by Pamela Leist | Apr 24, 2015 | General
On April 13th, 2015, the State Board of Education voted to amend a rule which previously mandated that school districts employ a minimum number of elementary art, music and physical education teachers, as well as a minimum number of nurses, library media specialists, social workers and visiting teachers. The standard was commonly referred to as the “5 of 8 rule,” and was originally adopted in 1983. The rule specifically required schools to have at least five of the eight positions mentioned above for every 1,000 enrolled students.
Members of the State Board had considered elimination of the rule for a number of years before passing a resolution on December 9th to formally reconsider it. The State Board conducted a public hearing before it voted on April 13th to officially amend the rule. On that day, the State Board rejected a proposal to refer the rule back to committee for further review before passing the final resolution to amend.
The new rule adopted by the State Board provides school districts with much more discretion to determine what the appropriate number of these positions may be. The rule, codified in OAC 3301-35-03, as amended states “[t]he local board of education shall be responsible for the scope and type of educational services in the district. The district shall employ educational service personnel to enhance the learning opportunities of all students. Educational service personnel assigned to elementary fine arts, music and physical education shall hold the special teaching certificate or multi-age license in the subject to which they are assigned.”
Opponents of the rule change argued that schools may use the new rule to eliminate important programs such as art and music, especially in lower income districts with high numbers of poor and minority students. However, many districts and proponents view the change as an opportunity to provide school administrators with more autonomy and control over staffing and programming. School administrators believe that they can more effectively tailor the programs to the unique needs of a particular school through the new rule.
The amended rule became effective on April 24th, 2015. You may view copies of both the new and old versions of OAC 3301-35-03 at http://www.registerofohio.state.oh.us.
by Erin Wessendorf-Wortman | Mar 26, 2015 | General, Labor and Employment
In a decision issued March 25, 2015, the U.S. Supreme Court decided that the Pregnancy Discrimination Act mandated that employers must provide accommodations to pregnant employees when needed if the employer provides accommodations to other employees with similar work restrictions. Young v. United Parcel Service, No. 12-1226 (Mar. 25, 2015).
In the underlying case, Ms. Young was a part-time driver for United Parcel Service (UPS) who was advised by her doctor, when she became pregnant, that she could not lift more than 20 pounds. UPS required drivers to be able to lift up to 70 pounds. UPS informed Ms. Young that she could not work while under a lifting restriction, and refused to provide Ms. Young with an accommodation for her pregnancy-related lifting restriction. Ms. Young consequently stayed home without pay during most of her pregnancy, eventually lost her employee medical coverage, and sued UPS alleging violations of the Pregnancy Discrimination Act.
The U.S. Supreme Court, though sending the case back to the trial court, held that policies may have the effect of discriminating against pregnant workers if the policies treat pregnant women different than similarly situated non-pregnant workers. For example, if a policy only permits on-the-job injured workers with accommodations, but does not provide pregnant workers with accommodations even though the pregnant workers have the same restrictions, the policy will run afoul of the Pregnancy Discrimination Act. Employers should be cautious when applying policy to ensure that the effects of the policy are not discriminatory towards pregnant workers.
This decision should be read in conjunction with the Equal Employment Opportunity Commission’s guidance regarding pregnant employees that was released on July 14, 2014. This guidance was discussed in Ennis Britton’s September 2014 School Law Review Newsletter. Together, the U.S. Supreme Court’s decision and the Guidance from the EEOC serve as reminders to employers that pregnancy conditions may be protected, and employers may be required to provide reasonable accommodations for pregnancy-related conditions.
by Erin Wessendorf-Wortman | Mar 17, 2015 | General, Labor and Employment
On February 25, 2015, the U.S. Department of Labor issued a Final Rule changing the Family and Medical Leave Act of 1993 (“FMLA”) definition of “spouse.” Effective March 27, 2015, spouses in same-sex marriages shall have the same opportunity as spouses of heterosexual marriages to exercise FMLA rights regardless of where they live. Therefore, even though Ohio prohibits same-sex marriage, if a couple was legally married outside of Ohio in a state that recognizes same-sex marriage, the same-sex spouse(s) must receive the protections of FMLA.
The U.S. Department of Labor issued this new rule in the wake of the United States Supreme Court decision in U.S. v. Windsor where the Court deemed the federal Defense of Marriage Act’s definition of spouse and marriage, which was limited to heterosexual marriages, unconstitutional.
The Final Rule modifies the definition of “spouse” in several ways.
- The definition of “spouse” will use a “place of celebration” rule rather than a “state of residence” rule. This means that the same-sex spouses who reside in a state that does not recognize same-sex marriage, but were legally married in a state that does, will be considered spouses under FMLA.
- The definition of “spouse” will expressly include persons in lawfully recognized same-sex and common law marriages, as well as marriages that were validly entered into outside of the United States, so long as those marriages could have been entered into in at least one state.
This change is intended to create a consistent application of FMLA rights across the country, even when different states have different laws regarding the underlying marriages. Further, this definitional change means that eligible employees, including those in a same-sex marriage, regardless of where they live, will be able to: take FMLA leave to care for their spouse with a serious health condition; take qualifying exigency leave due to their spouse’s covered military service; or take military caregiver leave for their spouse so long as the couple was legally married in a state that recognized the marriage.
Another change within this Final Rule entitles eligible employees to take FMLA leave to care for their stepchild (child of employee’s same-sex spouse) regardless of whether the in loco parentis requirement of providing day-to-day care or financial support for the child is met. This Final Rule also entitles eligible employees to take FMLA leave to care for a stepparent who is a same-sex spouse of the employee’s parent, regardless of whether the stepparent ever stood in loco parentis to the employee.
Therefore, effective March 27, 2015, employers covered by FMLA must follow the Final Rule changes promulgated by the U.S. Department of Labor, including this new definition of “spouse.” Currently, this change will only have FMLA implications, and will not impact other employment aspects for Ohio school districts (i.e. sick leave policies, benefits, etc.). However, by the end of June 2015, the U.S. Supreme Court should decide on whether state same-sex marriage bans are constitutional. If the U.S. Supreme Court decides that state same-sex marriage bans are unconstitutional, same-sex married couples will be entitled to all benefits received by heterosexual married couples.
by Pamela Leist | Mar 17, 2015 | General, Labor and Employment, Special Education
USDHHS Center for Medicare & Medicaid Services recently withdrew its prior guidance on the “free care” policy as expressed in the School-Based Administrative Claiming Guide. Under CMS’s new guidance, Medicaid reimbursement is available for covered services under the approved state plan regardless of whether there is any charge for the services to the beneficiary or the community at large. Also under CMS’s new guidance, schools are not considered to be legally liable third parties to the extent schools act to ensure that students receive needed medical services to access a free appropriate public education consistent with federal law. The guidance also states that even if a state determines that schools are legally liable third parties, the Medicare statute contains an exception which requires that Medicaid serve as the primary payer to schools and providers of services in an IEP under IDEA; noting that nothing in IDEA permits states to reduce medical or other assistance available.
by Jeremy Neff | Dec 22, 2014 | General, Student Education and Discipline
The U.S. Supreme Court recently heard arguments in a case regarding the extent of Constitutional protection of speech on social media. In United States v. Elonis, Elonis wrote graphic lyrics on Facebook which involved killing his estranged wife, law enforcement, and school students. Elonis is the Supreme Court’s first freedom of speech case involving cyber speech.
The issue before the Court is whether “conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant’s subjective intent to threaten” or whether “it is enough to show that a ‘reasonable person’ would regard the statement as threatening.” Basically, under this “threat” statute, does is matter whether Elonis intended to cause fear or whether a reasonable person would consider his postings a threat?
To get an understanding of the context of this case, the following excerpts provide a brief glimpse into the speech that Elonis posted on Facebook:
“There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.“
“Little agent lady stood so close. Took all the strength I had not to turn the b–ch ghost. Pull my knife, flick my wrist, and slit her throat. Leave her bleedin’ from her jugular in the arms of her partner.”
“Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined. And hell hath no fury like a crazy man in a kindergarten class.”
(In order to avoid complications with school internet filters, this blog post avoids the more profanity-laced postings of Elonis and censors a word that was spelled out in his original posting.)
Elonis argued that, under the applicable statute, the government must prove that the speaker intended the speech to be threatening. His argument centered on the protections offered under the First Amendment. In making this argument, he tried to relate his speech to the speech of famous rap artists, who are typically provided First Amendment protections despite the fact that they often express violent and threatening messages. On the other side, the government argued that the standard under the statute should be a reasonable person standard, requiring only that a reasonable person would consider the speech to be threatening.
The questions from the Supreme Court justices addressed both sides of the issue during oral arguments. Some of their questions included the following:
Justice Ruth Bader Ginsburg asked Elonis’s attorney about how the government would prove whether a particular threat, “in the mind of the threatener[,] was genuine?”
Chief Justice John Roberts questioned the government’s attorney on its interpretation of a “reasonable person.” He used the example of teenagers making a threat while playing a video game and questioned He then expressed concerns over the reasonable person standard being applied consistently with the same speech.
Justice Elena Kagan took a middle ground proposing a “reckless standard,” meaning a prosecutor would need to show only that the speaker should have known there was a substantial probability that the speech would cause fear, even if the speaker did not intent to threaten the listener. This standard would provide more protections for speech than the “reasonable person” standard, but it would not require the government to determine the speaker’s subjective intent.
It will be several weeks or months before the Supreme Court issues its highly anticipated decision in this case. Despite the fact that this case focuses on the interpretation of a specific threat statute, it will give insight into the justice’s views on freedom of speech in the context of online speech. In the absence of any significant appellate case law governing Ohio schools, the Elonis decision will provide some guidance to schools as they determine how to address student cyber speech.
United States v. Elonis, 730 F.3d 321 (3rd Cir. 2013), cert. granted, 134 S.Ct. 2819 (2014).
by Pamela Leist | Oct 30, 2014 | Board Policy & Representation, General, School Management
As districts transition to the new minimum school year reporting system, the Ohio Department of Education (“ODE”) recently released guidance about how it will allocate funding for students that attend school for less than a full day. In July of 2013, House Bill 59 became effective and mandated that the state funding formula for schools be based on annualized full- time enrollment (“FTE”). In order for a district to receive full per pupil funding, each student is expected to receive instruction for the entire day that the student’s grade level is scheduled to attend.
However, school districts typically have a number of students that do not attend for a full day, including students who participate in alternative school programs or who receive home instruction. Currently, districts are required to report in EMIS the percent of time that these students attend school as compared to the full day. In its guidance, ODE states that schools may experience a decrease in funding for part- time students as follows.
Alternative School Programs
Many students who are enrolled in alternative school programs are given the option to complete online modules independently. Often these students do not attend school for the entire day. According to ODE’s guidance, beginning this school year districts will be expected to provide an entire day of instruction for alternative school students unless they apply for and receive a waiver from ODE. ODE cites ORC §3313.533(B)(1), which states that an alternative school student must attend school or participate in another program named in the district’s plan for a period equal to the minimum school day mandated by state law. ODE states that a district may obtain a waiver if it can demonstrate that “the minimum hourly requirements are not workable for a particular student population.”
Districts that wish to apply for a waiver this school year are instructed to submit an email request to ODE at daystohours@education.ohio.gov.
Home Instruction
ORC §3323.12 requires a board of education to provide home instruction for children with disabilities who are unable to attend school. The statute further clarifies that for the purpose of determining formula ADM, five hours of home instruction is equivalent to five school days. Relying in part on this statute, school districts sometimes place students temporarily on home instruction, and provide five hours of instruction each week to ensure full funding. However, ODE notes that unless an IEP expressly requires home instruction, students who receive home instruction for less than a full day, including special education students, must be reported in EMIS as attending part-time. These students may trigger a percentage reduction in funding as a result.
Senior Late Arrival and Early Release
For years, school districts have rewarded seniors who have completed most of their graduation requirements early with the option to arrive late or leave early from school each day. Beginning this summer, ODE indicated to districts that these students must be reported as attending school part-time. ODE recognized in the new guidance that districts may lose funding for the percentage of time the seniors are out of school because of late arrival or early release.
However, ODE also indicates that districts may apply for a waiver from the state superintendent that would allow them to count certain seniors who miss one period of class as fully enrolled, but only if those students take sufficiently rigorous courses. The guidance includes several examples of what would be considered “rigorous” for the waiver, such as when a student 1) takes two or more AP classes; 2) takes two courses through a dual enrollment program, or 3) completes a certain number of hours in an internship or apprenticeship program. A district that wishes to request this waiver/exemption should send the request along with a draft policy to daystohours@education.ohio.gov.
Work Release Programs
For work release, a district may count a student’s work time as instruction time if he/she participates in an official work study program or an approved educational option. However, if a student has been released for employment due to financial hardship, a district has two options:
1) The district may report the student as part-time and include only the hours the student actually attends class (this is required if the absence is for more than ten days); or
2) Under certain circumstances, the district can count the absence as an excused absence if in accordance with board policy and approved by the district’s superintendent as an emergency or some other circumstance considered “good and sufficient cause” for an absence from school. Under this option, the absence will not impact the school’s funding but will affect the attendance rate.
Zero Periods
The last exemption for FTE that was included in the guidance involves zero periods. A zero period occurs when a district offers an additional period of instruction that is optional for students. With regard to the zero period exception, ODE will permit a district to report a student as attending full-time if he/she attends a district-created optional instruction period/zero period but is released from a period later in the day.
If you would like to view ODE’s guidance on Annualized Full- Time Enrollment, click here.
LEGAL REFS: ORC 3313.533, 3317.03, 3321.04, 3323.12
