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 Gary Stedronsky | Nov 29, 2016 | General
A federal judge in Texas has granted a nationwide temporary injunction in response to a lawsuit filed by 21 states, including Ohio, to challenge the new Fair Labor Standards Act (FLSA) overtime rule. The court agreed with the plaintiff states that the new rule could cause irreparable harm if it was not stopped before it was scheduled to go into effect on December 1, 2016, saying that the Department of Labor (DOL) exceeded the authority it was delegated by Congress in issuing this overtime rule.
Under the new overtime rule, “white collar” salaried employees not otherwise exempt from overtime pay would be eligible for overtime pay if their weekly salary is less than $913, which equals $47,476 when calculated on an annual basis – doubling the previous salary threshold.
Although application of the new rules has been stayed, school districts should continue to track eligible employees’ hours and maintain meticulous payroll records. They should also require that employees submit time records.
Districts should be mindful that the new rule would affect only the salary threshold component of the overtime-exemption test – a two-part test that requires that employees meet the salary threshold as well as perform duties that are exempt under FLSA. Therefore, employees who meet the lower salary threshold ($23,660 annually) must also perform exempt duties for the overtime exemption to apply. Employees who perform nonexempt job duties are eligible for overtime regardless of their salary.
Ennis Britton attorneys are available to help with any questions regarding the overtime rule, the injunction, which employees are affected, how to maintain payroll records, and how the two-part salary–duties test applies.
by Bronston McCord | Nov 1, 2016 | General, Student Education and Discipline
Beginning with the class of 2018, Ohio’s graduation requirements will change. In addition to the state’s academic curriculum requirements, which have not changed, students must fulfill an additional requirement to earn their high school diploma. Students have three options to choose from to fulfill this additional requirement. (Note: The Ohio Graduation Tests are still in use for the class of 2017; however, these students may use the new end-of-course tests to satisfy the testing requirement.)
- Ohio’s State Tests: Meet the minimum number of points on end-of-course tests
Under this option, students must accumulate at least 18 total points on the seven state tests, with a minimum number of points in each of the three subject areas. The points given for each test range from 1 (limited performance level) to 5 (advanced performance level).
|
Subject Area
|
Courses Tested
|
Number of Tests
|
Minimum Points Required
|
Points Possible
|
| English |
English I |
2 |
4 |
10 |
| English II |
| Math |
Algebra I or
Intermediate Math I |
2 |
4 |
10 |
Geometry or
Intermediate Math II |
| Science and Social Studies |
Biology (or Physical Science – 2018 only) |
3 |
6 |
15 |
| American History |
| American Government |
| Additional points required from any of the above tests |
4 |
|
| Total Points |
18 |
35 |
This option gives students flexibility in which subject areas to earn points – as long as the minimum number of points is met in each subject area. Thus, a high score in one subject area can help to offset a lower score in another subject area.
Retakes: Students may retake any test anytime during the student’s academic career within the testing window offered by ODE.
Alternatives for Science and Social Studies tests: Instead of taking the state’s end-of-course tests in Science and Social Studies, the following alternative options are available:
- Advanced Placement or International Baccalaureate courses: The tests offered in these courses will substitute for the end-of-course tests.
- College Credit Plus courses: The grade earned in the college course will determine the number of points credited to the test.
- College Readiness Tests: Meet the minimum scores on the ACT or SAT test
Under this option, students may meet or exceed the minimum score requirements on the ACT or SAT tests. (Note: These minimum scores are known as “remediation-free” scores, which are set by Ohio’s college and university presidents; therefore, they are subject to change.)
|
ACT
|
SAT
|
| Subject Area |
Minimum Score |
Subject Area |
Minimum Score |
| English |
18 |
Writing |
430 |
| Math |
22 |
Math |
520 |
| Reading |
22 |
Reading |
450 |
- Industry Credential and Work Readiness: Earn an industry credential and meet the minimum score on the WorkKeys test
Under the credential option, students graduate high school ready to enter the workforce with a job skill that Ohio employers need right now. Students must earn a minimum of 12 points from an approved, industry-recognized credential or group of credentials in a single career field, and then score 13 or greater on a job-skills test, WorkKeys, which shows their work-readiness in that job.
Students can choose from 13 career fields:
- Agriculture
- Arts and Communications
- Business and Finance
- Construction
- Education and Training
- Engineering
- Health
- Hospitality and Tourism
- Human Services
- Information Technology
- Law and Public Safety
- Manufacturing
- Transportation
|
WorkKeys Test
|
| Subject Area |
Minimum Points Required |
| Reading |
3 |
| Applied Mathematics |
3 |
| Locating Information |
3 |
| Additional points required from any of the above areas |
1 (class of 2018 and 2019) |
| 2 (beginning class of 2020) |
| Total Points |
13 (2018/2019) |
| 14 (2020) |
by Pamela Leist | Sep 26, 2016 | General, Special Education, Student Education and Discipline
A school district’s authority to discipline a student for off-campus speech is an increasingly relevant concern today for public schools. Inappropriate or offensive speech can cause lasting injury to victims and can trigger significant community backlash and unrest. The Ninth Circuit Court of Appeals recently addressed this issue in a case that arose out of Oregon.
The case was filed after a school district suspended a seventh-grade student named C.R. for harassing two other students from school. C.R. and some of his friends had been involved in an escalating series of encounters with two sixth-grade students, a girl and a boy, both disabled, first calling them vulgar names and later increasing to sexual taunting. On the day of the incident at issue, the students were traveling home from school through a public park adjacent to school property, just a few hundred feet from the campus. About five minutes after school let out, C.R. and his friends circled around the two younger students, commenting and questioning them about sexual acts and pornography. A school employee rode by the students on her bicycle, noticed the group, and stopped to help the younger girl and boy. The girl reported that the encounter made her feel unsafe, and the employee walked the two students home.
After investigating the incident, school administrators concluded that C.R. was the “ringleader” of the group and that the conduct fell within the district’s definition of sexual harassment. All of the boys were disciplined. C.R. was suspended for two days, not only because of the harassment but also because he had lied to administrators during the investigation and had disregarded their request to not discuss the interview with his friends.
C.R.’s parents filed a lawsuit a year after the incident, alleging that his First Amendment and due process rights had been violated and that the school lacked authority to discipline him. The school district moved for summary judgment, which was granted by the district court. The parents appealed the decision to the Ninth Circuit, which considered the following.
Was C.R.’s conduct sexual harassment? The school had a policy that defined sexual harassment, and the investigation had yielded evidence that C.R.’s behavior fit within that definition. The Ninth Circuit Court noted, “Federal courts owe significant deference to a school’s interpretation of its own rules and policies. … We uphold a school’s disciplinary determinations so long as the school’s interpretation of its rules and policies is reasonable, and there is evidence to support the charge.” Therefore, the court upheld the district’s conclusion that C.R.’s behavior was considered sexual harassment.
Could the school regulate his speech and discipline him? The court first considered whether the school could permissibly regulate the student’s off-campus speech at all, and then considered whether the school’s regulation of the student’s speech complied with the requirements of the First Amendment.
Regulation of students’ on-campus speech is well established as constitutional; however, regulation of off-campus speech is another matter. Following a previous Supreme Court decision (Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969)), regulation of student speech is permissible if the speech “might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities” or if the speech might collide “with the rights of other students to be secure and to be let alone.” Speech that is merely offensive is not sufficient; however, sexually harassing speech is more than that. Sexually harassing speech, the court held, implicates other students’ rights to be secure, threatening their sense of physical, emotional, and psychological security.
The age of the student who is being harassed is also relevant. The Supreme Court has noted that children younger than age 14 are less mature, and therefore overtly sexual speech could be more seriously damaging to them. For this reason, elementary schools may exercise greater control over student speech than secondary schools.
The court held that the school district did indeed have the authority to discipline C.R. for his harassing speech, even if it was off campus, for a number of reasons:
- All of the individuals involved were students
- The incident took place –
- On the students’ walk home
- A few hundred feet from school
- Immediately after school let out
- On a path that begins at the school
- The students were together on the path because of school
Succinctly stated, the court held that “a school may act to ensure students are able to leave the school safely without implicating the rights of students to speak freely in the broader community.”
Were C.R.’s due process rights violated? Again citing previous court decisions, the opinion noted that the Constitution allows informal procedures when a student suspension is 10 days or fewer. The school must provide the student notice of the charges but need not outline specific charges and their potential consequences or notify parents of the charges prior to the suspension. If the student denies the charges, the student then must have an opportunity to explain his side of the story. A school is not constitutionally required to inform the student of the specific rules or policies in question. For these reasons, the court held that the school did not violate C.R.’s procedural due process rights.
C.R. also claimed that his substantive due process rights were violated when the school recorded the reason for suspension as “harassment – sexual,” which allegedly deprived him of a good reputation. The court opined that C.R. did not have a genuine interest in maintaining a good reputation, as he had since stolen supplies from the school, and held that the school may record the reason for suspension, “however unsavory,” so long as it applied appropriate procedural safeguards. Therefore, the school also did not violate his substantive due process rights.
Ultimately, the Ninth Circuit upheld the summary judgment that the district court had previously granted.
C.R. v. Eugene School District 4J, No. 13-35856 (9th Cir. 2016)
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 Hollie Reedy | May 3, 2016 | Construction & Real Estate, General
The Ohio Board of Building Standards has finalized the door barricade device rules mandated by HB 64. Found in the Ohio Building Code, the rules address active shooter drills, emergency situations, and establishes conditions for the use of the temporary locking devices. The rules are effective as of April 18, 2016.
Generally, the building code requires door handles to be accessible, meaning they should not require tight grasping, pinching or twisting of the wrist to operate. The new rules provide an exception to the building code for temporary locking devices. Doors also must require only one motion to unlatch a door, but an exception has been built into the code for barricade devices. The devices may not be permanently mounted to the door. Individual parts of the device, such as bolts, stops, brackets, pins, etc. that don’t prevent ingress or egress through the door may be mounted permanently. If they affect the fire rating of a rated fire door assembly, they may not be permanently mounted.
To use the devices in compliance with the new code, the school district must have:
1. Adopted and filed a school safety plan.
2. The barricade devices may be used only in an emergency or during active shooter drills.
3. Only a trained member of the school staff may use the devices for a finite period of time, as determined by the school administrative authority according to the school safety plan.
4. The district must provide training to school staff on the temporary locking device, keep records of the training, and provide those records to the fire official upon request.
5. The district must provide proof to the building official that the fire and police officials with jurisdiction over the school building have been notified about the placement of the temporary locking devices.
6. The building official will approve the devices upon compliance with all rules, and will note the same on the certificate of occupancy.
Operation of the barricade device may not require more than one operation to be removed after it has been engaged. Two operations are permitted to remove the device only if the building has an automatic sprinkler system throughout the building. The building code notes that the Americans with Disabilities Act may affect the use and operation of temporary locking devices like door barricades, but states that this potential issue is outside the scope of the rules.
There are different vendors selling barricade devices, and not all of them may be compliant with the rules as outlined above. For example, the placement of the device (low, medium, or high on the door) or devices that require more than one motion to remove once engaged may be problematic. Carefully consider the requirements before selecting barricade devices for your schools: we suggest working with your local fire officials. Consult counsel for specific questions.
