School Law Review - June 2023

School Law Review

June 2023

Education Department Issues Guidance on Religious Expression in Schools

DoEIssuesGuidanceonReligious Expression

CTC Corner: Accessibility of Online Services and Programs Focus of Enforcement by OCR

DoEInvestigatesRemovalofBooks

SpecialEdUpdate:BudgetBillDraft IncludesTroublingSpEdProvisions

On May 15, 2023, The United States Department of Education issued a “Guidance on Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools” document. Coaches are referenced several times throughout the guidance, and it is likely that the guidance was issued in response to the decision of the Supreme Court of the United States in Kennedy v. Bremerton School District, which centered around a football coach engaging in private prayer at the end of each football game on the field.

The guidance opens with the reminder that when teachers, coaches, and other public school officials speak in their official capacities, they may not engage in prayer or promote religious views. However, the guidance notes that not everything a public school teacher, coach, or other official says in the workplace constitutes governmental speech. The guidance specifically states that where teachers, coaches, or other employees engage in personal speech, a school district may not prohibit them from doing so because the expression is religious in nature or because other observers, including students, might misperceive that the school is endorsing the expression. Absent some evidence that the teacher, coach, or other school official is pressuring or encouraging students to engage in religious expression, a school district has limited authority to regulate such speech. The guidance goes on to address such topics as prayer groups, religious expression during instructional time, moments of silence, student assemblies, teaching about religion, religious expression in school assignments or homework, excusal for religious activities, and baccalaureate ceremonies. A copy of the guidance can be found here

Cincinnati

1714 West Galbraith Rd

Cincinnati, OH 45239

(513) 421-2540

Columbus

300 Marconi Blvd, Suite 308

Columbus, OH 43215

(614) 705-1333

Cleveland 5000 Lombardo Center, Suite 120 Cleveland, OH 44131

(246) 487-6672

What this means for schools:

School districts may (and must, to avoid violating the Establishment Clause) restrict religious expression that suggests endorsement of religion or where the expression by staff is intended to compel or encourage student participation. However, staff remain free to engage in private religious expression such as private prayer, even when visible to others and even when it occurs at district sponsored activities. Of course, the devil is in the details, as they say. Confer with counsel as needed to interpret employee actions in light of the new guidance.

CINCINNATI | CLEVELAND | COLUMBUS

Table of Contents

jUNE 2023 / SCHOOL LAW REVIEW 1 | ENNISBRITTON.COM 1 2 3 5

Career Tech Corner

Accessibility of Online Services and Programs Focus of Enforcement by DOJ and OCR

OnMay19,2023,theU.S DepartmentofJusticeCivilRights DivisionandtheU.S.DepartmentofEducationOfficeforCivil RightsissuedajointDearColleagueletter(“Letter”)reminding postsecondaryinstitutionsoftheirobligationstoensurethatthe onlineservices,programs,andactivitiesprovidedbysuchinstitutionsareaccessibletoindividualswithdisabilities.

TheDepartments’focusininthisLetterpointedlyreferstotwo federallaws(theAmericanswithDisabilitiesActandSection504 oftheRehabilitationAct)thatrequirepostsecondaryinstitutions (andK-12entities)toprovideequalopportunitiestopeoplewith disabilitiesinalloftheiroperations,includingequalopportunities toparticipateinandbenefitfromonlineservices,programsand activities Bothlawsrequirepostsecondary(andK-12)institutionsensuretheaccessibilityofpublic-facingwebsites,learning managementsystems,password-protectedstudent-facing content,massemailblasts,onlineprogramming,etc.Thekey, accordingtotheLetter,istoremovedigitalbarriersandprovide accesstoonlineservices,programming,andcontent,etc.

Digitalaccessibility-andenforcement-isanongoingfocusforthe Departmentsinaddressingissuesrelatedtoinstitutionsfailing to achievethosegoals. Ithighlightsaconsentdecreeinwhich a postsecondaryinstitutioninCaliforniawasrequiredtomake all publiconlinecontentonitswebsiteandotheronlineplatforms accessibletopeoplewithdisabilities,includingvideosandpodcastsonYouTube,ApplePodcasts,andthird-partyplatforms. Theconsentdecreerequiredtheinstitutiontodesignatea“web accessibilitycoordinator”,accessibilitytestingofonlinecontent, andindependentauditingtoevaluatewhethercontentprovided tostudentsandthepublicwasaccessible.

In May 2022, the Office for Civil Rights engaged in over 100 compliance reviews concerning digital accessibility, which included education from K-12 through postsecondary education. During the same time period, the Justice Department also issued guidance involving web access for individuals with disabilities, showing how districts can make sure their websites and services are accessible to people with disabilities as required by the ADA. This guidance may be accessed here.

While this Letter does not address K-12 educational institutions, it does serve as a useful reminder to both K-12 and also those institutions providing both levels of education that educational technology accessibility has been and will continue to be a focus for the Departments in ensuring equal access. Districts should also be watching for the Department of Education’s Notice of Proposed Rulemaking for amendments to Section 504 regulations that was mentioned in this Letter.

What does this mean for your District?

The Departments are laser focused on this topic. As bluntly stated in this guidance: “[o]nline accessibility for people with disabilities cannot be an afterthought.” Districts should conduct a review of the accessibility of online programming, services, activities, etc. provided to ensure that these essential services are accessible to students with disabilities. Internal audits of online programs and services to ensure educational technology is accessible: if barriers are discovered, steps can be taken and documented to ensure these programs are accessible going forward.

JUNE 2023/ SCHOOL L AW R E V I EW CINCINNATI | CLEVELAND | COLUMBUS 2 | ENNISBRITTON.COM

Department of Education Investigates Removal of Library Books in Schools

During the 2021-2022 school year, the Office for Civil Rights (OCR) opened an investigation into Forsyth County Schools following a complaint that the district discriminated against students on the basis of sex, race, color, and national origin.

Forsyth County Schools had received a complaint from a parent group over books the group believed contained sexually explicit material. Soon after, the school began receiving complaints from other parents regarding books that discussed LGBTQ+ issues. Parents suggested the district shelve those books separately, placing tags to identify them, or create a system for parents to prohibit their students from checking out specific books, specifically those that focus on LGBTQ+ issues. The District Media Committee rejected both suggestions, stating that implementing those restrictions may increase isolation and bullying, and could result in students avoiding the library altogether. Furthermore, the district believed that implementing a system where students were prohibited from checking out certain books would force the media specialists to become “gatekeepers” of the books.

While the committee rejected the suggestions regarding books with LGBTQ+ content, the Superintendent did authorize staff to review and pull books that included explicit sexual content. Ultimately, the staff permanently removed eight books, temporarily removed two books, and restricted four books to high school libraries. Despite the permanent removal of eight books, many parents continued to call for the removal of even more , some of which focused on gender identity or sexual orientation.

At a board meeting following the removal, multiple students pointed out that the district was banning books largely written by women of color, or those that focused on LGBTQ+ issues. For example, one of the banned books “All Boys Aren’t Blue” by George M. Johnson focuses on Johnson’s childhood and adolescence as a gay Black man. The students argued that banning books, specifically books that are written by or have characters who are members of a minority community, was reflective of the District’s lack of commitment to diversity and highlighting minority voices. The students further told the Board that removal of books such as “All Boys

Aren’tBlue”or“JulietTakesaBreath,”whichfocusesonaPuerto RicanAmericanwhocomesouttoherfamily,ostracizesstudents whoarepartofmarginalizedcommunitiesthatfeltrepresented andunderstoodbythosebooks,makingtheschoolenvironment harsherforthosestudents.

FollowingtheFebruaryboardmeeting,thedistrictformeda summerreviewcommitteewhere34readerswouldreviewthe booksupforpermanentremoval Thecommitteewasrequiredto lookatthebook’scontentandmannerofpresentation,whether thebookwasageappropriate,sophisticationlevel,whetheritmet thestudents’instructional,social,emotional,andpersonalneeds, whetheritexhibitedahighdegreeofpotentialuserappealand interest,andwhetheritprovidedaglobalperspectiveandpromoteddiversitybyincludingmaterialsaboutandbyauthorsorillustratorsofallcultures Ultimately,thecommitteedecidedtoreturn sevenoftheeightbookstotheshelves Sincethereinstatement ofsevenofthebooks,therehavebeennomoreformalcomplaints filed regarding book removal.

InaletteraddressedtotheSuperintendentfollowingtheinvestigation,OCRstatedthatthedistrict’sremovaloftitleswithBlackand LGBTQ+charactersmayhavecreateda“hostileenvironment”for students,potentiallyviolatingtheircivilrights Specifically, OCR’s concernstemmedfromthefactthatthedistrictreceivednoticethat thescreeningprocesscreatedahostileenvironmentforstudents, buttheDistrict’s“responsivestepsrelatedtothebookscreening processwerenotdesignedto,andwereinsufficient to, ameliorate anyresultantraciallyandsexuallyhostileenvironment.”While OCRacknowledgedthattheDistrictstrivestoprovideresources forallstudentswithinthecommunity,itnotedthattheboardmeetings“conveyedtheimpressionthatbookswerebeingscreened toexcludediverseauthorsandcharacters,includingpeoplewho areLGBTQI+andauthorswhoarenotwhite.”OCRalsonotedthat districtwitnessesreportedthatdespitestudentsverbalizingtheir fears,thedistrictdidnottakestepstoaddresstheimpactofthe bookremovalswithstudents Thus,OCRconcludedthattheDistrict’slackofresponsecouldhavecreatedahostileenvironment thatthedistrictfailedtoameliorate.

JUNE 2023/ SCHOOL L AW R E V I EW CINCINNATI | CLEVELAND | COLUMBUS 3 | ENNISBRITTON.COM

TheDistrictultimatelysignedaResolutionAgreementintendedtoresolvetheissuesidentifiedbyOCR.Theresolutionagreementrequiresthedistricttoadministeraschoolclimatesurveytoaddressprevalenceofharassmentandthestudent’sperceptionofharassment Additionally,thedistrictmustpostastatementthatprovidesstudentswithinformationincludingwhycertain bookswereremoved,anacknowledgementthattheenvironmentsurroundingbookremovalmayimpactstudents,andinstructionsonhowtofileacomplaintaboutdiscrimination.

TheDistrict’swillingnesstoagreetotheResolutionAgreementwasapplaudedbytheAssistantSecretaryforCivilRightswho thankedthedistrictforassessingandrespondingtotheneedsofstudentswhofeltasiftheyweresubjectedtoahostileenvironment,andforagreeingto“takeappropriateactionregardingactsofharassmentthatcreateahostileenvironmentbasedonsex, race,colorornationalorigin.”

Whatdoesthismeanforyourdistrict?Requestsforanddebatesoverbookbanshaveresurfacedinrecentyears OCR made itclearinthisdecisionthattheimpactofdistrictactionsisjustasimportantastheintentbehindthem,sowhileForsyth County mayhavehadgoodintentions,itwastheimpactoftheactsthatcreatedthepotentiallyhostileenvironment.Districts should considerinadvanceofthepotentialimpactthatcouldoccurwhencreatingbookcommitteesandpoliciesregarding removalof books.

JUNE 2023/ SCHOOL L AW R E V I EW CINCINNATI | CLEVELAND | COLUMBUS 4 | ENNISBRITTON.COM

Special Education Spotlight

Latest Budget Bill Draft Includes Troubling Special Education Provisions

On June 8th, 2023, the Senate Finance Committee released its draft of the HB 33, the state biennium budget bill. The draft contained some unfortunate proposals that will impact special education if passed in the final version of the bill, which is expected by the end of June. This article is current as of June 15, but the budget is moving quickly to its conclusion as the final conference committee completes its work and sends the bill to the Governor. Stay tuned for additional updates and possible changes.

Scholarship Changes

In addition once again expanding the EdChoice program by more than $373 million over two years, the Senate Finance Committee’s proposed bill also expands the Autism Scholarship Program (ASP) to any child who has been “identified” with autism by the child’s resident school district, or who receives services through an Individualized Education Plan (“IEP”) that are related to autism. Perhaps most concerning, the proposed bill would require school districts to develop “education plans” for a child who is eligible for a scholarship based on a diagnosis of autism, but who does not have an IEP. As districts are well aware, many students have received a medical diagnosis of autism at some point in their childhood yet are determined not eligible for an IEP or even a Section 504 plan because they do not demonstrate a need for special education and related services or any type of accommodations and modifications. This proposal requires development of an “education plan” regardless of need. Further, it provides students with access to the ASP even though they have not demonstrated eligibility for special education.

Both the House and current Senate budget proposals include an increase to the Jon Peterson Scholarship as well. The current version of the bill includes the following:

• Increases the base amount from $6,414 to $7,190

• Increases the Category 1 amount from $1,562 to $1,751

• Increases the Category 2 amount from $3,963 to $4,442

• Increases the Category 3 amount from $9,522 to $10,673

• Increases the Category 4 amount from $12,707 to $14,243

• Increases the Category 5 amount from $17,209 to $19,290

• Increases the Category 6 amount from $25,370 to $28,438

• Increases the maximum scholarship award (capped amount) from $27,000 to $30,000

Special Education Transportation

One of the most unfortunate provisions of the Senate’s version is a requirement that school districts provide transportation as a related service to students with disabilities who live within the district but attend a nonpublic school if the school district is provided with supporting documentation in the student’s IEP, individual service plan, or academic support plan. This change may further exacerbate transportation challenges for districts already struggling to provide transportation to their enrolled students. The current version does expand a district’s ability to use vans to transport students in certain circumstances, which is helpful (if it remains in the bill; reports suggest that it may be removed).

The governor’s version of the bill contains language that would extend the formula for determining special education transportation payments into FY 2024 and FY 2025 and increases the minimum state share percentage for traditional school district payments from 33.33% to 37.5% in FY 2024, and to 41.67% in FY 2025. The bill would extend these increases to educational service centers as well. However, the Senate Finance Committee made changes to the traditional district foundation aid formula which ultimately decreases the percentage share earmarked for special education transportation by $3 million in FY 2024 and $2 million in FY 2025. Likewise, the governor proposed an increase for funding preschool special education which was offset in part by the Senate Committee’s proposed change to the foundation aid formula.

Seizure Action Plans

The House introduced language in HB 33 that would require school districts to develop seizure action plans for each student with an active seizure disorder diagnosis. The Senate Committee maintained

JUNE 2023/ SCHOOL L AW R E V I EW CINCINNATI | CLEVELAND | COLUMBUS 5 | ENNISBRITTON.COM

Latest Budget Bill Draft Includes Troubling Special Education Provisions Continued

this language in its version. The proposed law also contains a training requirement: every two years, districts would need to ensure that at least one other employee besides the school nurse is trained to implement a seizure action plan. The proposal includes language that expressly extends qualified immunity to employees who carry out the plans in good faith. If this law passes, there are possible child find implications. Seizure disorders are considered disabilities, and students may be eligible for Section 504 plans or IEPs. It is recommended that districts keep special education teams in the loop when plans are developed so that districts may consider whether to offer evaluations that fulfill child find obligations.

Auxiliary Services Funds

The governor’s budget authorizes a newly chartered nonpublic school, within ten days of receiving its charter, to elect to receive auxiliary services funds directly. The Senate Finance Committee also inserted language into the bill that prohibits a district from denying a nonpublic school’s request for personnel to provide auxiliary services who are properly licensed. Additional changes are expected in future iterations of the budget bill before a final version is passed. In the meantime, school districts should reach out to area legislators and share any concerns they have about the proposed language. Pam Leist and Hollie Reedy will review the final budget bill in detail at the Administrator’s Academy on July 13, 2023. Click here to register for the webinar.

JUNE 2023/ SCHOOL L AW R E V I EW CINCINNATI | CLEVELAND | COLUMBUS 6 | ENNISBRITTON.COM

About Ennis Britton

Our Practice

On the Docket

06/20-22/23

2023 OACTS Summer Conference

Title IX and Levy Campaigns

Pam Leist

Hollie Reedy

07/10/23 and 07/18/23

OASBO Bootcamp

2023-2024

Erin Wessendorf-Wortman

John Britton

07/25/23

Ohio School Safety Summit School Safety & Threat Assessment Legal Overview

Bill Deters

Ennis Britton has assembled a team of attorneys whose collective experience provides solutions for a variety of issues that school districts may encounter. From sensitive labor negotiations to complex real estate transactions, our legal experts oer the resources to ensure you remain compliant. We provide full legal representation for Ohio schools including:

Labor and Employment Law