U.S. DOE’s Office for Civil Rights Enters the Fray by Initiating Discrimination Investigations Against States with Mask Prohibitions
On Monday, August 30, the U.S. Department of Education’s Office for Civil Rights (OCR) opened investigations into five states that prohibit schools from setting universal mask mandates.Letters were sent to the chief state school officers of Iowa, Oklahoma, South Carolina, Tennessee, and Utah. Several state school chiefs who received the letter said they agreed that their school districts should have the flexibility to set mask requirements if they deem them necessary.
OCR will specifically investigate whether statewide prohibitions on universal indoor masking discriminate against students with disabilities who are at heightened risk for infection of COVID-19 by preventing them from safely attending in-person education.Specifically, they will determine whether these prohibitions are a violation of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act which collectively mandate that schools are required to provide a free and adequate public education (FAPE) to students with disabilities and also provide programs and facilities that are accessible to individuals with disabilities.
Education Secretary Miguel Cardona had previously sent letters to each of the states who will be subject to the OCR’s investigations. In it, he noted that “the safe return to in-person instruction requires that school districts be able to protect the health and safety of students and educations, and that families have confidence that their schools are doing everything possible to keep students healthy.”
The Department will continue to monitor, but did not launch an official investigation into, Florida, Texas, Arizona, or Arkansas as they have voluntarily suspended enforcement of their policies while litigation is ongoing as described below.
Florida Judge Invalidates Governor’s Executive Order
On Friday, August 27, a Florida judge ruled that school districts can legally require their students to wear masks to prevent the spread of COVID-19. He stated Governor Ron DeSantis overstepped his executive order by banning school districts from requiring students to wear masks.
The governor has argued that a new Florida law gives parents the ultimate authority to oversee health issues for their children. However, the judge noted, it exempts government actions that are needed to protect public health and are reasonable and limited in scope. A school district’s decision to require student masking to prevent the spread of the virus falls within that exception.
Through his opinion, the judge cited Florida Supreme Court decisions which found that individual rights are limited by their impact on the rights of others. For example, adults have the right to drink alcohol but not drive drunk, and that there is a right to free speech, but not to harass or threaten others. As a result, he said that school boards could reasonably argue that mask-less students endanger the health of other students and their teachers, and mask policies should be up to them to determine.
Despite the ruling, the Florida Department of Education on August 30 began withholding school board member salaries from two school districts that require masks in classrooms. Florida Education Commissioner, Richard Corcoran, said he is following through on the orders of the State Board of Education and stated funds would continue to be withheld monthly until each school board complied with state law and rule.
Lawsuit in Texas Filed
On Tuesday, August 17, a lawsuit was filed in Texas claiming that the state is discriminating against medically vulnerable students by failing to accommodate their disabilities. The parents filed suit on behalf of their disabled children, all of who are under age 12 and ineligible to receive a COVID-19 vaccine.
The parents claim that the ban violates Section 504 and Title II of the ADA by excluding students with underlying medical conditions from district programs and failing to make reasonable accommodations that would allow those students to attend school. In addition, they are asking a judge to issue a temporary restraining order that would allow districts to implement mask mandates and prohibit the state from withholding funds from districts that choose to make them mandatory.
The lawsuit challenges an executive order by Governor Greg Abbott that declares school systems cannot require students or staff to wear a mask. It also noted that districts must allow individuals to wear a mask if they choose to do so. As a result of ongoing litigation, the Texas Education Agency issued an updated public health guidance that stated it would not be enforcing the mask provisions in the interim, but would make additional guidance once the court issues are resolved.
Other Actions Afoot
In Arkansas, a judge pressed pause on the state law that prohibits local officials from setting mask mandates, meaning school districts can – at least for now – set their own local mask requirements. Tennessee’s governor has signed an executive order requiring schools to allow families to opt out of mask mandates. In Utah, local health departments can issue 30-day school mask mandates with approval from the state or county government.
On August 23, the United States Court of Appeals for the Sixth Circuit weighed in on the constitutionality of mask mandates lacking a religious exemption. A Michigan school challenged the mandate in place by the state’s Department of Health and Human Services, stating the order was a violation of their free exercise of religion, equal protection, and substantive due process rights. A school official said the K-5 mask mandate violated the school’s sincerely held religious beliefs by preventing students from participating fully in their Catholic education.
In a 2-1 decision, the court affirmed the district court’s opinion that mask mandates that did not include an exemption for religious beliefs was not in violation of the Free Exercise of Religion Clause, noting it was subject to the rational basis test. The judge ruled the state order was not motivated by hostility to any specific faith and that it was neutral because it applied to all schools. Further, Defendants did not challenge the sincerity of the religious objection to the mandate, thereby simplifying the court’s analysis.
The rational basis is the least burdensome test and to prevail the governmental entity need only show some rational relation to a legitimate state interest. In contrast, the court could have applied “intermediate scrutiny” which would have required the government to show an important interest. The final option would have been to require “strict scrutiny” which requires the highest burden, a compelling state interest. In short, the court established that mask mandates need only clear the shortest and easiest to clear the hurdle.
What does this mean for your district?
Resurrection School v. Hertel serves as a roadmap for combatting religious exemption challenges to mask mandates. Such mandates should be examined to ensure neutrality and general applicability. Other nonreligious exemptions, such as medical exemptions should be narrow and discreet. Please contact one of the attorneys on the Ennis Britton team if you have questions about this case or mask mandates.
In early February, the Ohio House introduced HB 1. This bill, often referred to as the Cupp-Patterson Plan, proposes a significant overhaul of the State’s school funding system. Chief among its objectives is developing a per-pupil funding amount that reflects actual costs, moving away from caps and guarantees, committing to a longer-term plan, and accounting for localized needs. The plan was developed during the prior session of the General Assembly and seemed poised for serious action before COVID-19 disrupted the legislative agenda.
HB 1 has enjoyed broad support among education groups, including disparate groups such as the Ohio School Boards Association and the Ohio Education Association. After it fizzled in the last session, it was widely expected to be a major part of budget debates during the first year of the current session. Not surprisingly, under Speaker Bob Cupp (the “Cupp” of “Cupp-Patterson”) the House passed its budget proposal, HB 110, with HB 1 largely incorporated. The 70-27 vote on April 21 was somewhat bipartisan with 12 Democrats joining the Yeas and 6 Republicans joining the Nays.
Like the House, the Senate is dominated by the Republican Party, but this has not resulted in easy passage of HB 110 and Speaker Cupp’s school funding reform plan. The school funding plan under consideration in the Senate moves away from the six year phase-in of the House plan, and instead provides initially larger increases in per-pupil expenditures with no commitment to longer-term increases. Notably, the Senate plan abandons the highly localized per pupil funding calculations of HB 1, and instead determines a single base cost to apply throughout the state.
Statements from leading Senators indicate a concern that the House plan would lead to unsustainable funding increases. Of particular concern to these Senators is the use of teacher salary increases as part of the calculation in base costs. They argue that increases in pay even since development of the formula mean that costs have already increases by hundreds of millions of dollars. Supporters of the House plan point to a dramatically improved state economy and tax revenues well above estimates as reasons to support an increased commitment to K-12 education. Instead, the Senate budget plan currently proposes a 5% reduction in income taxes.
Both the House and Senate budget plans move to a direct funding system for various school choice programs. This would eliminate the current process that often requires funding to be directed to school districts only to be deducted when a family uses a voucher or enrolls in a charter school. The Senate plan proposes a significant increase in voucher funding and the elimination of some restrictions on the opening of charter schools.
What this means for your District:
Joint testimony from the Ohio School Boards Association, Ohio Association of School Business Officials, and the Buckeye Association of School Administrators has urged adoption of the House plan as part of HB 110. Among other reasons, they point to the longer-term commitments and growth in K-12 funding offered by the House plan. They also point to the extensive efforts to gather stakeholder input to develop the original Cupp-Patterson Plan. Finally, they identify the process of developing an actual input/cost-based approach to identifying appropriate per-pupil funding as critical.
The current state budget expires at the end of June. In most budget years this means the General Assembly passes the new budget during a late night session on or about June 30. However, it must be noted that the current state budget was not passed until nearly two weeks into July 2019 (after a temporary measure was passed to keep the government open). The time is now to share your views on the school funding reform plan, school choice funding, and other matters relevant to K-12 education. Current legislative activity is in the Senate. It is anticipated that in late June there will be a flurry of activity in both chambers as differences between House and Senate budget bills are resolved.
Earlier this month, a judge in Hamilton County sided with the Board of Education of the Cincinnati Public School District (“Board”) when she denied the Cincinnati Federation of Teachers’ (“Union”) motion for a temporary restraining order and preliminary injunction that sought to delay the return to in person learning. Cincinnati Fed. of Teachers v. Bd. of Education of the School District of Cincinnati, No. A2100376 (Feb. 1, 2021).
This case was the result of the Board voting to resume in-person instruction beginning February 1, 2021. As a result, the Union filed a motion for a temporary restraining order on the basis that the Board’s decision to resume in-person instruction violated provisions of their collective bargaining agreement (“CBA”). In particular one of the provisions of the CBA provides that the Board and the Union will cooperate with one another in making reasonable provisions for the health and safety of its teachers. Additionally, the CBA provides that if a teacher believes that they are being required to work under unsafe or unhealthy conditions beyond the normal hazards of the job, then they have a right to file a grievance. In return, the Board argued that the court should dismiss the case because it lacked jurisdiction and because the Board had the express authority to make decisions regarding in-person instruction.
In reaching its decision, the court looked to § 4 of the Norris-Laguardia Act, 29 U.S.C. § 104, which generally prevents courts from granting injunctive relief involving labor disputes. However, an exception to this general rule applies if the controversy involves a labor dispute, an evidentiary hearing is held, the underlying dispute is subject to the arbitration procedure of the collective bargaining agreement, and the basis for injunctive relief are satisfied.
In evaluating the union’s claim, the court relied on previous Supreme Court precedent which held that a union’s claim that a board failed to provide them with notice and opportunity to discuss the closure of a facility fell under the exclusive jurisdiction of the State Employment Relations Board (“SERB”). State ex rel. Wilkinson v. Reed, 99 Ohio St.3d 106 (2003). The court in this particular case analogized the union’s failure to cooperate claim to the claim in Reed. Thus, the court concluded that SERB had exclusive jurisdiction to the claim and it therefore was not subject to the arbitration process. Because they were not subject to the arbitration process, the union’s claim did not meet the exception to the general rule that prevents courts from granting injunctive relief in a labor dispute.
The teachers in this case also filed a grievance due to their belief that they were being required to work under conditions which were unsafe or unhealthy. Though the arbitration process with respect to this grievance was proceeding, the union asked the court to issue a status quo injunction while the grievance was being resolved. In evaluating this claim, the court looked to a particular section of the CBA which stated that the Board is invested with the governmental authority and control of Cincinnati Public Schools. The provision further stated that the Board’s authority includes the authority to make rules, regulations and policies that are necessary for the government of schools, the employees, and their students.
This court further noted that the Ohio legislature has vested superintendents and boards of education with almost unlimited reasonable authority to manage and control the schools within their districts. Courts will not interfere with grant of discretionary power, so long as it is exercised in good faith and is not a clear abuse of discretion. Here, the court determined that the return to in-person instruction clearly fell within the authority granted to the Board. Thus, the court concluded that the claims brought by the Union were not arbitrable and the court could not issue an injunction.
What this means for your district?
Ohio superintendents and boards of education have the ultimate decision-making authority in determining whether their schools return to in-person instruction. Courts recognize that Ohio has granted superintendents and boards of education with almost unlimited authority to manage and govern the schools within their districts. So long as boards and superintendents exercise this power reasonably and in good faith without violating the laws of the state of Ohio, courts will seldom interfere.
The COVID-19 pandemic has impacted our lives and businesses in ways we never envisioned. The real estate market has certainly not been spared. Office space, hotels, restaurants and retail establishments have been particularly hard hit. Demand for office space is likely to decline given our adaptation to working at home. As of July 30th, the American Hotel and Lodging Association reported that more than half of hotel rooms were empty across the country with many hotels being completely closed.1 Many of our favorite restaurants and retail establishments have also been forced to close during the pandemic. All of this is likely to affect real estate values for years to come.
Starting in January, property owners will have the option to file complaints with their county boards of revision seeking to lower the county auditor’s value assigned to their properties (and their tax bills). We anticipate that many property owner’s will take advantage of this opportunity. However, their complaints may be premature. That is because real estate taxes are paid one year in arrears. Thus, any complaint filed next year is for valuation during the 2020 tax year. By law, boards of revision must establish value next year as of January 1, 2020. As of that date, the COVID-19 pandemic had not greatly impacted our lives or the real estate market. Nonetheless, many property owners will not realize this distinction and will file anyway.
County boards of revision understand and appreciate this aspect of the law. However, the individuals who sit on those boards, which sometimes include elected officials, are often empathetic toward property owners who face significant challenges with their commercial businesses or properties. For that reason, it is not uncommon for boards of revision to grant relief even though they technically should not do so under law. They are easily able to do so when property owners are unopposed.
Faced with similar issues during the great recession, the Ohio Board of Tax Appeals made it clear that general references to decreased real estate values will not be enough to sustain a reduction in property value. In Price v. Summit County Board of Revision, 2012 WL 440783 (February 7, 2012), a property owner sought to reduce the value of his properties due to the recession and foreclosure crisis. The BTA rejected his request because it “has consistently rejected the notion that real property values must necessarily rise or fall commensurate with some preconceived notion of ‘historical trending’ or inflationary/deflationary rates.”
To help ensure county boards of revision uphold the law, school districts are advised to strongly consider filing counter-complaints against requests for reduction that appear unwarranted. Under R.C. 5715.19, boards of education are entitled to notice of all valuation complaints that seek to decrease the value of real property by $50,000 or more. Boards of education have the option to file counter-complaints contesting those decrease requests within 30 days of receipt of that notification.
What this means for your district?
Decreases in value through the county board of revision process directly impact the tax revenue received by school districts. Any decrease in valuation will result in a refund issued to the property owner. Those refunds are directly taken from school funding via the county treasurer settlement statements. We anticipate that school districts will face many decrease complaints next year, some of which are sure to be unwarranted. Ennis Britton attorneys can help school districts determine when it is appropriate to file counter-complaints to contest unwarranted decrease complaints to help maintain the tax valuation of the district.
