by Pamela Leist | Jan 28, 2014 | General
The Ohio Department of Education recently announced that it will temporarily lift the August 1st deadline for submission of online calamity day make-up plans to assist school districts that have experienced a high number of weather-related closings this school year.
Online make-up plans, commonly referred to as “blizzard bag” plans, allow schools to make up as many as three days during a school year in which a school or district exceeds the five permissible calamity day closings granted under law. Ohio law, specifically ORC §3313.88, requires a board to submit an online make-up plan to ODE by August 1st each school year. Districts must also include a copy of the board resolution and written consent from the teacher’s union at the time of submission. For this year only, ODE has temporarily waived the deadline requirement.
A district online make-up plan must include several key provisions. Pursuant to ORC 3313.88, each teacher must develop a sufficient number of lessons for each course taught by that teacher in the school year to equal or exceed the amount of instruction a student would otherwise receive over three regular days in the teacher’s class. Under normal circumstances, Ohio law requires that teachers complete the lessons by November 1st.
In addition, teachers must specify the order in which the lessons will be posted on the district’s website. Teachers are also responsible for updating or replacing lessons as necessary throughout the school year based on the instructional needs and progress of the students in each class. Districts have the option to grant teachers one professional development day after the district certifies that the teacher has completed and submitted lessons equal to the specified amount of instructional time included in the plan.
The district employees who are responsible for posting material on a district or school website must make the lessons available online to students as soon as is practicable after a school closure which will be made up pursuant to the plan. A lesson must be posted for each course that was scheduled to meet on the day that school is closed.
Students enrolled in a particular course or class for which a lesson is posted online will have two weeks from the date of posting to complete and turn in the lesson. A student who does not complete the lesson within this timeframe will receive an incomplete or failing grade unless the student has a sufficient reason for late submission as determined by the classroom teacher. The student’s classroom teacher will be responsible for grading all online lessons.
In order to accommodate students who may not have access to a computer, the law requires that a district choose between one of two options. Under the first option, districts must permit students who do not have access to a computer to complete the posted lessons at school when the school reopens. The district shall provide access to district computers before, during and/or after the school day for completion of assignments provided the equipment is available and accessible during those times, or alternatively may provide a paper assignment that is substantially equivalent. Students who utilize this option will be required to complete and submit all lessons within two weeks after the school reopens.
As a second option, districts may elect to distribute “blizzard bags”, which are paper copies of each lesson posted online. Teachers are required to prepare paper copies of all online lessons, and also to update the paper copies whenever the teacher updates an online lesson. A district must specify how blizzard bags will be distributed in the district’s plan.
Districts that have chosen to take advantage of ODE’s offer to approve and submit plans for this school year should keep several things in mind. First, ODE will not permit districts to make up days that have already been taken. Rather, districts may only utilize the online-makeup option for calamity days that occur after the district submits its plan. Second, a district should consult with legal counsel to discuss how use of blizzard bags may impact students who receive special services under an IEP pursuant to state and federal law.
Finally, districts that wish to approve online make-up plans for next school year will need to adjust the plans to accommodate Ohio’s new minimum hour requirement. When the Ohio legislature passed HB 59, it elected to eliminate the five calamity days currently available to schools and also switch from a minimum day to minimum hour requirement. Beginning in 2014-2015, districts may still close buildings during emergency conditions, but must ensure that schools provide at least the minimum hours of instruction during the school year mandated by law. Online class make-up of up to three days will still be available to districts that fall below the minimum hour requirement, provided that districts submit plans by August 1st each year.
For additional details about online make-up plans and submission, you are encouraged to contact your district’s legal counsel or the Ohio Department of Education.
UPDATE: The Ohio Department of Education has agreed to permit schools to apply online class plans retroactively for calamity days that have already been taken and which exceed the five days permitted by law. However, districts may not post lessons or distribute blizzard bags to make up any missed days until they receive a written notice of approval from ODE.
Legal Citations: ORC §3313.88 (renumbered effective July 1, 2014 as ORC §3313.482), ORC §3313.48, ORC §3313.481, and ORC §3317.01.
by Pamela Leist | Dec 12, 2013 | General, Labor and Employment
On November 19, 2013, the Ohio Supreme Court concluded that, pursuant to R.C. 3319.16, acts of insubordination constitute “good and just cause” to terminate a teacher’s contract as long as the underlying rules or directives violated were themselves reasonable and valid. John Freshwater was an eighth grade science teacher at the Mount Vernon City School District. As early as 1994, Freshwater began to interject religious principles into his classroom instruction. Specifically, he supplemented school curriculum with religious handouts, showed videos on creationism and intelligent design, displayed religious materials in the classroom, made statements about the Bible, and awarded extra credit to students who attended religiously-based seminars that were critical of evolution. Although district administration occasionally directed Freshwater not to incorporate religious materials or teachings into his instruction, he generally received positive evaluations during the twenty-one years he taught in the district. His students also usually received the highest scores on state achievement tests.
In 2003, the Board of Education rejected Freshwater’s proposal to amend the district’s science curriculum by incorporating material that criticized the theory of evolution. However, Freshwater ignored the Board’s decision and continued to teach certain topics in accordance with his religious beliefs. A few years later, the district’s superintendent issued a written directive to Freshwater that he must delete all supplemental materials which were not scientifically accepted. Again, Freshwater chose not to comply with the directive.
Matters came to a head in the fall of 2007, when parents complained Freshwater used an electrical instrument to burn what appeared to be the sign of the cross into their son’s arm. Freshwater confirmed he used the instrument to mark the student, but denied the mark was intended to be a cross. The district responded by sending Freshwater a letter stating he could not use classroom instruments to shock students.
The following spring, Freshwater met with the school principal again to discuss issues related to his religious instruction. At the conclusion of the meeting, he received written orders in clear and unequivocal terms that he could not display religious materials in the classroom. Freshwater was specifically directed to remove the Bible displayed on his desk and a poster of the Ten Commandments that hung on his door. The written notice also stated “[u]nless a particular discussion about religion or religious decorations or symbols is part of a Board-approved curriculum, you may not engage in religious discussions with students while at school or keep religious materials displayed in the classroom.”
Freshwater refused to comply with the order despite several follow-up requests. Meanwhile, the parents of the student who was shocked in class sent a demand letter and filed suit against the district. In response, the district hired an outside investigator to observe Freshwater’s classes. The investigator reported that Freshwater taught creationism and intelligent design in class, discussed various other religious subjects, distributed religious materials, and made statements such as “science is wrong because the Bible states that homosexuality is a sin.” The investigator also discovered that Freshwater gave extra credit to students who viewed a movie on intelligent design.
Eventually by the end of the 2007-2008 school year, the Board decided to terminate Freshwater’s teaching contract pursuant to ORC 3319.16. At the public hearing, a referee addressed four specific grounds for termination set forth in the board’s resolution: (1) the burn incident, (2) Freshwater’s failure to adhere to curriculum, (3) Freshwater’s role in the Fellowship of Christian Athletes organization, and (4) his disobedience of orders. The referee concluded that claims (2) and (4) constituted just cause for termination.
Freshwater appealed the decision to court. Both the Court of Common Pleas and the Court of Appeals for Knox County upheld termination, and the Ohio Supreme Court granted review of the matter. The Court’s decision in the case was limited to whether the district met the just cause standard mandated by R.C. 3319.16. The Court provided only a cursory review of constitutional issues regarding Freedom of Religion and the Establishment Clause. Therefore, the Court did not provide any substantial guidance to school boards or teachers as to the constitutionality of teaching or displaying religious materials in a public school setting.
The Supreme Court ultimately held that in this case, Freshwater’s repeated acts of insubordination alone constituted “good and just cause.” The Court focused on Freshwater’s persistent disobedience and refusal to comply with administrative directives, and specifically on his refusal to remove religiously-oriented materials from class. According to the Court, “good and just cause” under ORC 3319.16 includes insubordination, which is defined as a willful disobedience of, or refusal to obey, a reasonable and valid rule, regulation, or order issued by a school board or by an administrative superior. The letter from Freshwater’s principal made clear that he could not “engage in any activity that promotes or denigrates a particular religion or religious beliefs while on board property, during any school activity” or while teaching, as mandated by Board policy and the law. The Court concluded that the district’s orders were both reasonable and valid, and further that Freshwater willfully refused to comply with the directives. The Court summarized their findings by stating that “Freshwater [was] fully entitled to an ardent faith in Jesus Christ and to interpret Biblical passages according to his faith, but he was not entitled to ignore direct, lawful edicts of his superior while in the workplace.”
The Supreme Court’s decision confirmed that insubordination alone may constitute just cause as long as the rule or directive is reasonable, and the employee willfully or intentionally refused to comply. However, it is important to note that the standard for just cause itself has not been lessened by the Court’s decision, and districts should be cautious to interpret the case otherwise.
Further, even though the Ohio Supreme Court did not address whether Freshwater’s actions violated the Establishment Clause of the U.S. Constitution to any great degree, school districts should be ever mindful of possible Establishment Clause infringements. The U.S. Supreme Court has interpreted the Establishment Clause to strictly forbid any law or act undertaken by a public entity that furthers religion, or attempts to disapprove of a particular religion or religion in general. The U.S. Supreme Court and lower courts repeatedly emphasize that a public entity must remain neutral on the subject of religion.
In this case, the extent to which Freshwater incorporated religious beliefs and displays into his classroom and instruction very likely constituted an Establishment Clause violation. Because of the many legal implications of such violations, we highly recommend that you contact legal counsel for advice on any issue that involves religion in schools.
Freshwater v. Mt. Vernon City School Dist. Bd. Of Edn., 2013-Ohio-5000 (November 19,2013).
by Pamela Leist | Oct 2, 2013 | School Finance
On June 30th of this year, Ohio’s governor signed House Bill 59. Many of the non-financial provisions of HB 59 became effective on September 29th, which effectively signaled the beginning of major changes to how public schools operate in the state. A few of the more significant legislative mandates include expanded participation for extracurricular activities, changes to terms and eligibility for joint vocational school district board of education members, new reporting requirements for schools, and modification to the definition of minimum school year.
Chief amongst the changes that took effect this week include two new statues that expand student participation in extracurricular activities for home school and nonpublic school students. Pursuant to the new laws, a district of residence must now allow home school students to participate in extracurricular activities as long as the student 1) meets age and grade requirements as determined by the superintendent, 2) is able to comply with all nonacademic and financial requirements, and 3) can establish academic eligibility which is specifically delineated in the statute. A related law provides similar participation rights to nonpublic school students as well, with the addition that a student’s nonpublic school cannot offer the same activity. School districts will have the discretion to allow home school or nonpublic school students who do not reside in a district’s boundaries to participate as well, although that participation is subject to several additional restrictions. Both statutes prohibit school districts or any oversight organizations such as OHSAA from placing more stringent participation requirements on home school and nonpublic school students than are specified by law.
Significant changes were also made to JVSD board membership terms and eligibility. After the effective date of the bill, new members will serve a term of three years for up to two consecutive terms. Terms are considered consecutive unless separated by three or more years. Current members of a JVSD board may serve until the expiration of their current terms, after which future members will be appointed pursuant to the new rules. In addition, not less than three-fifths (3/5) of the members of the board shall reside in or be employed within the territory of the JVSD. The manner of appointment and total number of members appointed to a JVSD Board will be based on the terms of the most recent plan for the JVSD on file with ODE.
Board membership selection shall be based on diversity of employers from the geographical region of the state in which the territory of the JVSD is located. All members of the JVSD board must have experience as one of the following: a chief financial officer, a chief executive officer, a human resource manager, or another business, industry, or career counseling professional qualified to discuss the labor needs in respect to the regional economy. The appointing board must appoint individuals who represent employers in the region served by the JVSD who are qualified to consider the state’s workforce needs with an understanding of the skills, training, and education needed for current and future employment opportunities in the state. The appointing board may give preference to individuals who have served as members on a joint vocational school business advisory committee who also meet the qualifications listed above.
Drafters of the Budget Bill placed renewed focus on accountability as well. Financial reports are now required at both the district and building level (not either/or), and districts must now report information on total revenue and expenditures, per pupil revenue, and expenditures for both classroom and nonclassroom purposes both in aggregate and by targeted subgroups.
Targeted subgroups delineated by HB 59 include the following: students with disabilities, economically disadvantaged students, limited English proficient students, and gifted students. If a district does not meet ODE’s requirement of satisfactory achievement and progress for a subgroup, the district must submit an improvement plan to ODE, and ODE is permitted to require that the plan include partnering with another entity for services to that subgroup. The State Board of Education must establish measures of satisfactory achievement and progress no later than December 31, 2014. ODE must use the measures established by the State Board to determine if a district or school has made satisfactory achievement and progress for certain subgroups by September 1, 2015, and annually thereafter. ODE is also required to publish a list of schools, districts, and providers that have demonstrated an ability to serve each subgroup of students.
Finally, effective beginning in the 2014-2015 school year, calculation of the minimum school year will change from “days” to “hours.” At a minimum, schools must provide 455 hours of instruction for half day kindergarten, 910 hours of instruction for all day kindergarten, as well as for grades first through sixth, and 1,001 hours of instruction for seventh through twelfth grades. “Hours of operation” include time spent during scheduled classes, supervised activities, and approved education options, but exclude lunch and breakfast periods as well as extracurriculars. Hours may also include one or more of the following: 1) equivalent of two days per year for parent-teacher conferences; 2) equivalent of two days per year for professional development of teachers; and 3) morning and afternoon recess for grades K-6 not to exceed fifteen minutes in duration per period. In conjunction with changes to minimum school year, schools will no longer receive an allotted number of calamity days, and can no longer include late arrival or early release time towards the minimum hour count.
With regard to school calendars, a board must hold a public hearing no later than thirty (30) days prior to adoption of a calendar to address at a minimum the following: the total number of hours in the school year, the length of the school day, and the beginning and end dates of instruction. In addition, the board must formally adopt a resolution before it can reduce the number of hours of operation in any school year from that which was offered the previous school year. Further, the board cannot reduce the hours below statutory minimums. The board must also consider the compatibility of any change to hours with the needs of any joint vocational school district that serves the district’s high school students, as well as any community school to which the board is required to provide transportation. Finally, the board must consult with any chartered nonpublic school for which the board provides transportation as well.
To review the budget bill in its entirety, please click here. We encourage you to contact your district’s legal team if you have questions about how any provisions of the budget bill will impact you.
by Pamela Leist | Sep 29, 2013 | Student Education and Discipline
The Ohio Department of Education (ODE) recently published additional guidance to clarify certain provisions of the Third Grade Reading Guarantee. ODE’s guidance addresses minimum achievement levels for promotion to fourth grade, summer and midyear promotion of students to the fourth grade, and a description of the Ohio Achievement Assessment (OAA) alternatives.
Promotion Requirements
According to ODE, for the 2013-2014 school year, a student must obtain at minimum score of 392 on the 3rd grade OAA to be promoted to the 4th grade, unless the student qualifies for one of the following exceptions:
- A limited English proficient student who has been enrolled in U.S. schools for less than three full school years and has received less than three years of instruction in an English as a second language program;
- A special education student whose IEP specifically exempts him/her from retention under the Third Grade Reading Guarantee;
- Any student who has received intensive remediation for two years and was previously retained in kindergarten through the third grade; or
- A student who demonstrate reading competency on a Reading OAA Alternative approved by ODE.
OAA Alternative
OAA alternative assessments will be aligned to the end of the year 3rd grade reading standards. The required score on these alternate assessments will be comparable to, or more rigorous than, the OAA proficient score. ODE will release a list of available OAA alternative assessments in February of 2014. All districts must administer alternative assessments upon parental request for any student who scores below the required cut score on the Spring OAA. In addition, districts may continue to administer OAA alternatives through the summer.
Summer Promotion
If a student fails to meet the required cut score on the Fall OAA, Spring OAA, and OAA alternative, the student should continue to receive intense reading intervention during the summer. ODE will provide a Summer OAA for districts to administer to students who have failed to meet the required cut score for promotion to the fourth grade. If a student can acheive the minimum required score of 392, the student shall be promoted to the fourth grade but should continue to receive reading intervention.
Midyear Promotion
A district is required to develop procedures for midyear promotion to fourth grade for any student who is retained in third grade but who later demonstrates required grade level reading proficiency. In addition, the law mandates a district provide instruction commensurate with student achievement levels in a specific academic ability field if a student who has been retained demonstrates proficiency in that field. However, ODE suggests that if a district believes a student may be eligible for midyear promotion, the district should provide instruction at the fourth grade level in all subject areas. ODE recommends that districts include in their procedures a process of assessment to determine a student’s proficiency in academic content to meet the requirements listed above. The district should also include specific procedures for provision of academic supports when a student is promoted to fourth grade midyear.
Reference:
A full version of ODE’s guidance on “Student Promotion and the Third Grade Reading Guarantee” can be accessed by clicking here.
by Pamela Leist | Apr 8, 2013 | Legislation
The Sixth Circuit Court of Appeals in Cincinnati recently ruled that administrators at a Kentucky school district conducted an unlawful search of a student’s cell phone. The student, who was enrolled as an out-of-district student in the Owensboro Public School District, was using his cell phone during class in violation of school rules. His teacher saw the phone, confiscated it, and turned the phone over to the school’s assistant principal.
While the student was enrolled in the district, there had been numerous incidents of bad behavior. In addition, the student had communicated to school officials on several occasions that he was a frequent drug user and that he was contemplating suicide. Concerned about the student’s troubled past, the assistant principal decided to conduct a limited search of the student’s phone in order to determine whether the student was breaking any other rules or whether he might be contemplating suicide. The assistant principal found no evidence of wrongdoing or any indication that the student was a threat to himself or others. Nevertheless as a result of the incident, the district revoked the student’s out-of-district enrollment status.
The student sued the school district for violation of his Fourth Amendment rights, arguing that the assistant principal had no reasonable suspicion to justify a search of the student’s cell phone text messages. The district responded that reasonable suspicion did exist based on the student’s documented drug abuse, his threats of suicide, and his numerous prior disciplinary infractions. It argued that the search was limited and “aimed at uncovering any evidence of illegal activity” or any indication that the student might hurt himself.
The Court ruled in favor of the student and stated that the use of a cell phone on school grounds “does not automatically trigger an essentially unlimited right enabling a school official to search any content stored on the phone that is not related either substantively or temporally to the infraction.” The Court went on to state that general knowledge of illegal drug use or depressive tendencies does not enable a school official to search a student’s phone when a search would otherwise not be warranted. In this case, there was no indication that the student was engaging in any illegal activity or that he was contemplating injury to himself or anyone else at the school. Therefore, the search of the phone was improper and illegal.
The Court reiterated that the standard for search of a cell phone is the same as the standard for any search by school officials. The main question that must be answered during any search by school officials at school is whether, under the circumstances, the search is reasonable. There are two parts to the reasonableness test: (1) the search must be justified at its inception; and (2) the manner in which the search is conducted must be reasonably related in scope to the circumstances which justified the search.
The case discussed above failed on the first prong. In order to search a student’s cell phone, district administrators should have a reasonable suspicion that the search will turn up evidence the student is breaking other school rules or laws, or that the student plans to harm himself or others. General knowledge that the student might be engaged in such activities is not enough. Without reasonable suspicion, district administrators cannot read any of the student’s texts or otherwise looking into the content of the student’s phone.
Administrators should also remember that when a search is justified at its inception, it must also be limited in scope. Therefore, if an administrator reasonably believes he or she will find evidence of wrongdoing, the administrator may only look at the data on the phone that will contain that information. For example, if an administrator sees a student texting in class and has reasonable suspicion to believe that the student is engaging in a drug deal, the administrator can look through the recent text messages. However, absent any additional information, the administrator most likely is not justified in searching the student’s photo album. In any case, if you have questions about whether a search is reasonable, you should contact your district’s legal counsel to discuss the situation.
Case Citation: G.C. v. Owensboro Public Schools, No. 11-6476 (6th Cir. March 28, 2013)
