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.

 

Special Education Update: 1st Ten Days of Suspension Without IEP Services Does Not Deny FAPE….Right?

Special Education Update: 1st Ten Days of Suspension Without IEP Services Does Not Deny FAPE….Right?

by | Aug 18, 2024 | Special Education, Student Education and Discipline

Student discipline for students with disabilities on an IEP is generally understood to allow ten days of suspension without a need to provide services.  In a recent case, a state level review officer in Ohio considered whether a failure to provide services within that ten day period might constitute a denial of FAPE.

In the case, a parent had filed for due process alleging that the student required a one on one aide for the student, the student had been bullied, the IEP was not being followed, the student was not being allowed to attend specials, was being graded unfairly, and that the school was denying the parent access to ClassDojo.  Additionally, the parent alleged that the student was not provided with services during a recent  six-day suspension.  The parent requested compensatory education, home instruction or tutoring.  The parent was pro se; i.e., representing themself.

 The impartial hearing officer considered three issues: whether the parent was provided with procedural safeguards, whether the IEP was implemented appropriately, and whether bullying prevented the student from receiving a FAPE. 

The hearing officer found the district did develop and implement an IEP appropriate for the student to receive a FAPE and that bullying had not prevented the student from receiving a FAPE (in fact, there was no evidence presented about bullying in the hearing.). However, the IHO found that the student was denied FAPE and entitled to six hours of compensatory education in the form of home instruction or tutoring for the six days the student was suspended and did not receive services in the IEP. 

Both the district and the parent appealed the IHO’s decision.  The school district argued that the law does not require provision of compensatory education during the first ten days of suspension, relying on the IDEA provision requiring that a student who is suspended for more than ten days in a school year receive services (20 USC Sec. 1415(k)(1)(B), 35 CFR 300.530-300). The district also argued that it did offer services for the six days of suspension and the parent refused those services.

The SLRO considered the issues, including the length of the suspension.  In doing so, the  SLRO, found this, “…does not necessarily mean that there cannot be circumstances in which a student who is suspended less than ten (10) days is denied a FAPE. I do not find the statute to mean that a FAPE is never denied unless the suspension is at least ten (10) days.”

In applying this interpretation to the facts, however, the SLRO reversed the IHO determination, finding that because the district had offered services during the suspension and the parent refused, he would not order them to provide it now.  Additionally, parent had offered no evidence that the suspension denied FAPE on the facts of the case.  The SLRO also affirmed on the other issues, including that the IEP was appropriate and enabling him to make progress in the least restrictive environment and denied the parent’s appeal. 

 What this means for schools:  While this decision may be fact specific, Districts and IEP teams should carefully consider the full impact of a denial of services even for short- term removals.

Ohio Requires Schools to Adopt New Cell Phone Use Policies

Ohio Requires Schools to Adopt New Cell Phone Use Policies

by | May 23, 2024 | General, Legislation, Student Education and Discipline

On May 15, 2024, Governor DeWine signed House Bill 250 into law. The law mandates that all Ohio school districts adopt a policy governing students’ use of cell phones during school hours. The law is set to take effect on January 1, 2025. The law requires the Ohio Department of Education and Workforce (“DEW”) to publish a model policy that complies with the new legislation within sixty days of the legislation’s effective date.

Meanwhile, districts have until July 1, 2025, to adopt a policy that satisfies the following:

  • Emphasizes the limited use of cell phones during school hours.
  • Reduces phone-related distractions in the classroom setting.
  • If included in a student’s Individualized Education Program (“IEP”), or determined to be appropriate by the school board, permits a student to use phones for learning or to monitor health concerns.

Although the law does not require the banning of cell phones during school hours, it states that any school that chooses to do so will be viewed as complying with the new law.

Reason for Legislation? Governor DeWine and the state legislature are attempting to limit distractions in the classroom to “reestablish the opportunity for students across Ohio to immerse themselves in their classwork.” Increased cell phone usage is not only seen as a distraction to student learning but has been linked to damaging student mental health. The Passage of the law seems to follow an already growing movement across the state to cut back on cell phones in schools. Many districts have already adopted cell phone restrictions that appear to comply with the state’s new policy.

What This Means for Your District? While the core mission of the bill is to minimize screen time during school hours, Governor DeWine insists that districts will have the freedom to “create policies that work best in their environments and for their students.” The DEW is expected to release its model policy before March of next year. Any district that adopts a policy after January 1 of next year must do so at a public meeting of the school board and make the policy publicly available. This includes posting the policy prominently on the district’s website if they have one.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Special Education Update: 1st Ten Days of Suspension Without IEP Services Does Not Deny FAPE….Right?

Read it Here! Science of Reading Professional Development Requirements Published

by | Apr 24, 2024 | Board Policy & Representation, General, Student Education and Discipline

 

 

 In late March, the Ohio Department of Education and Workforce published guidance for districts on how to fulfill the staff training requirement for the new literacy improvement provision of HB 33.  The guidance may be accessed here. That provision mandates that teachers and administrators must complete professional development in the science of reading by June 30, 2025. This new guidance lays out how the training requirements can be met by staff through identifying the training topics, vendors, resources, and details for these select professional development opportunities. The training is available in online modules in the Department’s Learning Management System in addition to face-to face meetings with trained facilitators.

The guidance notes that teachers and administrators who completed similar training, notably the professional development that supports the requirements of Ohio’s Dyslexia Support laws, may also satisfy the HB 33 requirements. A training comparison chart is included in the guidance document.

Finally, the guidance provides some instruction concerning the stipend due to teachers for completing this professional development. Stipend amounts vary from $1,200 for all K-5 teachers, 6-12 English language arts teachers, and all intervention specialists, English learner teachers, reading specialists, or instructional coaches for grades K-12, to $400 for 6-12 teachers of subjects other than ELA.  Districts must first pay teachers the applicable stipend and then seek reimbursement from the Department.   HB 33 highlights that teachers shall complete the course “at a time that minimizes disruption to normal instructional hours. “

What this Means for Schools: Now that the guidance and course identification information is available, districts can commence planning to these required professional development opportunities.  Districts are cautioned to review their collective bargaining agreements and consult legal counsel to determine the appropriateness of using pre-arranged professional development days for this coursework in light of the stipend requirement.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Office of Civil Rights Reminds Schools of Their Obligation to Provide All Students a School Environment Free from Discrimination

Office of Civil Rights Reminds Schools of Their Obligation to Provide All Students a School Environment Free from Discrimination

by | Jan 10, 2024 | General, Legislation, Student Education and Discipline

On November 7, 2023, in the wake of unrest in the Middle East, the U.S. Department of Education’s Office of Civil Rights (“OCR”) released a Dear Colleagues Letter reminding pre K-12 schools and institutions of their legal obligations under Title VI of the Civil Rights Act of 1964 (Title VI). The letter emphasized that all schools, colleges, and universities that receive federal financial must comply with  Title VI. These legal obligations include providing all students, including students perceived to be Jewish, Israeli, Muslim, Arab, and/or Palestinian, a school environment free from discrimination based on race, color, or national origin. The letter urges schools to ensure all students have the freedom to learn in safe and inclusive school environments as the tension in the Middle East continues to rise.

 In addition, to the Dear Colleagues Letter, the OCR released an updated complaint form for complaints alleging violations of Title VI. The updated complaint form now extends “national origin” to include students who are perceived to be Jewish, Muslim, Hindu, Sikh, or based on other shared ancestry or ethnic characteristics

 What Does This Mean for School Districts?

In light of the emphasis from OCR, school districts should be alert for discrimination and harassment incidents on school grounds. It is each school district’s legal obligation under Title VI of the Civil Rights Act to address discrimination and potential violence against students as the conflict in the Middle East ensues.

 The U.S. Department of Education Fact Sheet includes specific strategies for addressing civil rights violations. School officials should carefully review and institute, where appropriate, these policies of protection

 The links below provide details on compliance with this directive, as well as the revised Civil Rights violation complaint form. Any person may file a complaint based on a perceived violation of Civil Rights protections enshrined in the historic legislation of 1964. 

 The Dear Colleague Letter

https://www2.ed.gov/about/offices/list/ocr/letters/colleague-202311-discrimination-harassment-shared-ancestry.pdf

Updated Complaint Form

https://www2.ed.gov/about/offices/list/ocr/complaintform.pdf?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=

OCR Complaint Filing Training

https://ocrcas.ed.gov/contact-ocr

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Court of Appeals Overrules Trial Court in Employee Termination Matter

Court of Appeals Overrules Trial Court in Employee Termination Matter

by | May 22, 2023 | General, Legislation, School Management, Student Education and Discipline

Matthews v. Springfield-Clark CTC Bd. of Edn., 2023-Ohio-1304.

Springfield Clark CTC terminated a custodial supervisor for a variety of reasons, including, going into his supervisor’s office and reviewing, copying, and removing documents, all of which were supported by video.  The employee had been the subject of prior discipline and had been placed on an improvement plan which was never started.

During the termination process, the employee was given a pre-disciplinary hearing where he was provided with details of all of the allegations.  He was also given an opportunity to provide evidence in his defense.  Following this meeting, the Superintendent recommended termination, and a hearing was held before the Board of Education from which a transcript was created.  The employee did not call any witnesses.   Following the hearing, the Board of Education terminated the employee.

The employee appealed to the Common Pleas Court which overruled the termination.  As the basis for this reversal, the trial court made several findings.  First, the trial court ruled that an employee had a “presumption of innocence” and that the process violated “fundamental fairness” citing that it was the employer’s burden of proving the misconduct.  In support, the trial court cited a passage from the letter from the Superintendent that stated “because the allegation of misconduct has not been disproven” and thus it is “determined to be an act of malfeasance”. 

The trial court also took issue with the fact that the employee’s supervisor did not testify at the hearing, denying the employee his fundamental right of cross-examination.

Lastly, the trial court gave little to no deference to the Board of Education’s findings and decision, despite the wealth of evidence introduced at the hearing regarding past discipline, the video evidence provided, the Superintendent’s testimony, and the lack of credible evidence in the employee’s defense.  Of note, the trial court stated that the Superintendent’s testimony was unreliable hearsay, despite accepting the employee’s introduction of unsupported hearsay testimony. The Board appealed the trial court’s decision.

The Court of Appeals found that all required due process was provided.  He was given a pre-disciplinary hearing where he was presented with all allegations against him.  He was given the chance to call witnesses and to be represented by an attorney.  The Court of Appeals further stated that the standard applied by the trial court of a presumption of innocence was in error, stating the only burden on an employer is to provide evidence sufficient to justify termination.  The trial court’s characterization of the language in the Superintendent’s letter was described as flawed reasoning.

Regarding the lack of testimony and ability to cross-examine, the Court of Appeals specifically stated that cross-examination is not an absolute requirement for due process.

As to the lack of deference, after reviewing the record, the Court of Appeals found the trial court gave no deference to the Board of Education’s credibility decisions and resolution of evidentiary conflicts, instead expressing the court’s view of what the discipline should have been.  Thus, the Court of Appeals found the trial court erred and reversed the decision.

What this means to your district:  It is absolutely pertinent that the appropriate process is followed.  In this instance, that adherence allowed the District to obtain a positive result even after receiving a decision from the trial court that relied on “flawed reasoning.”