Amended Senate Bill 29 Signed Into Law, Effective Immediately

Governor DeWine signed into law amendments that address many of the concerns with Senate Bill 29, the law covering student data privacy. House Bill 432 contains an emergency clause and is effective immediately. Here are the major changes that will provide school districts with some relief from the more unworkable portions of SB 29:

Trigger Notices

The law reduces the number of circumstances where a school district must give parents a 72-hour “trigger” notice that the district accessed a student’s school-issued device. Under the amendment, these 72-hour notices must be provided to parents if electronic access is:

1. Made under a judicial warrant or subpoena, and the district initiates responsive action;

2. Because a device is missing or stolen, and the district initiates responsive action; or

3. Necessary to prevent or respond to a threat to life or safety and the school district initiates responsive action, or pursuant to a warrant, subpoena, or theft, for child abuse or neglect, or related to suspension or expulsion, harassment, intimidation, or bullying, or a threat assessment.

Importantly, the 72-hour trigger notice isn’t required if the notice itself poses a threat to life or safety.

Districts are no longer required to send trigger notices for device access for an educational purpose, which was a major hurdle in implementing SB 29. Trigger notices also aren’t required for device access to comply with federal or state law, or where it is needed to participate in state or federal programs.

Caution should be exercised for judicial warrants or subpoenas prior to sending the 72-hour trigger notice, as warrants/subpoenas may prohibit disclosure. Please consult your district’s legal counsel in these circumstances. 

Notably, the law continues to require districts who elect to generally monitor school-issued devices to provide annual notice of that fact to parents. Districts should review their annual general monitoring notice, and 72-hour trigger notice, in light of this amendment.

Student Data Privacy

The amendment also makes key changes to definitions in SB 29. It changes the definition of education records to be consistent with the federal Family Educational Rights and Privacy Act (FERPA), instead of creating a new definition of the term. Districts can better evaluate compliance when using a familiar definition, instead of a new one.

The amendment also changes to definition of a “school-issued device” to require that the device be for “dedicated student use,” instead of “dedicated personal use.” We do not see this as a major change, in that devices (for example, a school computer) are covered under the law only where they are provided to the student for their own use. The law also changes the definition of “student” to include individuals currently enrolled in any of grades kindergarten through 12, and excludes applicants and formerly enrolled students.

Lastly, except as noted below for the annual contract notice, the law excludes from the definition of “technology provider” any county board of DD, ESC, ITC, assessment provider, curriculum provider, and other city, local, exempted village, or joint vocational school districts that have a service contract with a school district that includes providing students with school-issued devices.

Vendor Contracts

Districts are still required to have appropriate security safeguards for education records, including through their “technology providers” and contracts with those providers. Remember though, the definition of “technology provider” is now narrower, so those statutory contractual and other security mandates no longer apply to any county board of DD, ESC, ITC, assessment provider, curriculum provider, and other city, local, exempted village, or joint vocational school districts that have a service contract with a school district that includes providing students with school-issued devices. 

Notably, the law continues to require districts to provide parents and students notice by August 1 each year of any curriculum, testing, or assessment technology provider contract affecting a student's education records. This notice must include all curriculum, testing, or assessment technology providers, even if that provider is a county board of DD, ESC, ITC, assessment provider, curriculum provider, or other city, local, exempted village, or joint vocational school district that is not otherwise covered by the law. 

Districts may want to review their vendor contracts anew, to determine which contracts are now covered by the amended SB 29.

Licensure Disciplinary Action

The new law also clarifies that the state may take licensure action against an educator who purposely uses or intentionally releases confidential student information for a non-instructional purpose. The additional language makes clear the release of student information must be with intent, not an accidental disclosure.

Career-Tech License

The new law also addresses career-technical educator licenses. It specifically permits an applicant – instead of just the employing school district – to apply for a career-tech educator license. The applicant no longer needs a job offer to get a license. The new law also allows individuals with an employment offer to enroll in alternative educator preparation programs.

Governor Signs Student Bathroom Bill

On November 27, 2024, Ohio Governor Mike DeWine signed Senate Bill 104 (“SB 104”) into law, which includes a provision called the Protect All Students Act that requires K-12 schools to designate certain facilities for exclusive student use by biological sex, banning transgender students from accessing certain school facilities consistent with their gender identity.

The bill will take effect within 90 days of the Governor’s signature – on or about February 25, 2025.

What does SB 104 mean for schools?

Under SB 104, “biological sex” is defined as the sex at birth without regard to an individual’s psychological, chosen, or subjective experience of gender.  A birth certificate may be used as evidence of an individual’s sex if the birth record was issued at or near the time of the individual’s birth.

Under the new law, schools must designate multi-occupancy restrooms, locker rooms, changing rooms, and shower rooms for the “exclusive use by students of the male biological sex only or by students of the female biological sex only,” and must prohibit someone of the male or female biological sex from entering a facility designated for the exclusive use of the other biological sex.

Schools are further prohibited from constructing, establishing, or maintaining a multi-occupancy facility that is designated as “nongendered, multigendered, or open to all genders,” but are permitted to maintain a family facility. Schools may also establish a policy to accommodate students by providing single-occupancy facilities or allow controlled use of faculty facilities at the request of a student due to special circumstances.

Finally, schools are prohibited from permitting someone of the male or female biological sex from sharing overnight accommodations with a member of the other biological sex. Notably, the bill includes some exceptions to these prohibitions (listed below), but parental consent regarding student accommodations for overnight trips is not one of them.

There are several exceptions in which the ban does not apply:

• Children under the age of ten or people with disabilities being assisted by a parent, guardian/family member or the parent, guardian/family member assisting the person.

• School employees whose job duties require the employee to enter facilities that are designated for a biological sex that is different than the employee’s biological sex.

• A person entering facilities due to a reasonable belief they are responding to a legitimate emergency.

School districts should review current practices and policies regarding accommodations for transgender students with the understanding that certain protocols for facilities use and/or overnight trips may conflict with this legislation, so changes may be necessary in order to comply with SB 104. Educators have long awaited clear guidance on the issue of transgender student access to school facilities; however, it still remains unclear how federal courts and/or new Title IX regulations (currently on hold via pending litigation) will impact these new changes. Court decisions in Ohio recognizing protection for transgender students under the Equal Protection Clause of the 14th Amendment may also conflict with SB 104, forcing schools to choose between possibly violating state law or the U.S. Constitution. Please reach out to your legal counsel for support in managing the shifting legal landscape.

Student Bathroom Bill Awaits Governor’s Signature

On November 13, 2024, the Ohio Senate passed Senate Bill 104 (“SB 104”), which includes a provision called the Protect All Students Act that requires K-12 schools to designate certain facilities for the exclusive use by students by biological sex, banning transgender students from accessing certain school facilities consistent with their gender identity. The other portion of the bill amends certain sections of the law concerning the state’s existing College Credit Plus program for high school students. The bill is on its way to Governor DeWine for signature, and the Governor has 10 days to either sign the bill or veto it. If signed, the bill will take effect within 90 days of the Governor’s signature.

What does SB 104 mean for schools?

Under SB 104, “biological sex” is defined as the sex at birth without regard to an individual’s psychological, chosen, or subjective experience of gender.  A birth certificate may be used as evidence of an individual’s sex if the birth record was issued at or near the time of the individual’s birth.

If SB 104 is signed into law, schools must designate multi-occupancy restrooms, locker rooms, changing rooms, and shower rooms for the “exclusive use by students of the male biological sex only or by students of the female biological sex only,” and must prohibit someone of the male or female biological sex from entering a facility designated for the exclusive use of the other biological sex.

Schools are further prohibited from constructing, establishing, or maintaining a multi-occupancy facility that is designated as “nongendered, multigendered, or open to all genders,” but are permitted to maintain a family facility. Schools may also establish a policy to accommodate students by providing single-occupancy facilities or allow controlled use of faculty facilities at the request of a student due to special circumstances.

Finally, schools are prohibited from permitting someone of the male or female biological sex from sharing overnight accommodations with a member of the other biological sex. Notably, the bill includes some exceptions to these prohibitions (listed below), but parental consent regarding student accommodations for overnight trips is not one of them.

There are several exceptions in which the ban does not apply:

• Children under the age of ten or people with disabilities being assisted by a parent, guardian/family member or the parent, guardian/family member assisting the person.

• School employees whose job duties require the employee to enter facilities that are designated for a biological sex that is different than the employee’s biological sex.

• A person entering facilities due to a reasonable belief they are responding to a legitimate emergency.

School districts should review current practices and policies regarding accommodations for transgender students with the understanding that certain protocols for facilities use and/or overnight trips may conflict with this legislation, so changes may be necessary in order to comply with SB 104. Educators have long awaited clear guidance on the issue of transgender student access to school facilities; however, it still remains unclear how federal courts and/or new Title IX regulations (currently on hold via pending litigation) will impact these new changes. Court decisions in Ohio recognizing protection for transgender students under the Equal Protection Clause of the 14th Amendment may also conflict with SB 104, forcing schools to choose between possibly violating state law or the U.S. Constitution. Please reach out to your legal counsel for support in managing the shifting legal landscape.

Ohio Law Authorizes Nonresident Student Participation in Athletics & Changes to Ticket Sales Rules

Over the summer, Governor DeWine signed House Bill 147 into law, which started out as a bill to fix a loophole related to reporting teacher misconduct but was amended before it went to the Governor. The amendments include impactful new regulations regarding student athletics.

HB 147 creates a new law - ORC 3313.5313 - that allows a school superintendent or chief administrative officer to permit a home-educated student or a student enrolled in a different school (public or private) to participate in athletics at one of the superintendent’s or chief administrative officer’s schools, if the student was subject to certain conduct. These provisions were originally found in Senate Bill 259 that was introduced in May 2024 and that received only one hearing before the provisions were inserted in HB 147. Additionally HB 147 also makes some changes regarding how school districts can charge for attendance at school-affiliated events and activities, revising ORC 3313.5319. Both changes are effective October 24, 2024.

First, regarding athletic participation by nonresident students, the new law allows student athletes to petition the superintendent or chief administrative officer of another school district, a community school, a STEM school, or a private school to participate in interscholastic athletics while the student is still able to remain enrolled in their current school (whether their current school is a public school, community school, STEM school, or private school) or while remaining home-educated, if they have been subject to any of the following conduct:

1. Harassment, intimidation, or bullying;

2. A qualifying offense, for which the school official, employee, volunteer or student has been:

   • Charged with, indicted for, convicted of, or pled guilty;

   • Alleged to be or is adjudicated a delinquent child.

3. Conduct by a school official, employee, or volunteer that violates the licensure code of professional conduct.

The misconduct can be committed by a school official, employee, volunteer, or another student.

The misconduct that could implicate this exception, “harassment, intimidation or bullying” for purposes of this new law, is the same definition at ORC 3313.666:

1. Any intentional written, verbal, electronic, or physical act that a student has exhibited toward another particular student more than once and the behavior both: causes mental or physical harm to the other student, and is sufficiently severe, persistent or pervasive that it creates an intimidating, threatening, or abusive educational environment for the other student.

2. Violence within the dating relationship

For a determination of whether a student was harassed, intimidated, or bullied, the statute does not require a specific showing or determination (such as the completion of an investigation under Board policy), so the receiving superintendent has discretion to determine if a student’s claim of harassment/intimidation/bullying is valid.

Next, a “qualifying offense” means:

1. an offense of violence;

2. a violation of Section 2907.07 of the Ohio Revised Code (the statute dealing with soliciting a minor for sexual activity); or

3. an attempt to commit an offense of violence or an attempt to solicit a minor for sexual activity.

For a “qualifying offense” to implicate this athletic participation rule, the individual who committed the conduct must have been charged with, indicted for, convicted of, or pled guilty to committing the offense or, if the offender is another student, has been alleged to be or is adjudicated a delinquent child for committing the offense.

Finally, a licensure code violation includes a very wide range of conduct by an educator, ranging from maintaining professional relationships with students (including using inappropriate language, gestures or signs at a school-related event) to confidentiality violation (such as knowingly violating any student confidentiality rules). Although the statute is not particularly clear, it does indicate that the conduct implicating this transfer exception must “violate” the licensure code. It does not say that the State Board of Education Office of Professional Conduct has to make a determination on the violation, but if a superintendent is going to permit an athletic transfer based on this conduct, it would need to be clear that the conduct was a violation and it would be best practice to ensure that a report had been made to the Office of Professional Conduct to support that claim.

Based on the definition of “qualifying school” in the statute, the new law would also permit a student who attends in their public district of residence from participating in interscholastic athletics at a private school without having to transfer to the private school, if the student was subject to any of the above conduct. The law also permits a student athlete to begin playing for their own school sports team and make the request to transfer mid-season (again, provided the student is subject to any of the above conduct). Districts may see more and more requests from players who are seeking to participate in programs in other districts and at other private schools, so it is important to understand this complicated landscape.

Regarding charging for admission to school-affiliated events and activities, beginning last fall, schools were required to accept cash as a form of payment for entry into any “school affiliated event,” including athletic contests. Since that time, some schools have instituted practices of offering different ticket prices based on the form of payment. HB 147 now disallows qualifying schools as well as athletic conferences and organizations from establishing different ticket prices based on the payment method. Schools are permitted to charge a processing fee for any ticket purchased online or by credit card. Schools must also offer a student enrolled in any school participating in a school-affiliated event a ticket price that is less than the ticket price the school charges for an adult for the same event. This includes middle school events, but a mandated difference in the price amount is not specified in the bill. This is a small but important change that will need to be implemented in the coming weeks to ensure continued compliance with state law.

What School Districts Need to Know About Senate Bill 29

On July 24, 2024, Governor DeWine signed into law Senate Bill 29 (“SB 29”), with an effective date of October 24, 2024. The Bill amends certain sections of the law and enacts new sections of law regarding student education records and student data privacy.

Use of Educational Records by Technology Providers, Security Safeguards, and Breach

SB 29  governs the collection, use, and protection of educational records by technology providers.

“Technology Provider” is defined as “a person who contracts with a school district to provide a school-issued device for student use and creates, receives, or maintains educational records pursuant or incidental to its contract with the district.”

A "school-issued device" means “hardware, software, devices, and accounts that a school district, acting independently or with a technology provider, provides to an individual student for that student's dedicated personal use.”

Under SB 29, a contract between a technology provider and a school district must ensure appropriate security safeguards for educational records and must include the following:

1. A restriction on unauthorized access by the technology provider's employees or contractors;

2. A requirement that the technology provider's employees or contractors may be authorized to access educational records only as necessary to fulfill the official duties of the employee or contractor.

Additionally, the contract should ensure that educational records created, received, maintained, or disseminated by a technology provider remain the sole property of the school district. Further, if educational records/student data maintained by the technology provider are subject to a breach of security, the technology provider must disclose to the school district any personal information that was accessed due to the breach.  

The contract must also prohibit the technology provider from selling, sharing, or disseminating educational records, except as provided by law or as part of a valid delegation or assignment of its contract with a school district. However, the provider may use aggregate information devoid of any personally identifiable information for improving, maintaining, developing, supporting, or diagnosing the provider’s site, service, or operation.

If the contract between the school district and the technology provider is not renewed, within 90  days the of the contract’s expiration, the technology provider must destroy or return all educational records created, received, or maintained pursuant or incidental to the contract.

Notice to Parents

Not later than August 1 of each school year, each school district must provide parents and students direct and timely notice, by mail, electronic mail, or other direct form of communication, of any curriculum, testing, or assessment technology provider contract affecting a student's educational records. The notice must do all of the following:

1. Identify each curriculum, testing, or assessment technology provider with access to educational records;

2. Identify the educational records affected by the curriculum, testing, or assessment technology provider contract;

3. Include information about the contract inspection and provide contact information for a school department to which a parent or student may direct questions or concerns regarding any program or activity that allows a curriculum, testing, or assessment technology provider access to a student's educational records.

Each school district shall provide parents and students an opportunity to inspect a complete copy of any contract with a technology provider.

This law does not take effect until October 24, 2024, well beyond the August 1 deadline regarding notice to parents for this school year. Fortunately, the effective date of this law gives school districts time to take inventory of all curriculum, testing, or assessment technology provider contracts, the educational records affected by those contracts, and information regarding the contract vetting process and contact information where parents/students may direct questions. It is advisable that districts consider updates that may be necessary to the vetting process in light of this new inspection.

Limitations on Accessing or Monitoring School-Issued Devices

According to newly enacted law per SB 29, a school district or technology provider cannot electronically access or monitor any of the following:

1. Location-tracking features of a school-issued device;

2. Audio or visual receiving, transmitting, or recording feature of a school-issued device;

3. Student interactions with a school-issued device, including, but not limited to, keystrokes and web-browsing activity.

SB 29 waives this prohibition when the access or monitoring is any of the following circumstances:

1. Limited to a noncommercial educational purpose for instruction, technical support, or exam-proctoring by school district employees, student teachers, or contractors, vendors, or the Department of Education, provided advance notice is given;

2. Permitted under a judicial warrant;

3. Based upon the device being missing or stolen;

4. Necessary to prevent or respond to a threat to life or safety, and limited to that purpose;

5. Necessary to comply with federal or state law; or

6. Necessary to participate in federal or state funding programs.

When a school district or technology provider elects to generally monitor a school-issued device for any of the circumstances outlined above, the school district must provide annual notice of that fact to its students’ parents. In the event that one of the circumstances is triggered, the school district must give notice of that fact to the student’s parent within 72 hours. The 72-hour notice must include a written description of the triggering circumstance, identifying which features of the device were accessed and a description of the threat, if any. If notice would pose a threat to life or safety, it must instead be given within 72 hours after the threat has ceased.

School districts must be prepared to issue the annual notice no later than October 24, 2024, as well as any 72-hour notice if triggered. It is important that districts still disclose to parents the monitoring of student internet access/usage, even if required by federal law (for example, E-rate funding and the Children Internet Protection Act), as well as provide notice of any software, programs, and/or third-party providers that monitor student access/usage for possible harmful content, threats, abuse, violence, etc. While these reasons are permissible, annual notice and trigger notice must still be provided to parents.

Educational Support Services Data and Public Record Exemption

The Public Records Act (R.C. 149.43) contains a list of records and types of information removed from the definition of “public record,” which therefore are not subject to disclosure if requested by a member of the public. For example, “educational records” are not subject to public disclosure under R.C. 149.43, to ensure student privacy - this would include records like student grades, attendance, discipline, and any other records directly related to a student.

SB 29 amends R.C. 149.43 to include an additional exemption from the definition of a public record. Now, R.C. 149.43 prohibits the release of “[e]ducational support services data, as defined in section 3319.325 of the Revised Code.” Under that law, “educational support services data” is “data on individuals collected, created, maintained, used, or disseminated relating to programs administered by a school district board of education or an entity under contract with a school district designed to eliminate disparities and advance equities in educational achievement for youth by coordinating services available to participants, regardless of the youth's involvement with other government services.”

While “educational support services data” is not considered a public record and therefore cannot be released, SB 29 makes clear that this data must be made available to the Opportunities for Ohioans with Disabilities Agency to support that agency's duties and supports to individuals with disabilities.

School districts must be aware that if there is a request for records that fall within the definition of “educational support services data,” it must be denied based on this exemption, unless another statute requires disclosure.

Licensure Penalties for Release of Confidential Information

Currently, R.C. 3319.31 provides authority to the State Board of Education to refuse to issue a license or to suspend, revoke, or limit a license that has already been issued for reasons issued in law, including certain criminal convictions, violent offenses, and/or immoral act(s) or conduct that is unbecoming to the profession.

The Licensure Code of Professional Conduct considers conduct unbecoming to the profession to include publishing or providing access to certain confidential student information, using confidential student information in a non-professional manner, and/or violating confidentiality laws related to standardized tests and resources.

SB 29 adds the following to the listed reasons that the State Board may take action on a license: “[u]sing or releasing information that is confidential under state or federal law concerning a student or student's family members for purposes other than student instruction.”

School districts should be aware that the Bill provides stronger protection to confidential student information by limiting the release of such information to the release for the purpose of student instruction.

Federal Court Refuses to Block School District Policy Regarding Pronoun Use

Late last month, the 6th Circuit Court of Appeals, which is the federal circuit that covers Ohio, refused to block a school district’s policies and code of conduct related to anti-harassment and anti-bullying of transgender students, particularly via repeatedly and intentionally using non-preferred pronouns.

In 2023, the school district included a specific prohibition from discrimination and harassment based on gender identity in its policies and code of conduct. Some parents raised the question to the district of whether their Christian children would be “forced to use the pronouns that a transgender child identifies with or be subject to reprimand from the district” under the revised policies. They maintain that their children have been raised to believe that biological sex is immutable and that individuals cannot transition from one sex to another. The district informed the parents that “purposefully” misgendering another student would constitute discrimination under the district’s policies. The parents, along with Parents Defending Education, a national advocacy group involved with several similar cases across the country, sued the school district claiming that the policies compelled speech, violated the students' freedom of religion, and infringed upon parents’ rights to direct the upbringing of their children.

In a 2-1 decision, the court of appeals refused to grant the injunction to block the district from enforcing the policies or code of conduct. The court held that the school district could address speech about student transgender identities that was "particularly harmful and likely to disrupt the educational experience." The court looked at a variety of factors raised by the parties, starting with whether the policies improperly regulated student speech in violation of the first amendment. On this ground, the court noted that the “dehumanizing and humiliating effects of non-preferred pronouns could create a substantial ‘disrupt[ion] [to] the educational process’ justifying restricting the use of those pronouns.”

The court allowed, at the preliminary induction stage, for the school to regulate the speech when its administrators “reasonably forecast” that the speech will cause a substantial disruption, even if disruption is not a certainty; the court reiterated that at the preliminary injunction stage, when the prohibited speech has not yet occurred, the school did not need to “prove” that disruption will occur. The court did leave open the possibility of a post-enforcement challenge (after the policies are enforced against particular students) at which time a factual record would exist for courts to review “for evidence supporting or undermining a prediction that substantial disruption is likely to flow from student speech.”

Next the court looked at whether the policies unconstitutionally compel speech. The plaintiffs claimed that having to use “pronouns inconsistent with a person’s biological sex at birth contradicts their children’s ‘deeply held beliefs’ about the immutability of sex.” The court noted that, likewise, transgender students in the district “experience the use of preferred pronouns as a vital part of affirming their existence and experience the use of non-preferred pronouns as dehumanizing, degrading, and humiliating.” Ultimately the court noted that the “intentional use of preferred or non-preferred pronouns therefore represents speech protected by the First Amendment.” But importantly for this case, the court noted that the speech isn’t actually compelled here because “[s]tudents who do not want to use their transgender classmates’ preferred pronouns may permissibly use no pronouns at all, and refer to their classmates using first names.” The court also identified that, outside of instructional time, students do not have to refer to their transgender classmates at all. While the plaintiffs made it clear to the court that they do not want to avoid the pronouns and, instead, want to use biologically correct pronouns, the court viewed its suggested option as “a means of respecting both sides’ deeply held beliefs concerning gender identity.”

Third, the court analyzed whether preventing the use of non-preferred pronouns was unconstitutional viewpoint discrimination - regulation of speech when the specific motivating ideology, or the opinion or perspective of the speaker, is the rationale for the restriction. The court found that the district permits students to communicate their belief that sex is immutable through means other than the use of non-preferred pronouns, showing that the district is not attempting to prohibit any viewpoint. Further, the record did not support that the district’s enforcement of the policies was different regarding gender identity compared to any other protected class.

Finally, the court looked to whether the policies and code of conduct were overbroad, looking at each one individually. Ultimately each of the policies and the code of conduct was appropriately tailored to address conduct that the Supreme Court has deemed schools can address, such as conduct that causes a substantial disruption or harassment or threats targeting particular individuals or aimed at teachers or other students.

There was a lengthy dissent in the case, identifying the starkly different perspectives that are taken even by judges on these matters. We will continue to monitor this case as well as the many others currently in process on these complex issues.

AEDs Required in Ohio Schools

Last week, Governor DeWine signed into law House Bill 47 that requires automated external defibrillators (AEDs) to be placed in every public and chartered nonpublic school in Ohio.

The Bill requires the Ohio Department of Health to develop a model emergency action plan for the use of AEDs and also requires schools to adopt their own emergency action plan for the use of AEDs and practice that plan quarterly (Schools are not required to adopt the Department of Health’s model plan). Boards of education must provide training in the use of AEDs to teachers, principals, administrators, coaches, athletic trainers, and any other person that supervises interscholastic athletics.

The new law also directs the Department of Education and Workforce to develop a procedure for reporting violations of the law - for example, if a board of education fails to place AEDs in each school building or fails to adopt an emergency action plan and/or to properly train required staff members.

Title IX Litigation Puts 2024 Regulations on Hold

Updated Title IX regulations, which were scheduled to take effect August 1, are now on hold in Ohio from two directions.

In mid-June, a federal court in Kentucky issued a preliminary injunction in Tennessee, et al. v. Cardona, preventing the U.S. Department of Education (“USDOE”) from enforcing the new regulations in Kentucky, Tennessee, Ohio, Indiana, Virginia, and West Virginia.

Then, last week, a federal court in Kansas issued a separate injunction in Kansas, et al. v. U.S. Department of Education, et al., preventing the USDOE from enforcing the new regulations in Kansas, Alaska, Utah, and Wyoming. Ordinarily, the ruling out of Kansas would not impact schools in Ohio. However, the Kansas case involved several private organizations as plaintiffs, including Moms for Liberty. In addition to prohibiting enforcement of the 2024 Title IX regulations in the four states suing, the Kansas court also barred enforcement in any school enrolling a child whose parent is a member of the plaintiff organizations, including Moms for Liberty. The organizations have until next week to provide the Kansas court with a list of school districts enrolling their members’ children.

The combined impact of the Tennessee and Kansas cases is that, for now, no school in Ohio is subject to the 2024 Title IX regulations. Districts should continue to follow the 2020 Title IX regulations and should consider also preparing their staff for implementation of the 2024 regulations, in case either or both of the current injunctions are lifted.

District Court Blocks Implementation of 2024 Title IX Regulations in Ohio and Five Other States

On Monday, June 17, 2024, the U.S. District Court for the Eastern District of Kentucky enjoined and restrained the U.S. Department of Education from “implementing, enacting, enforcing, or taking any action in any manner to enforce” the 2024 Title IX regulations that were issued on April 29, 2024 and were slated to take effect August 1, 2024.  This injunction prevents the enforcement of the regulations against schools in Ohio, Tennessee, Kentucky, Indiana, Virginia, and West Virginia.  Similar legal action has been taken in other states, with a preliminary injunction prohibiting enforcement of the rules in Louisiana, Mississippi, Montana, and Idaho, with decisions in cases brought in Kansas, Texas, and Alabama forthcoming.

The order is related specifically to the 2024 Title IX regulations, which means that schools must still follow the 2020 Title IX regulations that have been in place since August 2020.

In this case, the court held that the new regulations “would turn Title IX on its head by redefining ‘sex’ to include ‘gender identity,’” and that the regulations “conflict with the plain language of Title IX.” The court noted that since “sex” was not defined within the statute, it must use the term's ordinary meaning at the time Title IX was created, which was “the character of either being male or female.”   The court noted that a major change to the meaning of that statutory term requires clear congressional authorization, which did not take place with the 2024 Title IX rulemaking.  The court also noted concerns that the regulations would likely violate government employees’ and students’ First Amendment rights, as they may be required “to use pronouns consistent with a student’s purported gender identity rather than their biological sex” even if doing so conflicts with the educators’ or other students’ religious or moral beliefs.

Gingo and Bair Law, LLC will continue to monitor the litigation on this important matter to ensure that districts remain compliant.

Dept. of Educ. and Workforce Releases Ohio Schools Cellphone Policy

On May 15, 2024, Governor DeWine signed HB 250 that calls for every school district in the state to establish an official policy governing student cell phone usage and emphasizes limiting cell phones to the greatest extent possible. The policy must be adopted no later than July 1, 2025, and must include the following:

1. Emphasize that student cellular telephone use be as limited as possible during school hours;

2. Reduce cellular telephone-related distractions in classroom settings; and

3. If determined appropriate by the district board, or if included in a student's IEP or 504 Plan, permit students to use cellular telephones or other electronic communications devices for student learning or to monitor or address a health concern.

HB 250 directs the Department of Education and Workforce to develop a model policy that meets the above requirements to be used at the option of school districts. The model policy must take into account available research concerning the effect of the use of cellular telephones by students in school settings.

A copy of the Department’s Model Policy was released May 29, 2024, which includes a prohibition against students using cell phones on school property during school hours (with exceptions for individualized learning and/or a health concern(s)). This is not to say students cannot bring a cell phone to school, as the Model Policy provides for cell storage in a secure place, such as the student’s locker, closed backpack, or storage device provided by the district. According to the model policy, cell phones must be secured at all times during the school day.

The Model Policy also includes steps of progressive discipline should a student violate the policy.

Again, while school districts are required to adopt a cell phone policy that includes the requirements stated above/mandated by HB 250, they do not have to adopt the Department’s Model Policy.

Along with the model policy, DEW has also published a toolkit with resources and tools for school administrators, teachers, parents, and students. Specifically, the toolkit includes guidance to support school engagement without cell phones, as well as strategies for families to promote healthy behavior, set expectations for screen time, and reduce cell phone use outside of school.

U.S. Department of Education Releases Revisions to Final Title IX Regulations

On April 19, 2024, the U.S. Department of Education (Department) released its Final Rule under Title IX, which prohibits discrimination on the basis of sex in education programs or activities receiving federal financial assistance. These changes are effective August 1, 2024. Until then, school districts should continue to implement current district policies, and specifically policy(ies) and guidelines that took effect in August 2020 regarding Title IX obligations to eliminate sexual harassment in education program(s) and/or activities.

According to the Department, the final regulations are intended to help ensure that all people, including students and employees, receive appropriate support if they experience sex discrimination in schools and that schools’ procedures for investigating and resolving complaints of sex discrimination are accurate and fair to all involved. The Department stated that the final regulations strengthen several major provisions from the current regulations and provide schools with information to meet their Title IX obligations while providing appropriate discretion and flexibility to account for variations in school size, student populations, and administrative structures. The final regulations also change the definition of “sex-based harassment”; the scope of sex discrimination, including schools’ obligations not to discriminate based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity; and schools’ obligations to provide an educational environment free from discrimination on the basis of sex.

Stay tuned for additional updates and guidance regarding the new regulations. In the meantime, the unofficial version of the final regulations is available here. In addition, the Department has released a fact sheet and a summary of the major provisions of the final regulations.

U.S. Supreme Court Warns Public Officials Against Blocking on Social Media

Earlier this month, the U.S. Supreme Court, in the case of Lindke v. Freed, unanimously held that if a public official blocks someone from accessing the official’s social media page/account, this can constitute state action under 42 U. S. C. § 1983, including for depriving a member of the public of his or her First Amendment rights, if the official both “(1) possessed actual authority to speak on the State’s behalf on a particular matter, and (2) purported to exercise that authority when speaking in the relevant social-media posts.” 

The application of this test will be fact-intensive, and the Court noted that “mixed use” social media accounts (i.e., an account that a public official uses for both personal and official posts) create the most opportunity for liability for a government entity.  It is likely that much of the litigation in these cases will be regarding whether the public official had authority to speak on the state’s behalf when the official is “speaking” on social media.  This will require a fact-specific review of the official (and his/her role) and the social media account itself, with the Court noting that “[t]he distinction between private conduct and state action turns on substance, not labels”.  The Court noted that a public official’s authority to speak can be established not only by “statute, ordinance, [or] regulation” but also by “custom or usage.” This is where the fact-specific analysis will have to be undertaken by the lower courts, with a review of the social media account itself and the history of the official’s use of the account for engaging in state action. 

If the public official has state authority to speak, the official also has to be attempting to exercise that authority when speaking on social media.  This is also a fact-specific analysis that lower courts are now tasked with undertaking.  Importantly, the Court indicated that, particularly for a mixed use (i.e., both private and public) social media account, the lower courts will need to analyze individual posts made by the public official to determine if any are state action.

The ultimate holding from the case is that, if any posts within a public official’s social media account are state action (as determined by the new two-prong test), the public official cannot block people from accessing the account.  If the official does block people, those individuals may have a cause of action against the government entity itself.

Although nuanced, this is an important change in the law that creates an increased potential for liability for school districts based on speech made by district officials on social media, including blocking citizens or deleting comments.  Districts and public officials are advised to review their social media accounts to ensure compliance in light of this change.

Gingo & Bair Law, LLC Welcomes Partner Emily Spivack

We are proud to announce that effective March 7, 2024, Emily Spivack joins the firm as our newest Partner. With nearly a decade of experience supporting public school districts, Emily shares our approach to providing specialized legal services with a promise to keep funds focused on education.

Prior to joining Gingo & Bair Law, Emily’s practice centered mainly on education law while working in the Labor & Employment group for Squire Patton Boggs.

Emily advises clients in a wide range of education law matters, including student discipline, contract and policy drafting, and employment questions. She regularly defends districts before the Ohio Civil Rights Commission, the Equal Employment Opportunity Commission, and the U.S. Department of Education’s Office for Civil Rights. She routinely serves as lead negotiator in bargaining with teachers, non-teaching school staff, and municipal employees. Emily also has extensive experience with public records and public meetings questions, both under the Ohio Sunshine Laws and the federal Freedom of Information Act.

Emily’s practice also includes advising on special education matters, including answering day-to-day questions, drafting IEP documents, responding to due process complaints and defending districts in federal court against claims brought by parents under federal and state special education laws.

Emily has experience litigating on behalf of schools and other employers in discrimination, harassment, retaliation and wrongful termination cases in state and federal court. She also frequently conducts investigations on behalf of employers into complaints brought by employees under internal harassment, discrimination and retaliation policies.

In addition, Emily is a frequent speaker at school law conferences and provides in-service training to administrators and staff members. She is a member of the Ohio School Board Association’s Ohio Council of School Board Attorneys, Ohio State Bar Association, Cleveland Metropolitan Bar Association, and the D.C. Bar Association.

Adding Emily to the firm enhances our ability to broaden our scope of services while maintaining a customized approach to advocating for public school districts.  We are proud to work with Emily and look forward to expanding our vision of providing exceptional legal services in education.

HB 68 - SAFE Act and Save Women’s Sports Act - to Impact Ohio Schools

On January 24, 2024, the Ohio legislature voted to override Governor DeWine’s veto of House Bill 68 (“HB 68”), which addresses several issues regarding school districts and their obligations with respect to transgender students. The passage of HB 68 enacts the Saving Ohio Adolescents from Experimentation Act (“SAFE Act”) regarding gender transition services for minors, as well as the Save Women’s Sports Act, which will require school districts to designate separate single-sex teams and sports for each sex. Each of these provisions are set to go into effect on April 23, 2024.

SAFE Act

HB 68 prohibits “mental health professionals,” including school nurses and school psychologists from diagnosing or treating a minor for a gender-related condition without first obtaining consent from at least one of the minor’s parents, legal custodian, or guardian. The bill defines a “gender-related condition” as a condition in which a minor feels a difference between their gender identity and biological sex, which includes gender dysmorphia.

The bill also provides that if a minor is believed to be suffering from a gender-related condition, mental health professionals will be required to screen the minor for certain mental health conditions (i.e., depression, anxiety, attention deficit hyperactivity disorder (“ADHD”), autism, other mental health conditions), as well as physical, sexual, mental, and emotional abuse, during their course of treatment.

Any mental health professional who diagnoses or treats a minor in violation of the SAFE Act will be considered to have engaged in unprofessional conduct and will be subject to disciplinary action from their respective licensing board. Among other reasons, it is important that school districts understand these restrictions to ensure awareness among school nurses, counselors, and psychologists to avoid any potential disciplinary or licensure issues. Updates to forms, policies and/or procedures may be necessary.

Save Women’s Sports Act

HB 68 also enacts the Save Women’s Sports Act. The bill will require each school district to designate athletic teams based on the “sex” of participants. In doing so, each district will be required to have each of the following:

1. Separate teams for participants of the female sex within female sports divisions;

2. Separate teams for participants of the male sex within male sports divisions;

3. If applicable, co-ed teams for participants of the female and male sexes within co-ed sports divisions.

The act defines “sex” as the biological indication of male and female sex hormones and genitalia that are present at birth, without regard to an individual’s psychologically chosen or subjective experience of gender. Based on this definition, school districts will be required to enforce single-sex participation in athletics in accordance with a student’s biological sex assigned at birth.

The bill also prohibits a school, interscholastic conference, or organization that regulates interscholastic athletics from knowingly permitting individuals of the male sex to participate on athletic teams or in athletic competitions designated only for participants of the female sex. Currently, this act conflicts with Ohio High School Athletic Association (“OHSAA”) policies which allow transgender students to participate in athletics in accordance with their preferred gender identity in certain limited circumstances.

If a student believes that they have been deprived of an athletic opportunity or otherwise suffered harm as a result of a school district, conference, or organization’s violation of the bill’s single-sex participation requirements, the student may file a private civil action for injunctive relief, damages, or other available relief against the school district, athletic conference, or organization which regulates student athletics.

Title IX Implications

The enactment of the Save Women’s Sports Act creates a conflict with a school district’s legal obligations to refrain from engaging in discrimination on the basis of sex (including gender identity) in its educational programs or activities as required by Title IX. However, given the private causes of action permitted by the bill, school districts may now be placed in a difficult position in deciding whether to comply with the Save Women’s Sports Act and face charges of discrimination in violation of Title IX, or comply with Title IX and its interpretation and face private civil action for violations of the Save Women’s Sports Act.

It is recommended school districts reach out to legal counsel when navigating these difficult issues.

Amid Global Unrest, U.S. Dept. of Ed. Reminds Schools of Obligation to Prohibit Discrimination Against Students From all Regions of the World

The U.S. Department of Education Office for Civil Rights (“OCR”) issued a Dear Colleague letter on November 7, 2023, reminding K-12 schools of their responsibility to ensure nondiscriminatory environments under Title VI of the Civil Rights Act of 1964.

With an alarming rise of antisemitic incidents and threats to Jewish, Israeli, Muslim, Arab, and Palestinian students on both college and K-12 campuses, K-12 schools must remain committed to providing all students a school environment free from discrimination based on race, color, or national origin, including shared ancestry or ethnic characteristics. The letter makes clear that schools are under a legal obligation to address prohibited discrimination against students and others on campus – including those who are or are perceived to be Jewish, Israeli, Muslim, Arab, or Palestinian.

Title VI’s protection from race, color, and national origin discrimination extends to students who experience discrimination, including harassment, based on their actual or perceived: (i) shared ancestry or ethnic characteristics; or (ii) citizenship or residency in a country with a dominant religion or distinct religious identity.

The letter explains that schools that receive federal financial assistance have a responsibility to address discrimination against Jewish, Muslim, Sikh, Hindu, Christian, and Buddhist students, or those of another religious group, when the discrimination involves racial, ethnic, or ancestral slurs or stereotypes; when the discrimination is based on a student’s skin color, physical features, or style of dress that reflects both ethnic and religious traditions; and when the discrimination is based on where a student came from or is perceived to have come from, including discrimination based on a student’s foreign accent; a student’s foreign name, including names commonly associated with particular shared ancestry or ethnic characteristics; or a student speaking a foreign language.

School districts that may have questions regarding their obligations under Title VI should reach out to their legal counsel for support. Additionally, OCR has developed a variety of resources, including a Dear Colleague Letter and Fact Sheet, to help inform school communities that receive federal financial assistance from the Department of their obligation to maintain educational environments free from discrimination. Resources are also available on the Shared Ancestry or Ethnic Characteristics page of OCR’s website.

U.S. Supreme Court Rules That Employer Must Show Substantial Increase in Cost if Denying a Religious Accommodation Request

In a unanimous decision in Groff v. Dejoy, the U.S. Supreme Court clarified Title VII’s undue hardship standard to mean that an employer that denies a religious accommodation must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business, not the long-standing “de minimus” standard used for nearly 50 years since the Court’s 1977 decision in Trans World Airlines, Inc. v. Hardison.

The facts of the case center around a USPS worker, Gerald Groff, whose religious beliefs prohibited him from working on Sundays. USPS redistributed Groff’s Sunday deliveries to other staff, but Groff received progressive discipline for failing to work on Sundays, and he eventually resigned. Groff sued USPS for violating Title VII by failing to reasonably accommodate his religious beliefs, asserting that USPS could have accommodated his Sunday Sabbath practice without undue hardship on the conduct of USPS’s business. The District Court granted summary judgment to USPS and Third Circuit affirmed based on the Supreme Court’s decision in Hardison, which it construed to mean “that requiring an employer ‘to bear more than a de minimus cost’ to provide a religious accommodation is an undue hardship.”

The Supreme Court reversed the lower courts’ decisions and held that showing more than a de minimus cost does not suffice to establish “undue hardship” under Title VII. The Court further stated that an employer who fails to provide an accommodation has a defense only if the hardship is “undue,” and a hardship that is attributable to employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice cannot be considered “undue.” Specific to the case at hand, the Court determined that it would not be enough for an employer to conclude that forcing other employees to work overtime would constitute an undue hardship. Consideration of other options, such as voluntary shift swapping, would also be necessary.

Of note, the Court’s decision leaves in place Title VII’s protections for seniority-based bidding systems. Specifically, the Court held “Title VII does not require an employer and a union who have agreed on a seniority system to deprive senior employees of their seniority rights in order to accommodate a junior employee’s religious practice.”

It is critical that when denying an employee’s religious accommodation request, school districts are prepared to show they are not just relying on the impact to other employees but are prepared to show that the cost of accommodating the request, as well as the impact on other employees, would be substantial on the conduct of the business.

ODE Issues Guidance on Budget Bill Changes to Instruction During Calamity Closures; Auditor Releases Levy Guidance

ODE Issues Guidance on Budget Bill Changes to Instruction During Calamity Closures

In years past (pre-COVID), public school districts were provided with the option of adopting a plan to make up hours lost due to calamity days - specifically, the equivalent of three days via “blizzard bags,” or online lessons. If a district used this option, it was required to adopt a plan before August 1, collaborate with the union regarding the plan, and finalize all lessons to be completed on or before November 1, among other requirements.

Ohio House Bill 33 (i.e., the Budget Bill) repealed the above process and, instead, created new requirements for making up hours of instruction lost due to calamity closure(s) in the form of a virtual education delivery model.

While HB 33 includes an August 1 deadline for school districts to adopt a plan to provide instruction through a virtual education delivery model, HB 33 is not effective until October 3, 2023, after the August 1 deadline. Given the lack of direction HB 33 provides school districts regarding a virtual option for make-up hours for this school year, ODE issued guidance yesterday encouraging school districts to adopt a plan no later than November 1, 2023. Seemingly, the August 1 deadline for the 2023-2024 school year will be extended until November 1.

Each plan may account for online instruction for a maximum number of hours that are equivalent to three school days.

The plan adopted by a school district is specifically required to contain each of the following:

1. A statement that the school, to the extent possible, will provide for teacher-directed synchronous learning in which the teacher and students are interacting in real time on a virtual learning platform during the closure.

2. The qualifying school's attendance requirements, including how the school will document participation in learning opportunities and how the school will reach out to students to ensure engagement during the closure.

3. A description of how equitable access to quality instruction will be ensured, including how the school will address the needs of students with disabilities, English learners, and other vulnerable student populations.

4. The process the school will use to notify staff, students, and parents that the school will be using online delivery of instruction.

5. Information on contacting teachers by telephone, electronic mail, or a virtual learning platform during the closure.

6. A description of how the school will meet the needs of staff and students regarding internet connectivity and technology for online delivery of instruction.

Similar to the former “blizzard bags” plan, this plan must include the written consent of the teachers’ union.

Please note that any school that uses an online learning school or blended learning model in accordance with sections 3302.41 and 3302.42 of the Ohio Revised Code is not permitted to adopt the above-described plan.

Auditor Releases Levy Guidance

Yesterday, the Auditor of State’s office (“AOS”) released highly anticipated levy guidance that includes information to support public school districts with levy and bond issue campaign compliance. The guidance document addresses a variety of topics of interest for board members, school officials, and administrators concerning what the AOS may deem permissible (or impermissible) campaign activities.

We will continue to provide you with additional information and updates regarding the AOS’s guidance and other developments related to HB 33, but if you have any immediate questions or concerns, please do not hesitate to contact us directly.

Supreme Court Clarifies IDEA Exhaustion Requirement

The U.S. Supreme Court recently issued a 9-0 decision in the case of Miguel Luna Perez v. Sturgis Public Schools, holding that exhaustion under the administrative procedures outlined in the Individuals with Disabilities Education Act (IDEA) is not always a prerequisite for seeking relief under other federal anti-discrimination laws. Specifically, the Court held that IDEA’s exhaustion requirement did not preclude a student from separately bringing action under the Americans with Disabilities Act (“ADA”) for monetary damages – a remedy that is not available under IDEA.

This holding establishes that a party can file a federal action for remedies without going through the IDEA administrative process as long as those remedies are not remedies the IDEA provides. 

Former student Miguel Luna Perez, who is deaf, attended Sturgis Public Schools.  He was on an IEP that provided him classroom aides who translated his instruction into sign language. The District advanced him from grade to grade and noted that he was passing his courses.  Yet several months before his graduation, the District notified his parents that he was not on track to graduate with a regular diploma.  It was ultimately determined that Perez’s classroom aides were either unqualified or absent from the classroom for periods of several hours. It was alleged that the District misrepresented Perez’s educational progress by inflating his grades and promoting him each year, despite his lack of progress. Perez’s parents filed a complaint with the Michigan Department of Education, under the IDEA’s complaint process, alleging that the District had failed to provide Perez with a free appropriate public education (FAPE) under the IDEA.  Prior to the case going to an administrative hearing, the parties reached a settlement.  

After settling his complaint under the IDEA, Perez filed suit against the District in federal district court under the Americans with Disabilities Act (ADA), seeking compensatory damages for emotional distress. However, the District Court dismissed Perez’s suit, since Perez had not exhausted all the IDEA’s dispute resolution procedures because he had settled his case. The Sixth Circuit Court of Appeals, which governs Ohio, affirmed the dismissal based on prior precedent in the Circuit that required exhaustion of administrative remedies. 

The U.S. Supreme Court took the case, since there was a split among federal circuits in interpreting the IDEA’s exhaustion requirement. The Court explained that “relief” in the exhaustion requirement is synonymous with “remedy,” so that the exhaustion requirement does not apply “if the remedy a plaintiff seeks is not one IDEA provides.” The Court concluded that the exhaustion requirement does not apply because compensatory damages are not available under the IDEA.

This decision departs from prior case law and now allows a student and the student’s parents to proceed directly to court for monetary damages in cases which previously would have needed to go through the IDEA hearing process first.  We may very well see more parents choose to start their case in court, where they may obtain monetary damages, but then also proceed with the IDEA administrative process, where they can seek compensatory education, reimbursement for enrollment in private schools, reimbursement for private evaluations, or other IDEA-based remedies. 

U.S. Department of Education Issues Guidance on Behavior Support and Discipline of Students with Disabilities

Last week, the U.S. Department of Education, Office for Civil Rights (OCR), and Office of Special Education Programs (OSEP) issued numerous guidance documents on behavior support and discipline of students with disabilities.  The U.S. Secretary of Education said that these documents are meant to be resources and provide information on federal protections against discrimination for students with disabilities.  The Department also specifically noted and recognized the extraordinary challenges students, schools, and families have experienced based on the pandemic.

The guidance reminds public elementary and secondary schools of their obligations under Section 504 and the IDEA to provide the services, supports, interventions, strategies, and modifications to policies students with disabilities need to address any disability-based behavior, including behavior that could lead to discipline. The guidance explains that when schools issue discipline to students with disabilities, they must do so in a nondiscriminatory manner.

OCR and OSEP reiterate the expectation that schools must ensure they support students with disabilities (including specifically those with behavioral needs and mental health issues) and are mindful of the processes required to be completed before discipline can be meted out.  The guidance also discusses that restraint and seclusion procedures can constitute disability discrimination, and notes that such procedures are disproportionately used on students with disabilities.

The guidance also strongly encourages that schools utilize culturally and linguistically responsive multi-tiered system of supports (MTSS), a comprehensive prevention framework designed to improve developmental, social, emotional, academic, and behavioral outcomes using a continuum of evidence-based strategies and supports. 

It is important that administrators review the guidance documents to support compliance with ongoing legal requirements, and check current processes and procedures to support compliance with anti-discrimination laws.

• Key Policy Letter Signed by U.S. Secretary of Education Miguel A. Cardona

• OSEP Dear Colleague Letter  

• Supporting Students with Disabilities and Avoiding the Discriminatory Use of Student Discipline under Section 504 of the Rehabilitation Act of 1973

• OCR Fact Sheet - Supporting Students with Disabilities and Avoiding the Discriminatory Use of Student Discipline Under Section 504 of the Rehabilitation Act of 1973

• Positive, Proactive Approaches to Supporting Children with Disabilities: A Guide for Stakeholders

• Questions and Answers: Addressing the Needs of Children with Disabilities and IDEA’s Discipline Provisions                                                                                     

ODE Helps to Address the Substitute Teacher Shortage

On June 24, 2022, Governor DeWine signed House Bill (“HB”) 583 in law to continue to provide flexibility for school districts to employ substitute teachers with relaxed educational qualifications through the 2022-2023 and 2023-2024 school years. Like previous flexibility, HB 583 allows a public school district, JVS, ESC, STEM school and community or chartered nonpublic school to employ an individual as a substitute teacher according to the district’s or school’s own education requirements, as long as the individual also is deemed to be of good moral character and successfully completes a criminal records check.

The State Board will issue a nonrenewable temporary substitute teaching license to an individual who meets those requirements, even if the individual does not hold a post-secondary degree.

Unfortunately, the legislation does not allow ODE to issue the temporary substitute teaching credential until September 23, 2022, because HB 583 does not contain an emergency provision and therefore does not take effect until September 23. However, on July 21, 2022, ODE issued guidance indicating that it will accept applications for a one-year temporary non-bachelor’s substitute teaching license beginning August 1, 2022, to allow school districts to conditionally employ individuals who have an application pending for up to sixty (60) days from the date of application. This conditional employment allows school districts to employ these individuals starting August 1.

The process for employing these individuals will be as follows:

1.  Applicants submit the temporary application August 1 or after for the 2022-2023 school year;

2. Once the Department receives an application, the local school board may conditionally employ the person as a substitute teacher for a period of 60 days. To hire the individual, the employing superintendent must believe the individual’s application indicates the person is qualified to obtain the substitute teaching license; and

3. On September 23, the Department will begin rapidly processing all pending applications to ensure they are processed within the 60-day conditional employment period. Please note the period of conditional employment will last for 60 days or until the licensure application has either been issued or declined, whichever comes first.

After September 23, 2022, the Department will resume processing 1-Year Temporary Non-Bachelor’s Substitute Teaching License applications in the normal fashion.