by Gary Stedronsky | May 14, 2020 | General, Legislation, School Management
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.
by Jeremy Neff | Apr 17, 2020 | COVID-19 (Coronavirus), Legislation, Special Education
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.
by Pamela Leist | Feb 3, 2020 | General, Legislation, School Finance, School Management
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.
by Pamela Leist | Sep 26, 2019 | Board Policy & Representation, General, Labor and Employment, Legislation, School Management
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.
by Giselle Spencer | Aug 16, 2019 | Board Policy & Representation, General, Labor and Employment, Legislation, School Finance, School Management
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).
by Jeremy Neff | Jun 24, 2019 | General, Legislation, Student Education and Discipline
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.
