School Funding Reform at the Center of Competing State Budget Plans

In early February, the Ohio House introduced HB 1. This bill, often referred to as the Cupp-Patterson Plan, proposes a significant overhaul of the State’s school funding system. Chief among its objectives is developing a per-pupil funding amount that reflects actual costs, moving away from caps and guarantees, committing to a longer-term plan, and accounting for localized needs. The plan was developed during the prior session of the General Assembly and seemed poised for serious action before COVID-19 disrupted the legislative agenda.

HB 1 has enjoyed broad support among education groups, including disparate groups such as the Ohio School Boards Association and the Ohio Education Association. After it fizzled in the last session, it was widely expected to be a major part of budget debates during the first year of the current session. Not surprisingly, under Speaker Bob Cupp (the “Cupp” of “Cupp-Patterson”) the House passed its budget proposal, HB 110, with HB 1 largely incorporated. The 70-27 vote on April 21 was somewhat bipartisan with 12 Democrats joining the Yeas and 6 Republicans joining the Nays.

Like the House, the Senate is dominated by the Republican Party, but this has not resulted in easy passage of HB 110 and Speaker Cupp’s school funding reform plan. The school funding plan under consideration in the Senate moves away from the six year phase-in of the House plan, and instead provides initially larger increases in per-pupil expenditures with no commitment to longer-term increases. Notably, the Senate plan abandons the highly localized per pupil funding calculations of HB 1, and instead determines a single base cost to apply throughout the state.

Statements from leading Senators indicate a concern that the House plan would lead to unsustainable funding increases. Of particular concern to these Senators is the use of teacher salary increases as part of the calculation in base costs. They argue that increases in pay even since development of the formula mean that costs have already increases by hundreds of millions of dollars. Supporters of the House plan point to a dramatically improved state economy and tax revenues well above estimates as reasons to support an increased commitment to K-12 education. Instead, the Senate budget plan currently proposes a 5% reduction in income taxes.

Both the House and Senate budget plans move to a direct funding system for various school choice programs. This would eliminate the current process that often requires funding to be directed to school districts only to be deducted when a family uses a voucher or enrolls in a charter school. The Senate plan proposes a significant increase in voucher funding and the elimination of some restrictions on the opening of charter schools.

What this means for your District:

Joint testimony from the Ohio School Boards Association, Ohio Association of School Business Officials, and the Buckeye Association of School Administrators has urged adoption of the House plan as part of HB 110. Among other reasons, they point to the longer-term commitments and growth in K-12 funding offered by the House plan. They also point to the extensive efforts to gather stakeholder input to develop the original Cupp-Patterson Plan. Finally, they identify the process of developing an actual input/cost-based approach to identifying appropriate per-pupil funding as critical.

The current state budget expires at the end of June. In most budget years this means the General Assembly passes the new budget during a late night session on or about June 30. However, it must be noted that the current state budget was not passed until nearly two weeks into July 2019 (after a temporary measure was passed to keep the government open). The time is now to share your views on the school funding reform plan, school choice funding, and other matters relevant to K-12 education. Current legislative activity is in the Senate. It is anticipated that in late June there will be a flurry of activity in both chambers as differences between House and Senate budget bills are resolved.

Pandemic relief bill Sub. HB 67

This won’t be the last of the pandemic response bills, but Sub. HB 67 recently was passed on a fast track through the Ohio House and Senate, sent to the Governor and signed by him on March 20, 2021.  The bill has an emergency clause, so it is effective immediately.  It provides numerous changes in response to the pandemic for schools.   What exactly was in this bill that will affect us? 

Report cards:  There will be no letter grades for districts, buildings or components for the 2020-21 school year, nor will districts need to submit preliminary data for the report cards by July 31.  There will be no rankings of districts, community schools or STEM schools.  The Department will report on September 15, 2021 the data it has on building and district performance.

Ratings, sanctions and penalties: For district ratings, this year will have no effect on a district’s status for sanctions or penalties, and will not be used as a starting point for new sanctions or penalties. Previous years or subsequent years will be used for ratings that are assessed over time.  For a district already subject to sanctions or penalties, (academic distress commissions, restructuring, Ed Choice scholarship eligibility for buildings, defining a “challenged district” for new start-up community schools, federal and state laws identifying schools for targeted  or comprehensive supports, etc.) will remain in effect next year, but will not advance.  The law specifically states that Ed Choice performance-based scholarships will be awarded the on the same basis as current law outlines in R.C. 3310.03 for 2021-22 and 2022-23.

American history testing: In a compromise on testing, only the end of course exam in American History will not be required to be administered in 2020-21. Any student in the district’s enrollment for whom the test was not administered must continue to be counted by ODE on the same basis.  If the test is not administered, it may not be used to determine whether a student is subject to withdrawal.  Students on Ed Choice, Jon Peterson or Pilot Project scholarships may renew them even if the test is not administered.

Graduation in 2020-21: For students in 12th grade or who are on track to graduate regardless of graduation cohort but have not completed the requirements for a diploma, may graduate if:

            1.) The principal, consulting with teachers and counselors, agrees that the student has successfully completed the curriculum or their IEP.  This option may not be used after September 30, 2021. 

            2.) A school district that has adopted more rigorous requirements for curriculum than the state minimum may require only the minimum curriculum, and after the superintendent reviews whether the student has met the minimum curriculum to determine whether they have successfully completed it. 

Additional graduation pathway added in 2020-21:  Student will qualify for graduation, this year only, if they complete the high school curriculum or their IEP, and earn the OhioMeansJobs readiness seal. 

End of course exam flexibility: 11 and 12th grade student who take and retake, or who were unable to take an end of course exam may use their final grade in the course instead of the end of course exam score to meet graduation requirements.  The grade in the course determines what level of skill; advanced, accelerated, proficient, basic, or limited.  A grade of “C” or higher qualifies as a competency score.

Testing time frames: For 2020-21 only, spring state assessments online will be done according to the following schedule:   

  • ELA assessments for all grades between March 22 – May 7, 2021. 
  • ELA assessments for all grades between March 22 – May 7, 2021. 
  • ELA assessments for all grades between March 22 – May 7, 2021. 
  • ELA assessments for all grades between March 22 – May 7, 2021. 
  • ELA assessments for all grades between March 22 – May 7, 2021. 
  • ELA assessments for all grades between March 22 – May 7, 2021. 
  • ELA assessments for all grades between March 22 – May 7, 2021. 

Home school academic assessment waiver: Superintendents may not require home school parents to submit an academic assessment for the 2020-21 school year as a condition of allowing continued home instruction.

ESEA waiver:  The law orders ODE to seek a waiver from the ESEA accountability and school identification requirements for this year.

Ohio Supreme Court Affirms Decision That The Ohio Student Privacy Act Forbids Release of Student Records of Deceased Student

In January 2020, we reported to you that the Second Appellate District Court in Ohio ruled that the death of a student does not remove the legal protections of the confidentiality of student records. Find more details from the January 2020 report here. State ex. rel CNN, Inc. v. Bellbrook-Sugarcreek Local School Dist., 2019-Ohio-4187.

This case was appealed to the Ohio Supreme Court, who issued a decision on November 5, 2020. In brief summary, CNN and other local and national media organizations sought student records regarding a deceased adult former student who killed nine people and injured 27 others in a mass shooting in Dayton, Ohio on August 4, 2019. The Ohio Supreme Court specifically found that school districts are “prohibited from releasing any personally identifying information about [a student] without … consent.” The Court determined that there was no exception provided for in Ohio’s Student Privacy Act, R.C. 3319.321, to permit the release of personally identifiable information when the student is deceased. While the Court mentioned the Family Educational Rights and Privacy Act (FERPA), it found that it did not need to consider the federal law as state law prohibited the disclosure of the requested record.

As a result, the Second Appellate District Court’s decision was affirmed, through the Court’s finding that the Ohio Student Privacy Act “unambiguously forbids disclosure of the requested records.”

State ex rel. Cable News Network, Inc. v. Bellbrook-Sugarcreek Local Schools, 2020-Ohio-5149 (Nov. 5, 2020)

U.S. Supreme Court: Title VII Prohibits Termination Based on Sexual Orientation

On June 15, 2020, in the consolidated matters of Bostock v. Clayton County, Georgia, Altitude Express v. Zarda, and R.G.& G.R. Harris Funeral Homes v. EEOC, et al, the United States Supreme Court ruled in a 6-3 decision that an employer who fires an individual employee merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964. Bostock began participating in a gay recreational softball league. Shortly thereafter, Bostock received criticism for his participation in the league and for his sexual orientation and identity generally. Shortly afterward, Clayton County terminated his employment. In Altitude Express, Zarda was fired days after mentioning he was gay. In Harris, an employee was fired after the employee informed the employer that the employee planned to live and work full time as a woman. The U.S. Supreme Court held that Title VII prohibits employers from discriminating against any individual “because of such individual’s race, color, religion, sex, or national origin.” Looking to the ordinary public meaning of each word and phrase comprising that provision, the Court interpreted it to mean that an employer violates Title VII when it intentionally fires an individual employee based, at least in part, on sex. Discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat employees differently because of their sex—the very practice Title VII prohibits in all manifestations. While it was argued that Title VII was never intended to be read with such a broad brushstroke, the Court found that the use of the word sex was unambiguous and supported its holding. 

Ohio Supreme Court Upholds School District Takeover Law

On May 13, 2020, the Ohio Supreme Court upheld House Bill (HB) 70, which was passed in 2015 by the 131st General Assembly. HB 70 is a school takeover bill that gave sweeping powers to an appointed CEO in districts that struggled to meet overall state report card requirements. 

The Youngstown City School District Board of Education argued that HB 70 was unconstitutional. HB 70 originally authorized schools to create community learning centers where academic performance was low. It was considered by the House on three separate days, after which it was ultimately passed by the House and went to the Senate for consideration. 

The Senate considered the bill on three separate days also but made two amendments, one of which modified the structure of academic-distress commissions. Among other items, the amendment included a requirement that for any district that has received an overall grade of “F” on its state report card for three consecutive years, a commission must appoint a CEO who has “complete operational, managerial, and instructional control” over the school district. The Senate passed the amended bill and the House quickly concurred in the Senate amendments. The Governor signed the bill into law.

The Board of Education (along with its employee unions) sought a declaratory judgment and permanent injunction by challenging the constitutionality of the bill and the legislative process in enacting it. The Board of Education argued that the law violated an Ohio Constitutional provision that requires that every bill “be considered by each house on three different days,” and another provision that states that a city school district has the power “by referendum vote to determine for itself the number of members and the organization of the district board of education.”

The trial court ruled against the Board of Education, as did the Tenth District Court of Appeals. The Ohio Supreme Court agreed to hear the Board of Education’s appeal.

The Supreme Court found that the three-consideration provision in the Ohio Constitution was not violated. The Board of Education argued that the bill was substantially changed in the Senate from its original purpose of creating community learning centers. The Board of Education claimed that the amended bill must also satisfy the three-consideration provision of the Constitution. The Supreme Court disagreed. It found that a bill need not contain the exact same language in each of its three readings to be valid. “[A]mendments which do not vitally alter the substance of a bill do not trigger a requirement for three considerations anew of such amended bill.” Only where the subject or proposition of a bill is wholly changed must an amended bill satisfy the three-consideration provision. 

In this case, the House and Senate each considered HB 70 on three different days. The Supreme Court found that the amended bill had a common purpose to the original bill of seeking to improve underperforming schools. Therefore, the amended bill that included the additional academic-distress commission provisions did not also need to satisfy the three-consideration provision of the Constitution.

As for the Board of Education’s other argument, the Supreme Court found that the Ohio Constitution governs the size and organization of school boards, not the power and authority conferred to them. Although HB 70 removed most of the Board of Education’s power, the Supreme Court found that the Constitution does not prevent that. Accordingly, the Supreme Court upheld HB 70 and affirmed the judgments of the lower courts that ruled against the Board of Education.

HB 70 does not apply to the vast majority of Ohio school districts. However, it has been declared constitutional and will remain valid Ohio law until such time as the legislature amends it. Recent legislation has been proposed seeking to end school takeovers such as this (SB 89) or dissolve the academic-distress commission overseeing Lorain City Schools (HB 9). Neither of those legislative attempts have become law. Members of the General Assembly have indicated that they will continue to address the status of academic-distress commissions and school takeover. We will monitor those efforts and keep you updated.

IDEA Flexibility Amidst COVID-19

The Coronavirus Aid, Relief, and Economic Security (CARES) Act was passed by Congress on March 27, 2020. Part of the act directs U.S. Education Secretary Betsy DeVos to submit a report to Congress. The report, that must be submitted by the end of April, is to make recommendations for any additional waivers that might be needed under IDEA, in direct response to the COVID-19 pandemic. There is reason to believe that a concerted effort on the part of school districts could result in much-needed flexibility during this unprecedented time.

The National Association of State Directors of Special Education (NASDSE) and the Council of Administrators of Special Education (CASE) jointly wrote a letter in anticipation of the report the DeVos will submit. The letter asks for flexibilities for specific IDEA provisions that have been affected by COVID-19. Those provisions include timelines, procedural activities, and fiscal management. Other groups, including parent groups pushing back hard against reasonable adjustments in light of the global pandemic, are also lobbying for what flexibility should entail.

Concerns that we are hearing from clients often center on flexibility related to evaluation timelines (especially initial evaluations), recognition that what constitutes a free, appropriate, public education during the health emergency need not match what would be provided under regular operations, and realistic expectations for compensatory education upon resumption of regular school operations. If you would like to contribute to the conversation on what the flexibilities might look like, now is the time. Get in contact with professional organizations to lobby for what you feel strongly about. Your opinion matters.