LEGAL REPORT

PUBLIC RECORDS LAW

DENNIS L. PERGRAM OAESA Legal Counsel

This article is designed to provide a very brief overview of some of the parts of the public records law that, due to litigation, are continually changing.

For purposes of the public records law, a “record” includes any document, device, or item, regardless of physical form or characteristic. This could include an electronic record, created or received by or coming under the jurisdiction of any public office of the state or its political subdivision that serves to document the organization, functions, policy, decisions, procedures, operations, or other activities of the office. A public record means any record kept by any school district pertaining to the delivery of educational services (Section 149.43 of the Ohio Revised Code). At first glance, the definition of a public record may not seem to be ambiguous or complex; however, a great deal of litigation has resulted from disagreements over what constitutes a public record.

Section 149.43(E) further provides that all elected officials (school board members), or their appropriate designees, shall attend training approved by the Attorney General. Each board of education must also adopt a public records policy in compliance with Section 149.43 and shall distribute the public records policy to the employee of the board of education—who is the records custodian, records manager, or otherwise has custody of the records—and shall require that employee to acknowledge receipt of the copy of the public records policy.

With respect to the availability of the public records policy, section 149.43(E) provides, in relevant part, as follows: The public office shall create a poster that describes its public records policy and shall post the poster in a conspicuous place in the public office and in all locations where the public office has branch offices. The public office may post its public records policy on the internet website of the public office if the public office maintains an internet website. A public office that has established a manual or handbook of its general policies and procedures for all employees of the public office shall include the public records policy of the public office in the manual or handbook.

There is a long list of records that does not constitute public records, and those records are identified in three pages of the statute, along with definitions and a catch-all that prohibits a release of records prohibited by state or federal law which would include, but not be limited to, Family Educational Rights and Privacy Act of 1974 (FERPA) and Ohio’s Privacy Act (Chapter 1347 of the Ohio Revised Code). Consequently, it is understandable why board members or their designees must receive training and designate one person as the records custodian.

The statute further provides that to facilitate broader access to public records, the public office or records custodian shall organize and maintain public records in a manner that can be made available for inspection or copying, and upon request, all public records responsive to the request shall be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours. If, however, the requestor of a public record has made an ambiguous or overly broad request, or has difficulty in making a request for copies or inspection of public records, or if the board of education or the records custodian cannot reasonably identify what public records

are being requested, the board or the records custodian may deny the request but shall provide the requestor with an opportunity to revise the request by informing the requestor of the manner in which the records are maintained and accessed.

One particularly troublesome issue arises when there has been a request for a teacher’s personnel file. The records in that file may also be subject to the collective bargaining agreement; however, the union cannot bargain away the public’s right to public records under state or federal law. A request for social security numbers, criminal record checks, and other documents protected under the privacy laws is not proper. This is not a call that should be made by the principal or assistant principal, and the matter should be submitted to the records custodian, who may wish to consult with legal counsel before making a determination.

If the request for public records is ultimately denied—in part or in whole—the board or the records custodian must provide the requestor with an explanation, including legal authority, setting forth why the request was denied. If the initial request was sub- mitted in writing, the explanation shall also be provided to the re- questor in writing. The statute further provides that if a person is allegedly aggrieved because the board or the records custodian has failed to promptly prepare a public record and make it available to the person for inspection or by any other failure to comply with the obligations under the law, the allegedly aggrieved person may choose one of two (but not both) courses of action.

One of the courses of action is a “mandamus” action and must es- tablish that he or she has a clear legal right to the public records and that the school board or custodian of records has a clear legal duty to provide them and that he or she does not possess an ade- quate remedy at law. If the requestor is successful, he or she may be awarded statutory damages at the rate of $100 for each business day of noncompliance, up to $1,000, court costs, and reasonable attorney fees. There are defenses and exceptions that could result in the reduction or elimination of the statutory award or the rea- sonable attorney fees. The other course of action is the filing of a complaint with the clerk of the Court of Claims or the clerk of the Common Pleas Court. This alternative of filing in the Court of Claims is designed to be more expedient and less costly than a mandamus action.

Unfortunately, principals and assistant principals sometimes are the recipients of public records requests—sometimes formal and sometimes informal. Due to the complexity of the law, the most prudent course of action is to alert the records custodian that a request has been made and to follow the direction of the records custodian.

LINES of EQUITY

by Paul Young, PhD I t happens every day in schools across Ohio. A teacher instructs students to form a line, and inevitably, some child pushes and shoves to get to the head of the line. Kids seem to possess an inherent instinct to outmaneuver each other to be the line leader—and win the teacher’s attention.

To contain that chaotic routine, one teacher decided to surprise students and change procedures by naming the last child in the line as the leader. Another day a midline child was selected, and each subsequent day, a different child was chosen, always at a dissimilar place in line.

So, what happened over time? The teacher created a more equitable method of selecting a line leader—an important status position for youngsters. But inadvertently, the teacher also curbed enthusiasm and stifled kids’ instinct to be first.

Defining Equity In your school, what do the terms equal, equity, fair, and adequate mean? Do your stakeholders have a clear understanding of the words? Are teachers consistently explaining their meaning? Is everyone on the same page? And what does it mean to be on the same page? Are the words constraining or liberating?

46 There have always been misunderstandings and challenges regarding these words. The discernment between what is equal, equitable, fair, and adequate often creates conflict among parents as well as students old enough to compare and contrast. I think we believe (and teach), as our nation’s founding fathers suggested, that we are all created equally and have the same rights under the law. And in public schools, within our democracy, we strive to assure that every student develops the skills and knowledge necessary to pursue dreams. 1 Yet as adults, we realize that life is not always fair. It seems that differing lines of thinking about what is equal, equitable, fair, and adequate create gaps in opportunity, integration, motivation, and excellence. Just as with the simple act of forming classroom lines, many actions intended to be equitable can lead to outcomes that thwart intended results.

Equity in Funding No doubt, principals must pursue lines of equity that include adoption of policies and practices that promote democracy in high-quality, inclusive learning experiences. Everyone deserves to get what they need to succeed. That’s adequacy. But there are

differences between adequacy and equity. For example, a California court ruling in 1976 (Serrano v. Priest) was supposed to make school district finances roughly equal throughout that state. Twenty years later, DeRolph v. State (1997) became a landmark case when the Ohio Supreme Court ruled that the state’s method for funding public education was unconstitutional. At that time, the court ruled that the state’s funding system failed to provide for a thorough and efficient system of common (public) schools as required by the Ohio Constitution. As in California, the court directed the legislature to find a remedy. Sadly, however, problems with the school funding systems in Ohio and California—and many other states—still exist.

Can we ever achieve lines of equity for all of our schools? Can we close gaps? If every school district received an equitable amount of funding that was also determined to adequately meet kids’ needs, what would—or should—prevent ambitious parents from providing even more for their kids? Do any of us really want to thwart their desire to go above and beyond, even if their initiatives exasperate the gaps?

47 Equity in Teaching When I ask my college freshmen (many of whom are aspiring teachers) what they liked most about their favorite K–12 teachers, their answers often reflect elements of fairness. When I probe their understanding of fair, many describe being treated the same. When they respond that way, I ask everyone to begin writing with continued on the next page...

Students are not the same. Teachers are not the same. Principals are not the same. Everyone has different needs, motivations, and goals. Our schools are different! We’d be pretty boring if we were all the same. Conformity, uniformity, and creativity make strange bedfellows.

Regardless, principals need to lead schoolwide discussions with students, staff, and parents about the meaning and understandings of equal, equity, fair, and adequate. They must cast a vision of equitable goals and opportunities that identify and address each student’s instructional needs within a classroom environment that is caring, compassionate, and committed to justice. Equity requires a growth mindset. It is an attitude that fosters empowered, engaged, and inspired forms of thinking and learning. It implies giving as much advantage, consideration, or latitude to one person as to others. That might become a practice of matching the greatest teachers with the students who need them the most.

Equity in Student Management For principals, perhaps the greatest misunderstanding among students, parents, and staff of equal, equity, fair, and adequate emanates from their interpretation of consequences and biases related to disciplinary infractions. It is possible that the concept of isonomy, or equal treatment under the law, 2 contributes to disputes of disciplinary rulings. But resolving all disciplinary problems the same way works no better than prescribing a similar cure for all headaches. Teaching stakeholders how equity is considered when developing disciplinary philosophies, practices, and processes for managing students must be an ongoing part of principals’ work. A fair line of treatment of students does not mean they must all be treated the same. portunity should read. Putnam grew up in northern Ohio during an age where education was supposed to help level the playing field. Public schools were to be the “great equalizers.” But now, he cites disparities of access to good childcare, health care, summer camps, schools, civic institutions, and more as a crisis in equity of opportunity. Participation in extracurricular activities is often cited as a visible example of inequity due to many obstacles that limit student involvement (e.g., pay to play, lack of money, parental support, and transportation). His research provides a call to action for principals to lead initiatives that remove barriers to extracurriculars and to assure that kids are able to start their involvement at a young age.

Equity in Parental Engagement How can principals lead their staffs to engage parents who possess very different motivations, aspirations, needs, and responses to what happens? Establish three engagement goals: 3

• Expand all parents’ knowledge about and confidence with the concepts of schooling. Informed and confident parents collaborate better with school personnel, support students at home with positive parenting behaviors, and lead to an increase in student participation in school activities. • Create a welcoming and culturally responsive school climate. Schools where parents are greeted warmly, invited to visit classrooms to observe, know teachers well, share two-way feedback, and strive to overcome cultural barriers are viewed as havens of fair and adequate acceptance and treatment. • Increase opportunities for parent leadership and influence. Equitable forms of participation and decision-making in the educational process are positively linked to student achievement and parent satisfaction.

Equity in Special Education Inclusion is a term symbolizing the equitable treatment of students in the least restrictive environment (LRE). But treating students equally does not mean they are being treated fairly. To quickly prove the point, ask students in a class wearing glasses to remove them. Without corrective forms of eyewear, students are equal— but, as we’d all agree, that’s not fair!

The concept of least restrictive environment, as it applies to a special education student, refers to the classroom placement where he or she can have the most freedom to succeed. But shouldn’t LRE be an adequate classroom environment where all children’s needs are met? Adequacy is the minimum. We want a line of adequate opportunities for everyone.

Equity in Opportunity Perhaps more than others, opportunities that empower all learners is what building equity is all about. Systems, policies, and operational structures influence access, which can lead to inequities. The widening line between the haves and have-nots is skillfully documented in Ohio native Robert Putnam’s Our Kids: The American Dream in Crisis. It is a book every principal interested in equal op

Principals must assure that their school has a welcoming climate. School culture encompasses how things are collectively done, school climate is how the school feels. 4 When families feel welcome at school, the message kids perceive is that school is important. Relationships are built and maintained every day. Principals must define the type of engaged relationships they envision between parents and the school, remove systemic barriers, and assure that lines of communication support both the school culture and climate in positive ways.

Summary Effective principals strive to remove biases and obstacles so that all students and their families have a fair shot at success in school. Throughout our history, efforts to make schools fair—desegregation, Title IX, IDEA, ADA—represent examples of how lines of equity have dramatically changed the physical integration, socio-emotional engagement practices, attitudes, opportunities, and responsibilities of the education community. This work will never end, because as principals know, it is very fair and good to treat people differently within lines of equity.

Recommended Reading Ishimaru, A., Lott, J., Fajardo, I., & Salvador, J. (2014). Towards Equitable Parent-School Collaboration: Developing Common Parent Engagement Indicators. Working Paper, College of Education, University of Washington.

Putnam, R. (2015). Our Kids: The American Dream in Crisis. New York: Simon & Schuster.

Smith, D., Frey, N., Pumpian, I., & Fisher, D. (2017). Building Equity: Policies and Practices to Empower All Learners. Alexandria, VA: ASCD.

About the Author

Paul G. Young, PhD, is an adjunct professor at Ohio University-Lancaster. A retired teacher and elementary school principal, he served as president of the Ohio Association of Elementary School Administrators (OAESA), the National Association of Elementary School Principals (NAESP), and as president & CEO of the National AfterSchool Association (NAA). He is the author of numerous books and articles for principals, teachers, aspiring teachers, and after school professionals. Mentoring Principals, coauthored with Dr. Jeromey Sheets and Dustin D. Knight, administrators in Lancaster City Schools, is available from Corwin Press. He can be reached at paulyoungohio@gmail.com and on Twitter @paulyoungohio.

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