Senate Bill 29: Implications for Districts

Senate Bill 29: Implications for Districts

by | Sep 9, 2024 | General, School Management, Student Education and Discipline

Senate Bill 29 (“SB29”) was passed by the Ohio General Assembly at the end of June 2024 and was signed by Governor DeWine on July 24, 2024.  Generally, the bill impacted a number of sections of the Ohio Revised Code with a few amendments and added several new code sections that govern education records and student data privacy.  SB29 contains four main sections, each with its own implications and timelines for implementation in school districts.

Previous to SB29, Ohio protected personally identifiable student information pursuant to O.R.C. §3319.321. Ohio defines “educational records” similar to the definition in the federal Family Educational Rights and Privacy Act (FERPA), as “records, files, documents and other materials that contain information directly related to a student and are maintained by a school district board of education or by a person acting for the school district.”  Educational records do not include records in the sole possession of school personnel, employee personnel records, or records of an adult student that are maintained by a professional providing medical treatment to the student.

Section I: New Public Records Exemption

Effective: October 24, 2024*

Implications: Immediate on Effective Date

SB29 amended O.R.C. §149.43 to include an additional exemption to the list of records that are not be considered “public records” under Ohio’s Public Records law. “Educational support services data” is a new term under the Ohio Revised Code and is not the same as “educational records” as defined above.  It is defined at O.R.C. §3319.325 as:

“…data on individuals collected, created, maintained, used or disseminated relating to programs administered by a school district board of education or an entity under contract with a school district designed to eliminate disparities and advance equities in educational achievement for youth by coordinating services available to participants regardless of the youth’s involvement with other government services.”

Therefore, “educational support services data” is not a public record and may not be released or accessed unless it is pursuant to law. However, O.R.C. §3319.326 specifically outlines that this data shall be made available to the state Opportunities for Ohioans with Disabilities agency for that agencies’ duties in supporting students with disabilities.

Action Required for School Districts: This new definition requires an awareness of a new exception to Ohio’s Public Records law of a category of student records, rather than action from school districts. If there are requests for records meeting the definition of “educational support services data,” those requests should be denied unless otherwise permitted under other statutes.

Section II: Licensure Penalties for Release of Confidential Information

Effective: October 24, 2024*

Implications: Immediate on Effective Date

SB29 added an additional reason for the State Board of Education to refuse to issue a license to an applicant; limit a license to an applicant; suspend, revoke, or limit a license that has been issued; or revoke a license that has been expired as follows:

“…using or releasing information that is confidential under state or federal law concerning a student or student’s family members for purposes other than student instruction.” O.R.C. §3319.31

Action Required for School Districts: The Licensure Code of Professional Conduct for Ohio Educators already includes penalties for educators who fail to comply with student confidentiality requirements. The Licensure Code considers the following to be conduct unbecoming to the teaching profession:

  1. Willfully or knowingly violating any student confidentiality required by federal or state laws, including publishing, providing access to, or altering confidential student information on district or public websites, such as grades, personal information, photographs, disciplinary actions, or individualized educational programs (IEPs) without parental consent or consent of students 18 years of age and older.
  2. Using confidential student, family, or school-related information in a non-professional way (for example, gossip, malicious talk, or disparagement).
  3. Violating local, state, or federal procedures or laws related to the confidentiality of standardized tests, test supplies, or resources.

However, this direction from the Ohio Legislature through SB29 appears to expand what is considered to be a violation of student confidentiality and further limits the use of such confidential information to only student instruction.

This amendment could impact student confidentiality policies for your District, so those should be reviewed for compliance. It also may be important for your district to train staff on this shift in statutory language, as the focus and penalty is on the licensed individual, not the employing school district in this statute.

Section III: Technology Providers and their Use of Educational Records

Effective: October 24, 2024*

Implications: Immediate and by August 1, 2025

SB29 is Ohio’s first substantive step into setting legal expectations for contracts between school districts and technology providers set forth in O.R.C. §§3319.325 and 3319.326.

“Technology providers” means:

“…a person who contracts with a school district to provide a school-issued device for student use and creates, receives, or maintains educational records pursuant or incidental to its contract with the district.”

“School-issued device” means:

“…hardware, software, devices, and accounts that a school district, acting independently or with a technology provider, provides to an individual student for that student’s dedicated personal use.”

Schools are required to ensure that contracts with technology providers include the following terms:

  • Educational records are the sole property of the school district.
  • Breach of security protocols, including disclosure to the school district to allow the school district to meet its data security requirements in O.R.C. §1347.12.
  • Return or destruction of educational records within 90 days of termination or expiration, unless renewal expected.
  • No selling, sharing or dissemination of educational records by the technology provider.
  • No use of educational records for a commercial purpose by the technology provider.
  • Ensure security safeguards for educational records:
    • Restrict unauthorized access by technology provider’s employees or contractors.
    • Requirement that access is only necessary to fulfill official duties.

By August 1st of each school year, school districts are required to provide parents and students with notice of the curriculum, testing, or assessment technology provider contract affecting the student’s educational records. This notice is required to be sent to the student and the parent via mail, email or other direct form and must include:

  • Identification of each curriculum, testing or assessment technology provider.
  • Identification of the educational records affected by the curriculum, testing or assessment technology provider contract.
  • Information about how to inspect the contract.
  • Provide contact information for a school department to contact with questions or concerns regarding any program or activity that allows a curriculum, testing or assessment technology provider access to educational records.

Action Required for School Districts:  The timeline in the statute requires notice by August 1st each school year, and that deadline has passed for 2024-25 well before the statute is in effect. Therefore, school districts will want to use this school year to gather information on all the curriculum, testing or assessment technology provider contracts it maintains, as well as centralizing the process for approval of curriculum, testing or assessment technology utilized by staff. Only central office administration should authorize and approve each curriculum, testing or assessment technology providers.

Schools will want to consider an approval process for how each curriculum, testing or assessment technology provider will be vetted, as well as verification that each technology provider contract includes the provisions required by SB29, as well as any other implications from FERPA, COPPA (Children’s Online Privacy Protection Rule), CIPA (Children’s Internet Protection Act), and ADA/Section 504.

Additionally, school districts will need to have their notice process established so that all parents and students are provided with the required notice by August 1, 2025, and August 1st each year thereafter.

Section IV: Access or Monitoring of Student Activity on School-Issued Devices

Effective: October 24, 2024*

Implications: Immediate on Effective Date

Under a new statute, O.R.C. §3319.327, school districts and technology providers are prohibited from electronically accessing or monitoring the following:

  1. Location tracking features of a school-issued device;
  2. Audio or visual receiving, transmitting, or recording feature of a school-issued device; or
  3. Student interactions with a school-issued device, including keystrokes and web-browsing activities.

There are several exceptions that allow electronic access and monitoring under this new statute, but the intent of the law was clearly set forth by bill sponsor Senator Huffman:

“Everyone deserves the right to privacy and students are no different,” Huffman said. “Our children need privacy to express themselves, and it should be left to parents, not tech companies, to monitor our children’s online presence.”

The limited circumstances in which a school district or technology provider is permitted to electronically access or monitor a student’s activity on a school-issued device are:

  • Noncommercial educational purposes for instruction, technical support, or exam proctoring by a school district employee, student teachers or contracted staff with notice provided in advance.
  • Judicial warrant.
  • Notice is provided to the school district or technical provider that the school-issued device is missing or stolen.
  • Necessary to prevent or respond to a threat to life or safety, and access is limited to that purpose.
  • Necessary to comply with federal or state law.
  • Necessary to participate in federal or state funding programs.

If a school district elects to electronically access or monitor a school-issued device pursuant to one of the above exceptions, it must provide written notice of the monitoring to the parents of enrolled students (“General Notice”).

Additionally, if a student’s device is electronically accessed because an exception occurs, the school district must provide notice to the student’s parent of the circumstances that caused the school district to access the student’s interactions with the school-issued device within 72 hours of the access (“72-Hour Notice”). The 72-Hour Notice must include details of what features were accessed and, if applicable, a description of the threat. If the 72-Hour Notice itself is a threat to life or safety, then it must be provided within 72 hours after the threat has ended.

Action Required for School Districts: School districts should be ready on October 24, 2024*, to provide both the General Notice and the 72-Hour Notice to the parents/guardians of currently enrolled students.

In its General Notice, districts must disclose any monitoring of school-issued devices for any of the permissible reasons outlined above. For example, schools that participate in E-Rate and other federal funding programs will automatically be required to notify parents of the monitoring that occurs due to the Child Internet Protection Act (CIPA). As a reminder, under CIPA, not only must your school district have an internet safety policy that includes technology protection measures to block or filter Internet access to pictures that are obscene, child pornography; or harmful to minors, but schools also must monitor the online activities of minors. While this is still permissible under SB29 and required for schools to receive federal E-Rate monies, the General Notice still must disclose monitoring pursuant to federal law.

If your District has other applicable monitoring it utilizes for one of the permissible reasons, these also must be included within your District’s General Notice, including any technology provider that monitors student activity online, filters content, and/or alerts school officials to possible threats, violence, suicidal or self-harm ideation.

Your District should also have a 72-Hour Notice ready for use if a triggering circumstance occurs causing the District to electronically access the school-issued device. It may be necessary to provide training and/or consensus to building administration on implementing these new requirements.

Contact an Ennis Britton attorney if you have questions about any of the new requirements of SB 29 for your district.

 *While Gongwer reports the effective date of SB 29 as October 21, 2024, the Ohio Secretary of State and the Ohio Legislative Service Commission report the effective date as October 24, 2024. For the purposes of this Client Alert, Ennis Britton is using October 24, 2024 as the effective date for SB 29. 

 

CTC Corner: New Legislation Authorizes Payment for Student Teaching

CTC Corner: New Legislation Authorizes Payment for Student Teaching

by | Aug 18, 2024 | General

On July 24, 2024, Governor DeWine signed S.B. 168 which seeks to relax burdensome regulations for schools. The law which becomes effective on October 21, 2024, contains a provision that should be of particular interest to career-technical centers. After that date, such programs must permit students in early childhood preparation programs to receive pay for hours worked completing their required training or field experience hours.

Specifically, new RC 3345.205 covers “early childhood teacher preparation programs,” including those based in career-technical centers, joint vocational school districts, comprehensive career-technical centers, and compact career-technical centers. The act provides that early childhood teacher preparation programs that result in credentials such as a child development associate certification or college degrees shall permit a student of that program to complete required student training as paid employees. The provision mandates that such programs may not prohibit students from being paid.

What this means for CTCs: As the school year begins and before the legislation becomes effective, career-technical centers should review their policies to make certain that they are compliant.

The Power of Punctuation: Debate Over Grammar Leads Ohio Supreme Court to Limit Executive Sessions for the Purchase of Property

The Power of Punctuation: Debate Over Grammar Leads Ohio Supreme Court to Limit Executive Sessions for the Purchase of Property

by | Aug 18, 2024 | Board Policy & Representation, General

Look Ahead Am. v. Stark Cty. Bd. of Elections, Slip Opinion No. 2024-Ohio-2691.

On July 18, 2024, the Ohio Supreme Court determined that the Stark County Board of Elections misused executive sessions to discuss and plan the purchase of new property, specifically voting equipment. A company filed a complaint based on the Board’s decision to enter executive sessions on four separate occasions to discuss and plan for the purchasing of new voting systems. Both lower courts upheld the Board’s decisions after concluding that executive sessions were permitted for any purchase of property, but the Ohio Supreme Court disagreed. Reversing the decision, the Court clarified that executive sessions are permitted to discuss the purchase of property only to consider information “which would give an unfair competitive or bargaining advantage to a person whose personal, private interest is adverse to the general public interest.”

Ohio’s Open Meetings Act permits a public body to enter executive session for the following reasons:

To consider the purchase of property for public purposes, the sale of property at competitive bidding, or the sale or other disposition of unneeded, obsolete, or unfit-for-use property in accordance with R.C. 505.10, if premature disclosure of information would give an unfair competitive or bargaining advantage to a person whose personal, private interest is adverse to the general public interest.

The courts agreed that the statute had a plain meaning, but they disagreed over what, exactly, that plain meaning was. According to the Supreme Court, the difference is based on punctuation and the rules of grammar. The lower courts both relied on the “rule of the last antecedent,” which applies a limiting clause or phrase to the noun or phrase that it immediately follows. Using that rule, the courts argued that the premature-disclosure clause only applied to the sale of unneeded, obsolete, or unfit-for-use property.

However, the statute’s use of commas modifies the rule of the last antecedent. Relying on several leading treatises on statutory interpretation, the Ohio Supreme Court argued that separating the antecedents and the qualifying phrase by a comma is evidence that the qualifier is supposed to apply to all antecedents. Under this interpretation, the premature-disclosure clause applies to every listed reason to start an executive session involving property, including the purchase of property, and not just the last reason as the lower courts suggested.

What this means for your district? This is yet another reminder that Districts must review and understand the public meeting exceptions rather than rely on memory and past practice. While Districts often recess into executive session to discuss property purchases, Districts cannot call executive sessions to discuss such purchases unless they can show that the premature disclosure of information would give an unfair competitive or bargaining advantage to a person whose personal, private interest is adverse to the general public interest.

Supreme Court Reminds Districts to Triple-Check Their Evaluation Procedures

Supreme Court Reminds Districts to Triple-Check Their Evaluation Procedures

by | Aug 18, 2024 | General, Labor and Employment

Jones v. Kent City School Dist. Bd. of Edn., Slip Opinion No. 2024-Ohio-2844.

On July 31st, 2024 the Ohio Supreme Court ordered the Kent City School District to reinstate a teacher after determining that the Board of Education failed to complete three formal observations as is required by the Ohio Teacher Evaluation System (“OTES”), and therefore was not able to non-renew his employment.

Jones had been employed by the district for roughly twenty years and began having disciplinary issues during the 2019-2020 school year. He repeatedly left early from work and failed to complete assigned tasks during teacher workdays. Following an absence where Jones failed to notify the administrators of his absence and failed to schedule a substitute pursuant to district procedures, the Board notified Jones that he would be placed on a “full cycle” evaluation and that he was being considered by the Board for nonrenewal.

Under state law, specifically R.C. 3319.111(E), school boards are required to complete at least three formal observations of any teacher employed under a limited contract if the school board is considering nonrenewal of that contract. While school boards and teachers’ unions are free to establish local standards for following the evaluation procedures, boards are still required to follow the mandatory procedures established by the General Assembly, and those statutory requirements prevail over any conflicting terms of a collective-bargaining agreement.

The evaluator in this case finished the first evaluation without any difficulties, but the COVID-19 pandemic shut down schools and shifted classes online before the second evaluation could be carried out. In response to the pandemic, the General Assembly allowed districts to drop evaluation requirements provided they agree to renew the teacher’s contract. Not wanting to reemploy Jones, the district decided to proceed with the evaluation process after they reached an agreement with the teachers’ union to allow observations to be completed virtually through distance learning. Following the agreement, a second observation took place virtually and a third was scheduled. Jones was unavailable for the third observation due to a medical emergency. He was later excused for the rest of the year by his doctor. Rather than reschedule, the evaluator moved forward with the observation in Jones’s absence by sitting in on a virtual learning session with Jones’s class.

The board unanimously approved Jones’s nonrenewal following the evaluation process, and Jones appealed the decision. Because he was not present for the final observation, Jones argued that the process violated R.C. 3319.111(E). The Ohio Supreme Court agreed. According to the Court, the plain language of the statute requires three observations of the teacher who is under consideration for nonrenewal, regardless of any agreement between the Board and the teachers’ union. It was undisputed that Jones was not present for that final evaluation. Therefore, the Court concluded that the board could not rely on Jones’s excused medical absence to justify their noncompliance with the statute.

What this means for your district? It is critical that school districts plan ahead if a teacher is up for non-renewal. As this case demonstrates, and as previous cases have held, even pandemics and doctors’ notes do not excuse a district’s evaluation requirements for non-renewals. This includes the completion of at least three observations of the teacher while they are actually engaged in teaching.

Back to School Reminders For School Transportation Administrators

Back to School Reminders For School Transportation Administrators

by | Aug 18, 2024 | General, Transportation

Deadlines and timelines:
1. All school bus and van driver physicals must be renewed and submitted to the DEW before August 31. DEW will send out “inactive” notices for any driver without a new physical on Sept. 1. Inactive drivers will not be able to legally operate a school bus or van.
2. T-2 reports are due on or before August 31. These are fiscal summaries of the transportation you provided during the previous school year and are an important part of your school transportation funding.
3. ORC and OAC require that school boards approve bus stops and a routing time schedule within 10 days of the start of school. Boards may take this action up to 30 days in advance of the school year.
4. School bus rider safety training for all students in grades K-3 that ride must be provided within the first 14 days of your school year.
5. If you receive late enrollment information (anything after July 1) for students attending nonpublic or community schools, ORC requires the district to provide a transportation plan (if eligible) within 14 days of receiving notification.

FMCSA announces compliance audits for 2024: DEW sent out a notice this spring that the Federal Motor Carrier Safety Administration (FMCSA) is initiating a school bus transportation safety initiative during 2024. Field agents for FMSCA (or PUCO) will focus on auditing compliance with federally-applicable school bus driver regulations. The audits will include checking for compliance with:
• Pre-employment testing requirements including Drug and Alcohol Clearinghouse queries
• Annual query requirements for Clearinghouse information
• Random drug and alcohol testing administration
• Evaluation of return to duty processes when applicable
• Post accident testing procedures and administration when applicable
• Reasonable suspicion training and testing administration
• Driver qualifications associated with CDL compliance standards
If you are contacted by someone claiming to represent FMCSA, you may verify the validity of any contact by contacting the Ohio Division by email at MCOHOFF@dot.gov or at (614) 280-5657.

If you have questions about any of these areas or are not certain if you are following the requirements, now is the time to resolve those issues. Contact Transportation Consultant Pete Japikse at schoolbus@ebconsultinggroup.com.

6th Circuit Temporarily Pauses Implementation of New Title IX Regulations

6th Circuit Temporarily Pauses Implementation of New Title IX Regulations

by | Jun 19, 2024 | General, Legislation

Tennessee v. Cardona, 2024 U.S. Dist. LEXIS 106559

A federal district court judge in Kentucky issued a preliminary injunction on June 17, 2024 against the Department of Education’s new 2024 Title IX regulations that are set to go into effect on August 1, 2024. The injunction issued by the Kentucky judge is limited to the six plaintiff-states of Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia. There are multiple other lawsuits across the country with pending motions for preliminary injunctions that also may impact when the Department’s Title IX Final Rules will go into effect.

The Final Rules released by the Department in April include an expanded definition of “discrimination on the basis of sex” based on the U.S. Supreme Court’s ruling in Bostock v. Clayton Cty., 590 U.S. 644, 681–83 (2020), that seeks to prohibit discrimination on the basis of sexual orientation or gender identity in a Title VII case. The federal district court held that the new regulations will dramatically alter the purpose and meaning of Title IX, and issued a preliminary injunction to pause the implementation of the 2024 Title IX regulations until the case may proceed further for the following reasons:

  • The Department’s interpretation likely exceeds its statutory authority,
  • The Department’s actions were arbitrary and capricious,
  • The Department’s reading goes against the major questions doctrine,
  • The Clear statement rule under the Spending Clause weighs against the new Title IX regulations,
  • The Plaintiffs raised valid First Amendment free speech concerns, and
  • The Department’s reading likely violates parental rights.

According to the court, the original goal of Title IX was to ensure that women have an equal opportunity to aspire, achieve, and participate in society based on their individual talents and capacities, and that before the last decade, the words “sex” and “discrimination on the basis of sex” had universally been understood to refer to biological sex under the statute. The court disagreed with the Department’s reliance on Bostock. The majority in Bostock claimed the decision did not apply beyond Title VII to other federal laws that prohibit sex discrimination, and the dissent warned about how the ruling could be misapplied in the school context. 

Citing last week’s different decision in Texas, in which a federal district court in the 5th Circuit enjoined the Department’s 2021 guidance, the court reminded the Department that federal agencies “…lack the authority to rewrite clear statutory terms to suit its own sense of how the statute should operate.” Texas v. Cardona, 2024 U.S. Dist. LEXIS 103452, at 85.

For purposes of Title IX, the court found that the term “sex” unambiguously refers to biological sex, and that Congress did not implicitly delegate its authority to change or expand that meaning to the Department. Similarly, Title IX was enacted as an exercise of Congress’ power under the Spending Clause which requires the government to condition the receipt of federal funds “unambiguously” so that states may be cognizant of the consequences of their participation and exercise their choice knowingly. South Dakota v. Dole, 483 U.S. 203, 207 (1987). But the court found that the Final Rule’s language provides no indication that an institution’s receipt of federal funds is conditioned on any sort of mandate concerning gender identity.

Lastly, the court cautioned that the new Title IX regulations may infringe on the constitutional rights of students, staff, and parents. The court found that the Final Rules require districts to treat children consistent with their gender identities on school grounds, even if that conflicts with parental preferences.  The court cautions that the Department’s reading of Title IX may require districts to enter the “private realm of family life” that has been afforded both substantive and procedural protections.

What this means for your district

The preliminary injunction issued by the federal district judge in Kentucky within the 6thCircuit this week pauses the Title IX Final Rules implementation in the six states involved, including Ohio, but only temporarily. As the case progresses to a full hearing, the injunction may be lifted or a permanent injunction could be issued. There is also potential that one of the other pending lawsuits impacts how the Final Rules are implemented. We may not have a definitive answer on compliance with the new Title IX regulations until these cases make their way through the court system. In the meantime, districts should continue to prepare for the new rules, even if they are currently delayed, to ensure they are prepared to implement Title IX provisions if and when they go into effect. This decision does not reverse or modify the 6th Circuit precedent concerning Title IX and students within K-12 schools. Consult your legal counsel.