by Jeremy Neff | Dec 19, 2018 | Board Policy & Representation
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!
by Jeremy Neff | Dec 17, 2018 | Board Policy & Representation, Special Education
School districts frequently ask how to balance the rights of a person who brings a service animal onto school grounds against the rights of others. For example, if one child in a classroom is allergic to pet dander, but another child demands to bring her service dog to school, whose rights prevail? These concerns are not limited only to the rights of students but also can easily arise with an employee’s request for accommodations under the Americans with Disabilities Act. In other scenarios, members of the public, including parents or spectators at a sporting event, could also be covered.
A court decision this month out of New York gives one example of conflicting rights of different members of the school community. The parents of a student with asthma and severe allergies filed a wide-ranging lawsuit in the U.S. District Court for the Southern District of New York, arguing that a school district violated their child’s rights by not having a policy prohibiting service animals and by allowing a service animal on the school grounds several times in violation of their child’s 504 plan.
In this case, the parent of a different student required the use of a service animal and brought the animal to multiple school events in which the student with the allergy participated. The student with the allergy had a 504 plan that required the school to, among other things, ensure no animals come within 30 feet of the student, keep the student out of contact with service animals, implement a cleaning protocol after animals are within the school building, and communicate in advance with her parents when a service animal was anticipated to be within the school building.
Additionally, the parents had requested other accommodations that are not discussed in the court decision and had also requested a blanket policy banning service animals from school. The school district rejected the latter request, explaining that it had an obligation under federal disability law to allow service animals within the building.
The court dismissed most of the claims but will allow the disability discrimination claim to proceed. This relates to alleged violations of the 504 plan. The court recognized that the school is required under federal law to allow service animals but noted that this does not excuse a school district from fulfilling its obligations under a 504 plan to protect a student against allergies. This case shows how distinct legal rights can come into direct conflict.
While the public court filings do not provide sufficient detail to determine what, if anything, the school might reasonably have done differently (or even if it did, in fact, violate the student’s rights), one lesson is that in allowing a student, staff member, or school visitor to exercise her right to use a service animal, a school district must consider whether accommodations are necessary to ensure that the rights of students with allergies are protected. This is a difficult balance that will depend very much on the individual facts of each case.
– Doe v. United States, 118 LRP 49416 (S.D.N.Y. 2018).
by Ryan LaFlamme | Oct 25, 2018 | Board Policy & Representation, School Management
“Crowdfunding” is the practice of funding a project by raising relatively small amounts of money from a large number of people, usually via the internet. In schools, crowdfunding helps teachers and schools to obtain funding and supplies.
Online Crowdfunding and How It Works
Crowdfunding websites vary in how they raise funds. Some well-known crowdfunding websites include GoFundMe, Adopt-A-Classroom, Kickstarter, Incited, and Donors Choose. Some of these websites will raise money and transfer it directly to the teacher or the school district. Other websites will raise money toward the desired products, which will be shipped to the school when the items are funded. This way, the teacher or school never receives any cash at all. Websites further differ in the amount of support and advice they will give teachers or school districts in securing these donations.
Ohio Auditor of State
In July 2018, the Ohio state auditor released a report titled Crowdfunding Classrooms, which was the outcome of a widespread survey of Ohio’s schools. One-fifth of Ohio districts responded to the survey. Among the districts that reported, the auditor found the following statistics related to crowdfunding policies and use of funds:
- 55.4 percent prohibit crowdfunding
- 59.0 percent have no crowdfunding policy
- 26.2 percent don’t know if teachers are using crowdfunding
- 56.2 percent of those who permit crowdfunding don’t know the amount raised in the last 12 months
Auditor’s Recommended Best Practices
The auditor suggests in its report that schools work with legal counsel and adopt a policy that incorporates as many of the following safeguards as possible:
- Require that all campaigns be reviewed and approved by administration
- Direct administrator to ensure proposal does not violate any federal/state law
- Designate permissible crowdfunding websites
- Require donations to be used for the stated purpose
- Prohibit donations without board approval
- Establish all donations as property of the school
- Enter donations promptly into district inventory
- Deposit into district bank accounts
Furthermore, the auditor recommended that every policy include the following financial controls:
- Require that all crowdfunding campaigns be listed under the school’s name
- Specify that donations are the property of the school district and paid directly to the district and not to the teacher
- Require documentation of donations in financial ledgers for monetary donations or inventory for items
General Policy Guidelines
Districts should have a policy that dictates who may raise funds and which crowdfunding platforms may be used. A policy to ban crowdfunding minimizes risk to school districts, but it would also force districts to forego many of the potential benefits. Such a ban on crowdfunding may also be difficult for school districts to enforce. A ban on crowdfunding would require policing all of the crowdfunding platforms to ensure that the policy is being followed.
A policy that allows crowdfunding creates risk, but this risk can be minimized with the right safeguards in place so that schools can reap the benefits of crowdfunding. This policy should ensure that the school is not violating any state or federal laws, the money is properly accounted for, and the donations and materials are appropriate for the district.
A district’s policy should include a prohibition against any funds going directly to teachers. All funds raised should be in the name of the board of education and should be treated like any other funds of the board – accounted for and deposited in accordance with policy and state law. Donated funds should be used only for the purpose for which they were donated. Additionally, no student or teacher should receive a benefit from crowdfunding that is proportional to the level of participation by the teacher or student in raising the funds.
A centralized approval process for crowdfunding campaigns is recommended. Requiring an administrative review and approval of all proposed crowdfunding campaigns will provide safeguards against accidental violations of student privacy laws and will ensure the content and goals of the crowdfunding proposal are appropriate. For example, crowdfunding campaign materials that include a photo of a classroom with the students could violate privacy laws. Descriptions or narratives that reveal personally identifiable information also violate confidentiality. Additionally, administrators will want to ensure that the crowdfunding proposal does not imply that the district is falling short of its state and federal obligations, which may prompt inquiry by a regulating body.
Considerations
Some existing sources of law are implicated by crowdfunding performed by public school districts in Ohio. The Ohio Revised Code mandates that all money be deposited with the treasurer within a specified time (R.C. 9.38). Specifically for public schools, R.C. 3313.51 establishes that the treasurer of the board of education is the treasurer of all school funds. This is important because the treasurer could be held liable through a finding for recovery for any unaccounted funds. For this reason, the treasurer’s office should be part of the crowdfunding process.
The Ohio attorney general has issued an opinion (OAG Opinion 85-085) that donations must be used for the purposes stated in a crowdfunding campaign. Ohio ethics law (R.C. 2921.43) includes some important considerations. Employees are not permitted to accept additional compensation for performing their duties. (OEC 2008-01). Teachers should not divert any amount of the funds raised for personal gain, as an administrative fee or for any other reason. Remember that any funds and items donated are school district property.
by Ryan LaFlamme | Oct 17, 2018 | Board Policy & Representation, School Management
On September 13, the Federal Bureau of Investigation (FBI) issued a public service alert to raise awareness of cybersecurity concerns for K–12 students. While education technologies have helped to engage community involvement and improve the educational environment, security risks lurk beneath the surface. Large amounts of student data are collected and stored online, and this data is at risk of compromise or exploitation if not stored securely enough to escape hackers.
Education technologies include software programs and online apps used in classrooms, mobile apps to enhance the learning experience, administrative platforms that assist educators and administrators with class and school management, and others. At-risk data collected by ed-tech can include students’ personally identifiable information, behavioral and disciplinary information, academic records, biometric data, geolocation, and more. The FBI warned that malicious use of this data can lead to social engineering – using deception to manipulate people into disclosing confidential or personal information – identity theft, bullying, tracking, and other means of targeting children.
School Security Hacks in 2017
The FBI’s alert included reports of two serious security breaches in 2017. In the first, multiple school districts’ servers across the country were hacked, giving the hackers access to student contact information, education plans, medical records, and counselor reports. This information was then used to contact, extort, and threaten students with physical violence and release of their information. Parents received text messages, and students’ private information was publicized and posted on social media, giving child predators access to new targets.
Additionally, two large ed-tech companies were breached in 2017, resulting in public access to the data of millions of students. One of the companies had stored their data on public-facing servers, and breached data from the other company was posted for sale on the dark web.
FBI Recommendations
The FBI recommends that parents be aware of student privacy requirements, discuss ed-tech with their local school districts, conduct research for support and additional resources, research security breaches to inform of vulnerabilities, consider monitoring credit for identity theft, and conduct regular internet searches on their children.
Issues for Schools
Always at the bottom line, additional security costs additional money. Schools that face budget decisions and scarce resources for internet security may prioritize value-added expenditures over those with no visible benefit, such as cyber security.
School District Legal Requirements
School districts should know and consider legal requirements when adopting ed-tech resources and considering the importance of cyber security.
The Family Education Rights and Privacy Act (20 U.S.C. § 1232(g); 34 CFR Part 99) as well as state law (R.C. § 3319.321) and board policy place stringent restrictions on how “student records” must be maintained and protected. Board records retention schedules require districts to maintain certain types of records for years, if not permanently. Staff should be trained to understand what constitutes an education record as well as state and federal laws and board policy that limit release and maintenance of student records.
The Children’s Online Privacy Protection Act (15 U.S.C. § 6501–6506; 16 CFR Part 312) imposes requirements on operators of websites, internet services, and apps directed to children under age 13 and on operators that have actual knowledge that they are collecting personal information online from a child under age 13. The purpose is to give parents control over their children’s information that is collected online by seeking parental consent. Schools that contract with third-party websites or apps solely for the benefit of students can consent to data collection and the use or disclosure of students’ personal information by acting as an agent on the parents’ behalf. Such consent is restricted to educational purposes only. Additionally, at the school’s request, the operator must provide a description of the types of personal information collected, the opportunity to review the child’s personal information and/or have the information deleted, and the opportunity to prevent further use or online collection of a student’s personal information.
Tasked with enforcing COPPA, the Federal Trade Commission recommends that schools or districts – not teachers – decide whether a provider’s information practices are appropriate. Districts should have a centralized process to assess these practices. The FTC cautions that schools should know how student information is collected, used, and disclosed. Districts should also ensure that these operators appropriately protect the security, confidentiality, and integrity of student information and should understand the operator’s data retention and deletion policies.
The Protection of Pupil Rights Amendment (20 U.S.C. § 1232h; 34 CFR Part 98) requires that districts adopt policies and provide direct notification to parents at least annually regarding the specific or approximate dates of activities involving the collection, disclosure, or use of students’ personal information for the purpose of marketing or selling that information (or otherwise providing the information to others for that purpose), as well as the parents’ right to opt out of these measures.
by Gary Stedronsky | Aug 28, 2018 | Board Policy & Representation, Labor and Employment, School Management, Unemployment, Workers’ Compensation
In 2016, Ohio became the twenty-sixth state to legalize the use of marijuana for certain specified medical conditions. Medical marijuana facilities and patient registries are expected to be fully operational in the near future. School districts should be aware of how the medical marijuana law might impact current policy and operations.
Overview of State Law
Under state law, individuals who suffer from any of twenty-one identified medical conditions (listed below) may register with the state to use medical marijuana. In addition to these twenty-one conditions, the state medical board may be petitioned to add other conditions to this list.
Qualifying Medical Conditions
|
| AIDS |
Inflammatory bowel disease |
| Alzheimer’s disease |
Multiple sclerosis |
| ALS (“Lou Gehrig’s disease”) |
Pain that is chronic, severe, or intractable |
| Cancer |
Parkinson’s disease |
| Chronic traumatic encephalopathy |
Posttraumatic stress disorder |
| Crohn’s disease |
Sickle cell anemia |
| Epilepsy or seizure disorder |
Spinal cord disease or injury |
| Fibromyalgia |
Tourette’s syndrome |
| Glaucoma |
Traumatic brain injury |
| Hepatitis C |
Ulcerative colitis |
| HIV |
|
When registering with the state, an individual’s application must be accompanied by a licensed physician’s recommendation. Caregivers of medical marijuana users must also register with the state to avoid criminal prosecution for possession of medical marijuana and to assist registered patients. Medical marijuana may be used in oils, tinctures, plant material, edibles, patches, and vaporizers; however, smoking marijuana is prohibited.
Federal Laws and Regulations
Regardless of Ohio’s legalization of marijuana for medical purposes, marijuana is still a prohibited substance under federal law. The Americans with Disabilities Act requires that employers provide reasonable accommodations to employees with certain disabilities so that they may perform the requirements of their job; however, the ADA does not require employers to permit the use of medical marijuana as a reasonable accommodation. Similarly, the Family Medical Leave Act does not require employers to grant leave for employees so that they may obtain medical marijuana treatments for a serious health condition. Federal law does not interfere with an employer’s right to maintain a drug-free workplace, to implement a zero-tolerance drug policy, or to subject an employee to a drug test. Currently, pending federal legislation to enact the STATES Act would give states the freedom to decide how to legalize or regulate marijuana.
School District Employees
Ohio employers are not required to permit their employees to use medical marijuana at work and may continue to take adverse employment action against employees for their use of medical marijuana – even if the employee has a recommendation from a doctor for use and uses the marijuana outside of work hours. School districts may elect to make accommodations and modify policies to allow employees to use medical marijuana in some circumstances, although employees must continue to comply with state and federal regulations that prohibit use of drugs in safety-sensitive positions. School districts should be clear that employees may not be under the influence of marijuana when they are responsible for the safety or supervision of students and staff.
For workers’ compensation purposes, if an injury occurs at the workplace and the employee tests positive for marijuana, a rebuttable presumption arises that the use of marijuana was the cause of the injury, even if the employee has a recommendation for use from a doctor. To overcome this presumption, the employee must then demonstrate that the marijuana use did not factor into the cause of the injury. If unsuccessful, the employee would not be eligible to receive workers’ compensation benefits. Similarly, with unemployment compensation, an employee’s use of medical marijuana is just cause for termination, and no benefits would be provided to an employee in this scenario.
Ohio’s law does not prohibit an employer’s right to refuse to hire a job applicant because of use, possession, or distribution of medical marijuana.
Patient Protections
A very small section of the Revised Code delineates the rights of patients who are registered with the state to use medical marijuana. Patient rights include the right to use and possess medical marijuana, up to a maximum of a 90-day supply; to possess any paraphernalia or accessories for the use of medical marijuana; and to avoid arrest or criminal prosecution for obtaining, using, or possessing medical marijuana and the necessary paraphernalia and accessories. Registered caregivers have the same rights to possess medical marijuana, paraphernalia, and accessories, but do not have the right to use medical marijuana. Operating a vehicle is prohibited while under the influence of medical marijuana. No minimum age is specified for patients to use medical marijuana.
Activities Prohibited Near Schools
No medical marijuana cultivator, processor, retail dispensary, or testing laboratory may be located within five hundred feet of a school, except for academic research institutes.
by Ryan LaFlamme | May 30, 2018 | Board Policy & Representation
Ohio’s Sixth District Court of Appeals, in a case arising in Erie County, Ohio, upheld the denial of public records requests for all emails from certain elected county officials to other county employees over the span of a month. The requester asked for the following:
all emails sent and received by Wilson and one of her employees from September 3 to October 3, 2017; all emails sent and received by Sigsworth and one of his employees from September 3 to October 3, 2017; all emails sent and received by Binette from September 3 to October 3, 2017; the personnel files for Baxter and two of his employees; all emails sent and received by Tone from September 3 to October 3, 2017; and all emails sent and received by Baxter and 12 of his employees from October 13 to November 13, 2017.
The court addressed each of the requests in turn. The court found that all of the requests for emails were overly broad because the Public Records Act does not entitle anyone to a complete duplication of the files of a public office. Even though the Public Records Act is to be construed liberally and in favor of the person making the request, the duty of the person requesting records is to clearly identify the particular records they are seeking. This is so even when, as in this case, the time period for the records (one month) is relatively short.
People who are seeking public records often take an approach that is similar to litigation discovery – broadly requesting “any and all” documents related to a topic or “all communications” with a person or group of people. This is the wrong approach, as the Public Records Act requires identification of the specific records being sought with “reasonable clarity.”
The request for the personnel files was ultimately fulfilled and was noted by the court as a moot issue.
While this case certainly advances one’s understanding of an overly broad request, keep in mind that no bright-line rule exists. The content and context of each request must be considered. A request is not automatically invalid because it seeks an entire month’s worth of records or even records going back several years. Here the requester was denied based on not the time period of the records but rather the broadness of the request, which made it difficult for the public office to identify with reasonable clarity the records that were being sought. The personnel file, on the other hand, is a specific, identified item and in most cases would not be considered an overly broad request.
– State ex rel. Bristow v. Wilson, 2018-Ohio-1973.
