by Erin Wessendorf-Wortman | 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.
by Pamela Leist | 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.
by Erin Wessendorf-Wortman | 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.
by Ryan LaFlamme | 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.
by Megan Bair | Feb 3, 2016 | Board Policy & Representation, Student Education and Discipline
The Thomas Moore Law Center, on behalf of John and Melissa Wood and their minor daughter, filed suit against the Charles County Public School District Board of Education and the High School Principal and Vice-Principal alleging that the La Plata High School “promoted Islam” by implementing a pro-Muslim lesson plan in its World History class. The Woods claim that the school concealed that it promoted Islam by leaving the topic out of a course syllabus and that students were forced to use a separate textbook for the segment on Islam but were not permitted to take it home. To that end, the Woods allege that their daughter was forced to profess and to write out the Shahada, the Islamic creed, in worksheets and quizzes.
By way of background, the lawsuit alleges that after the Woods learned of the Islamic subject matter being taught, Mr. Woods immediately contacted the school to voice his objections and to obtain an alternative assignment for his daughter. He maintains that the school ultimately refused to allow his daughter to “opt-out” of the assignments and subsequently enforced its “No Trespass” policy on him so that he was no longer permitted to enter onto school premises.
In a January statement, President and Chief Counsel of the Thomas More Law Center Richard Thompson said the school “forced Wood’s daughter to disparage her Christian faith by reciting the Shahada, and acknowledging Mohammed as her spiritual leader.”
“The Woods believe that it is a sin to profess commitment in word or writing to any god other than the Christian God,” the Thomas Moore Society says on its website. “Thus, they object to their daughter being forced to deny the Christian God and to her high school promoting Islam over other religions.”
The Woods seek a court declaration that the Defendants violated their constitutional and statutory rights, a temporary and permanent injunction barring Defendants from endorsing Islam or favoring Islam over Christianity and other religions, and from enforcing the no trespassing order issued against Mr. Wood.
by Pamela Leist | Jan 21, 2016 | Board Policy & Representation, General
On January 26th, 2016, the Ohio Supreme Court will hear oral arguments in a case to determine whether a public school district may implement a more restrictive policy on release of student directory information by requiring that parents “opt in” before the information can be released.
The case was brought by School Choice Ohio, Inc. (“SCO”) against the Springfield City School DistrictBoard of Education(“Springfield”). SCO is a registered non-profit corporation formed in the state of Delaware. The corporation informs students and parents across the state about scholarships the state provides, especially to students of low performing or at risk schools. SCO relies on school directory information that public schools provide through a records request to generate its mailing lists.
In January of 2013, SCO submitted a request for student directory information to Springfield. The District denied the request, citing a new policy it had recently passed which purportedly stopped the District’s collection of directory information, and further required parents to sign a consent to “opt in” to release of the data for lawful records requests. SCO countered that under state public records law, codified in ORC §149.43, the District does not have the authority to refuse an otherwise lawful request for directory information that the District maintains. Through its case, SCO seeks an order from the Ohio Supreme Court that would prevent Springfield from denying SCO’s requests for directory information on that ground.
State and federal law, specifically Ohio Revised Code §3319.321 and the Family Educational Rights and Privacy Act (20 USC §1232g/20 CFR Part 99), permit public schools to release limited student information defined as directory information in certain circumstances. In general, federal law defines directory information to include a student’s name, address, telephone number, date and place of birth, honors and awards, and dates of attendance. Ohio’s definition of directory information is more expansive. However, schools are required to provide an annual notice to parents that allow them the opportunity to opt out of directory information releases. Schools also are prohibited from releasing directory information to anyone who may use the information for a profit making plan or venture.
The Supreme Court’s decision in this case could have far-reaching policy implications for districts, and may open the door for additional challenges to the release of directory information in the future. A decision from the Court is not expected before early summer 2016. We will keep you posted on the status of the case. In the meantime, seek legal counsel if you have questions about application of your directory information policies and procedures.
