School Law Review - October 2021 by ennisbritton

October 2021 Suspended Bus Supervisors Reinstated After RIF .……………......1 Special Education Spotlight: Ways to Ease Anxiety for Online Learners with Disabilities ........................... 2 The House is in Session. What’s on Their Docket? A Lot. .................... 3 Providing Public Records Requests from Your School Databases ........ 5

Suspended Bus Supervisors Reinstated After Reduction in Force State ex rel. Bennett v. Dayton Pub. Schools Bd. of Edn., 2021-Ohio-3119 The Ohio Court of Appeals for the Second District, Montgomery County recently reinstated four Dayton Public School administrative employees whose contracts had been suspended due to a reduction in force (RIF). Under district policy, the affected employees were required to receive written notice of open positions they qualified for within two years of their unemployment.

In May 2016, the four employees signed a two-year contract to continue their employment as a “Transportation Supervisor II” in the school district’s transportation Upcoming Presentations .............. 7 office. Shortly after their contracts were signed, the superintendent recommended a RIF through reorganization and consolidation due to long-term declining enrollment and a corresponding loss of funding. By November 2016, the board voted to abolish their positions. Under the restructuring plan, the Transportation and Fleet Services Department was created which would oversee all district-owned vehicles. The district made job announcements for the new positions in December 2016 that would include more responsibilities and come with a higher salary. In addition, the new hires would receive significant training to help them navigate the new role. The employees claimed that they were never notified of the new open positions and alleged that they were qualified for those positions pursuant to the Board’s policy. After reviewing the job description for the newly created role, the employees disputed whether their old positions had truly been abolished or merely revised. They contend that their old job description was outdated and that their actual responsibilities had evolved and expanded prior to the RIF. They had also previously supervised three of the employees hired into the new position and therefore believe they were qualified to perform the duties required in the new role. The trial court initially ruled in favor of the school district, finding that the essential duties of the new position of Associate Director of Transportation and Fleet Services substantially differed from the original position of Transportation Supervisor II. The new position, for example, would supervise, purchase, and dispose of the motor fleet for the entire district, not just yellow school buses.

The Director of Human Resources testified recall rights existed only if the exact same position was posted and that the affected employees had no right to be notified of the opening unless it was the exact same as their previous job. The Director admitted not knowing whether the affected employees were qualified, inferring that the employees were not considered as candidates for the new position. The district failed to establish that the declining enrollment and loss of funding adversely affected the district’s transportation of students. The Associate Superintendent explained that the district was responsible for transportation of non-district students, such as charter schools. The Board said the RIF was necessary due to restructuring, but the salary for the new position was significantly more than the old one resulting in no cost savings. If the newly created position did involve some added responsibilities, it does not appear that those responsibilities were taken away from another employee who was eliminated by the RIF. Furthermore, the Court found that testimony from board members supported a reasonable inference that the RIF was a matter of housecleaning rather than reducing headcount. During depositions, board members stated “the department was in such disarray… beyond dysfunctional… an embarrassment” and acknowledged having discussions amongst themselves about “getting rid of the transportation supervision because of all the issues that were going on.” The Court agreed that the employees held written administrator contracts. State law authorizes a school board to adopt its own policies for the suspension of administrator contracts as part of a RIF, but any adopted policy must include the following: • • •

May include the financial conditions of the school district or educational service center Determine the order of suspension of contracts Require a right of restoration for employees whose contracts are suspended if and when any positions become vacant or are created for which any of them become qualified

The Appeals Court ruled that the evidence before the trial court was sufficient to support a reasonable inference by the trier of fact (judge or jury) that the employees were qualified for the positions. Therefore, it ruled that the trial court erred in entering summary judgment for the Board of Education and ordered. This ruling means that the parties will have to either take this case to trial or settle.

Special Education Spotlight: Ways to Ease Anxiety for Online Learners with Disabilities Students with disabilities who are continuing to learn remotely may experience anxiety despite preferring to learn online rather than in a brick-and-mortar classroom. Ennis Britton Attorney Jeremy Neff was recently invited to speak with Cara Nissman, a national reporter with Special Ed Connection, and offer some tips for navigating the virtual classroom. A copy of the full LRP Special Ed Connection article is attached at the end of this newsletter. Ennis Britton Special Education Team attorneys have been in the national spotlight throughout the pandemic, with multiple Special Ed Connection newsletter articles featuring interviews of attorneys Erin Wessendorf-Wortman and Jeremy Neff. Jeremy has presented several national webinars for LRP, and this spring Pamela Leist and Jeremy will be speaking at the National Institute on Legal Issues of Educating Individuals with Disabilities. You do not need to travel out-of-state to learn from our team. On October 22nd our Special Education Roadshow returns with a special virtual format to ensure it is easily accessible for all of our clients. Learn more about it and register here.

Ennis Britton October 2021

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The House is in Session. What’s on Their Docket? A Lot. There are a number of education-related bills or bills that will otherwise impact public schools in Ohio currently being considered in the General Assembly. Here is a breakdown of what’s happening. House Bill 244 HB 244 was signed into law in July and goes into effect on October 13, 2021. The bill prohibits public schools from mandating vaccines not yet approved by the Food and Drug Administration. Further, public schools cannot discriminate against those not vaccinated by making them do different activities from their vaccinated counterparts. House Bill 435 HB 435, dubbed the Ohio COVID-19 Vaccine Fairness Act, was introduced on September 27 and has emerged as the most prominent bill of its kind and, unsurprisingly, received some pushback by lawmakers and business groups. Implications as it relates to school districts include: • • •

• • •

Prohibits school districts/employer from requiring a student/employee to receive a COVID-19 vaccine if it has not been approved by the FDA. If an employer requires a vaccine, the employee may satisfy the requirement by taking either a fully FDA-approved vaccine or emergency approved vaccine. Allows exemptions from COVID-19 vaccination due to medical contraindications, natural immunity, and reasons of conscience (including religious convictions). o This does not apply to an employee who begins after the date the law takes effect. Requires a student or employee to submit a written statement to claim an exemption with additional requirements for exemptions based on medical contraindications or natural immunity. Creates a private right of action for students and employees against employers who violate the law. Prohibits a facility owned by a political subdivision or state agency from requiring an individual to show proof of COVID-19 vaccine in order to gain admission into a facility.

House Bill 322 and 327 HB 322 and 327 are just two of many efforts recently introduced to control curriculum decisions in schools regarding the teaching of matters related to race, history, etc. • •

HB 322: Regards the teaching of certain current events and certain concepts regarding race and sex in public schools. HB 327: Would prohibit school districts, community schools, STEM schools, and state agencies from teaching, advocating, or promoting divisive concepts.

We anticipate that this will continue to be a topic that will be debated, and possibly acted upon, in the General Assembly. The debate and enactment of similar laws in other states have been met with protests by students, teachers, and community members.

Ennis Britton October 2021

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House Bill 105 HB 105 passed the Ohio House on June 10 and targets age-appropriate sexual abuse/sexual violence prevention. More specifically it: • • •

• •

Requires each school district, community school, and STEM school to provide annual age-appropriate instruction in child sexual abuse prevention for grades K-6. Requires each school district, community school, and STEM school to include age-appropriate instruction in sexual violence prevention education for grades 7-12. Requires each school district, community school, and STEM school to notify the parents or guardians of students who receive instruction related to dating violence prevention and sexual violence prevention that it is required curriculum and to permit them to examine the instructional materials, upon request. Requires the Department of Education to provide on its website links to free curricula addressing sexual violence prevention to assist schools in developing their curricula. Requires each school district, educational service center, community school, and STEM school to incorporate training on child sexual abuse into its required in-service training for teachers and other professionals.

Senate Bill 1 SB 1 passed in the Ohio Senate on September 29. The bill is aimed at requiring financial literacy instruction as part of their required high school coursework. Students entering the ninth grade for the first time on or after July 1, 2022, would need to complete one-half unit of instruction in financial literacy as part of the required high school curriculum, either as an elective or a math course. The bill would also require educators teaching the course to have an educator license validation in financial literacy by the 2023-2024 school year. It also creates a fund to reimburse districts for those licensure costs. House Bill 126 HB 126 has now been introduced three times, most recently passing the House on April 15. The bill seeks to make filing counterclaims against property valuation complaints more difficult and cumbersome for school boards. Boards would have to take additional steps, such as adopting resolutions and providing redundant notice to property owners, in order to file a counterclaim. House Bill 151 HB 151 proposes to replace the two-year Ohio Teacher Residency Program with a two-year local new teacher mentorship program facilitated by each local professional development committee beginning with the 2023-2024 school year. It eliminates measures of progression and the requirement that a teacher takes a performance-based assessment prescribed by the State Board of Education. It further requires each mentorship program to offer opportunities to observe veteran educators, discuss instructional practices, and introduce the teacher to the teaching profession and school district or school. House Bill 290 HB 290, also known as the Backpack Bill, would allow families to choose the educational option that best meets their needs by ensuring that every child in the state is eligible for a scholarship to attend the K-12 school of their choice. House Bill 298 HB 298 revises the composition of the State Board of Education from 19 voting members to 11 by eliminating the eight Governor-appointed positions when their current terms expire.

Ennis Britton October 2021

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House Bill 61 and 132 HB 61 and 132, dubbed the Save Women’s Sports Act, requires each school that participates in athletic competitions to designate separate single-sex teams based on the biological sex of the participants. The bill would prohibit a state agency or political subdivision, accrediting organization, or athletic association that operates or has business activities in Ohio from taking adverse actions against a school or school district that complies with the bill’s single-sex participation requirements. If an athletic participant’s sex is disputed, the bill requires the participant’s sex to be established through a signed physician’s statement indicating the participant’s sex based upon only 1) the participant’s internal and external reproductive anatomy; 2) the participant’s normal endogenously produced levels of testosterone, and; 3) an analysis of the participant’s genetic makeup. Senate Bill 229 SB 229 would allow a school district to submit to the Ohio Department of Education, by April 20, 2022, a declaration to implement or discontinue the use of a blended learning model during the 2021-2022 school year. For students participating in blended learning, the district shall provide internet access and devices necessary to access online content.

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 pursuant to a request. In this case, the records sought by the requestor did not exist because CCS has not used the database software to compile this specific kind of information in the past and it was not programmed to provide the information in the manner requested. 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.

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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, when it comes to data bases, 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.

Follow Us on Facebook: facebook.com/EnnisBritton and Twitter: @EnnisBritton Want to stay up to date about important topics in school law? Check out Ennis Britton’s Education Law Blog.

Ennis Britton October 2021

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Upcoming Presentations We are currently scheduling administrator retreats (in person or via videoconference) for the 2021-2022 school year. Contact us soon if you would like to schedule a retreat for your administrators, as calendars book up quickly. October 14 : Ennis Britton Tr ansportation Webinar Presented by Pamela L eist and Hollie Reedy Register Now! October 14: Butl er County ESC – Legal Update Presented by Jeremy Neff October 15: Brown County ESC – Legal Update Presented by Erin Wessendorf -Wortman October 15 : Hamilton County ESC – Legal Update Presented by Hollie Reedy October 21: Clermont County ESC – Superi ntendent’s Meeti ng Presented by William Deters October 22: Special Educati on Virtual Roadshow Presented by The Ennis Britton Team Register Now!

OSBA Capital Conference November 7-9, 2021 November 8 COVID-19’s Impact on Labor Negotiati ons - Bronston McCord November 8 : Post-Pandemic Legal Issues in Special Ed - Pamela Leist and Hollie Reedy November 8 : Student Free S peech – What’s New? - John Britto n November 9 Let Ther e Be Light – Ohio Sunshi ne Laws - Gary Stedronsky

Administrator’s Academy December 2, 2021 – Treasurer’s Clinic Febr uary 4, 2022 – Human Resources April 7, 2022 – Special Education July 21, 2022 – Legal Update (10 a.m. – noon)

Ennis Britton October 2021

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Ennis Britton Practice Teams At Ennis Britton, we have assembled a team of attorneys whose collective expertise enables us to handle the wide variety of issues that currently challenge school districts and local municipalities. From sensitive labor negotiations to complex real estate transactions, our attorneys can provide sound legal guidance that will keep your organization in a secure position. When you have questions in general areas of education law, our team of attorneys help you make competent decisions quickly and efficiently. These areas include: Labor & Employment Law Student Education & Discipline Board Policy & Representation There are times when you may have a question in a more specialized area of education or public law. In order to help you obtain legal support quickly, we have created topic-specific practice teams. These teams comprise attorneys who already have experience in and currently practice in these specialized areas. Construction & Real Estate Construction Contracts • Easements • Land Purchases & Sales • Liens • Mediations • Litigation

Workers’ Compensation Administrative Hearings • Court Appeals • Collaboration with TPAs • General Advice

Team Members: Ryan LaFlamme Robert J. McBride Bronston McCord Giselle Spencer Gary Stedronsky

Team Members: Ryan LaFlamme Pam Leist Giselle Spencer Erin Wessendorf-Wortman Kyle Wheeler

Special Education Due Process Claims • IEPs • Change of Placement • FAPE • IDEA • Section 504 • any other topic related to Special Education

School Finance Taxes • School Levies • Bonds • Board of Revision

Team Members: John Britton Bill Deters Michael Fischer Pam Leist Jeremy Neff Hollie Reedy Giselle Spencer Erin Wessendorf-Wortman Kyle Wheeler

Ennis Britton October 2021

Team Members: John Britton Bill Deters Ryan LaFlamme Robert J. McBride Bronston McCord Jeremy Neff Hollie Reedy Giselle Spencer Gary Stedronsky

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Attorney Directory John Britton 6000 Lombardo Center, Suite 120 Cleveland, Ohio 44131 P: 216.487.6673 C: 216.287.7555 Email: jbritton@ennisbritton.com

Jeremy J. Neff 1714 West Galbraith Road Cincinnati, Ohio 45239 P: 513.421.2540 C: 513.460.7579 Email: jneff@ennisbritton.com

William M. Deters II 1714 West Galbraith Road Cincinnati, Ohio 45239 P: 513.421.2540 C: 513.200.1176 Email: wmdeters@ennisbritton.com

Hollie F. Reedy 300 Marconi Boulevard, Suite 308 Columbus, Ohio 43215 P: 614.705.1332 C: 614.915.9615 Email: hreedy@ennisbritton.com

J. Michael Fischer 1714 West Galbraith Road Cincinnati, Ohio 45239 P: 513.421.2540 C: 513.910.6845 Email: jmfischer@ennisbritton.com

Giselle Spencer 6000 Lombardo Center, Suite 120 Cleveland, Ohio 44131 P: 216.487.6674 C: 216.926.7120 Email: gspencer@ennisbritton.com

Ryan M. LaFlamme 1714 West Galbraith Road Cincinnati, Ohio 45239 P: 513.421.2540 C: 513.310.5766 Email: rlaflamme@ennisbritton.com

Gary T. Stedronsky 1714 West Galbraith Road Cincinnati, Ohio 45239 P: 513.421.2540 C: 513.886.1542 Email: gstedronsky@ennisbritton.com

Pamela A. Leist 1714 West Galbraith Road Cincinnati, Ohio 45239 P: 513.421.2540 C: 513.226.0566 Email: pleist@ennisbritton.com

Erin Wessendorf-Wortman 1714 West Galbraith Road Cincinnati, Ohio 45239 P: 513.421.2540 C: 513.375.4795 Email: ewwortman@ennisbritton.com

Robert J. McBride 6000 Lombardo Center, Suite 120 Cleveland, Ohio 44131 P: 216.470.3392 Email: rmcbride@ennisbriton.com

Kyle Wheeler 6000 Lombardo Center, Suite 120 Cleveland, Ohio 44131 P: 216.487.6674 C: 330.591.1503 Email: kwheeler@ennisbritton.com

C. Bronston McCord III 1714 West Galbraith Road Cincinnati, Ohio 45239 P: 513.421.2540 C: 513.235.4453 Email: cbmccord@ennisbritton.com

Cincinnati Office: 513.421.2540 Cleveland Office: 216.487.6672 Columbus Office: 614.705.1333

Ennis Britton October 2021

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Ways to ease anxiety for online learners with disabilities Students with disabilities who are continuing to learn remotely may experience anxiety despite preferring to learn online rather than in a brick-and-mortar classroom. Special education directors can ease anxiety of these students with a few simple steps. "Not everybody wants everyone looking at them, and in your typical remote learning setting, you have a room full of kids sitting there on the screen, and it looks like everyone's staring at you," said Jeremy J. Neff, a school attorney at Ennis Britton Co., L.P.A. in Cincinnati, Ohio. "It approximates someone truly being in your face. It's that anxiousness that comes from being on the spot." Students may also experience anxiety from seeing themselves on the screen, Neff said. "It's unnatural to stare at yourself as so often happens when we're in these remote meetings, and that can cause some fatigue that can wear on us over time," he said. "That can be part of what anxiety looks like." Special education directors may want to ensure staff members take steps to lessen anxiety in students continuing to learn remotely. Taking these steps will allow students to focus more on working toward their IEP goals. Endrew F. v. Douglas County Sch. Dist. RE-1, 69 IDELR 174 (U.S. 2017). Neff discussed this and other topics during the LRP webinar Supporting the Changing Needs of Students With Anxiety Post-Pandemic. Follow these tips: ✓ Remove image. See if the student would feel better if he turned off the image of himself while he's learning remotely, Neff said. "Just looking at yourself all day can be really distracting, especially for students who can be particularly self-conscious," he said. "That can be frightening." ✓ Reduce others' images. Advise the student to shrink the size of her video window so she doesn't feel like everybody else in the class is in her face and staring at her, Neff said. "[That can trigger] that fight or flight response," he said.

Reprinted with permission from: Special Ed Connection®. © 2021 LRP Publications, 360 Hiatt Drive, Palm Beach Gardens, FL 33418. All rights reserved. Special Ed Connection® is your go-to source for compliance guidance and use-today solutions for all your day-to-day special education responsibilities. For FREE access or more information, please call 1-800-341-7874 or visit www.SpecialEdConnection.com. For more LRP Publications resources, visit www.shoplrp.com.

✓ Change the presentation format. Suggest the student change from using a gallery format, or seeing the whole class on the screen during a lesson, to just seeing whoever is speaking or the teacher, Neff said. ✓ Show flexibility. Be open when possible to making a phone or house call, Neff said. "We don't always need to use a video platform," he said. "There might be things that are better handled by a call or in-person services, even in the home. We should have some flexibility on that." X Don't forget parents. Recognize that parents may need to help their child take some of these steps to reduce their anxiety during remote learning, Neff said. Consider offering them parent training and counseling as a related service. "We should always be open to the idea of training, especially now," he said. "Anytime you're talking about assistive technology for a child, you have to make sure they can actually use it. If they can't use it, it's kind of pointless, so you absolutely should provide training. Maybe you can record a video and have it available any time a parent needs it. And then, as far as documenting that in a 504 plan or an IEP, you should document it, assuming that it is based on a child's disability needs. You could write down, 'Adjustments to online learning platform for anxiety.' That's probably sufficient." Cara Nissman covers autism, school psychology, and IEP team issues for LRP Publications. September 20, 2021 Copyright 2021© LRP Publications