UPDATE – Legislators Grapple with EdChoice Program Expansion Amendments

Efforts to curb the impact of EdChoice accelerated towards the end of January as legislators in the Senate and House searched for ways to reduce the negative financial impact that the program is anticipated to have on Ohio’s public schools starting next year. Legislators and the governor approved language in last year’s budget bill which was designed to dramatically increase the number of students eligible for the scholarships by more than doubling the number of eligible buildings. Prior to the program expansion, EdChoice was available in 31 school districts and 255 schools. After the expansion, EdChoice eligibility would have extended to at least 426 school districts and 1,227 schools. 

Lobbying efforts and contacts from districts to their legislators and to House and Senate committee members to reduce the impact of the changes resulted in the last-minute action to delay implementation of the changes. The 2020-2021 application window for EdChoice would have opened on February 1st, of this year; now, the program application is delayed to April 1st.  The House and Senate are expected to review the EdChoice program expansion in the next two months and hopefully will develop amendments to the budget expansion which will better support Ohio’s public school system.

The House initially proposed changes to EdChoice through HB 9. With a deadline of February 1st (the start of the applications of EdChoice scholarships) looming, the Senate passed alternative language late in the evening on January 29th. The Senate’s plan would have reduced the number of school buildings eligible under the traditional EdChoice program, but would also have increased the number of families eligible for the EdChoice expansion program by changing eligibility from 200% to 300% of the federal poverty guidelines for the income-based vouchers. 

The bill was sent back to the House, which rejected the changes, and a conference committee convened. The House elected instead to pass House Bill 120, including language delaying the EdChoice application window until April 1st. HB 120 also contained separate provisions that authorize the auditor’s office to conduct performance audits of all state institutions of higher education and also modified requirements for College Credit Plus informational sessions. The bill included an appropriation of $10 million to help fund the EdChoice program. The Senate passed HB 120 on January 31st and the governor signed the bill the same day. The bill is considered an emergency measure and is effective immediately. This move buys the legislature more time to develop a plan that both houses are willing to pass.

February 3rd, 2020 Update: A group of families and private schools filed a lawsuit in the Ohio Supreme Court challenging House Bill 120 changes to EdChoice. The lawsuit alleges that the legislature failed to properly execute an emergency measure and therefore HB 120 should not go into effect for 90 days. The parties also claim that the HB 120 application delay will cause irreparable harm to new EdChoice eligible students who planned to apply for the scholarship. If successful, the state may be forced to accept applications starting February 1st.

We will keep you posted on developments. The education associations have sent out multiple calls of action on the bills and you are encouraged to continue to stay apprised of developments and let your legislators know how the expansion would affect your district. 

Court Sides with District in Teacher Termination and Vacates Back Pay

The Sixth District Court of Appeals delivered a win to school districts recently when it reversed a lower court’s decision ordering the Perkins Local School District to reinstate a former teacher who had been terminated with an award of $367,202.52 in lost wages and benefits. The case was brought by former teacher and coach Tracey Hiss. Hiss was terminated for cause after the district learned she supplied several members of her girls track team with Lidoderm patches – prescription patches containing lidocaine that help with pain relief.

When the superintendent learned of the allegations, he met with Hiss and subsequently placed her on paid leave pending further investigation. He also reported the allegations to the police, who subsequently charged her with a minor misdemeanor for her actions. The district held a pre-disciplinary hearing and the superintendent sent notice of his intent to recommend termination. Hiss, through legal counsel, objected to some of the reasons listed in the notice because they had not been addressed at the pre-disciplinary hearing. The superintendent subsequently held another pre-disciplinary hearing and again recommended termination which the board approved. Hiss requested a hearing to challenge the board’s intent to terminate before a state appointed referee. At the termination hearing, Hiss introduced evidence of an incident where a prior coach, Crabtree, had given a student Tylenol to help reduce pain. She argued that the board should not have terminated her contract due to the fact that this teacher merely received a reprimand and a brief suspension from coaching, where she was being terminated.

After conclusion of the five-day hearing, the referee issued his report and recommendation that the board terminate Hiss’s teaching contract. In making this recommendation, the referee found that the board had sufficient policies prohibiting teachers from both possessing and distributing controlled substances and medicines to students without a parent’s permission.

Shortly thereafter, the Board adopted the referee’s recommendation and passed a resolution to terminate Hiss’s teaching contract. Hiss then appealed this decision to the common pleas court. The court applied the Daughtry test of good and just cause, concluding that the board lacked cause to terminate Hiss’s contract. The court focused in particular on the fact that Crabtree, who had engaged in similar behavior, received a much less severe discipline. The district appealed, claiming in part that the court of common pleas abused its discretion in applying this new test and effectively usurping the role of the ODE referee.

On appeal, the Sixth District Court of Appeals agreed that the court of common pleas abused its discretion when it substituted its own judgement in place of the board of education. The court of appeals concluded that the court’s reliance on the Daugherty test to define “good and just cause” was misplaced. The court reasoned that, while an arbitrator may use the Daugherty test to determine the standard of good and just cause in a labor-arbitration matter, the Ohio Supreme Court has failed to adopt the Daugherty test in just cause teacher termination cases. Thus, the common pleas court exceeded its authority by relying on the Daugherty test as opposed to the cases interpreting R.C. 3319.16 as to whether good or just cause exists.

Examining the merits of the case, the court also determined that Hiss’s misconduct was , a “fairly serious matter” that falls within the realm of good and just cause for termination under R.C. 3319.16. Hiss repeatedly gave prescription pain medicine to students in direct violation of district policy that could have ultimately caused serious harm to the students. The court opined that this added to the fact that the board of education complied with procedural requirements of R.C. 3319.16 by providing Hiss with two informal hearings as well as a hearing before the referee justified the board’s decision to terminate. Therefore, the board’s earlier decision to terminate Hiss’s teaching contract was reinstated.

Arming School Personnel

The Ohio Attorney General’s Office recently released an opinion in response to a request for legal advice on the issue of arming school staff. The letter requested, among other things, an analysis on how the training requirements under R.C. 109.78(D) apply to school employees authorized by the board of education to carry or possess a deadly weapon on school property under R.C. 2923.122(A).

R.C. 109.78(D) in full provides:

“(D) No public or private educational institution or superintendent of the State Highway Patrol shall employ a special police officer, security guard, or other position in which such person goes armed while on duty, who has not received a certificate of having satisfactorily completed an approved basic police officer training program, unless the person has completed twenty years of active duty as a police officer.”

As noted, R.C. 2923.122(A) prohibits any person from knowingly conveying, or attempting to convey, a deadly weapon into a school safety zone. However, there is a specific exception set out in R.C. 2923.122(D)(1)(a) which excludes any other person from this prohibition:

“who has written authorization from the board of education or governing body of a school to convey deadly weapons… in a school safety zone or to possess a deadly weapon… in a school safety zone and who convey or possesses the deadly weapon… in accordance with that authorization.”

The letter sought advice on whether or not a school employee who has been authorized to carry a deadly weapon by the board of education under R.C. 2923.122(D)(1)(a) is subject to the training requirements of R.C. 109.78(D). The Attorney General’s Office reiterated their argument laid out in their amicus brief in the appeal of Gabbard v. Madison Local School Dist. Bd. of Edn. The court in that case concluded that school employees authorized by the board of education to carry firearms on school premises were not subject to the training requirements of R.C. 109.78(D) because they were not employed by the district in a security capacity. The Attorney General’s Office agreed and opined that in order to determine which provision outlined above is applicable to an employee hired by a school district, we must analyze whether the individual is employed in a role comparable to that of a security guard or police officer. In doing so, we must look to the person’s job title along with the duties and responsibilities assigned to them.

If an employee is hired by the district in a security capacity, then they are subject to the training requirements expressed in R.C. 109.78(D). (I.e. approved basic training police program, or twenty years active duty of a police officer). However, any other employee hired by a school district who does not serve in such a role, i.e. teacher, principal, custodian, and who is authorized by the board to carry or possess a firearm under R.C. 2923.122(D)(1)(a), is not subject to the training requirements of R.C. 109.78(D).

Restraint and Seclusion

The use of restraint and seclusion in schools continues to be a high priority for state and federal policy makers. Ohio’s first regulations specifically addressing restraint, seclusion, and positive behavior intervention and supports took effect in 2013 as Ohio Administrative Code (OAC) 3301-35-15. In June 2018, the General Assembly passed House Bill (HB) 318, also known as “the SAFE Act”. This law addresses a variety of student discipline issues, including a requirement to rewrite Ohio’s restraint and seclusion regulations.

Ohio Administrative Code 3301-35-15 was due for review by August 2018, but the process has not been completed. HB 318 set a deadline for revision of OAC 3301-35-15 by early February 2019. Again, no revisions were made. However, work is ongoing at the Ohio Department of Education (ODE) and various stakeholder groups are being presented with draft rule revisions this summer. It is anticipated that in the coming months, there will be a proposed rule presented for public comment and consideration by the State Board of Education.

In the meantime, existing requirements for the use of restraint and seclusion remain in place. This includes absolute restrictions on certain practices, and significant data tracking and reporting requirements. The summer “break” is a good time for administrators to review existing training programs, plan for which staff members may require additional training due to student assignments and program changes, and review reporting data for the recently completed school year to determine if there are any patterns or gaps that need to be addressed.

While the use of restraint and seclusion generally should be rare, consistent reports of zero incidents may raise a red flag. A recent report from the federal Government Accountability Office (GAO) found that nine of the nation’s 30 largest school districts reported no incidents of restraint or seclusion in the last reported year (2015-2016). The GAO and U.S. Department of Education presume that such reports are inaccurate, with the GAO reporting that, “We are encouraged that Education recognizes the seriousness of this issue and the data quality issues it has allowed to persist when districts inappropriately and inaccurately report zero incidents of restraint and seclusion.”

In addition to whatever new requirements might be rolled out by the U.S. Department of Education to address its concerns, long-proposed federal legislation is expected to be reintroduced later this year. The bill, called the “Keeping All Students Safe Act,” is likely to overlap significantly with Ohio’s restraint and seclusion regulations.

Legislation to Create Substitute Pupil Services Personnel License

The Ohio House of Representatives is expected to vote on a bill that would create a license for individuals to serve as substitute pupil services personnel. HB 491 passed in the House Education and Career Readiness Committee on March 21 by a vote of 16-0. The bill enacts a new section of the Revised Code (3319.2210) that would require the state board of education to issue a substitute license to individuals who meet certain criteria and wish to serve as substitutes in the following positions:

  • ​Speech language pathologists
  • Audiologists
  • Registerd nurses
  • Physical therapists
  • Physical therapist assistants
  • Occupational therapists
  • Occupational therapist assistants
  • Social workers

The current version of HB 491 would require the superintendent to request and recommend an individual for the new license. Any candidate who wishes to obtain the license must submit both a copy of a valid occupational license as well as all materials necessary to complete a criminal background check. The license may include a term of 1–5 years as determined by the state board. The state board is prohibited from requiring any additional qualifications beyond those listed in the statute. A school district may only hire a substitute license holder in a substitute capacity.

The Ohio House will meet again during the second week in April, when it is expected to vote on this bill.

House Bill 170 Advances Tech-Driven Education in Ohio

HB 170 provides the option for secondary schools to offer instruction in computer science. After the bill passed in the House, the Senate amended it, and the House then reviewed and agreed to the changes. Gov. Kasich signed the bill on December 22.

Model curriculum

The bill requires the State Board of Education to adopt academic content standards and a model curriculum for computer science for grades K–12, including standards for introductory and advanced computer science courses in grades 9–12. Any school district or school may use these standards and curriculum, or any part of them, but no school would be required to use them in whole or in part.

Units of instruction

A unit of computer science may be substituted for a unit of math or science but may not take the place of biology or life science courses. Advanced computer science may take the place of algebra II. However, the district must inform the student and his or her parents that secondary institutes may require completion of algebra II as a prerequisite to admission. Parents must sign a statement acknowledging that not taking algebra II may have an adverse effect on college admission. Career-tech students are still permitted to complete a career-based pathway mathematics course in lieu of algebra II or computer science.

Teacher licensure

Schools may employ only individuals who are licensed in computer science or those who have a license endorsement in computer technology and a passing score on a computer science content exam to teach computer science courses. Additionally, licensed educators who qualify for a supplemental teaching license for computer science may teach computer science courses; these educators may advance to a standard educator license, after teaching computer science for at least two years, by completing a pedagogy course in the applicable grade level.

To teach advanced placement computer science courses, the educator must complete a professional development program endorsed or provided by the organization that creates and administers national advanced placement exams.


School boards may establish a computer science and technology fund to support computer science programs and professional development. The fund may include district or school funding, private funding, and future state funding, as long as these funds may legally be used for this purpose and are not designated for something else. This fund may be used for professional development, online assessments including instruction and data that support these assessments, wireless connectivity, network services, computer equipment purchases, and leveraging or matching additional private donations.

Auxiliary services funding

Private, nonreligious charter schools are permitted but not required to receive auxiliary services funding directly rather than from the local school district. In this case, these schools may contract with the local districts for certain health, support, scoring, and security services for which the funding may be used. After the end of each biennium, if the funding was insufficient, these schools may apply to ODE for funds to make up the difference.