Court Rules Parents Not Entitled to IEE at Public Expense

A Pennsylvania district court found that parents of a student who had suffered three concussions were not entitled to an independent education evaluation (IEE) at public expense because they disagreed with the evaluation team’s IDEA classification.

The parents of a gifted high school student originally requested an evaluation in 2016. The district did not find the student eligible under IDEA but instead created a 504 plan for occupational therapy (OT) services.

The next year, the parents again requested an evaluation, but placed conditions of the types of testing the district could conduct. When the evaluation was completed, the district found the student eligible with an autism classification. The parents disagreed with the classification and the district offered on three separate occasions to conduct a reevaluation to consider their concerns, which they refused each time.

Nearly two years later the parents requested an IEE since the district did not use a traumatic brain injury (TBI) as the student’s disability category. It is noteworthy that the TBI was not medically diagnosed but was assumed by parents as a result of the three concussions suffered by the student a year earlier.

In declining the parent’s request for an IEE, the district filed due process to defend its evaluation. The state hearing officer ruled in favor of the district and the parents appealed.

Upon review, the federal court found that since the district conducted the evaluation based upon an area of suspected disability, and since there was no information presented to the district team to cause them to suspect TBI, the evaluation conducted by the district was justified. The court noted that an evaluation should be tailored to the specific areas in which a student is struggling but need not be designed to identify and diagnose every possible disability.

What this Means for Your District

The Pennsylvania court reiterated that a parent can request an IEE up to the time for the reevaluation. However, in looking at the remedies for the parents, the court found that since a new evaluation was due, the IEE request was moot. More importantly, schools should not feel compelled to change the disability classification of a student due to parent demand. Any such change must be based first upon suspicion of a disability and then on the assessment conducted by the district.

OHS Gives Notice of Important Rules Changes Concerning Universal Making and Vaccines

OHS Gives Notice of Important Rules Changes Concerning Universal Making and Vaccines

The Director of the Office of Head Start (OHS), U.S. Department of Health and Human Services (HHS), recently shared a letter with the Head Start community an update that will revise the Head Start Program Performance Standards (HSPPS) to include additional health and safety requirements.

On November 10, 2021, the U.S. Centers for Disease Control and Prevention (CDC) updated its COVID-19 Guidance for Operating Early Childhood Education (ECE) and Child Care Programs. The CDC stressed that vaccination is currently the leading public health prevention strategy to end the COVID-19 pandemic, and promoting vaccination among all eligible individuals can help ECE programs protect staff and children in their care, as well as their families. It acknowledges that most ECE programs serve children in an age group that is not yet eligible for vaccination and emphasizes using multiple prevention strategies together to protect both children and adults in ECE care.

Consistent with this messaging, HSPPS now recommends universal indoor masking in ECE programs for everyone ages two and older. The standards will also require vaccination against COVID-19 for all staff, contractors, and volunteers working with children be fully vaccinated (two doses for Pfizer or Moderna and one dose of Janssen) by January 31, 2022. Anyone granted a vaccine exemption will be required to undergo weekly testing.

As part of President Biden’s Path Out of the Pandemic, an interim final rule with comment (IFC) was published on November 30, 2021. With the release of the new HSPPS, the Office of Head Start hosted a webinar outlining these new requirements and published Universal Masking and COVID-19 Vaccine Requirements FAQs. Both the webinar and the FAQ were released on November 29, and the webinar is available on demand through the OHS website.

Since these new requirements will be a federal mandate, districts with head start programs may wish to begin informing staff and/or parents of the projected procedures.

Can Parents Opt-out of District Curriculum or Instructional Materials?

Can Parents Opt-out of District Curriculum or Instructional Materials?

Many districts have seen an increase in parental complaints about the curriculum and programs in Ohio’s public schools. This is a result of the national debate about critical race theory and a belief that it is being taught in public schools. Some parents have submitted opt-out forms to schools that state they do not consent to their child’s participation in any instruction or discussion of racially divisive topics or social-emotional learning programs. Must Ohio schools honor these opt-outs?

Although the State of Ohio has a large say over the academic standards in grades kindergarten through twelve, R.C. 3313.60 requires each board of education to adopt a curriculum for all schools under its control. Provided that boards of education satisfy state academic standards and requirements, courts have granted boards of education broad authority to determine the curriculum taught in school and the instructional methods and materials that are utilized.

Generally, parents do not get to pick and choose the required courses or curriculum their children must take or satisfy in Ohio public schools. Such an option would likely be unworkable for districts. Thus, parents generally cannot opt their children out of required courses or curriculum. 

Ohio law does provide parents with the ability to opt their children out of some items in the curriculum, including surveys, personal safety and assault prevention in grades kindergarten through six, suicide awareness and prevention and safety training and violence prevention in grades six through twelve, instruction in social inclusion, venereal disease education, and cardiopulmonary resuscitation.

Additionally, R.C. 3313.60(G) grants parents the right to promptly examine, with respect to their own child, any survey administered to their child; any textbook, workbook, software, video, or other instructional material used by the district in connection with the instruction of their child; any completed and graded test taken or survey filled out by their child; and copies of statewide academic standards and each model curriculum that is developed by the state board of education.

As for textbooks and library books, Ohio law and the courts generally leave it to the discretion of each board of education to select them. However, as for their removal, First Amendment considerations are necessary before books are removed because courts generally hold that they cannot be removed on the grounds that they are found to be offensive to a board of education or the board of education dislikes their ideas. It is permissible to remove books for a variety of other reasons, including because of their poor condition and a lack of shelf space. 

What this Means for Your District 

In general, opt-out forms need not be honored unless a parent is opting out of one of the items in the curriculum that the law gives them the authority to opt-out of. As complaints about the curriculum, textbooks, and library books are made, districts are advised to consult and follow board policies that give parents the right to complain about the curriculum or instructional materials. In addition, districts should consult with legal counsel over First Amendment concerns before removing books as a result of complaints or a general dislike for their ideas.  

It’s Official! New Financial Literacy Requirements, Temporary Rule for Substitutes

After several delays, Governor DeWine signed the highly anticipated Senate Bill 1 into law on October 28, 2021. Section 4 of the bill was signed as an emergency measure and is effective immediately. The remaining sections of the bill become effective January 27, 2022.

A key provision of SB 1 is the requirement that high school students complete ½ unit of financial literacy. The course may be taken as an elective, or in lieu of ½ credit of mathematics. If the student elects to take financial literacy as part of their math requirements, the credit cannot take the place of Algebra II or any course that the state board requires an end-of-course examination in. The new requirement will apply to students who enter ninth grade on or after July 1, 2022. Students enrolled in non-public schools are not required to take financial literacy unless they are participating in a state scholarship program.

A related provision of the bill establishes new licensure requirements for teachers who instruct in financial literacy. Beginning in 2024-25, teachers must have an educator license validation to teach financial literacy. The state board is tasked with adopting additional requirements for the license validation in consultation with a new council that they are required to establish. Teachers who hold valid licenses in social studies, family and consumer sciences, or business education are not required to obtain the license validation.

School districts are required to pay for any costs incurred to meet the new requirement but may seek reimbursement through the Ohio Department of Education. A new fund called the Ohio Financial Literacy Fund was established through SB 1 to help districts cover the costs. As we mentioned in our October 2021 issue of School Law Review, ESCs have been added to the list of entities eligible for reimbursement.

Perhaps the most anticipated provision of Senate Bill 1 is included in Section 4 of the bill. This section temporarily authorizes school districts to establish local education qualifications for individuals to serve as substitute teachers during the 2021-22 school year that is less burdensome than the current state requirements, including that they are not required to have a post-secondary degree. Individuals must be deemed of good moral character and complete criminal background checks. This provision is intended to ease the burden on schools that are having a difficult time finding substitute teachers amid the ongoing pandemic. The Ohio Department of Education has begun issuing temporary one-year, nonrenewable substitute licenses for individuals in accordance with this provision.  

Providing Public Records Requests from Your School Databases

Providing Public Records Requests from Your School Databases

A public records request was filed with Columbus City Schools (CCS) on December 29, 2020, seeking information about teacher absences and its substitute coverage. The request specifically asked for information for the school years ending in 2018, 2019, and 2020.

On January 22, 2021, a follow-up email was sent stating the records had not yet been received and on February 8, 2021, a complaint was filed alleging the denial of access to the requested public records. The school district filed a motion to dismiss the complaint, arguing that the requested records do not exist, and the case went into mediation. Let’s break it down.

What Constitutes a Record?

When requesting public records, the requestor must first show that the items sought meet the statutory definition of “records,” and that the records were kept by CCS. “Records” are defined as documents, items within them, and reports or files aggregated from separate records.

CCS does not dispute that the requested data is in its computers Substitute Employment Management System (SEMS). Rather, they argue that the requested data report does not exist because SEMS is not designed to create reports with the exact information requested. To satisfy the request, the database information would have to be manually manipulated.

The Database Rule

A public office is only required to produce existing records and has no obligation to create new records, including new compilations of dispersed data. In this case, the request is “new” in the sense that CCS has not used the database software to compile this specific kind of information in the past. However, if an electronic database used by a public office has existing programming that can produce the output sought in a public records request, then that output already “exists” for the purposes of the Public Records Act.

Does the Requested Data Exist?

CCS asserts that producing the report in the matter requested would require SEMS to create datasets that would then need to be manually manipulated, i.e., create a new record. However, it is not a valid excuse to deny a requestor the use of the database functionality to “create” a record. CCS attests that information must first be extracted from the database to an Excel spreadsheet and then manipulated with the Excel function of “pivot tables,” a data manipulation option not available in SEMS. Although the district admitted it could manipulate the data with what appears to be a minimal additional effort, they claim that the requested monthly statistics are technically not a record the database was already programmed to produce.

The Verdict

Ultimately the requestor failed to prove by clear and convincing evidence that the output can be produced, nor could they show that CCS had a duty to produce it, and the request was denied.

Further, CCS asserted that the initial request was “overly broad” by not identifying an existing compilation of records. However, CCS failed to respond in a timely manner which denied the requestor the opportunity to properly revise the request and avoid litigation.

What this Means for Your District

First and foremost, regardless of whether you intend to honor the request, you’ll need to respond in a timely manner, which is subjective to the pertinent facts and circumstances of the request. Additionally, if the data program you are using can produce a document to satisfy a request, you must do so. If ever there is a question about what records may be released and the timeliness the information should be given, a member of the Ennis Britton legal team would be happy to guide you.