Legislature on Summer Recess Passes Bills Before Leaving

Legislature on Summer Recess Passes Bills Before Leaving

by | Jun 20, 2026 | Legislation

Bills with last-minute impacts on education were passed as the Legislature ended its session and left for summer break.  No data center legislation was passed, but this topic will likely resurface in the lame-duck session in the fall.

The bills passed included many last-minute amendments, and some proposals did not make it to the next round, such as math intervention plans.

HB 455 and SB 19 were the vehicles for many additions and became a repository of miscellaneous education provisions.

Following is a summary of highlights of HB 455.  This bill has not yet been signed by the Governor, and therefore, it is possible there could be some vetoes.

It is not a comprehensive review of the contents or potential impacts of the bill’s provisions due to the newsletter format. If you have questions about any provisions, please contact an Ennis Britton attorney for further information.

Finance

Investment of interim funds:  School district treasurers will no longer need to submit a report to the ODEW or the state auditor the August 31 investment report listing the investments made in the preceding fiscal year, income from those investments and fees and commissions paid. It must still be submitted to the board of education.

School district opening for financial reasons: The entirety of existing sections of law regarding schools being unable to open for financial emergency has been removed, including applying for a loan from the state or commercial bank, issuing notes in anticipation of collection of voted levies.  Other references throughout the Code have been removed.

Levies: Under 5705.212, incremental/renewal levy, a section of the law allowing anticipation notes to be sold remains, but the section requiring a reasonable competitive bidding opportunity before the notes may be sold if the auditor has certified a deficit pursuant to the now-rescinded debt section of the law discussed above has been removed from the law. For R.C. 5705.213 current expense renewal levies, that same section has been removed.

Students

Habitual truants: Students adjudicated unruly due to habitual truancy may see court supervision of their cases for an additional school year to monitor their attendance.  On that subject, parents may now be convicted of the offense of contributing to the unruliness or delinquency of a student for habitual truancy (a misdemeanor of the first degree) without an adjudication of the student as unruly or delinquent.

Graduation tests: Ohio’s graduation tests in the form of the five high school achievement assessments have been eliminated from the law along with all references throughout the Code. There will still be achievement assessments as outlined below.  Related language on practice tests has been removed. College and work ready assessments are still in place.

Graduation intervention: Districts with 3-year average graduation rates of 75% or less will no longer have to provide intervention services to 9th graders who do not pass the graduation tests (removed from the law, see above).

Waiver of end of course exams: Students who previously were able to avoid end of course exams if they met certain criteria will no longer be able to do that, as the exemption language has been removed from the law.

Scholarship: For purposes of obtaining the scholarship, any student entering K-12 is eligible without being enrolled in the resident district or a community school.

Attendance and tuition:  Ohio law has finally recognized that for purposes of attendance and tuition, many parents are unmarried.  The new law adds to the definition of “parent” for attendance and tuition purposes that for parents never married to each other, parent means the parent who is the residential parent and legal custodian of the child.  This change will reduce flexibility regarding enrollment for fathers who are unmarried but are caring for their children in a different district.

Internet or computer based community schools: Students enrolled in these schools may take state assessments remotely with a remote proctor upon meeting certain conditions. These schools will now be required to meet with parents in the first two weeks to discuss available testing options and describe the preferred method.  If parents do not attend the meeting the school may administer its preferred testing option. If an IEP provides for in person testing, it shall be provided.    ODEW will produce a public report by Sept. 15 of the results to review discrepancies.

Age and schooling certificates:  Added to the list of things the superintendent must have and review prior to issuing an age and schooling certificate now includes a minor work hours notification form signed by the student’s parent or guardian.  This form will be created by the Department of Commerce and provided.

Student work hours: Adds a provision that a student may be employed between 7-9pm on a day before school is not in session and the parents approve. The will need to sign the minor work hours form mentioned above. (Note, this provision may conflict with of 29 C.F.R. § 570.35).

Preschool: Students will be eligible to participate in the early childhood education grant program if a slot is available, if the child has exited Part C early childhood intervention services as documented by an Individual Support Plan, the child is a Medicaid recipient or  part of a family group that participated in Ohio Works First or receives Supplemental Nutrition Assistance Program benefits. Families may choose to use this grant program rather than other sources for state funding for child care.  If the early learning program used EMIS to track attendance prior to the amendment it will continue to do so.  Funds distributed for the program will be used to provide early learning and development services and any remaining funds may be awarded in high need areas to allow more children to participate in the program or support expansion, innovation, or other enumerated initiatives.

State-level changes

Composition of State Board of Education: The State Board of Education will have seven members appointed by the Governor with the advice and consent of the Senate. The additional members will have their term begin January 1, 2027 for four years. Changes to the language on appointing the members requires that at least one appointed member have experience as a representative of rural, urban, suburban, community and nonpublic schools.  The additional members on the State Board opens the possibility that two members will be from nonpublic or community school or any of the other categories, or none of those categories.

ODEW annual school report: The  Director of ODEW will no longer be required to submit an annual report to the Governor and General Assembly on the status, needs and problems of Ohio schools with a ten-year enrollment projection for public and nonpublic schools by grade level.

ODEW employees: ODEW will no longer need to employ a full time physical education coordinator to assist districts in implementing the physical education standards.

Report cards:

ODEW will no longer be required to provide preliminary report card data by July 31 of each year.

Letter grades were removed.

Students with IEP’s who have satisfied the requirements for a diploma but have deferred graduation will be included as graduates on the 4 and five year adjusted graduation cohort.

Changes to the report card’s calculation of post-secondary readiness measures will now include attaining remediation free scores in ELA and math by either achieving accomplished or advanced on the end of course exams in ELA and Algebra II and geometry or on a nationally standardized test.

Calculation of this measure also includes changes to earning twelve (12) college credits through advanced standing CCP programs and a score of 3 or more AP and 4 or more IB course equals 3 college credits.

The requirement that JCARR approve the college, career, workforce and military readiness rules each year was removed.

Waiver of requirements based on ratings: ODEW now may remove districts from specified state mandates only for districts that receive five star ratings.

District ranking and report cards: The ranking of public schools calculation has removed the value added performance growth and other student growth measure from the calculation.

Innovative pilot programs: Community schools and STEM schools were added to the list of school types that may submit innovative pilot program plans to ODEW  requiring exemptions from state statutes or rules. On a similar note, ODEW now is required to promote innovative educational programs and provide support for developing them, publicize other projects, and promote the availability of waivers of state statutes and rules for those programs.

The law removed a section on schools being required to restructure under an academic distress commission.

Board member vacancy:  The board member vacancy statute has been amended to ensure that a board of education may not declare a seat vacant for nonattendance if the reason for that nonattendance at meetings is that the board member is deployed outside the district or ESC territory as a member of the U.S. Armed Forces or National Guard.  It adds educational service centers as entities that may declare a vacancy on the board for nonattendance pursuant to the statute.

Teachers

Licensure: Expansion of alternative resident educator licensure to any grade level if conditions are met. The employing board must inform the State Board it plans to hire the employee in a grade level outside their licensure, the educator is teaching an area aligned to their bachelor or graduate degrees or their  professional experience, or if they passed a subject matter competency exam, and they complete any required pedagogical training, and certain other requirements.

Licensure revocation or denial of license renewal:  Strangulation, grooming, domestic violence added to the list of revocation offenses.

STRS teacher defined: The definition of “teacher” was revised to remove an employee of an ESC acting as a tutor with registration under R.C. 3301.28 for STRS purposes.

Conduct unbecoming reports to State Board: Previously, districts could request misconduct referral information from the State Board’s Office of Professional Conduct, including reports submitted under R.C. 3319.313, when evaluating a candidate for employment. House Bill 455 amends both R.C. 3319.313 and R.C. 3319.393, which together governed the reporting and disclosure of that information. As a result of those changes, the prior framework allowing districts to obtain referral information from the State Board appears to be narrowed or altered, and districts may no longer have the same ability to access that information prior to hiring.

Miscellaneous

The definition of “challenged school district” has been removed from the law.

All references to college preparatory boarding schools have been removed from the law.

Community school ratings and closure standards were extensively revised.

Certain school district fiscal emergency designations were removed from the law.

DPIA funding and expenditures reports: ODEW will develop a way for districts to report DPIA funding and expenditures and will by Oct. 31 of each year produce a report detailing the same.  The current reports due from each district at the end of the fiscal year will no longer be due; however, the information still will be required to be reported in the manner selected by ODEW.

Science of reading training options: ODEW will select training courses more rigorous than the science of reading basic courses that may be taken in place of that course.

City school districts: Section 124.011 added language that a city and a city school district may by agreement determine that the civil service commission does not apply in whole or in part to the city school district, regardless of any other language in the Ohio Revised Code.

Suspension and expulsion policy, truancy policy, cell phone policy, suspension from school bus riding privileges:  Districts may now post their suspension and expulsion policy, truancy policy, cell phone policy, and school bus suspension policy on their website in lieu of posting it in a central location.

Diabetes data collection and reporting:  Districts will no longer need to collect information and report to ODE about the number of students with diabetes and incidents of administration of medication.

Nutrition annual report:  This annual report will no longer need to be sent to the ODEW regarding the district’s compliance with nutrition standards; it still must be produced, however.

Criminal background checks for all school employees: School districts may not employ a person who has been convicted of or pled guilty to with a long list of offenses, but the offenses of strangulation, grooming, and engaging in prostitution (unless the offender was coerced into that offense) have been added to the list.

 

Federal Judge Blocks FLSA Final Rule

Federal Judge Blocks FLSA Final Rule

by | Nov 22, 2024 | General, Legislation, School Management

A new Fair Labor Standards Act (FLSA) Rule took effect July 1, 2024, which significantly increased the salary minimum that non-teaching, salaried supervisors and administrators must make to be considered exempt from overtime pay.   

On November 15, 2024, a judge in the U.S. District Court for the Eastern District of Texas issued a nationwide injunction preventing the Department of Labor from implementing the new rule in its entirety.  The court reasoned that the Department of Labor exceeded its authority and effectively displaced the “duties test” in the law.  As a result of the ruling, the entire new rule, including the July 1 salary increase is no longer in effect, and the upcoming January 1 increase to the salary minimum will not take effect. 

The court stated, “… the Department’s 2024 Rule contemplates sweeping changes to the … regulatory framework, designed on their face to effectively displace the FLSA’s duties test with a predominate – if not exclusive – salary-level test,”  Continuing, the court concluded, The Department simply does not have the authority to effectively displace the duties test with such a predominant salary-level test.” (State of Texas v. Dept. of Labor, E.D. Tex. No.4:24-CV-499)

The Department of Justice could appeal the ruling, and the Fifth Circuit Court of Appeals or the United States Supreme Court could lift the injunction and reinstate the rule.  Due to the changing administration, it is likely that even if an appeal were filed, it could be withdrawn. 

It is interesting to note that very similar circumstances occurred in 2016 when the same federal district court in Texas blocked another DOL rule raising the minimum salary for the executive, administrative professional (EAP) exemption.

 What this means for your district:

The ruling means the minimum salary threshold for meeting the executive, administrative, or professional (EAP) exemption will remain as it was prior to the new rule taking effect: $684 a week (or $35,568 annually) for the EAP exemption and $107,732 for the highly compensated employee exemption.

If districts were planning to raise the salaries for nonteaching, salaried supervisors and administrators to ensure the salary basis test was met for purposes of the EAP exemption, there is currently no need to implement those changes.  If salary increases had already been given, if reductions were contemplated, they would need to be part of a uniform plan affecting the entire district.  If you have specific questions about how the EAP exemptions might apply or how the ruling affects a specific situation, please contact counsel. 

 

 

Legislature on Summer Recess Passes Bills Before Leaving

Lawmakers Gear Up for Busy Lame Duck Period

by | Nov 18, 2024 | General, Legislation, School Management

A little over a week has passed since the election, and the Ohio Senate has passed its first piece of legislation affecting Ohio schools. On Wednesday, November 13th the chamber voted to approve SB 104, also known as the “Protect All Students Act” along party lines.

Originally intended to amend the College Credit Plus program, SB 104 will allow students to apply by sending notice in November (rather than just April), allowing them to participate for the spring semester only. Students who apply in April can continue to participate for the full upcoming year without having to provide additional notice in November. Additionally, schools must host an orientation for each participant that complies with the Ohio Department of Education and Workforce (ODEW) and higher education requirements. Language was later inserted into the act to prevent transgender individuals from using bathrooms aligned with their gender identities at Ohio schools and universities. Under the act, primary and secondary schools will be required to designate separate bathrooms and changing areas for “students of the male biological sex” or “students of the female biological sex.” However, family restrooms and single-occupancy facilities will still be permitted, and there are exceptions for people with disabilities and children under 10 who need assistance from a family member or guardian. SB 104 now awaits Governor DeWine’s signature, who has previously indicated that he would sign the bill after conducting a legal review.

As the lame duck session continues, we have highlighted several pieces of proposed legislation that could impact Ohio schools if they are passed in the near future. Proposals range from enrollment policies and course requirements to increases in teacher salary and permitted uses of sick leave.

  • SB 208: Requires schools to open enrollment policies to accommodate military children.
  • SB 293: Requires schools to excuse students for religious release time (schools currently permitted but not required to do so).
  • SB 313: Requires schools to equip buildings and staff with a wearable panic device.
  • HB 411: Proposes to increase minimum teacher salary to $50,000.
  • HB 436: Authorizes aides and intervention specialists to provide remote instruction.
  • HB 468: Requires a district to allow civic organizations to provide written information to students about their club and to give them one day a year to present to students provided the representatives pass a background check.
  • HB 506: Requires each school that chooses to stock Naloxone/Narcan to develop a policy about obtaining and maintaining their supply of the drug.
  • HB: 507: Provides protection and safe harbors for political subdivisions that implement cybersecurity measures.
  • HB 520: Permits students to use club sports or other athletic activities to fulfill the high school PE requirement.
  • HB 560: Requires school districts to reimburse teachers for the full cost of completing the number of graduate level credit hours or CEUS for implicit bias training, and ODEW will reimburse the districts for the cost.
  • HB 571: Require schools to include national suicide and crisis hotline numbers on student IDs, planners, and electronic portals.
  • HB 574: Allows a BOE employee to use sick leave for parental leave of absence.
  • HB 585: Provides money to promote food options for students with religious dietary restrictions.
  • HB 623: Requires districts to offer at least one high school computer science class that includes computer programming, and makes it a requirement for graduation (beginning in the 2026-2027 school year).
  • HB 633: requires districts that run elementary schools to hand out an informational brochure to parents developed by the Department of Health regarding Type 1 diabetes.
  • HB 657: Requires schools to make their pledge of allegiance policy public by posting on the school’s website.

As the lame duck session continues, lawmakers will be rushing to pass as many of the remaining bills that they can before the end of the year. There are hundreds of proposals that need to be considered, many of which have nothing to do with education, and it is possible that the bulk of the session will focus on other issues. Governor DeWine, for example, has listed the regulation or prohibition of delta-8 hemp as a top priority as bills addressing the issue have made little progress throughout the year. Ultimately, the lawmakers  decide which bills will be prioritized, and any bill not passed by the end of the session will have to go through the entire hearing process again after the next General Assembly is sworn in.

What does this mean for your district? At the time this article was written, the only piece of legislation listed above that has been passed by both the Ohio House and Senate has been SB 104. The Act imposes facility requirements on all Ohio schools and amends the CCP program to include a second application window. There is no guarantee that the other proposals listed above will become law, but it is worth tracking their movement as the year ends considering the potential changes that may be required for the next school year.

 

 

UPDATE – Senate Bill 29: Implications for Districts

UPDATE – Senate Bill 29: Implications for Districts

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

Senate Bill 29 (“SB29”) will take effect on October 24, 2024.  Ennis Britton is re-issuing our September 4, 2024, Special Client Alert with additional information that is responsive to some of the more frequent school district inquiries. This guidance is aimed at assisting education leaders to maintain compliance with the new requirements while continuing to prioritize school safety and effective technology use.

Many school districts have expressed concerns about the restrictions on accessing and monitoring student activity on school-issued devices. Specifically, SB29 generally prohibits electronic monitoring or accessing of school-issued devices.  The exceptions to these prohibitions – such as for instruction and as necessary to participate in E-Rate – require notice to parents. There is both an annual General Notice requirement that applies when schools plan to “generally monitor” school-issued devices, and a 72-Hour Notice that applies when “one of the circumstances described in [the exceptions] is triggered” and the school “access[es]” a school-issued device.

While a version of the 72-Hour Notice for simply accessing a device was required in SB29 as introduced, the General Notice requirement and the “circumstances” and “triggered” language regarding the 72-Hour Notice were added to SB29 at its final hearing in the House Primary and Secondary Education Committee.  The only testimony as to the purpose of this amendment came from Representative Fowler Arthur when she proposed the amendment.  She stated “the school district or technology provider is going to generally be monitoring the school-issued device and the trigger would no longer be within 72 hours of notice” and that “they provide the notice annually to the students’ parents and 72 hours of notice is only required when one of the specific circumstances in the bill is triggered.”  The amendment was adopted without further discussion.

This legislative history, combined with the distinction in SB29 between “generally monitor[ing]” and “circumstances” that “trigger[]” “access” to a school-issued device, establish that the annual General Notice stands on its own. There is thus not an expectation of ongoing 72-Hour Notices related to the same monitoring activities covered by the annual General Notice. This means that schools need not provide a 72-Hour Notice each time a device is accessed for noncommercial educational purposes for instruction, technical support, or exam proctoring by a school district employee, student teachers, or contracted staff when the annual General Notice has been provided. We believe this interpretation makes sense because school districts would otherwise be required to send 72-Hour Notices on a daily basis to many parents for benign access to school-issued devices.  See Section IV below in the original Special Client Alert for more information on these restrictions and the exceptions.

 Special Client Alert: Senate Bill 29 (first issued September 4, 2024)

Senate Bill 29 (“SB29”) as 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 agency’s 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 to 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 its 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 features 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 access or monitor a student’s activity on a school-issued device are:

  • Noncommercial educational purpose 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 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.

 

Ennis Britton Short Series Podcast: Fundamental

by | Jul 1, 2024 | Legislation

In this preview of Ennis Britton’s short series podcast, “Fundamental,” host Jeremy Neff introduces the pivotal DeRolph v. Ohio case, marking the 30th anniversary of the first trial court decision this year. Jeremy shares his personal journey during and after the case’s proceedings. Future episodes will feature interviews with key figures from the original case and current education leaders.

You can also listen here.  Be sure to subscribe wherever you get your podcasts, and we look forward to sharing the rest of the series with you in August 2024. In the meantime, please email us at podcast@ennisbritton.com for a digitized, searchable, and bookmarked copy of the original July 1, 1994 decision.

 

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.