School Law Review - February 2023

February 2023

Court of Appeals Reverses Trial Court that A rmed a Nonrenewal

Jones v. Kent City School Dist. Bd. of Edn., 2023-Ohio-265

The Eleventh District Court of Appeals of Ohio (Ashtabula, Geauga, Lake, Portage, and Trumbull) issued a decision last month reversing a trial court that had a rmed a board of education’s decision to nonrenew a teacher. During the 19-20 school year, the teacher had several instances of misconduct that resulted in a three-day suspension. Later in that same school year, the teacher failed to report to work and did not follow the proper protocols for entering an absence, resulting in the students being unsupervised. The teacher was told he would be placed on a full evaluation cycle and was likely to be non-renewed.

An in-person observation was conducted in January, and a second took place while observing a distance learning class on May 1. On May 15, an observation of a Google Meets session was conducted where the students “shar[ed] progress on their google sheets assignment.”The teacher was not present during this session, as he was on a medical leave, and the evaluation consisted of observing the students working on a project the teacher designed. An invitation for a post-conference meeting on May 28th was sent to the teacher, who did not attend.

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

The Board took action to nonrenew, as recommended by the Superintendent. The teacher was advised of this decision, asked for the reasons for nonrenewal and was informed it related to those days he left early, failure to ful ll duties on an early release day and teacher work day, and his absence which left students unattended.

In April 2020, a Memorandum of Understanding was entered into by the Board and the teachers’union, which speci ed the process to complete teacher evaluations for 2019-2020 in accordance with House Bill 197. It provided that for those teachers subject to an evaluation under the CBA, if all required observations were completed by March 16, 2020, the evaluator shall complete the evaluation report by May 22, 2020, and if the required observations were not completed by that date, they would be conducted virtually. It provided that, based upon completion of such procedures, “all teachers subject to evaluation for the 2019-2020 school year shall be deemed to have evaluations complied with for purposes of R.C. 3319.11.”

Ennis Britton

The Appeals court noted the di cult standard on appeals in cases concerning nonrenewals. Under the applicable statute, the court does not have the jurisdiction to consider the merits of the decision of the Board concerning the reasons for nonrenewal. The Court may only overturn such a decision if there are procedural defects, i.e., failure to provide the required evaluations.

The Appeals court also addressed the jurisdictional argument of the Board, that only SERB had jurisdiction over the dispute because the dispute arose from an MOU that is part of the collective bargaining agreement. The court noted that while there can be cases in which even statutory rights may be subject to interpretation through an applicable CBA, which in turn could divest a court of jurisdiction, the statute applicable here cannot be superseded by the CBA. Therefore, since determination of the evaluation procedures is statutory and the application of the law is not dependent upon a collective bargaining agreement, the lower court had jurisdiction to hear this matter.

Having resolved the jurisdictional issues, the court turned to the merits of the teacher’s challenge, which in essence was that the third observation did not comply with the statutory requirements because the teacher was not present and the observation consisted of watching students work virtually on a project designed by the teacher. On this, the court agreed, holding that the statutes applicable to nonrenewal must be liberally construed in favor of teachers and that strict compliance, not substantial compliance is required with regard to nonrenewal procedures. The teacher was not present at all during the third evaluation and even though it was due to his own illness, there was no pre or post-observation conference. These were fatal procedural defects. The Ohio Supreme Court has previously held that a teacher’s medical leave of absence does not excuse a school board from complying with required nonrenewal procedures.

What does this mean for your district?

Procedural defects are essentially the only path a teacher has to overturn the decision of a board to nonrenew. Complying with those procedures is crucial. It would be wise to have a gameplan in place for any teacher even possibly being considered for nonrenewal. A checklist is also a good tool to make sure you are meeting procedural requirements in the lead-up to the Board’s action. Finally, consider addressing how absences will be handled in the context of evaluations and nonrenewal in your collective bargaining agreements. Attorneys at Ennis Britton can assist you with crafting language to meet your needs.

CAREER TECH CORNER

Ensuring Access through Admissions

It’s admissions time! For CTCs, admissions sta are busy processing applications and making plans for the incoming class for 2023-2024. This is also a great time of year to remind sta about a CTC’s obligation to ensure that programs are accessible to all students, including students with disabilities and students from special populations who may be underrepresented in career tech programs. Federal Grant Programs such as Perkins V, as well as civil rights laws, require careful review of data to determine whether all populations are fairly served.

The admissions process is a critical step in providing equal access, so much so that the federal government has created “special” rules for vocational school program providers. This makes some sense because a traditional K-12 school district does not have an admissions process since they are generally required to enroll all eligible students who reside in their districts.

These special vocational rules, codi ed in 34 C.F.R. Appendix B to Part 100, establish speci c guidelines for vocational school admissions which expressly prohibits a vocational school or program from using any type of criteria that disproportionately excludes individuals of a particular race, color, national origin, sex or disability (collectively, these are referred to as “protected classes”). Vocational program operators have the burden of demonstrating that any criteria which is used as a gate in admissions has a valid purpose.

Theoretically, it is not the end of the road even when a criteria has a disproportionate impact on a protected class. According to the regulation, a school may still be able to use the criteria if it can prove that it is essential, and there is no alternative equally valid criteria that may be used. However, in practice it is very di cult to meet this burden and justify the criteria. Because of this, most CTCs in Ohio have transitioned to using a lottery system, with the only “criteria” being a limit on the number of credits a student may be de cient for graduation since the lab takes up so much of the student’s schedule and it becomes di cult to make up credits after enrollment to remain on track to graduate.

The justi cation for lottery systems is often apparent when you consider how common criteria might pose inequitable enrollment barriers. Consider for instance student interviews. A few years back, many CTCs used interviews as part of their admissions process, especially for competitive programs where there are more applicants than space. As state and federal o cials analyzed the legality of this criteria, they began to conclude that in-person interviews pose a risk for human bias to enter the picture.

For example, if a student in a wheelchair applies for a program such as auto mechanics that involves a lot of physical activities and that student attends an interview, admissions sta who meet the student may assume that the student has physical limitations which prevent them from fully participating. As a result, they may be less inclined to approve the student’s application even though the student may very well be successful in the program with appropriate accommodations and modi cations.

Other criteria such as GPA, discipline, and attendance may similarly have disproportionate and negative impacts on protected classes and are often di cult to defend because they do not always present a clear link between the curriculum and class requirements of the lab and a student’s ability to participate e ectively in the vocational program.

When we talk about “success,” it is important to understand that a public school joint vocational school program in Ohio must provide equal access to all students who reside in the JVS’s territory. This is a mandate under both state and federal law, including Appendix B as well as the state law R.C. §3311.19. These laws do not strictly focus on outcomes, but rather are more about access. In some circumstances, success for a particular student may be that they participate in a lab but do not earn any industry certi cations or credentials like their peers. This can be a di cult concept for sta to understand, especially since programs are rated and judged by such factors as the number of students who receive credentials and who successfully enter their chosen elds after graduation.

The Ohio Department of Education is tasked with assisting the U.S. Department of Education’s O ce for Civil Rights in ensuring that Ohio CTCs remain compliant with Appendix B and other civil rights laws and regulations. In the past few years, ODE has taken an active role in reviewing the admissions process of CTCs through things such as desk audits and complaint reviews. This has triggered a lot of conversation statewide about CTC admissions, and many changes have come about because of these conversations. If you have questions about your admissions process or if you might be facing a program review in the near future, it is important to contact your legal counsel for further discussions and consultation. We can help guide you in the right direction.

Court Con rms Narrative Portion of Attorney Invoices May Be Redacted

State ex rel. Ames v. Baker, Dublikar, Beck, Wiley & Mathews, 2023-Ohio-263

This particular case and its parties have an extensive legal and procedural history that we will not bore you with here. The pertinent holding for purposes of this article is the Ohio Supreme Court’s holding that “an invoice for a legal service provided to a public-o ce client is a public record, with the caveat that the narrative portion of the invoice describing the service is protected from disclosure by the attorney-client privilege.” Other information on the billing statements—e.g., the general title of the matter being handled, the dates the services were performed, and the hours, rate, and money charged for the services—is considered nonexempt and must be disclosed.

The Eleventh District Court of Appeals of Ohio (Ashtabula, Geauga, Lake, Portage, and Trumbull) issued this opinion on remand from the Ohio Supreme Court to consider that very holding when analyzing whether invoices for legal services submitted to Rootstown Township, Ohio which were disclosed pursuant to a public records request were properly redacted. The Township redacted the narrative portions of the invoices.

The rationale behind the rule is that billing records describing the services performed for the attorney’s clients, and any other attorney-client correspondence may reveal the client’s motivation for seeking legal representation, the nature of the services provided or contemplated, strategies to be employed in the event of litigation, and other con dential information exchanged during the course of the representation. “A demand for such documents constitutes an unjusti ed intrusion into the attorney-client relationship.”

The appeals court conducted a con dential review of the invoices and determined the narrative portions of the invoices were properly redacted before being disclosed. The Court then went on to resolve the legal issues concerning the motion to dismiss in the case, which again, we won’t bore you with here.

What does this mean for your District?

As the court noted in a footnote to the decision, the relator in this case, Brian Ames was attempting to establish a new rule of law—the “[a]ttorney-client privilege does not apply to invoices for legal services provided to a public body.” The relator was not successful here and the contrary holding of the Ohio Supreme Court in this regard remains good law today.

Lack of Fire Extinguisher in Science Classroom Could Be a Physical Defect A ecting Immunity

In a 4-3 decision decided on December 28, 2022, the Supreme Court of Ohio ruled that the absence of a re extinguisher in a science classroom“could be a physical defect such that an exception to immunity exists under R.C. 2744.02(B)(4).” The case of Doe v. Greenville City Schools arose from an accident within a science class. The plainti s allege that the school district “negligently caused their injuries when they su ered severe burns in December 2019 after a bottle of isopropyl alcohol caught re and exploded in a science class” The complaint further alleged that the school district “failed to provide proper safety equipment, ‘especially, but not limited to, a re extinguisher inside the classroom,’ failed to ensure that there were proper safety features and protocols in place, [and] failed to properly supervise and protect them ”

The Supreme Court held that the allegations should survive a motion to dismiss. Discussing the standard, the Supreme Court explained, “R.C. 2744.02(B)(4) requires that two separate elements be met—the injuries at issue must be caused both (1) by a political subdivision employee’s negligence and (2) by a physical defect within or on the grounds of buildings that are used in connection with the performance of a governmental function.

Noting that the term “physical defect” is not statutorily de ned, the Supreme Court acknowledged a split among Ohio courts of appeals as to whether the lack of a safety feature could constitute a “physical defect” The Supreme Court agreed with the courts that have held that the lack of safety equipment or other safety features could amount to a physical defect. Thus,“the absence of a re extinguisher or other safety equipment within a science classroom could be a physical defect such that an exception to immunity could exist under R.C. 2744.02(B)(4).”

As a result of this decision another exception to the immunity statute has been recognized by the Supreme Court. Please contact one of our attorneys is you would like to discuss this case and implications further.

The decision can be found here: https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2022/2022-Ohio-4618.pdf

Ohio Federal Court A rms Exhaustion Requirement Under IDEA

As school districts continue to feel the bite from parent demands stemming from COVID closures and learning alternatives, the U. S. District Court for the Southern District of Ohio recently a rmed that the pandemic does not justify circumventing established due process procedures. In adopting the Report and Recommendation of Magistrate Stephanie Bowman, the federal court a rmed that an Ohio parent is obligated to exhaust those administrative remedies under the IDEA even when they attempt to the raise claims under other laws.

In this case, the parent of R.Z., a high school student in Ohio, claimed that the school district’s decision to institute remote learning during the pandemic amounted to a failure to provide the student with a FAPE and a violation of Section 504 of the Rehabilitation Act of 1973, the Ohio Individuals with Disabilities Education Improvement Act, and the Ohio Education of Children with Disabilities Law. The parent claimed that his child could not bene t from remote learning and by imposing such a practice, the District’s policy amounted to a denial of the student’s rights.

The District moved to dismiss the lawsuit before the hearing. The court granted the motion and dismissed the case. In doing, so the federal court found that under Fry v. Napolean Community Schools, the Supreme Court of the United States made it clear that exhaustion of the administrate remedies under the IDEA is required when a complaint seeks redress for a school’s alleged failure to provide a FAPE. The court also looked to Perez v. Sturgis Public Schools, a Sixth Circuit decision handed down days before the oral argument on this case and noted that, while the Perez decision did not answer the question of whether a court is divested of subject matter jurisdiction when a party fails to exhaust administrative remedies, the exhaustion requirement still stands. Speci cally, the appellate court found that even when a party is not directly contesting the substance or propriety of an IEP whenever the challenge relates to the provision of a FAPE, the determination of whether or not the school complied with the IEP is best resolved through administrative procedures “that elevate judicial economy and agency expertise.” The court went on to a rm that, since the Perez decision did not de nitively recognize any exceptions to the IDEA exhaustion requirement, a claim that administrative exhaustion would be futile could not save this Ohio case from dismissal.

What this means

for schools: Now, the US Supreme Court, 6th Circuit Court of Appeals, and an Ohio District Court have made it clear that parents must avail themselves of the administrative hearing process as speci ed in the IDEA and Ohio law before claiming violations of related disability laws. As the Fry case makes clear, when the gravamen of a complaint rests on an alleged failure to provide a FAPE, the exhaustion requirements under the IDEA must apply.

Circuit Courts of Appeals Split on Transgender Bathroom Issue

On December 30, 2022, a federal circuit court of appeals broke from the decisions from other circuits and held that separating the use of male and female bathrooms on the basis of biological sex does not violate the United States Constitution or Title IX.

In Adams v. School Board of St. Johns County, Florida, the United States Court of Appeals for the Eleventh Circuit (covering Alabama, Florida, and Georgia) upheld what the court described as “the unremarkable --- and nearly universal --- practice of separating school bathrooms based on biological sex” The ruling upheld a school district’s decision to deny a request from a transgender male to access the boys’restroom.

The Adams decision directly con icts with guidance from the O ce of Civil Rights of the United States Department of Education, as well as decisions from the Fourth Circuit (covering Maryland, North Carolina, South Carolina, Virginia and West Virginia) and the Seventh Circuit (covering Illinois, Indiana, and Wisconsin). The decision also con icts with a decision from the United States District Court for the Southern District of Ohio, which has jurisdiction over portions of Ohio. The guidance and those decisions have concluded that transgender students may access the bathrooms of their choice.

Based on the split among the circuits, the Supreme Court of the United States may decide to consider the case and settle the issue definitively. In the interim, clients are encouraged to contact the attorneys at Ennis Britton for consultation.

A link to the decision is here: https://media.ca11.uscourts.gov/opinions/pub/files/201813592.2.pdf

Our Practice

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 o er the resources to ensure you remain compliant. We provide full legal representation for Ohio schools including:

•Labor & Employment Law

•Student Education & Discipline

•Board Policy & Representation

John Britton jbritton@ennisbritton.com

William M. Deters II wmdeters@ennisbritton.com

J.Michael Fischer jm scher@ennisbritton.com

Ryan M. LaFlamme rlafalmme@ennisbritton.com

Pamela A. Leist pleist@ennisbritton.com

3/9/23 BASA Women in Leadership Conference

Pam Leist presenting

4/19/23 LRP’s Special Education Conference: All Things Autism

Pam Leist presenting

4/20/23 OASBO 2023 Annual Conference

FMLA: Nuts, Bolts & Insights

Erin Wessendorf-Wortman presenting

•Construction & Real Estate

• Workers’ Compensation

Robert J. McBride rmcbride@ennisbritton.com

C.Bronston McCord III cbmccord@ennisbritton.com

Jeremy J. Ne jne @ennisbritton.com

Hollie Reedy hreedy@ennisbritton.com

Giselle Spencer gspencer@ennisbritton.com

•Special Education

•School Finance

Gary T. Stedronsky gstedronsky@ennisbritton.com

Erin Wessendorf-Wortman ewwortman@ennisbritton.com