Budget Bill Overview: Impacts on Education in Ohio

by | Jul 7, 2017 | Board Policy & Representation, Legislation

Every two years, Ohio legislators and the governor are tasked with passing a biannual budget for the state. Ohio’s budget bill always has a direct effect on public education, from both a financial and an operational perspective. On June 30, Gov. Kasich signed a final version of House Bill 49. However, the governor vetoed 44 separate provisions, a number of which directly impact public schools.

As a final step, the House and Senate may vote to override any of the governor’s vetoes. The House has already voted on 11 veto overrides (none of them related to education), and the Senate is expected to do so very soon. Both houses of the General Assembly must override gubernatorial vetoes by a three-fifths margin prior to the end of the legislative session, which is December 31, 2018.

Title 33 Provisions

Below are some of the education-related provisions in Title 33 of the Revised Code. These will be effective late September.

  • Social studies has been removed from the required statewide achievement tests for the fourth and sixth grades. Instead, school districts will be required to teach and assess social studies in at least fourth and sixth grades, and may select any assessment tools for the subject. Results will not be reported to the Ohio Department of Education. Social studies has been removed from the list of subjects for which each district must provide prevention/intervention services to students who score below the proficient level established by the state.
  • Beginning in July 2018, districts will be required to identify victims of any student who is disciplined for violent behavior in EMIS. Victims will be identified by classification (student, teacher, nonteacher, etc.) but not by name.
  • Districts may administer certain portions of the kindergarten diagnostic assessment up to two weeks prior to the first day of school.
  • Beginning on the effective date of the bill until October 1, 2021, no school district that is party to an annexation agreement shall transfer territory that is or will be used for nonresidential purposes to another school district that is party to the annexation agreement without the approval of both boards unless the territory of one of those boards overlaps with a new community authority created prior to January 1, 1993.
  • As of January 1, 2018, the SERS board may increase each allowance, pension, or benefit payable to its members by the percentage increase (if any) of the consumer price index, which cannot exceed 2.5 percent.
  • The deadline for students to apply for the Jon Peterson special needs scholarship has been eliminated. Students may apply anytime.
  • A financial provision was added to help schools recover some of the property tax losses incurred because of the devaluation of power plants.
  • STEM schools have been added to the list of entities that a public board of education must first offer an unused school facility for sale or lease. STEM schools will now have the same rights to such property that start-up community schools and college-preparatory boarding schools currently have.
  • HB 49 modifies the recently enacted Lindsay’s Law to state that students are required to annually submit a form that acknowledges they have received information about sudden cardiac arrest. Prior law required students to submit the form for each athletic activity each school year.
  • Students who have an F-1 visa and attend an elementary or secondary school that operates a dormitory on its campus must now be permitted to participate in interscholastic athletics to the same extent resident students may participate.
  • School districts may integrate academic content in a subject area for which the state board has adopted standards into a course in a different subject area including a career-technical education course in accordance with guidance that will be issued by ODE. The student may receive credit for both subject areas upon successful completion of the course. If an end-of-course examination is required for the subject area delivered through integrated instruction, the school may administer the related subject area exam upon completion of the integrated course.
  • By December 31, 2017, ODE must develop a framework for school districts to use in granting units of high school credit to students who demonstrate subject area competencies through work-based learning experiences, internships, or cooperative education experiences. Districts must comply with the framework and adopt changes to any of their policies regarding demonstration of subject area competencies by the start of the 2018–2019 school year.
  • Schools are no longer required to train substitutes, adult education instructors who work the full-time equivalent of less than 120 days, or seasonal workers on operation of an AED as long as these individuals do not serve as a coach or supervisor for athletic programs.
  • Students will be able to earn an OhioMeansJobs-readiness seal on their diplomas.
  • The superintendent of public instruction is tasked to work with the governor’s office and business officials to establish a committee that will develop a list of industry-recognized credentials and licenses that may be used to qualify for a high school diploma. The credentials must align with the in-demand jobs list published by the Ohio Department of Job and Family Services. The credentials will be used on state report cards.
  • School districts that provide educational services to certain special education students who reside in a home or facility now have two options to receive tuition payments: directly from the district of residence or from ODE. If the school district opts to receive the tuition from the district of residence, it shall not receive a tuition payment for that student from ODE.
  • School districts must now permit students to carry and self-apply sunscreen, and further are prohibited from requiring authorization from a health care provider to apply sunscreen (districts may still require parent authorization).
  • Students are prohibited from using or possessing any substance that contains betel nut on school premises. Betel nuts are harvested from the Areca palm, which originates in Asia, and are considered a powerful stimulant when chewed. The nuts are believed to be a carcinogen and are linked to high rates of oral cancer.
  • School districts which determine that for financial reasons they cannot establish state-mandated summer food service programs must permit an approved summer food service program sponsor to use the school facilities located in areas where at least half of the students are eligible for free lunches. The districts may charge the service program sponsor a reasonable fee and shall require the sponsor to indemnify the district for any liability that arises from the sponsor’s food service operations.
  • The superintendent of public instruction must develop standards for the operation of business advisory councils established by a board of education. These standards will, at a minimum, require the council to meet at least quarterly with the board and to develop a plan on how and about which matters it will advise the board. Current law requires that each school district board of education and ESC governing board appoint a business advisory council to advise and provide recommendations to the board regarding industry employment and skills needs.
  • ODE will establish an option for career-technical education students to participate in pre-apprenticeship training programs that develop skills and knowledge needed for successful participation in a registered apprenticeship occupation course.
  • HB 49 permits a school district to hire and pay a substitute educational aide who does not currently hold an aide permit and who fills in during an emergency or employee leave of absence. This provision creates an exception to the requirement that an educational aide/paraprofessional hold an aide permit from ODE before he/she may be paid to serve in that capacity. An individual may now serve as a “substitute educational aide” for up to 60 days provided that the school district superintendent believes that he/she has the qualifications to obtain an aide permit, the individual passes a criminal background check, and the individual has already submitted an application for the permit. The individual must stop working as a substitute when one of three things occurs: (1) ODE approves the application and grants a permit, (2) the application is denied, or (3) the application has not been approved after 60 days of work.
  • ODE has express authority to reject or inactivate an educator license if the individual fails to submit fingerprints and written permission for a criminal background check.
  • State law now recognizes creation of a STEAM community or nonpublic school, which stands for science, technology, engineering, arts, and mathematics. STEAM schools must meet certain requirements, including involvement of arts organizations.
  • Bid bonds are no longer required for purchase of school buses unless the board of education or governing board requests that bid bonds be a part of the bidding process.
  • The state board’s rules for staffing ratios must now include two specific provisions for preschool programs that serve children with disabilities. First, the rules must require at a minimum that a school provide a full-time staff member when eight full-day or sixteen half-day preschool children eligible for special education are enrolled in a center-based preschool special education program. Second, the state board rules must also mandate a staff ratio of one teacher for every eight children at all times for a program with a center-based teacher, and a second adult must be present when nine or more children, including nondisabled children, are enrolled in a class session.
  • State colleges must provide students enrolled in education preparation programs with instruction in opioid and other substance abuse prevention.
  • A number of changes have been made to the College Credit Plus (CCP) program. The bill modifies the appeal process for students when a principal refuses to provide written consent for participation. The final appeal will now be heard within 30 days by the district superintendent rather than the state board of education. Also, to be eligible to participate in CCP, participants must now be remediation free for college entrance exams in one of the following: mathematics, science, reading, or writing. The college is required to pay for one assessment. Several funding provisions of CCP have been modified as well. Finally, the chancellor of higher education in consultation with the superintendent of public instruction must adopt rules that specify the conditions under which an underperforming student may continue to participate in CCP.
  • Advisory group of school districts and other stakeholders to make recommendations for changes to EMIS to format standards and data definitions. Districts not using uniform data definitions and data format standards will have all EMIS funding withheld until the district comes into compliance.
  • The court of claims received more than $500,000 in each fiscal year to fund public records adjudications.
  • Career-technical education enhancements:
    • New “Agricultural Fifth-Quarter Project” program funded at $600,000 each fiscal year for work-based learning through supervised agricultural experience anytime outside of the school day. ODE will develop eligibility criteria and will fund as many programs as possible.
    • CTC programs (along with STEM, community schools, and city/local/exempted village districts) could pay the cost of earning an industry credential or journeyman certification recognized by the U.S. Department of Labor for economically disadvantaged students and be reimbursed by ODE pursuant to a $750,000 appropriation.

Vetoed Provisions

The governor vetoed a number of education-related provisions adopted in the enrolled version of HB 49. Some of the vetoed provisions include the following:

  • A provision to permit districts to administer a paper version of state assessments.
  • A provision to grant additional authority to the Joint Education Oversight Committee to invalidate a manual adopted by ODE that it develops to audit full-time equivalency student enrollment reporting by school districts. ODE is still required to develop the manual and submit it to the Joint Education Oversight Committee for review.
  • A provision to permit an ESC with a rating of effective or higher to sponsor a community school regardless of whether the school is located in the ESC’s service territory or a contiguous county.
  • A number of provisions to eliminate the resident educator program, which new teachers must complete during their first four years in the profession. As a result, the resident educator and resident educator professional teaching license will continue at least for the upcoming school year.
  • A provision to require College Credit Plus students to earn a grade of C or higher to continue participation in the program.

Upcoming Presentation

The budget bill will be discussed in detail at the upcoming Administrator’s Academy webinar on July 13. Click here to register for the event.

Arbitrator May Override Employer’s Disciplinary Decision — Absent Contract Limitations

by | Jun 6, 2017 | Board Policy & Representation, Labor and Employment

Reversing the decision of two lower courts, the Ohio Supreme Court recently ruled that absent negotiated language in a collective bargaining agreement (CBA) limiting an arbitrator’s authority to modify a disciplinary action for just cause, an arbitrator has authority both to review the disciplinary action and to fashion a remedy that is outside the scope of the CBA.

A City of Findlay police officer was first disciplined in 2012 for conduct unbecoming. This discipline was grieved, taken to arbitration, and then modified by the arbitrator to be in line with the city’s use of a discipline matrix.

Later that same year, the same officer was found to have violated the department’s sexual harassment policy, and termination of the officer’s employment contract was recommended. The termination was grieved and taken to arbitration. The arbitrator determined that the city did not present evidence to support termination, and therefore he set aside the termination. Instead, the arbitrator determined that the disciplinary matrix could not be used, stated that a “lengthy disciplinary suspension [was] warranted,” and imposed a five-month suspension. The city appealed this decision to the county common pleas court. Both the common pleas court and the appeals court agreed with the city and found that the arbitration award did not draw its essence form the CBA and was arbitrary, capricious, and unlawful (i.e., the arbitrator overstepped his authority and power). However, the Ohio Patrolmen’s Benevolent Association, on behalf of the officer, appealed these decisions to the Ohio Supreme Court.

The Supreme Court was left to determine whether the just cause discipline provision in the CBA authorized an arbitrator to change the disciplinary action recommended by the employer (in this case, the police chief using a disciplinary matrix). Key to this case was the fact that the disciplinary matrix used by the department to discipline the officer was not part of or mentioned in the CBA. Furthermore, the CBA neither mentioned the department’s disciplinary procedures nor restricted an arbitrator’s authority to review the appropriateness of the type of discipline imposed upon finding just cause for discipline. Absent this limiting language in the CBA, the arbitrator was free to fashion a remedy that he believed was appropriate.

Only Chief Justice Maureen O’Connor dissented from the court’s majority opinion, noting that the case should not have been accepted by the Supreme Court in the first place and that the majority’s decision could have unintended consequences as it seems to throw out the consideration of past practice(s). She noted that the department used the matrix as a past practice as the basis for disciplinary action, and the inability to rely on this or throw it out of consideration is dangerous. O’Connor concluded that under the majority opinion, even if a past practice is established related to disciplinary outcomes, an arbitrator could modify the discipline if the practice is shown as not specifically bargained for and incorporated into the CBA. This, in her opinion, is an undesirable result.

School districts should be aware that this holding by the Supreme Court could impact arbitrations and the review of the same by courts in Ohio. The court concluded, “Any limitation on an arbitrator’s authority to modify a disciplinary action pursuant to a CBA provision requiring that discipline be imposed only for just cause must be specifically bargained for by the parties and incorporated into the CBA.”

 

Ohio Patrolmen’s Benevolent Assn. v. Findlay, Slip Opinion No. 20147-Ohio-2804.

Changes in Teaching Staff: Dates and Procedures

by | May 31, 2017 | Board Policy & Representation, Labor and Employment

In our May issue of School Law Review, we covered important dates and procedures for teacher nonrenewal, including the required May dates for evaluations. Unless a collective bargaining agreement provides otherwise, a board of education that wishes to nonrenew a teacher must evaluate the teacher in accordance with R.C. 3319.111, which provides that observations for teacher evaluations must be completed by May 1 and that teachers must receive a written report of their evaluation results by May 10.

In June and July are other important dates on teacher nonrenewal and resignation. Check your collective bargaining agreement for any additional requirements or timelines that must be met. Below are important dates and procedures on handling changes in teaching staff.

  • June 1: Deadline for employers to submit written notice of intent to nonrenew a teacher.
  • July 10: Deadline for teachers to submit notice of resignation. After this date, a board of education is not obligated to release teachers from their contract.

Resignations

A teacher may rescind notice of resignation only if it has not been formally accepted by the board. After the board accepts a resignation, the teacher may not withdraw the resignation.

Licensure of New Hires

New teachers’ licenses must be effective as of their first day on the job, regardless of whether class is in session. A board of education is not authorized by law to pay a teacher unless the teacher holds an effective state-issued license. Treasurers and superintendents should check each newly hired teacher’s license for verification of the effective date of licensure. Contact an Ennis Britton attorney if your district has any issues with teacher licenses in pending status.

Nonrenewal Procedure: Timeline

  • The nonrenewal process begins when the board of education passes a resolution not to renew a contract and the treasurer sends notice of the decision to the teacher.
  • Within 10 days of receipt of the notice of nonrenewal, a teacher may file with the treasurer a written demand for a description of the circumstances that led to the board’s decision to nonrenew the teacher.
  • Within 10 days of receipt of the written demand, the treasurer must provide the teacher with this written statement of circumstances. This statement sets forth the substantive basis for the nonrenewal and must also expressly state the reasons for the nonrenewal.
  • Within 5 days of receipt of the statement of circumstances, the teacher may file with the treasurer a written demand for a hearing before the board of education.
  • Within 10 days of receipt of written demand for a hearing, the treasurer must provide the teacher with a written notice of the time, date, and place of the hearing. The hearing must be conducted within 40 days of the date on which the treasurer received the demand for a hearing (see below for more on the hearing).
  • Within 10 days of the hearing, the board must issue a written decision to the teacher either affirming or vacating its intention not to renew.
  • Within 30 days after receipt of the written decision, the teacher may file an appeal in the court of common pleas.

Nonrenewal Hearings

A nonrenewal hearing before the board of education must be conducted by a majority of the members of the board of education. The statute does not permit a designee to conduct the hearing. The hearing must be held in executive session unless both the board and the teacher agree to hold it in public. The board members, teacher, superintendent, assistant superintendent, legal counsel for the board, legal counsel or other representative of the teacher, and any person designated to make a record of the hearing may attend the hearing held in executive session.

The content, purpose, and procedures for the hearing are not addressed in the Ohio statute. However, the Ohio Supreme Court has held that the hearing should be more than an informal opportunity for the teacher to express objections to the board’s decision. Therefore, the nonrenewal hearing should contain, at a minimum, the presentation of evidence, the examination of witnesses, and a review of the parties’ arguments. Other Ohio courts have held that evidence is not limited to the current school year but may include that from previous school years as well. Based on the hearing, the board will either affirm or vacate its intention not to reemploy the teacher.

Appeals

If the board affirms its intention to nonrenew, the teacher may appeal the board’s decision to the court of common pleas. The court of common pleas is generally limited to determining if the district made procedural errors during the nonrenewal. The teacher may not challenge the board’s decision, and the court may not consider the merits of the board’s reasons. Therefore, the court may order that the teacher be reinstated only if it finds that the evaluation procedures were not followed or that the teacher was not provided with written notice of intent to nonrenew by June 1. If the court finds that either of these violations has occurred, it may reinstate the teacher but is not required to do so.

New State Law Expands Use and Possession of Weapons on School Grounds

by | Mar 24, 2017 | Board Policy & Representation, General, Legislation, School Management

Senate Bill 199, which was passed during the lame duck session and signed by the governor in December, significantly expands the rights of certain individuals to possess weapons on public school grounds.
State law generally prohibits an individual from conveying or possessing a deadly weapon or dangerous ordnance in a school safety zone (R.C. 2923.122). R.C. 2901.01 defines a school safety zone to include a school, school building, school premises, school activity, and school bus. Violators may be charged with misdemeanor or felony criminal offenses.

There are a few exceptions to this prohibition, including one that grants a school district board of education the authority to issue written permission for an individual to possess a weapon on school grounds. Additional, narrowly tailored exceptions apply for police officers, security personnel, school employees, and students under certain circumstances. The new law further expands these exceptions in three key areas.

First, the bill specifically authorizes an individual to possess a concealed handgun in a school safety zone as long as the individual either remains in a motor vehicle with the gun or leaves the gun behind in the locked vehicle. For this exception to apply, the individual must have an active concealed-carry permit or must be an active-duty member of the armed forces who is carrying a valid military identification card and documentation of successful completion of firearms training (the training must meet or exceed requirements for concealed permit holder training).

Next, the new law expands the right of law enforcement officers to carry a deadly weapon or dangerous ordnance in a school safety zone at any time regardless of whether the officer is on active duty. The prior version of the law limited such rights to law enforcement officers who were on active duty only.

Finally, the new law now permits the possession and use of an object indistinguishable from a firearm during a school safety training.

The law became effective March 21, 2017. School districts should review board policies that regulate use and possession of weapons on school grounds and should contact legal counsel with questions about how the law will impact district operations.

U.S. Supreme Court Issues Order in Transgender Case, But Does It Change Anything?

by | Aug 12, 2016 | Board Policy & Representation, Student Education and Discipline

Title IX of the Education Amendments of 1972 prohibits discrimination against students on the basis of sex for schools that receive federal funding. More recently, the definition of “sex” discrimination was expanded by federal regulatory agencies. In April 2014, the U.S. Department of Education Office for Civil Rights (OCR) indicated that Title IX’s sex discrimination prohibition extends to discrimination “based on gender identity or failure to conform to stereotypical notions of masculinity or femininity.” In this guidance, OCR informed school districts that discrimination against students who identify as being transgender, whether in the curricular setting or in extracurricular activities, is prohibited.

This guidance was later reinforced when the U.S. Department of Education and the U.S. Department of Justice issued joint guidance in May 2016 stating that both federal agencies will treat a student’s gender identity as the student’s sex for purposes of enforcing Title IX.

Therefore, according to the Education and Justice Departments’ interpretation and application of Title IX, school districts need to provide accommodations for transgender students. Ennis Britton has advised that decisions regarding transgender students be made on a case-by-case basis and in a team environment, wherein the parents, student, and administration may discuss the transition process for that student and the appropriate accommodations.

However, on August 3, 2016, the Supreme Court of the United States (SCOTUS) issued an order that has caused a number of school districts to question their compliance with the Education and Justice Departments’ previous guidance. The SCOTUS order has temporarily stopped the enforcement of a lower federal court order that directed a school district in Virginia to permit a transgender male to use the boys’ bathroom at his school. Gloucester County Sch. Bd v. G.G., 579 U.S. ___ (2016).

The SCOTUS order did not reverse or overrule the guidance, interpretation, or application of Title IX that is being promulgated and enforced by the U.S. Departments of Education and Justice. Rather, the SCOTUS order maintained the status quo for that student and that Virginia school while the case plays out in the lower courts.

Caution should be exercised in reading too much into this SCOTUS order for a number of reasons. First, the deciding vote of Justice Breyer was a “courtesy.” His vote should not be preliminarily construed to be in alignment with four other justices as it relates to accommodations of transgender students in schools. Second, this order does not put a hold on the guidance set forth by the U.S. Departments of Education and Justice. The order applies to the one student involved, G.G., and to the Virginia school seeking to deny the student accommodations within its buildings. Finally, the guidance from the Education and Justice Departments still exists and can be expected to be enforced.

School districts should consult legal counsel in determining how best to maneuver the legal, social, and political landscapes when considering if and how to accommodate transgender students within their schools. Special consideration should be given to the fact that without a stay on the guidance or a statement otherwise from OCR, OCR will continue to enforce its interpretation of Title IX, which will include seeking to halt federal, Title IX funds for non-compliant school districts.

Public Records Update: Legislation and Cases

by | Aug 8, 2016 | Board Policy & Representation, General, Legislation

Laws regarding public records are under scrutiny across the United States, including in Ohio. Advanced technology has brought myriad ways to communicate information to U.S. citizens, who continue to demand increased transparency. Public-records law continues to develop and change in the form of both legislation and court decisions. Below are a few recent Ohio bills and cases dealing with public records that have an effect on school districts throughout the state.

House Bill 585: Body Cameras
The Ohio House introduced HB 585 on July 11, proposing that the record of body cameras worn by law enforcement officers be considered generally a public record if the officer is performing official duties. (This bill does not include any regulations on police dash cams.) The bill will specify circumstances in which a nonpublic record would become a public record, and circumstances in which recordings would not be public records. Personal or nonrelevant information, and generally, recordings of minors or victims, would be redacted. The bill would also require a local records commission to maintain records from a body camera for a minimum of one year unless the law enforcement agency is subject to a records retention schedule that establishes a longer period of time.

Senate Bill 321
This bill, which was signed into law in June, becomes effective in late September. This new law provides a procedure for someone who has been denied access to public records, in the form of mediation or filing with the court of claims.

The bill also contains a provision that a public office which places all of its public records online may limit the number of records a person may request to receive digitally to 10 per month. The requirements and limitations are as follows:

1. All records must be online and accessible to the public except for during outages that are not within the control of the public office.

2. Records that are not online cannot be subject to the limit.

3. The limit also does not apply if the person making such requests certifies that the request responses are not being forwarded or used for commercial purposes.

The bill modifies the attorney fee provisions of the statutes. An award of fees is now mandated to be considered remedial and not punitive, and to enforce this, the bill limits fees to those that are incurred prior to the record being turned over plus the fees incurred to produce the proof of the amount and reasonableness of the fees incurred. The court may reduce the award of fees if it determines that the suit was not necessary and the records could have been obtained through less formal means. Finally, a public office may itself be awarded costs and fees if the court determines that the suit to enforce the fulfillment of a public records request is frivolous.

Attorney Billing Statements
In the 2016 case State ex rel. Pietrangelo v. Avon Lake, the Ohio Supreme Court ruled that, in certain circumstances, the professional fee summary of an attorney-fee billing statement is exempt from disclosure in a public-records request. In this case, the plaintiff, Pietrangelo, had requested certain public records from the City of Avon Lake, including attorney billing statements. The city complied with the request but redacted the following information from the attorney billing statements based on attorney-client privilege and attorney work product:

• Narrative descriptions of particular legal services rendered
• Exact dates on which such services were rendered
• The particular attorney rendering each service
• The time spent by each particular attorney on a particular day
• The billing rate of each particular attorney
• The total number of hours billed by each particular attorney for the invoiced period
• Total fees attributable to each particular attorney for the invoiced period

Pietrangelo then petitioned the Ninth District Court of Appeals for a writ of mandamus to compel the city to provide unredacted invoices, which the court granted. The Ohio Revised Code notes that “public records” do not include records that are prohibited from release by state or federal law.

In a previous decision, State ex rel. Anderson v. Vermilion (134 Ohio St.3d 120, 2012-Ohio-5320), the Ohio Supreme Court held that itemized statements, including dates of services, hours, rates, and money charged for the services, are not exempt from public-records law and therefore must be disclosed. However, in State ex rel. Dawson v. Bloom-Carroll Local School Dist. (131 Ohio St.3d 10, 2011-Ohio-6009), the same court found that the narrative portions of the statements were confidential but a summary of the invoice, including the attorney’s name, the invoice total, and the matter involved, was sufficient for the public-records request. One of the differences between the two cases, Anderson and Dawson, is that the matter in Dawson was pending litigation but the matter in Anderson was for general informational purposes.

In Pietrangelo v. Avon Lake, the Ohio Supreme Court held that this case resembles the Dawson case and that the records relating to the pending litigation were exempt from disclosure. “If disclosed, Pietrangelo may acquire information that would be useful in his litigation strategy against the city, whereas in Anderson, any harm from disclosure of attorney-client communication was remote or speculative.”
State ex rel. Pietrangelo v. Avon Lake, Slip Opinion No. 2016-Ohio-2974.

Directory Information

The Ohio Supreme Court determined that School Choice Ohio was entitled to records that constitute directory information as defined by the district’s public records policy. However, the organization did not have the right to compel the district to amend its student records policy.

School Choice obtains students’ contact information from Ohio public school districts via public-records requests. In addition to requesting the court to compel the district to disclose the records requested, the organization also attempted to compel the district to amend its policy to expand directory information and to require disclosure to its company by amending the parent notice and opt-out provisions. According to the Family Educational Rights and Privacy Act (FERPA), “directory information” includes the following student information:

• Name, address, telephone listing, and date and place of birth
• Major field of study
• Participation in officially recognized activities and sports
• Weight and height of members of athletic teams
• Dates of attendance
• Degrees and awards received
• The most recent previous educational agency or institution attended

Pursuant to FERPA, districts must determine which of the items listed above are to be considered directory information. Districts must then provide public notice to parents of what it defines as directory information and give them an opportunity to opt out of directory information being disclosed without prior written consent.

Ohio law defines directory information similarly and places an additional condition on disclosure – that directory information cannot be requested or disclosed for profit-making activities. In fact, whether directory information is being used for profit-making activities is the one time in public records law where the public office is permitted to inquire about the purpose of the request.

Ohio law also provides that a district may not limit the disclosure of directory information to representatives of the armed forces, business, industry, charitable institutions, other employers, and institutions of higher education unless such restriction is uniformly imposed on each of these types of representatives. The court determined that School Choice Ohio is not any of these types of organizations.

However, the court ultimately concluded that even with the limited way in which the district defined its directory information, which was lawful, the organization fit within the definition and was entitled to the records.

What This Decision Means to Your District
Many districts have received the annual requests from this particular organization and from others. This case considered the question of whether the organization is engaged in profit-making activity and answered in the negative. Therefore, districts should continue to disclose records, including directory information, in accordance with the relevant policy. Remember to consult your list of opt-outs whenever directory information is going to be disclosed without prior written consent of the parent. If you are considering changes to your public-records policies, please contact an Ennis Britton attorney for assistance or review.