Ohio Federal Court Affirms Exhaustion Requirement Under IDEA

Ohio Federal Court Affirms Exhaustion Requirement Under IDEA

As school districts continue to feel the bite from parent demands stemming from COVID closures and learning alternatives, the U. S. District Court for the Southern District of Ohio recently affirmed that the pandemic does not justify circumventing established due process procedures. In adopting the Report and Recommendation of Magistrate Stephanie Bowman, the federal court affirmed that an Ohio parent is obligated to exhaust those administrative remedies under the IDEA even when they attempt to the raise claims under other laws. 

In this case, the parent of R.Z., a high school student in Ohio, claimed that the school district’s decision to institute remote learning during the pandemic amounted to a failure to provide the student with a FAPE and a violation of Section 504 of the Rehabilitation Act of 1973, the Ohio Individuals with Disabilities Education Improvement Act, and the Ohio Education of Children with Disabilities Law. The parent claimed that his child could not benefit from remote learning and by imposing such a practice, the District’s policy amounted to a denial of the student’s rights.

The District moved to dismiss the lawsuit before the hearing.  The court granted the motion and dismissed the case.  In doing, so the federal court found that under Fry v. Napolean Community Schools, the Supreme Court of the United States made it clear that exhaustion of the administrate remedies under the IDEA is required when a complaint seeks redress for a school’s alleged failure to provide a FAPE. The court also looked to Perez v. Sturgis Public Schools, a Sixth Circuit decision handed down days before the oral argument on this case and noted that, while the Perez decision did not answer the question of whether a court is divested of subject matter jurisdiction when a party fails to exhaust administrative remedies, the exhaustion requirement still stands. Specifically, the appellate court found that even when a party is not directly contesting the substance or propriety of an IEP whenever the challenge relates to the provision of a FAPE, the determination of whether or not the school complied with the IEP is best resolved through administrative procedures “that elevate judicial economy and agency expertise.” The court went on to affirm that, since the Perez decision did not definitively recognize any exceptions to the IDEA exhaustion requirement, a claim that administrative exhaustion would be futile could not  save this Ohio case from dismissal.

What this means for schools: Now, the US Supreme Court, 6th Circuit Court of Appeals, and an Ohio District Court have made it clear that parents must avail themselves of the administrative hearing process as specified in the IDEA and Ohio law before claiming violations of related disability laws. As the Fry case makes clear, when the gravamen of a complaint rests on an alleged failure to provide a FAPE, the exhaustion requirements under the IDEA must apply.  























































































































































































































































Court of Appeals Reverses Trial Court that Upheld a Nonrenewal

Court of Appeals Reverses Trial Court that Upheld a Nonrenewal

Jones v. Kent City School Dist. Bd. of Edn., 2023-Ohio-265


The Eleventh District Court of Appeals of Ohio (Ashtabula, Geauga, Lake, Portage, and Trumbull) reversed a trial court’s decision affirming a board of education’s decision to nonrenew a teacher. During the 2019-20 school year, the teacher had several instances of misconduct that resulted in a three-day suspension. Later that same school year, the teacher failed to report to work and did not follow the proper protocols for entering an absence, resulting in students being unsupervised. The teacher was told he would be placed on a full evaluation cycle and was likely to be non-renewed.

An in-person observation was conducted in January, and a second took place while observing a distance learning class on May 1. On May 15, an observation of a Google Meets session was conducted where the students “shar[ed] progress on their Google Sheets assignment.” The teacher was not present during this session, as he was on a medical leave, and the evaluation consisted of observing the students working on a project the teacher designed. The teacher was invited to but did not attend a post-conference meeting on May 28th.

The Board then took action to nonrenew the teacher’s contract, as recommended by the Superintendent. The teacher was advised of this decision, asked for the reasons for nonrenewal and was informed it related to those days he left early, failure to fulfill duties on an early release day and teacher work day, and his absence which left students unattended.

In April 2020, a Memorandum of Understanding was entered into by the Board and the teachers’ union, which specified the process to complete teacher evaluations for 2019-20 in accordance with House Bill 197. It provided that for those teachers subject to an evaluation under the CBA, if all required observations were completed by March 16, 2020, the evaluator shall complete the evaluation report by May 22, 2020, and if the required observations were not completed by that date, they would be conducted virtually. It provided that, based upon completion of such procedures, “all teachers subject to evaluation for the 2019-20 school year shall be deemed to have evaluations complied with for purposes of R.C. 3319.11.”

The court of appeals noted the standard on appeals in cases concerning nonrenewals. Under the applicable statute, the court does not have the jurisdiction to consider the merits of the decision of the Board concerning the reasons for nonrenewal. The Court may overturn such a decision only if there are procedural defects, i.e., failure to provide the required evaluations.

The court of appeals also addressed the jurisdictional argument of the Board, which was that only SERB had jurisdiction over the dispute because the dispute arose from an MOU that is part of the collective bargaining agreement. The court noted that while there can be cases in which even statutory rights may be subject to interpretation through an applicable CBA, which in turn could divest a court of jurisdiction, the statute applicable here may not be superseded by the CBA.  Therefore, since determination of the evaluation procedures is statutory, and the application of the law is not dependent upon a collective bargaining agreement, the lower court had jurisdiction to hear this matter.

Having resolved the jurisdictional issues, the court turned to the merits of the teacher’s challenge, which in essence was that the third observation did not comply with the statutory requirements because the teacher was not present and the observation consisted of watching students work virtually on a project designed by the teacher. On this, the court agreed, holding that the statutes applicable to nonrenewal must be liberally construed in favor of teachers and that strict compliance, not substantial compliance is required with regard to nonrenewal procedures.  The teacher was not present at all during the third evaluation and even though it was due to his own illness, there was no pre or post-observation conference. These were determined to be fatal procedural defects. The Ohio Supreme Court has previously held that a teacher’s medical leave of absence does not excuse a school board from complying with required nonrenewal procedures.

What does this mean for your district?

Procedural defects are essentially the only pathway a teacher has to overturn the decision of a board to nonrenew. Complying with those procedures is crucial. It would be wise to have a gameplan in place for any teacher being considered for nonrenewal.  A checklist is also a good tool to make sure you are meeting procedural requirements in the lead-up to the Board’s action to nonrenew the contract.  Finally, consider addressing how absences will be handled in the context of evaluations and nonrenewal in your collective bargaining agreements. Attorneys at Ennis Britton can assist you with crafting language to meet your needs.




































































































































































































































































Career Tech Corner: Ensuring Access through Admissions

Career Tech Corner: Ensuring Access through Admissions

It’s admissions time! For CTCs, admissions staff are busy processing applications and making plans for the incoming class for 2023-2024. This is also a great time of year to remind staff about a CTC’s obligation to ensure that programs are accessible to all students, including students with disabilities and students from special populations who may be underrepresented in career tech programs. Federal Grant Programs such as Perkins V, as well as civil rights laws, require careful review of data to determine whether all populations are fairly served. 

The admissions process is a critical step in providing equal access, so much so that the federal government has created “special” rules for vocational school program providers. This makes some sense, because a traditional K-12 school district does not have an admissions process since they are generally required to enroll all eligible students who reside in their districts.

These special vocational rules, codified in 34 C.F.R. Appendix B to Part 100, establish specific guidelines for vocational school admissions. The rules expressly prohibit a vocational school or program from using any type of criteria that disproportionately excludes individuals of a particular race, color, national origin, sex or disability (collectively, these are referred to as “protected classes”). Vocational program operators have the burden of demonstrating that any criteria which is used as a gate in admissions have a valid purpose.

Theoretically, it is not the end of the road even if the school’s criteria for admission to programs has a disproportionate impact on a protected class. According to the regulation, a school still may be able to use the criteria if it can prove that it is essential, and there is no alternative, equally-valid criteria that may be used. In practice, however, it is very difficult to meet this burden and justify criteria that has such a disproportionate impact on a protected class.

Because of this, most CTCs in Ohio have transitioned to using a lottery system, with the only “criteria” being a limit on the number of credits in which a student may be deficient for graduation, since the lab takes up so much of the student’s schedule and it becomes difficult to make up credits after enrollment to remain on track to graduate.

The justification for lottery systems is apparent when you consider how common criteria might pose inequitable enrollment barriers. For example, many CTCs used student interviews as part of their admissions process, especially for competitive programs where there were frequently more applicants than seats in the program. As state and federal officials analyzed the legality of this criteria, they began to conclude that in-person interviews pose a risk for human bias to enter the picture.

For example, if a student in a wheelchair applies for a program such as auto mechanics, which involves a lot of physical activities and that student attends an interview, admissions staff who meet the student may assume that the student has physical limitations which prevent them from fully participating. As a result, they may be less inclined to approve the student’s application, even though the student may very well be successful in the program with appropriate accommodations and modifications.

Similarly, other criteria such as GPA, discipline, and attendance may have disproportionate and negative impacts on protected classes. Applying such criteria is often difficult to defend, because they do not always present a clear link between the curriculum and class requirements of the lab with a student’s ability to participate effectively in the vocational program.

When we talk about “success,” it is important to understand that a career technical program in Ohio must provide equal access to all students who reside in the CTC’s territory. This is a mandate under both state and federal law, including Appendix B as well Ohio Revised Code §3311.19. These laws do not strictly focus on outcomes, but rather are more about access.

In some circumstances, “success” for a particular student may be that they participate in a lab, but do not earn any industry certifications or credentials like their peers. This may be a difficult concept for staff to understand, especially since programs are rated and judged by such factors as the number of students who receive credentials and who successfully enter their chosen fields after graduation.  

The Ohio Department of Education is tasked with assisting the U.S. Department of Education’s Office for Civil Rights in ensuring that Ohio CTCs remain compliant with Appendix B and other civil rights laws and regulations. In the past few years, ODE has taken an active role in reviewing the admissions process of CTCs through things such as desk audits and complaint reviews. This has triggered statewide conversations about CTC admissions, and many changes have come about because of these conversations.

If you have questions about your admissions process or if you might be facing a program review in the near future, it is important to contact legal counsel who is conversant with the particular needs of career-technical education for further discussions and consultation.
















































































































































































































































































On the Call Podcast: OCR Complaints & Records Requests

On The Call: OCR Complaints & Records Requests

by Jeremy Neff & Erin Wessendorf-Wortman

Receiving an OCR records request can be as scary as watching the latest horror movie and may make you want to “Scream”.  Jeremy and Erin help take the panic out of the request with some practical tips to get through the response process. They discuss two cases that highlight the importance of substantive 504 plans and documentation, and working with your legal counsel to narrow the focus of the requests.  

You can also listen here or on Spotify, Amazon and Google Podcasts. Look for new episodes on the second and fourth Tuesdays of the month.

On the Call Podcast: Assistive Technology

On The Call: Assistive Technology

by Jeremy Neff & Erin Wessendorf-Wortman

Runs, Hits, and Errors with Assistive Technology: Jeremy and Erin discuss if – and how – you provide assistive technology as part of the IEP. They cover the “what ifs’: What if the technology doesn’t work? What if it isn’t used properly while at home? And while there is no crying in baseball, a recent case from Racine, WI highlights some of the issues that might get you called OUT!   

You can also listen here or on Spotify, Amazon and Google Podcasts. Look for new episodes on the second and fourth Tuesdays of the month.

New! On the Call Podcast: MDR Basics

On The Call: MDR Basics

by Jeremy Neff & Erin Wessendorf-Wortman

The Special Education Team of Ennis Britton is pleased to announce the rollout of our new podcast “On the Call”. Each episode focuses on a real-life special education scenario you may have encountered or might bump into very soon. Ennis Britton attorneys Jeremy Neff and Erin Wessendorf-Wortman take the call and then discuss applicable cases and laws related to the scenario presented.

The first episode covers the basics of a Manifestation Determination Review or “MDR”. They review a recent case in Connecticut that has implications for MDR meetings and highlights what you should consider related to the behavior which resulted in the MDR and the importance of digging into the details as you prepare for the meeting.

You can also listen to the first episode of the podcast here or on Spotify, Amazon and Google Podcasts. Look for new episodes on the second and fourth Tuesdays of the month.