AI Generators: Appropriate and Responsible Use of Technology

AI Generators: Appropriate and Responsible Use of Technology

by | Feb 19, 2024 | Board Policy & Representation, General

Educators are just beginning to scratch the surface on the utility of incorporating artificial intelligence (“AI”) in their work lives. AI is here to stay but educators must exercise caution in its use in order to satisfy legal and professional obligations.

 As stated by Scott Pelley on the April 16, 2023, edition of 60 Minutes, “We may look on our time as the moment civilization was transformed as it was by fire, agriculture, and electricity.” While a seemingly hyperbolic statement, those who have explored using AI will attest to the exciting possibilities and potential efficiencies.

From a legal standpoint, among other things, privacy concerns must be kept in mind. The Family Educational Rights and Privacy Act (“FERPA”) mandates the protection of personally identifiable information that is maintained in education records and includes direct identifiers, such as a student’s name or identification number, indirect identifiers, such as a student’s date of birth, or other information which can be used to distinguish or trace an individual’s identity. When working with AI, educators must not upload personally identifiable information.

From a professional responsibility standpoint, the unmonitored use of AI could jeopardize an educator’s license. The Licensure Code of Professional Conduct for Ohio Educators requires the “appropriate and responsible use of technology.” The ninth principle mandates as follows: “Educators shall always use technology, electronic communications, and social media in a responsible and professional manner and appropriately safeguard the unauthorized use or access to electronic devices and data entrusted to them.”

One should keep this ninth principle in mind when utilizing AI. People are learning a difficult lesson that AI “hallucinates.” In other words, it makes things up. High-profile instances have occurred wherein attorneys have blindly copied AI generated text into their briefs, only to find that AI hallucinated the fictitious case law it produced. An efficient shortcut has resulted in damaged reputations and sanctions.
Individuals with a license, such as educators, must monitor the AI output that goes into their work product. Failing to do so could result in legal liability and could potentially amount to conduct unbecoming an educator.

Feel free to contact Ennis Britton if you have any questions about the legalities and professional obligations in utilizing AI. Be sure to catch our presentation AI Generators: The Good, The Bad, The Ugly at the COSSBA Annual Conference in Dallas, Texas on February 24, 2024 and BASA Ohio on March 20, 2024.

*Image was AI-generated using RF123.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Distinguishing Discussions from Meetings and Informal Consensus from Formal Decisions

Distinguishing Discussions from Meetings and Informal Consensus from Formal Decisions

by | Feb 19, 2024 | Board Policy & Representation, General

On January 16, 2024, the Eleventh District Court of Appeals decided the appeal of a frequent litigant and once again weighed in on the Ohio Open Meetings Act. In State of Ohio ex rel. Ames v. Portage Cty. Bd. of Commrs., 2024-Ohio-146, the court affirmed the granting of summary judgment in favor of the Portage County Board of Commissioners (“Board”) and dismissed the case. In the case, Ames alleged that the Board committed numerous violations of R.C. 121.22, the Ohio Open Meetings Act (“OMA”).

Among other things, the court made it clear that not every conversation constitutes a meeting subject to the OMA. In his Complaint, Ames alleged that a majority of the Board, two members, discussed the employment of the county’s director of budget and finance prior to the meeting. The two commissioners admitted to having an impromptu, brief discussion prior to the meeting.

The court highlighted that the OMA defined “meeting” as “any prearranged discussion of the public business of the public body by a majority of its members.” R.C. 121.22(B)(2). In affirming the granting of the motion for summary judgment, the court stressed that the meeting was not “prearranged.” The court held that the OMA does not prohibit impromptu discussions between a majority of board members.

Additionally, the court provided guidance on permitted procedures for executive session. Ames alleged that the Board violated the OMA by deciding to discharge the director of budget and finance during executive session. To support his allegation, Ames relied upon a commissioner’s statement, immediately after executive session, that the Board was dismissing the director. Ames concluded that the statement showed that the Board reached an impermissible collective decision during executive session.

Rejecting this contention and affirming the granting of the motion for summary judgment, the court of appeals noted that the OMA does not preclude the Board from reaching an informal consensus during executive session. So long as formal action is taken in an open meeting of the public body, no violation of the OMA occurs.

The case underscores two points. First, caution must be exercised to comply with the OMA. Activist litigants may put your processes to the test. Secondly, if caution is exercised and the procedures are followed, public entities can successfully defend against such claims.

Ohio Court Rejects Parent and Student Challenge to Bathroom Policy Accommodating Transgender Students

Ohio Court Rejects Parent and Student Challenge to Bathroom Policy Accommodating Transgender Students

by | Sep 13, 2023 | Board Policy & Representation, General, Legislation

A school district in Ohio adopted a policy that allowed transgender students to use the bathroom that matches their gender identity. A group of middle school parents and students opposed to the policy filed a federal lawsuit in 2022. Their primary argument was that the policy infringed on their free exercise of religion, but other arguments were also put forth, such as an alleged Fourteenth Amendment violation for interfering with the parents’ right to raise their children as they see fit.

The U.S. District Court for the Southern District of Ohio dismissed the lawsuit on August 7, 2023. The court found that the religious infringement claims failed because the school district’s policy was neutral and did not impose a substantial burden on their religious practice. The court found that there was no allegation that the school district adopted this policy to suppress religious beliefs. The court also noted that the policy was adopted to prevent what the school district believed to be discrimination on the basis of sex, not to suppress religious beliefs.

As for the Fourteenth Amendment claim, the Court found that parents have a right to control where their children go to school but they do not have a right to dictate how a public school educates their children or how it operates its facilities. In other words, prescribing the use of student bathrooms is a school decision to make, not a parent decision to make.

What does this mean for your district?

This decision means that the school district’s policy of allowing transgender students to use the bathroom that matches their gender identity can stay in place. The plaintiffs have the right to file an appeal. Ennis Britton will continue to monitor this case as it progresses further on appeal.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Circuit Courts of Appeals Split on Transgender Bathroom Issue

by | Feb 14, 2023 | Board Policy & Representation, General

On December 30, 2022, a federal circuit court of appeals broke from the decisions from other circuits and held that separating the use of male and female bathrooms on the basis of biological sex does not violate the United States Constitution or Title IX.  In Adams v. School Board of St. Johns County, Florida, the United States Court of Appeals for the Eleventh Circuit (covering Alabama, Florida, and Georgia) upheld what the court described as “the unremarkable — and nearly universal — practice of separating school bathrooms based on biological sex.”  The ruling upheld a school district’s decision to deny a request from a transgender male to access the boys’ restroom.

 The Adams decision directly conflicts with guidance from the Office of Civil Rights of the United States Department of Education, as well as decisions from the Fourth Circuit (covering Maryland, North Carolina, South Carolina, Virginia and West Virginia) and the Seventh Circuit (covering Illinois, Indiana, and Wisconsin).  The decision also conflicts with a decision from the United States District Court for the Southern District of Ohio, which has jurisdiction over portions of Ohio.  The guidance and those decisions have concluded that transgender students may access the bathrooms of their choice.

Based on the split among the circuits, the Supreme Court of the United States may decide to consider the case and settle the issue definitively.  In the interim, clients are encouraged to contact the attorneys at Ennis Britton for consultation.

A copy of the decision can be found here. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Court Confirms Narrative Portion of Attorney Invoices May Be Redacted

Court Confirms Narrative Portion of Attorney Invoices May Be Redacted

by | Feb 14, 2023 | Board Policy & Representation, General

State ex rel. Ames v. Baker, Dublikar, Beck, Wiley & Mathews, 2023-Ohio-263

This particular case and its parties have an extensive legal and procedural history that we will not bore you with here. The pertinent fact for purposes of this article is the Ohio Supreme Court’s holding that “an invoice for a legal service provided to a public-office client is a public record, with the caveat that the narrative portion of the invoice describing the service is protected from disclosure by the attorney-client privilege.” Other information on the billing statements—e.g., the general title of the matter being handled, the dates the services were performed, and the hours, rate, and money charged for the services—is considered nonexempt and must be disclosed.

The Eleventh District Court of Appeals of Ohio (Ashtabula, Geauga, Lake, Portage, and Trumbull) issued this opinion on remand from the Ohio Supreme Court to consider that very holding when analyzing whether invoices for legal services submitted to Rootstown Township, Ohio which were disclosed pursuant to a public records request were properly redacted. The Township redacted the narrative portions of the invoices.

The rationale behind the rule is that billing records describing the services performed for the attorney’s clients, and any other attorney-client correspondence may reveal the client’s motivation for seeking legal representation, the nature of the services provided or contemplated, strategies to be employed in the event of litigation, and other confidential information exchanged during the course of the representation. “A demand for such documents constitutes an unjustified intrusion into the attorney-client relationship.”

The appeals court conducted a confidential review of the invoices and determined the narrative portions of the invoices were properly redacted before being disclosed. The Court then went on to resolve the legal issues concerning the motion to dismiss in the case.

What does this mean for your District?

As the court noted in a footnote to the decision, the relator in this case, Brian Ames, was attempting to establish a new rule of law—the “[a]ttorney-client privilege does not apply to invoices for legal services provided to a public body.”  The relator was not successful here and the contrary holding of the Ohio Supreme Court in this regard remains good law today.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Court of Appeals Reverses Trial Court that Upheld a Nonrenewal

Court of Appeals Reverses Trial Court that Upheld a Nonrenewal

by | Feb 14, 2023 | Board Policy & Representation, General

Jones v. Kent City School Dist. Bd. of Edn., 2023-Ohio-265

 

The Eleventh District Court of Appeals of Ohio (Ashtabula, Geauga, Lake, Portage, and Trumbull) reversed a trial court’s decision affirming a board of education’s decision to nonrenew a teacher. During the 2019-20 school year, the teacher had several instances of misconduct that resulted in a three-day suspension. Later that same school year, the teacher failed to report to work and did not follow the proper protocols for entering an absence, resulting in students being unsupervised. The teacher was told he would be placed on a full evaluation cycle and was likely to be non-renewed.

An in-person observation was conducted in January, and a second took place while observing a distance learning class on May 1. On May 15, an observation of a Google Meets session was conducted where the students “shar[ed] progress on their Google Sheets assignment.” The teacher was not present during this session, as he was on a medical leave, and the evaluation consisted of observing the students working on a project the teacher designed. The teacher was invited to but did not attend a post-conference meeting on May 28th.

The Board then took action to nonrenew the teacher’s contract, as recommended by the Superintendent. The teacher was advised of this decision, asked for the reasons for nonrenewal and was informed it related to those days he left early, failure to fulfill duties on an early release day and teacher work day, and his absence which left students unattended.

In April 2020, a Memorandum of Understanding was entered into by the Board and the teachers’ union, which specified the process to complete teacher evaluations for 2019-20 in accordance with House Bill 197. It provided that for those teachers subject to an evaluation under the CBA, if all required observations were completed by March 16, 2020, the evaluator shall complete the evaluation report by May 22, 2020, and if the required observations were not completed by that date, they would be conducted virtually. It provided that, based upon completion of such procedures, “all teachers subject to evaluation for the 2019-20 school year shall be deemed to have evaluations complied with for purposes of R.C. 3319.11.”

The court of appeals noted the standard on appeals in cases concerning nonrenewals. Under the applicable statute, the court does not have the jurisdiction to consider the merits of the decision of the Board concerning the reasons for nonrenewal. The Court may overturn such a decision only if there are procedural defects, i.e., failure to provide the required evaluations.

The court of appeals also addressed the jurisdictional argument of the Board, which was that only SERB had jurisdiction over the dispute because the dispute arose from an MOU that is part of the collective bargaining agreement. The court noted that while there can be cases in which even statutory rights may be subject to interpretation through an applicable CBA, which in turn could divest a court of jurisdiction, the statute applicable here may not be superseded by the CBA.  Therefore, since determination of the evaluation procedures is statutory, and the application of the law is not dependent upon a collective bargaining agreement, the lower court had jurisdiction to hear this matter.

Having resolved the jurisdictional issues, the court turned to the merits of the teacher’s challenge, which in essence was that the third observation did not comply with the statutory requirements because the teacher was not present and the observation consisted of watching students work virtually on a project designed by the teacher. On this, the court agreed, holding that the statutes applicable to nonrenewal must be liberally construed in favor of teachers and that strict compliance, not substantial compliance is required with regard to nonrenewal procedures.  The teacher was not present at all during the third evaluation and even though it was due to his own illness, there was no pre or post-observation conference. These were determined to be fatal procedural defects. The Ohio Supreme Court has previously held that a teacher’s medical leave of absence does not excuse a school board from complying with required nonrenewal procedures.

What does this mean for your district?

Procedural defects are essentially the only pathway a teacher has to overturn the decision of a board to nonrenew. Complying with those procedures is crucial. It would be wise to have a gameplan in place for any teacher being considered for nonrenewal.  A checklist is also a good tool to make sure you are meeting procedural requirements in the lead-up to the Board’s action to nonrenew the contract.  Finally, consider addressing how absences will be handled in the context of evaluations and nonrenewal in your collective bargaining agreements. Attorneys at Ennis Britton can assist you with crafting language to meet your needs.