by Giselle Spencer | Sep 25, 2015 | Board Policy & Representation, Construction & Real Estate, General, Labor and Employment, Legislation, School Finance, School Management, Special Education, Student Education and Discipline
As with most other provisions of the budget bill (Am. Sub. HB 64) some significant provisions impacting Ohio school districts go into effect on September 29, 2015, including the following:
- The maximum amount of a scholarship awarded under the Autism or Jon Peterson scholarship programs increases to $27,000 (up from $20,000).
- School districts must offer real property it intends to sell first to a “high performing community school,” then to other community and college preparatory boarding schools located in the district.
- ODE, in conjunction with an Ohio educational service center association and an Ohio gifted children’s association, must complete and submit a feasibility study for establishment of sixteen regional community schools for gifted children.
- The State Board must develop rules waiving any additional coursework requirements for renewal of an educator license for teachers who are consistently high performing.
- The duration of a pupil activity permit for individuals holding a valid educator license is changed from three (3) years to the same number of years as the educator license.
- The State Board of Education will develop a standards based framework for the evaluation of school counselors. Furthermore, all school districts must adopt a counselor evaluation policy by September 30, 2016, that conforms to the framework and will be implemented beginning in the 2016-2017 school year (will include annual evaluations with ratings of accomplished, skilled, developing, and ineffective just like OTES).
- The alternative teacher evaluation framework is revised to decrease SGM to 35%, maintain the performance rating at 50%, and authorize school districts to determine the appropriate measure or combination of measures for the remaining 15%.
- Exemplary community schools may now operate a preschool program for general education students.
- School districts may enroll under interdistrict open enrollment policies an adjacent or other district student who is a preschool child with a disability. ODE will deduct $4,000 from the resident district and pay that same amount to the enrolling district.
- School districts cannot appropriate monies to purchase an assessment developed by PARCC for use as the state elementary or secondary achievement assessments. Additionally testing for the 2015-2016 school year is reduced.
- Safe harbor provisions in effect during the 2014-2015 school year for state report cards are extended by two years.
- School districts may now enter into a contract with a health care provider for the provision of health care services for students.
- The new requirements for issuance of diplomas to home school students and students from non-chartered nonpublic schools are now in effect.
STEM schools can now enroll out-of-state students.
- Schools may install security doors or barricades as part of an emergency management plan.
- The filing date for financial disclosure statements with the Ohio Ethics Commission is May 15 (instead of April 15).
by Jeremy Neff | Dec 22, 2014 | General, Student Education and Discipline
The U.S. Supreme Court recently heard arguments in a case regarding the extent of Constitutional protection of speech on social media. In United States v. Elonis, Elonis wrote graphic lyrics on Facebook which involved killing his estranged wife, law enforcement, and school students. Elonis is the Supreme Court’s first freedom of speech case involving cyber speech.
The issue before the Court is whether “conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant’s subjective intent to threaten” or whether “it is enough to show that a ‘reasonable person’ would regard the statement as threatening.” Basically, under this “threat” statute, does is matter whether Elonis intended to cause fear or whether a reasonable person would consider his postings a threat?
To get an understanding of the context of this case, the following excerpts provide a brief glimpse into the speech that Elonis posted on Facebook:
“There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.“
“Little agent lady stood so close. Took all the strength I had not to turn the b–ch ghost. Pull my knife, flick my wrist, and slit her throat. Leave her bleedin’ from her jugular in the arms of her partner.”
“Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined. And hell hath no fury like a crazy man in a kindergarten class.”
(In order to avoid complications with school internet filters, this blog post avoids the more profanity-laced postings of Elonis and censors a word that was spelled out in his original posting.)
Elonis argued that, under the applicable statute, the government must prove that the speaker intended the speech to be threatening. His argument centered on the protections offered under the First Amendment. In making this argument, he tried to relate his speech to the speech of famous rap artists, who are typically provided First Amendment protections despite the fact that they often express violent and threatening messages. On the other side, the government argued that the standard under the statute should be a reasonable person standard, requiring only that a reasonable person would consider the speech to be threatening.
The questions from the Supreme Court justices addressed both sides of the issue during oral arguments. Some of their questions included the following:
Justice Ruth Bader Ginsburg asked Elonis’s attorney about how the government would prove whether a particular threat, “in the mind of the threatener[,] was genuine?”
Chief Justice John Roberts questioned the government’s attorney on its interpretation of a “reasonable person.” He used the example of teenagers making a threat while playing a video game and questioned He then expressed concerns over the reasonable person standard being applied consistently with the same speech.
Justice Elena Kagan took a middle ground proposing a “reckless standard,” meaning a prosecutor would need to show only that the speaker should have known there was a substantial probability that the speech would cause fear, even if the speaker did not intent to threaten the listener. This standard would provide more protections for speech than the “reasonable person” standard, but it would not require the government to determine the speaker’s subjective intent.
It will be several weeks or months before the Supreme Court issues its highly anticipated decision in this case. Despite the fact that this case focuses on the interpretation of a specific threat statute, it will give insight into the justice’s views on freedom of speech in the context of online speech. In the absence of any significant appellate case law governing Ohio schools, the Elonis decision will provide some guidance to schools as they determine how to address student cyber speech.
United States v. Elonis, 730 F.3d 321 (3rd Cir. 2013), cert. granted, 134 S.Ct. 2819 (2014).
by Erin Wessendorf-Wortman | Jun 25, 2014 | Student Education and Discipline
The U.S. Supreme Court issued an opinion on two cases on June 25, 2014, which prohibits law enforcement from searching the contents of cell phones without warrants. Riley v. California, 573 U.S. _____ (2014); U.S. v. Wurie, 573 U.S. _____ (2014). In these cases, police officers did not have probable cause to search the individuals’ cell phones, but instead relied on the exception law enforcement has of a search incident a lawful arrest. This exception allows police officers to conduct a search of a person and area within his/her immediate control during an arrest for the safety and protection of law enforcement personnel and for the preservation of evidence.
However, when considering whether cell phones could be searched without a warrant utilizing the exception of a search incident to a lawful arrest, the Court focused on the prevalence of cell phones in modern society and the vast quantities of personal information stored on cell phones. The Court even indicated that cell phones “are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”
The Court found that the vast amount of personal information stored on cell phones, and the inherent privacy of that personal information, outweighed any of the government’s concerns for police officer safety or protection of data. It reasoned that digital data on a cell phone could not itself be used as a weapon to harm an arresting police officer or to effectuate the escape of the arrestee. Further, the Court indicated that any concern of data destruction, either through remote wiping or data encryption, could be alleviated through a police department’s own means of data recovery once a warrant was obtained. In the end, the Court indicated while “[p]rivacy comes at a cost”, cell phones are still capable of being searched, once warrants are appropriately acquired.
While these cases only apply to law enforcement officers, it will have an impact in school districts looking to involve their school resource officers in searches of students’ cell phones. School resource officers should not be searching students’ phones without warrants given this ruling from the U.S. Supreme Court. However, these cases do not impact how school administrators conduct investigations and searches related to school discipline. School districts are still held to a reasonableness standard when conducting searches of students: the search must be justified at inception and reasonable in scope.
If a school administrator believes that a student has violated school policy(ies) through utilizing his/her cell phone while on school campus, the school administrator may search the student’s cell phone for evidence of the violations. However, school administrators must use caution when searching a student’s phone. For example, a student simply possessing a cell phone on school property in violation of Board policy will not permit an administrator to search the student’s cell phone. If a student has a cell phone out in his/her lap during a test, this may permit an administrator to search the student’s phone for evidence of cheating in appropriate and reasonable areas of the phone. If evidence of a criminal violation is believed to be found on a student’s cell phone during an administrator’s search, the evidence should be turned over to the school resource officer after the search has been conducted.
by Jeremy Neff | Jun 2, 2014 | Board Policy & Representation, Student Education and Discipline
As school children prepare for summer break, school administrators begin turning their attention to long-term projects that are deferred during the regular school year. Consider adding a review of your student disciplinary code to your summer to do list.
In January, the Office for Civil Rights (OCR) and the Department of Justice issued joint guidance regarding discipline and racial discrimination. Following that guidance, various disability advocacy groups pointed to disparities in discipline of disabled students as another problem area.
While intentional discrimination in schools is rare, disparate impact is almost universal. In the vast majority of school districts a greater percentage of expulsions and suspensions are imposed on minority and disabled students (relative to their percentage of the student body). OCR investigations related to this are on the rise, and a common issue being identified is that vague disciplinary codes make it hard to do apples-to-apples comparisons of discipline outcomes.
For example, Student A and Student B fight each other, but Student A gets 5 days suspension while Student B is suspended 10 days with a recommendation for expulsion. Both violated the same rule that prohibits “fighting.” On paper this looks problematic. Only by reviewing administrator narratives, or by OCR coming onsite to conduct interviews, does the explanation become clear: Student A stopped fighting immediately when directed by an administrator, while Student B cursed at and struck an administrator.
Consider refining your code of conduct to more precisely account for common scenarios such as the above. For example, “fighting” might be broken up into “fighting, ceased immediately upon directive” and “fighting, failed to cease immediately upon directive.” Likewise, “disruption” might be broken up into “disruption, verbal outburst,” “disruption, physical outburst,” etc. Upon inspection of your code of conduct and discipline records you will likely identify other rules that are too broad to capture important details of misconduct.
By making your code of conduct more precise, you will make it easier to explain differences in disciplinary outcomes. This is especially important when OCR is investigating disparate impact claims. This is a case where an ounce of prevention is worth much more than a pound of cure.
Please contact an ERF attorney for assistance with reviewing student codes of conduct and other disciplinary matters.
by Jeremy Neff | Dec 30, 2013 | Special Education, Student Education and Discipline
It is probably not high on your list of New Year’s Resolution priorities, but special education staff at Ohio public schools should add this one: Send even more prior written notice forms.
For over a year, the Ohio Department of Education (ODE) had been floating the idea of changing the Individuals with Disabilities Education Act (IDEA) requirements regarding prior written notice (PWN) when parents agree with the Individualized Education Program (IEP) developed during an annual review meeting and the IEP involves a change in placement. State regulations in effect over the past several years did not require formal PWN on the PR-01 form in this circumstance. Rather, the IEP document itself served as PWN. On December 20, 2013 ODE announced an immediate change requiring PWN on the PR-01 form to be sent for all IEPs that involve a change of placement (including those that have parental consent).
Presumably the thinking behind the prior interpretation was that there is no need to send a notice to a parent informing her that the IEP she just agreed to is going to be implemented. It appears that the change in interpretation is to align with federal regulations that require PWN whenever a change in placement is proposed. There is an ongoing review of Ohio’s IDEA regulations, and once finalized the new regulations will incorporate this change. However, ODE has been clear that it will immediately be enforcing the change. Whether slight changes in IEP services constitute a change of placement is not always clear. Given this new requirement, it is best to err on the side of caution by sending too many PR-01 instead of too few.
ERF encourages school districts to take steps to minimize potential misunderstandings regarding PWN. The PR-01 form can be intimidating, and some parents mistakenly think it means a district is attempting to harass or provoke them. Some of the potential fallout of the decision to require even more PR-01 can be avoided by discussing PWN, the PR-01 form, and when they are required with parents prior to needing to use them in relation to an IEP. For example, a district could make it a practice to show a blank PR-01 form to a parent at the time a child is initially identified and to explain the purpose and requirements for the use of the form.
We have often said that PWN cannot be sent too often. With this new interpretation ODE has brought new meaning to that advice. Please contact a member of ERF’s Special Education Team with questions about this new requirement.
by Jeremy Neff | Dec 23, 2013 | General, Special Education, Student Education and Discipline
The federal Office for Civil Rights (OCR) issued a “Dear Colleague Letter” on January 25, 2013, that seemed to require school districts to offer alternative sports options for children with disabilities. OCR is charged with enforcing Section 504, among other laws. The letter suggested that wheelchair basketball, for example, might need to be offered when a wheelchair-bound child cannot be accommodated in the existing basketball program. Controversy ensued, and ERF advised clients that there is no requirement to create new activities to provide opportunities for those who cannot be reasonably accommodated in existing activities. This month OCR issued a letter that confirms ERF’s earlier advice. OCR’s letter explains that it does not believe that Section 504 requires the creation of new activities for children with disabilities (essentially rescinding its earlier guidance).
In its earlier letter, OCR wrote that:
“Students with disabilities who cannot participate in the school district’s existing extracurricular athletics program – even with reasonable modifications or aids and services – should still have an equal opportunity to receive the benefits of extracurricular athletics. When the interests and abilities of some students with disabilities cannot be as fully and effectively met by the school district’s existing extracurricular athletic program, the school district should create additional opportunities for those students with disabilities.
“In those circumstances, a school district should offer students with disabilities opportunities for athletic activities that are separate or different from those offered to students without disabilities. These athletic opportunities provided by school districts should be supported equally, as with a school district’s other athletic activities.”
It went on to explain that when there are not sufficient wheelchair bound athletes to support an activity a district could work with other districts to form a joint team, form co-ed teams, or encourage non-disabled students to participate. Beyond the logistics and time required by this mandate, districts were alarmed by the cost of funding new programs even as they are being forced to cut funding for existing programming.
With its recent letter OCR unequivocally steps back from the requirements set forth in its prior letter. It writes that while a district might choose to create new programs for children with disabilities, “it is not OCR’s view that a school district is required to do so.” Pressure from school districts and the organizations that work for and support them clearly had a significant role in forcing OCR to rethink its earlier letter. In fact, the letter earlier this month was in response to a request by the National School Boards Association for clarification. The new letter is being reported here not only because it puts to rest any notion that districts must create separate sports for children with disabilities, but also because it shows that school districts can effectively lobby for change. At a time of unprecedented new requirements and unfunded mandates this is an important lesson.
Both OCR letters on extracurricular activities are also a good reminder about the importance and scope of Section 504. This law is meant to “level the playing field” for children with disabilities. It applies to a broad range of disabilities – far more than those covered by IDEA. It also applies to all services, activities, and benefits offered by a school district. Regarding extracurricular activities, a qualified child with a disability has a right to reasonable accommodations to allow the child to try out for and participate in sports. Precisely what this means depends on the facts of each case, but suffice it to say that schools need to be creative about developing, and committed to providing, equal opportunities to children with disabilities both in the classroom and on the playing field. Please contact a member of our Special Education Practice Team for assistance in complying with Section 504.
