School Law Review - November 2022

Table of Contents

November 2022

Board of Education Resolution on Transgender Protections Delayed

Court Determines Dress Code Covered Under Title IX

Review of Guidance Counselor’s Right to Retain Outside Attorney During Arbitration

OCR Provides Guidance for Pregnant and Parenting Students

Revised IDEA Regulations Finally Coming?

SCOTUS to Consider Exhaustion of Remedies Case

1 2 3 4 5 6

Decision on State Board of Education Resolution on Transgender Protections Delayed

A “Resolution to Support Parents, Schools, and Districts in Rejecting Harmful, Coercive, and Burdensome Gender Identity Policies” was proposed at the September meeting of the State Board of Education. It was placed on the State Board agenda for its Oct. 11th and 12th meeting dates.

This resolution declares the Board’s “unequivocal opposition to the proposed regulatory changes released by the U.S. Department of Education on June 23, 2022.” Speci cally, the proposed changes would prohibit schools that receive federal funds from adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with their gender identity. The resolution opposes these changes and declares support for a lawsuit seeking to invalidate rules concerning the continued receipt of federal nutritional assistance adopted by the Department of Agriculture, which was joined by the Ohio Attorney General and 21 other state attorneys general.

The resolution directs the Superintendent of Public Instruction to mail a copy of the resolution to every public school district as well as elementary and secondary schools and preschools receiving federal funds, with a cover letter from the Ohio Department of Education stating the agency opposes Title IX regulatory changes, considers the United States Department of Education guidance documents without legal force and non-binding, and urges districts not to amend policies and procedures based on USDOE guidance documents.

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The nal paragraph declares that the State Board rejects harmful, coercive and burdensome gender identity policies, procedures and regulations.

This resolution garnered a lot of state and national attention. The State Board heard four hours of public testimony before deliberating on the resolution. In the end, the State Board voted 12-7 to send the resolution to an executive committee for further consideration.

What this means for your district? The resolution was not passed so the State Board’s action in October to send the resolution to an executive committee for further consideration has no impact on your school district. If passed, the resolution as written would not be binding on local school districts. In the event the resolution passes, school districts should consult with legal counsel before taking any action in accordance with the resolution because doing so may subject your district to liability for failing to comply with federal law.

Court Determines Dress Code May be Covered Under Title IX

The board of trustees of a North Carolina charter school discovered that designing a dress code based on the view that girls are “fragile vessels” could violate both the Equal Protection Clause and Title IX of the Education Amendments of 1972.

Parents of several students at Charter Day School (CDS) led suit, challenging the dress code requiring K-8 girls to wear a skirt, jumper or skort unless they were in PE class or for certain eld trips and other special events. Boys, on the other hand, were allowed to wear shorts or pants at school. Parents complained that the requirement of skirts for girls prevented their daughters from engaging in numerous physical activities including using the swings playing soccer, and even comfortably participating in emergency drills that required students to crawl or kneel on the oor.

The District Court concluded that CDS was a state actor for purposes of the Equal Protection Clause,but determined that dress codes are exempt from Title IX's prohibitions against gender discrimination. On rehearing en banc, the 4th District Court of Appeals a rmed that in certain circumstances,a private actor could be engaged in state action. In this case, the court determined that “...implementing the skirts requirement based on blatant gender stereotypes about the proper place for girls and women in society” is a clear violation of the Equal Protection Clause.

The court went on to consider the Title IX claim, overturning the District Court’s ruling. Title IX provides that“...no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the bene ts of, or be subjected to discrimination under any education program or activity receiving federal nancial assistance.”

In reaching its conclusion, the 4th Circuit noted that Congress did not list any speci c discriminatory practices in Title IX, but the law was instead intended to generally prohibit explicitly sex-based policies. Since the e ect of the dress code was to prohibit female students from participating in certain school activities, it denied them the full bene t of their education and subjected them to discrimination because of their sex.

Accordingly, the court concluded that Title IX applies unambiguously to sex-based dress codes. The case was remanded to the District Court for further proceedings consistent with its opinion.

What this means for your district: While few schools still embrace such gender stereotypes, boards are cautioned to review dress codes and any other gender-speci c policies for conformity with Title IX and the Equal Protection Clause.

Peltier v. Charter Day School, Inc., No. 20-1001 (4thCir. 2021)

Ohio Supreme Court Asked to Review Guidance Counselor’s Right to Retain Outside Attorney During Arbitration

An Ohio guidance counselor who opted out of the union has asked the Ohio Supreme Court to overturn a decision of the 11th District Court of Appeals which found she did not have a right to use her own attorney during an arbitration hearing.

Revised Code 4117.04 requires public employers to extend and recognize the right of a designated union representative to serve as the exclusive representative of the bargaining unit included in a CBA. In the event that an employee wishes to obtain their own attorney at their own expense, unions will typically have procedures for the employee to waive their right to protection and representation under the CBA. If a district allows private representation in meetings such as predisciplinary hearings, they may face an unfair labor practice charge.

The employee contends that denying her choice of legal counsel infringes on the First and Fifth Amendments of the United States Constitution. The lower court held that the employee’s constitutional rights were not violated because the arbitration process was established in a collective bargaining agreement between the school district and the union. The court found that the employee herself was not legally entitled to initiate the grievance and arbitration process so her rights to free speech and due process were not violated. By requesting that the union submit the grievance to arbitration, as required by the collective bargaining agreement, the employee “ceded her standing to adjust the grievance.”

The Ohio Supreme Court is not required to take this case. If it decides not to hear the appeal, then the 11th District Court’s decision will remain prevailing law. We will monitor it for further developments.

How this a ects your district? The employee in this case is represented by the Buckeye Institute, which has been involved in collective bargaining litigation since the U.S. Supreme Court issued its decision in Janus declaring that fair share fees were unconstitutional. Ennis Britton has seen an increase in the number of employees who request to use their own legal counsel rather than the representation provided by public sector unions. This can put a school district in the middle of a ght between its employee and the union representing bargaining unit members, which may even result in the ling of an ULP charge against the District with the State Employment Relations Board. Districts should contact legal counsel before proceeding with any meeting which is attended by an employee’s non-union attorney.

See You At The 2022 OSBA Capital Conference

Ennis Britton is proud to be a Silver Sponsor of this year's OSBA Capital Conference. Be sure to check out the presentations from our attorneys:

Monday, November 14

Employee Free Speech

Presented by John Britton

9:00 a.m. Room A213-215

Coach's Playbook: Law for Extracurriculars

Presented by Jeremy Ne

10:30 a.m. Room A220-222

Managing Public Participation at Board Meetings

Presented by John Britton

1:00 p.m. Room A223-225

The Trouble with Custody, Attendance & Tuition

Presented by Pam Leist & Hollie Reedy 2:30 p.m. Room A220-222

Tuesday, November 15

Gender Issues - What Every School District Should Know

Presented by Giselle Spencer & Erin Wessendorf-Wortman

8:30 a.m. Room B230-232

Managing and Producing Digital Records

Presented by Ryan LaFlamme & Pam Leist 10:30 a.m. Room A210-212

OCR Provides Guidance for Pregnant and Parenting Students

The U.S. Department of Education's O ce for Civil Rights (OCR) recently released guidance linking the protections of Title IX of the Education Amendments Act to students and employees based on pregnancy and related conditions. The October 4, 2022 guidance reiterated that the protections of Title IX that prohibit discrimination on the basis of pregnancy have been in place since 1975. The guidance goes on to provide that schools may not discriminate against any student, or exclude any student from their education program or activity, including any class or extracurricular activity, based on the student’s pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom. Furthermore, a school may not discriminate against or exclude from employment any employee or applicant on these bases.

Schools are advised to treat pregnancy, childbirth, false pregnancy, termination of pregnancy, and recovery therefrom the same as any other temporary disability of a student. For employees, schools must treat pregnancy and its related conditions the same as any other temporary disability for all job-related purposes.

The guidance goes on to state that if a school does not have a leave policy for students, or if a student does not otherwise qualify for leave under existing district policies, the school must nonetheless provide leave to a student for pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom, for as long as the student’s physician deems such leave to be medically necessary. After the leave expires, the student must be reinstated to the status the student held when the leave began. Finally, the resource states that a school must ensure that its teachers’ policies and practices do not discriminate against students because of pregnancy and related conditions. This means that a teacher may not refuse to allow a student to submit work after missing a deadline because of absences due to pregnancy or childbirth, and if part of the teacher’s grading is based on class attendance or participation, the student must be allowed to earn the miss credits and be reinstated to the student’s pre leave status.

As with other Title IX matters, students may le a complaint through their school's grievance process or directly with OCR. For OCR's purposes, a complainant can include students, parents and guardians, employees, community members, and others, including anyone who observes discrimination in educational programs based on sex, including pregnancy and related conditions.

What This Means for Schools: school districts are encouraged to review their policies and practices regarding student absences, return to school, and policies on work completion to ensure their compatibility with OCR expectations.

Revised IDEA Regulations Finally Coming?

On Friday, October 14, the Ohio Department of Education filed proposed revisions to the IDEA operating standards (Ohio Administrative Code 3301-51). On Tuesday, November 15, the State Board of Education will hold a hearing on these proposed revisions. This is all part of the lengthy regulatory process that has now been underway for several years. It is possible that the new regulations will be in place sometime in the coming months, though the current process has experienced unexpected delays several times before.

The area of revision that has been of most interest to school districts has been the possibility of aligning Ohio’s IDEA regulations with the federal regulations as relates to changes in placement (OAC 3301-51-05(C)(5)). At the federal level IDEA does not require parental consent before a child’s placement is changed. This allows for a dynamic and responsive approach to designing a child’s special education.

Unfortunately, the current Ohio regulations impose a parental consent requirement for changes of placement. This means that parents can unilaterally overrule the IEP team consensus that a change of placement is necessary to provide FAPE. In such situations, schools are forced to file due process to change placement or to continue to serve the child in the inappropriate placement. Either approach can delay the appropriate provision of services.

Anecdotally, school district leaders uniformly supported a change to the parental consent requirement for changes of placement when this revision was included in the version of the proposed regulations presented to the State Board of Education in July 2020. Unfortunately, despite this support, ODE revised the proposed regulations to reinsert the parental consent requirement in the version now being considered.

Despite the major departure from federal regulations with the parental consent language, other changes in the proposed regulations are mostly to align state regulations to the federal regulations. Some of the more substantial changes include:

•OAC 3301-51-01(B)(13) Transition Services: Clari es expectations for transition service planning and coordination.

•OAC 3301-51-01(B)(63) Supervisor/Coordinator Services: Clari es professional quali cations for the IEP team member who supervises special education service providers.

•OAC 3301-51-03(C) Disproportionality: Signi cant new language regarding disproportionality as it relates to the identi cation, placement, and discipline of students with disabilities.

•OAC 3301-51-05(E) Surrogate Parents: Signi cant additional language about surrogate parent duties. Additional clari cation that no surrogate may be appointed when biological/adoptive parents retain educational rights and can be contacted.

•OAC 3301-51-07(E)(2) Transition Services: Codi es the current practice of requiring transition progress reports for Section 5 of the IEP.

•OAC 3301-51-07(H)(7) Transmittal of Records: Sets a 30 day time period for transmittal of records when a child enrolls in a new school district.

•Signi cant changes to preschool regulations are made throughout OAC 3301 Chapter 51 and are beyond the scope of this newsletter article and relate to separate changes already nalized for OAC 3301-51-11.

Over the past several years there have been many opportunities for school leaders to give input in the regulatory process. We are approaching the end of this opportunity and can anticipate that new regulations will be adopted within the next few months and will be in place for several years. School leaders are encouraged to give feedback to the State Board of Education in advance of or at its November 15 hearing on the proposed regulations. As was noted above, of particular interest is the proposal to not align with the federal IDEA regulations as it relates to parental consent for changes of placement (OAC 3301-51-05(C)(5)). This departure from federal regulations is a major barrier for some IEP teams as they seek to meet the unique needs of students with disabilities. The currently proposed regulations can be found by using the search tools at the Register of Ohio Website: https://www.registerofohio.state.oh.us/rules/search

The agency number for the Ohio Department of Education is 3301, and the chapter is 51.

SCOTUS to Consider Exhaustion of Remedies Case

The Supreme Court of the United States has agreed to hear a special education case concerning a family's obligation to exhaust administrative remedies before filing a claim under the Americans with Disabilities Act. The case of Perez v. Sturgis Public Schools involves a former student of the Sturgis, Michigan school district who was denied a sign language interpreter for many years. The family filed a due process complaint, claiming violations of the IDEA, the ADA, and other statutes. The parties settled the IDEA complaint when the district agreed to pay for post-secondary compensatory education and sign-language services. The former student then sued the district and federal court for monetary damages for ADA violations. The school district argued that, due to the settlement, Perez failed to exhaust the administrative proceedings under the IDEA. Both the District Court and the US Court of Appeals for the 6th Circuit sided with the school district - the latter finding that there was no applicable exception to the exhaustion provision under the IDEA, despite the fact that the administrative law judge could not award monetary damages. For that reason, the settlement of the IDEA due process complaint shields school districts from related claims under Section 504 or the ADA. The Appellate Court's decision is consistent with similar findings in the 8th and 10th Circuit Courts of Appeals. However, suggesting that there may be conflicts among other federal appeals courts, the SCOTUS has agreed to hear the appeal. This is especially important since the high court’s earlier decision in Fry v. Napoleon Community Schools left “for another day" the question of whether exhaustion of IDEA proceedings is necessary when seeking monetary damages that in IDE a hearing officer cannot award. Although the Supreme Court recently ruled that monetary damages for emotional distress were not available under the rehabilitation act of 1973 the court has not directly considered similar damage requests under the ADA. Its consideration of the Perez case will afford the High Court that opportunity.

What This Means for Schools: The court’s ruling will have a significant impact on the remedies available to litigants when the IDEA, Section 504, and the ADA converge.

2022 -2023 Administrator’s Academy

At Ennis Britton, we believe our role is to provide key legal guidance to our clients before a problem arises. This way, clients can make informed decisions and avoid legal pitfalls. We created the Administrator’s Academy to provide school district administrators and board members with the latest legal information to help them manage their districts in an efficient, effective, and proactive manner. The Administrator’s Academy consists of a series of interactive, virtual presentations, each covering a specific topic or area of education law. Our experienced attorneys provide a legal overview as well as real-life examples to help administrators navigate and understand the complicated legal environment. Participants have the opportunity to ask questions and to hear different perspectives on topics pertinent to school management. The Administrator’s Academy presentations are provided as a complimentary service to our clients and are free of charge. Ennis Britton will also work with LPDCs for the attainment of CEU credit. Click here to register for the programs.

2022-2023 Events: December 8, 2022: Collective Bargaining: When Negotiations Go Sideways March 30, 2023: Special Education July 13, 2023: Education Law Year In Review (10 a.m. – Noon)

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

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

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

Gary T. Stedronsky gstedronsky@ennisbritton.com

Erin Wessendorf-Wortman ewwortman@ennisbritton.com