On August 23, the United States Court of Appeals for the Sixth Circuit weighed in on the constitutionality of mask mandates lacking a religious exemption. A Michigan school challenged the mandate in place by the state’s Department of Health and Human Services, stating the order was a violation of their free exercise of religion, equal protection, and substantive due process rights. A school official said the K-5 mask mandate violated the school’s sincerely held religious beliefs by preventing students from participating fully in their Catholic education.
In a 2-1 decision, the court affirmed the district court’s opinion that mask mandates that did not include an exemption for religious beliefs was not in violation of the Free Exercise of Religion Clause, noting it was subject to the rational basis test. The judge ruled the state order was not motivated by hostility to any specific faith and that it was neutral because it applied to all schools. Further, Defendants did not challenge the sincerity of the religious objection to the mandate, thereby simplifying the court’s analysis.
The rational basis is the least burdensome test and to prevail the governmental entity need only show some rational relation to a legitimate state interest. In contrast, the court could have applied “intermediate scrutiny” which would have required the government to show an important interest. The final option would have been to require “strict scrutiny” which requires the highest burden, a compelling state interest. In short, the court established that mask mandates need only clear the shortest and easiest to clear the hurdle.
What does this mean for your district?
Resurrection School v. Hertel serves as a roadmap for combatting religious exemption challenges to mask mandates. Such mandates should be examined to ensure neutrality and general applicability. Other nonreligious exemptions, such as medical exemptions should be narrow and discreet. Please contact one of the attorneys on the Ennis Britton team if you have questions about this case or mask mandates.
A complaint was recently filed with the Student Privacy Policy Office (SPPO) alleging a Family Educational Rights and Privacy Act (FERPA) violation when two teachers recorded students in the classroom on their personal cell phones.
Students’ education records are protected under FERPA. The term “education records” is defined, with certain exclusions, as those records that are directly related to a student and which are maintained by an educational agency or institution, or by a party acting for the agency or institution, to which funds have been made available under and program administered by the Secretary of Education.
Under FERPA, a school is prohibited from disclosing personally identifiable information from a child’s education records, without consent, unless the disclosure meets an exception to FERPA’s general consent requirement.
Any complaint must:
be filed by a parent who maintains FERPA rights over the education records which are the subject of the complaint;
be submitted to the SPPO within 180 days of the date of the alleged violation or of the date that the complainant knew or reasonably should have known of the alleged violation; and
contain specific allegations of fact giving reasonable cause to believe that a violation of FERPA has occurred.
Ultimately, the parents failed to establish that the teacher’s recording qualified as part of the student’s education record and SPPO ruled that the videos did not violate FERPA. The SPPO maintained that the recordings did not focus on a specific student, but instead showed students participating in school activities without highlighting a particular student. They further noted that the SPPO has not issued formal guidance on the use of personal devices by school officials and the FERPA regulations do not specifically address this issue.
What Does this Mean for Your District?
While the SPPO determined that the recordings in this case were not prohibited under FERPA, SPPO did indicate that other laws protecting the confidentiality of information in general or personally identifiable student information could come into play. Great caution and care should be exercised by school officials when making recordings or taking photographs in a classroom to ensure that prior consent is obtained to ensure that no federal or state laws are violated.
Starting this year, school districts must either register with the Department of Public Safety’s free Safer Ohio School Tip Line or enter into an agreement with another anonymous reporting program selected by the district that allows individuals to report threats to student safety.
The selected reporting system must meet all of the following requirements:
Operate twenty-four hours a day, seven days a week
Share any reported information with law enforcement, public safety agencies, and school threat assessment teams as required under your emergency management plan
Comply with FERPA and state law governing student confidentiality
Schools are expected to promote and inform students about the tip line and the reporting methods. Through the tip line, students are encouraged to report:
Bullying incidents
Withdrawn student behaviors
Verbal or written threats observed toward students, faculty, or schools
Weapon/suspicious devices on or near school grounds
Gang related activities
Unusual/suspicious behavior of students or staff
Self-harm or suicidal sentiments
Any other school safety related concerns
Although school safety analysts may ask for additional information, it is important to note that any tips may remain anonymous.
School districts are also required to submit annual reports to the Ohio School Safety Center (OSSC) and the Ohio Department of Education through forms prescribed by each agency. The data reported will include:
The number of reports made through the reporting system disaggregated by school
The number and type of disciplinary actions taken in the previous school year as a result of anonymous complaints
The number and type of mental wellness referrals as a result of anonymous complaints
The race and gender of students subject to the disciplinary actions and wellness referrals
Any other information the ODE or OSSC deems necessary
Districts should ensure that contracts with reporting program providers includes language addressing the reporting requirement to ensure the proper data is collected. This data is considered a security record that is not subject to release under the state’s public records law.
The OSSC has created a handful of downloadable print and digital images of the reporting program that may be posted in your schools and on social media. Visit the OSSC’s website for additional details and register for the Safer Ohio School Tip Line program here.
U.S. DOE’s Office for Civil Rights Enters the Fray by Initiating Discrimination Investigations Against States with Mask Prohibitions
On Monday, August 30, the U.S. Department of Education’s Office for Civil Rights (OCR) opened investigations into five states that prohibit schools from setting universal mask mandates.Letters were sent to the chief state school officers of Iowa, Oklahoma, South Carolina, Tennessee, and Utah. Several state school chiefs who received the letter said they agreed that their school districts should have the flexibility to set mask requirements if they deem them necessary.
OCR will specifically investigate whether statewide prohibitions on universal indoor masking discriminate against students with disabilities who are at heightened risk for infection of COVID-19 by preventing them from safely attending in-person education.Specifically, they will determine whether these prohibitions are a violation of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act which collectively mandate that schools are required to provide a free and adequate public education (FAPE) to students with disabilities and also provide programs and facilities that are accessible to individuals with disabilities.
Education Secretary Miguel Cardona had previously sent letters to each of the states who will be subject to the OCR’s investigations. In it, he noted that “the safe return to in-person instruction requires that school districts be able to protect the health and safety of students and educations, and that families have confidence that their schools are doing everything possible to keep students healthy.”
The Department will continue to monitor, but did not launch an official investigation into, Florida, Texas, Arizona, or Arkansas as they have voluntarily suspended enforcement of their policies while litigation is ongoing as described below.
Florida Judge Invalidates Governor’s Executive Order
On Friday, August 27, a Florida judge ruled that school districts can legally require their students to wear masks to prevent the spread of COVID-19. He stated Governor Ron DeSantis overstepped his executive order by banning school districts from requiring students to wear masks.
The governor has argued that a new Florida law gives parents the ultimate authority to oversee health issues for their children. However, the judge noted, it exempts government actions that are needed to protect public health and are reasonable and limited in scope. A school district’s decision to require student masking to prevent the spread of the virus falls within that exception.
Through his opinion, the judge cited Florida Supreme Court decisions which found that individual rights are limited by their impact on the rights of others. For example, adults have the right to drink alcohol but not drive drunk, and that there is a right to free speech, but not to harass or threaten others. As a result, he said that school boards could reasonably argue that mask-less students endanger the health of other students and their teachers, and mask policies should be up to them to determine.
Despite the ruling, the Florida Department of Education on August 30 began withholding school board member salaries from two school districts that require masks in classrooms. Florida Education Commissioner, Richard Corcoran, said he is following through on the orders of the State Board of Education and stated funds would continue to be withheld monthly until each school board complied with state law and rule.
Lawsuit in Texas Filed
On Tuesday, August 17, a lawsuit was filed in Texas claiming that the state is discriminating against medically vulnerable students by failing to accommodate their disabilities. The parents filed suit on behalf of their disabled children, all of who are under age 12 and ineligible to receive a COVID-19 vaccine.
The parents claim that the ban violates Section 504 and Title II of the ADA by excluding students with underlying medical conditions from district programs and failing to make reasonable accommodations that would allow those students to attend school. In addition, they are asking a judge to issue a temporary restraining order that would allow districts to implement mask mandates and prohibit the state from withholding funds from districts that choose to make them mandatory.
The lawsuit challenges an executive order by Governor Greg Abbott that declares school systems cannot require students or staff to wear a mask. It also noted that districts must allow individuals to wear a mask if they choose to do so. As a result of ongoing litigation, the Texas Education Agency issued an updated public health guidance that stated it would not be enforcing the mask provisions in the interim, but would make additional guidance once the court issues are resolved.
Other Actions Afoot
In Arkansas, a judge pressed pause on the state law that prohibits local officials from setting mask mandates, meaning school districts can – at least for now – set their own local mask requirements. Tennessee’s governor has signed an executive order requiring schools to allow families to opt out of mask mandates. In Utah, local health departments can issue 30-day school mask mandates with approval from the state or county government.
The Gabbard decision was announced on June 23, 2021 by the Ohio Supreme Court. (Gabbard v. Madison Local Sch. Dist. Bd. Of Edn., Slip Op. No 2021-Ohio-2067)
After a 2016 school shooting in the district in which a student emptied a gun in school injuring several students, the school board acted in 2018 to adopt a “firearm authorization policy,” which allowed the superintendent to designate up to ten teachers to carry concealed weapons while in the course of their duties. The Board also required the designated employees to possess a concealed handgun license, twenty-four hours of training in active shooter response, training on mental preparation to respond to active killers, and a handgun-qualification recertification every year. However, none of the employees had the training required by R.C. 109.78.
Parents sued the school district alleging that it did not comply with Ohio law. The case required the court to analyze the interaction between two Ohio statutes. One statute allows school boards to designate in writing persons authorized to carry concealed weapons on school property, exempting them from criminal penalties for doing so (R.C. 2923.122). The other statute (R.C. 109.78) stated that persons employed as school security officers, special police officers, or other employee goes armed while on duty requires either twenty years’ experience as a police officer or completion of Ohio peace officer training (over 700 hours of training.)
The court analyzed plain terms of both statutes independently. The court found that the language of R.C. 109.78(D) requires any school employee authorized by a board of education to go armed while on duty must meet training-or-experience requirements of that statute. The court rejected the attorney general’s argument (in an amicus brief on the case) that the phrase “other position” in the statute was limited to a position that is a law enforcement or school security function, stating:
While school employees may volunteer to be designated to carry a weapon pursuant to the resolution, the application of R.C. 109.78(d) is not dependent upon an employee being hired particularly for the purpose of carrying a weapon. As we have already stated, the statute does not tie application of the training-or-experience requirement to the duties of an employee’s position. That an employee might have been hired to teach, to coach, or to perform other primarily nonsecurity functions does not alter the fact that an employee who carries a weapon while performing his or her job “goes armed while on duty. (Slip Op., at ¶21)
The court also found that the ability of school boards to authorize people (including school employees) to carry concealed weapons without criminal liability (R.C. 2923.122) was not an exception to the requirements of the training-or-experience requirements of R.C. 109.78. The court found that the statute simply excludes certain people as designated by a board of education from criminal liability, and does not allow a board to disregard other statutory provisions that apply. The court held:
We conclude that R.C. 2923.122(D)(1)(a) does not clearly constitute a legislative grant of power for school boards to authorize their employees to go armed so long as the employees undergo whatever training a board might deem advisable.” (Slip Op., at ¶33)
The court held the statutes were not incompatible, noting that the training-or-experience statute had been in effect for more than 20 years when the newer written authorization statute was enacted in 1992. The court also noted that policy decisions and the desire or need to amend or reconcile the statutes is within the purview of the General Assembly, not the Ohio Supreme Court. The court went on to state that, “…we bear in mind that the General Assembly likely did not contemplate at the time of those statutes’ respective enactments in 1969 and 1992 that they would address a board of education’s authority to arm its teachers and other school staff for protection against a school shooting.” (Slip Op., at ¶40).
What this means for your district:
First, if your district has authorized any school employee to carry concealed at school, this should immediately cease, unless they meet the training-or-experience requirements of being a police office or having completed the 700+ hours of Ohio peace officer training. Contact us if you have questions about this. Second, the opinion mentions several times the role of the General Assembly in making policy decision or reconciling the statutes’ application. There has been a bill introduced that would do this, HB 99: however, it was introduced in February of this past year, was referred to the House Criminal Justice Committee, and has received no hearings. HB 99 would allow school districts to arm school employees with minimum training requirements, the same as obtaining a concealed handgun license. It is unlikely that this bill will see immediate action.
ESSER/GEER guidance highlights In late May, The U.S. Department of Education released guidance to states and school districts about the use of the multiple federal funds authorized for pandemic response and relief. A review of this guidance clarifies some questions about use of the funds. The guidance itself is not law, but it outlines USDOE interpretation of the laws and how funds may be used.
ESSER and GEER funds may be used for a wide range of allowable activities, a full list of which is available in the guidance on pages 10-12. One clarification states that where funds are authorized to be used for “children with disabilities,” this means children eligible under IDEA and Section 504.
The last listed item on allowable uses of funds is, “Other activities that are necessary to maintain the operation of and continuity of services in the LEA and continuing to employ existing staff of the LEA.” A footnote explains this includes using ESSER funds to avoid layoffs.
The Department goes into more detail that both ESSER and GEER funds may be used to pay teacher salaries and prevent layoffs. This includes other supportable activities in Question D-1 (p.46). The next question, D-2, states that health support staff, such as “…counselors, nurses, social workers, and other health support staff” are included.
The guidance notes, “…an LEA should consider ways that will build short- and long-term capacity and be sustained after the funding is no longer available.” School districts may provide the services directly or by entering into a contract. Subgrants of these funds are not authorized.
Construction and ventilation Funds may be used for new construction, renovation and remodeling, with the approval of ODE or the Governor’s office. Improvements must be for the purpose of preparing, preventing or responding to COVID-19. Improvements may include HVAC and ventilation testing and work to upgrade or alter existing systems.
If used for HVAC improvements, projects must comply with ASHRAE standards. Making improvements to improve cleaning, such as removing carpet, are approved. (See questions B-6 and B-7)
Modular units may be purchased using federal funds. All projects must comply with federal procurement standards and must pay prevailing wage.
Supporting special education students The guidance provides specific examples of ways ESSER and GEER funds may be used to provide services and support students with disabilities, whether they have an IEP or 504 plan. These may include hiring additional people to conduct evaluations if they were backlogged or providing transition services.
One interesting suggestion is for transition services and programs, including “coordination of services with agencies involved in supporting the transition of children with disabilities to postsecondary activities.”
If your district had issues due to the pandemic of providing work experience, internships, workshops, or life skills training for students preparing to graduate, these funds may be used to provide those experiences now. This may occur through extended school year services, if necessary.
A (non-exhaustive) list of activities for which the funds may be used may be found at questions C-5 and C-6 of the guidance.
Students who are migratory, homeless, or in foster care These students may have had trouble accessing instruction via the use of technology and may have simply stopped attending. ESSER and GEER funds may be used to provide outreach to ensure better engagement. This includes better access to technology, including broadband, and for lost instructional time, tutoring and even transportation.
Attendance issues ESSER and GEER funds may be used to assist districts in developing data quality systems to track attendance, analyze and publish data, and monitor trends for early warning signs based on key student indicators.
Other miscellaneous guidance The guidance make several interesting miscellaneous points for which ESSER and GEER funds may be used:
Food service (to the extent USDA or other federal program funds are not available), including packaging for grab and go meals, costs of transportation, and additional staff and equipment.
Paying college application fees for economically-disadvantaged students
For students who graduated in 2020 or 2021, districts may provide college or career counseling, assistance with entry to job training programs or college applications, financial literacy and more.
Re-engaging students who have not participated in remote learning and programs to reduce community violence to address social, emotional, mental health and behavioral issues.
Paying staff overtime to safely reopen schools and keep them open.
There are many specific questions which cannot be addressed in this format, as well as timelines for use of the various funds authorized under different programs.
