subject to Ohio’s Open Meetings Act, the Court ordered the city to prepare and produce the minutes for previously held committee meetings attended by a majority of its members at which public business was discussed.

What does this mean for your district? Any committees or subcommittees of the Board, even if they lack decision-making authority, are still considered “public bodies” under Ohio’s Open Meetings Act. As such, districts must ensure that these smaller committees continue to comply with the requirements of the Open Meetings Act.

Remember that a “public body” is any board or similar decision-making body of any school district, AND any committee or subcommittee of said board. Committee meetings must be open to the public at all times, and the minutes of a regular or special meeting of the committee must be promptly prepared and available for public inspection. These requirements apply to any prearranged discussion of public business by a majority of the committee or subcommittee’s members.

 

 

 

 

Ohio Attorney General Weighs in on School Board Member Eligibility for Service as Juvenile Court Probation Officers

Ohio Attorney General Weighs in on School Board Member Eligibility for Service as Juvenile Court Probation Officers

by | May 5, 2026 | Board Policy & Representation, General

Opinion No. 2026-02.

The Ohio Attorney General issued its second formal opinion of the year on April 1, 2026, holding that an individual generally cannot serve simultaneously as a member of a school district board of education and a juvenile court probation officer. A link to the full opinion has been provided above.

This opinion came at the request of a County Prosecutor in response to a probation officer expressing a desire to serve on the board of education of a local school district that was within the county that they served. Accordingly, the Attorney General determined that there were sufficient conflicts of interest between the two positions that render them incompatible. A seven-part test is used when determining whether two public offices are compatible with one another, and all seven factors must point to compatibility in order for an individual to serve in both roles simultaneously.

One of these factors is whether there is “an impermissible conflict of interest between the two positions.” A conflict of interest exists “when an individual’s responsibilities in one position are such as to influence the performance of their duties in the other position” which subject them to “influences which may prevent their decisions from being completely objective.” 1989 Ohio Atty. Gen. Ops. No. 89-052.

Juvenile probation officers often have regular communication with school officials. These officers can conduct home and school visits to check on probationers, administer drug tests, and advise and testify in juvenile court when necessary. Chief probation officers are also responsible for procuring grant money from the Ohio Department of Youth Services, which can then be distributed to schools in the county to provide school resources officers and fund counseling service. O.R.C. 5139.34.

A person holding both positions would be subject to overlapping influences, making it difficult for them to exercise independent judgment. The Attorney General highlighted several potential conflicts, including:

  • Access to confidential records: as a probation officer, the individual would have access to a wide variety of records from law-enforcement and children’s services. A school board may seek to obtain those records in order to take disciplinary action against a student. School officials have a duty to protect student information under FERPA, but they must comply with records requests from juvenile probation departments. A person serving in both positions would have access to confidential information from each position that normally would not be available to the other.
  • Competition among schools for grant funds: Chief probation officers are responsible for writing and submitting grant applications to acquire funding for school districts. The Attorney General argues that a person serving both positions may be tempted to influence grant awards to the greater benefit of their own school district.
  • Questions surrounding the individual’s investigative duties and authorities: Juvenile probation officers possess the powers of regular police officers, including the authority to make arrests. O.R.C. 2301.27(A). The capacity in which the probation officer is acting (i.e. as a board member or as an officer) could confuse parents, teachers, or other school board members. And if the officer’s conduct is challenged in court, issues of liability and qualified immunity could result in the district and the probation department on opposite sides of potential litigation.

If conflicts of interest can be appropriately mitigated, an individual may be permitted to serve in both positions simultaneously. Here the potential conflicts relate to the primary responsibilities of both positions. While it is possible for the school board member to recuse themselves from potential conflicts, the Attorney General cautioned that “constant abstentions” would “prevent a board member form competently fulfilling their duties in that position.” Absent a juvenile court judge’s discretion to reassign, alter, or shift the responsibilities of the probation officer at issue, the two positions are incompatible, and an individual should not be serving in both roles at the same time.

What does this mean for your district? A juvenile court probation officer should not be permitted to simultaneously serve as a public-school board member in the county in which they work, because the two positions are generally incompatible with one another.

Although it is unlikely that the exact scenario addressed in this opinion will occur in your district, the opinion is nonetheless important for all public-school districts in Ohio. School board members are public officials, and there are some restrictions against public officials holding multiple positions. If you have an individual that is interested in running for school board, but they hold another public office or position, consider following factors:

  1. Is either position considered classified employment?
  2. Whether the empowering statutes of either position limit employment in another public position?
  3. Whether one position would be subordinate to the other in any way?
  4. Whether it is physically possible for one person to discharge the duties of both positions?
  5. Are there any impermissible conflicts of interest between the two positions?
  6. Are there any local charter provisions, resolutions, or ordinance that are controlling?
  7. Whether a federal, state, or local departmental regulation is applicable?

The attorney general has argued that all seven of these factors must be resolved in favor of compatibility in order for an individual to hold two offices simultaneously. The fact that someone already holds another public position doesn’t automatically disqualify them, but it should trigger some alarm bells. Work with the individual to determine what serving in both roles would look like in practice and whether any potential issues could arise that would justify keeping the two positions separate.