On February 14th, 2024, the nonprofit advocacy group Disability Rights Ohio (“DRO”) filed a due process complaint against the Department of Education and Workforce (“DEW” or “Department”) for its alleged mishandling of a systemic complaint that involves forty-four school districts and an educational service center (“ESC”) in southwest Ohio. The systemic complaint was initially filed by DRO back in 2022, and included broad allegations that the ESC and districts of residence failed to provide a free appropriate public education (“FAPE”) in accordance with the Individuals with Disabilities Education Act (“IDEA”).

After conducting an internal investigation, the Department, which was still the Ohio Department of Education at that point, issued corrective action against the districts involved. Corrective action was also issued against the ESC. The corrective action included compensatory education of up to 100 plus hours in some circumstances, as well as mandated training, implementation of an internal audit process for outside placed special education students, and adoption of policies or procedures that govern placement of students in outside programs.

Districts raised a number of serious concerns about how the Department’s investigation was conducted. As a result, the Department paused its enforcement efforts and agreed to reconsider its decisions. Revised decisions were issued this past year. DRO apparently disagreed with these modifications and subsequently filed its due process complaint against the DEW.

Meanwhile, the ESC filed a legal challenge of its own on February 20th, 2024 in the county common pleas court. The legal action sought a restraining order against the DEW to prevent it from enforcing the corrective action finding against the ESC. The ESC acknowledged that the DEW is the state educational agency for Ohio as required by IDEA, but contested the DEW’s authority to issue corrective action against the ESC. The court found the ESC’s arguments compelling and granted a restraining order on February 22nd. The order specifically enjoined the DEW and its agents from enforcing its corrective action against the ESC temporarily pending further legal review.

The actions filed by DRO and the ESC raise interesting legal questions about the DEW’s authority and process for investigating systemic complaints and issuing corrective action as well as the legal standards upon which actions are based. It is apparent that both the ESC and DRO believe the DEW mishandled the complaint process and exceeded its authority in this case. We will continue to monitor this situation as it evolves. In the meantime, districts are encouraged to promptly contact legal counsel if they receive notice that an IDEA state complaint has been filed against them.

A teacher brought an action against a board seeking to be placed at the appropriate step level on its teacher salary schedule. The teacher was initially placed at the pay grade of “Masters” and “Step 10.” However, she received notice that the HR director improperly authorized the ten years of service credit and was offered a new contract reflecting six years of service credit. The teacher alleged that she felt compelled to accept the offer due to the proximity to the school year; however, she never filed a grievance.

 The teacher argued that she could not invoke the grievance procedure because she was not a union member when she signed the contract. The court rejected this argument, holding that she could have filed her grievance when she received her official contract and became a member of the union, as well as up to 25 days after. This finding was supported by the fact that the teacher had admitted that she was aware of the problem when she signed the contract, as she had stated that she felt “compelled” to do so. Her awareness of the issue further supported that she could have filed a grievance when she became a union member, which would have provided her with an adequate remedy.

 The teacher also alleged that even if she were to file a grievance, it would not provide her a remedy for the past five years that she worked without pursuing it. The court rejected this argument on policy grounds, noting that if a party to an arbitration could use their own delay to exempt themselves from arbitration, then no arbitration agreement would be enforceable because “a party could simply wait it out until the right to arbitrate expired and pursue a claim in court.”

 The court ultimately dismissed the teacher’s complaint, holding that because claims of improper placement on the salary schedule come within the definition of a grievance, the teacher should have filed her grievance as soon as she received her official contract and became a union member. 

State ex rel. Johnston v. N. Olmsted City School Dist. Bd. of Educ. | 2024-Ohio-677 | 8th Appellate District