Lindsay Gingo Named to List of “Rising Stars” in 2018 Edition of Ohio Super Lawyers

Lindsay F. Gingo has been selected to the 2018 Ohio Rising Stars list for the seventh year in a row. Each year, no more than 2.5 percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multi-phase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.

The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. For more information about Super Lawyers, visit SuperLawyers.com.

Illegal Censorship Case: Court Strikes Down School Board Public Comment Rules

A federal appeals court ruled in favor of the teacher’s union president who challenged a school district’s policy on public comment at board meetings.  The president challenged a superintendent’s alleged attempt to prevent a union group from speaking at a board meeting regarding new grading procedures.

A three-judge panel unanimously held that the policy regarding public comment at board meetings violated the First Amendment’s free speech principles. 

The school district policy required those looking to speak at a board meeting to first meet with the superintendent to “discuss their concerns.” The superintendent would then report back to the prospective speaker within 10 days. Speakers were then required to file a written request to speak at least one week before a particular board meeting.

The court found the policy unconstitutional, in part, because the initial-meeting provision lacked any time limit with which the superintendent was required to comply. Furthermore, the court was concerned that the superintendent having such open-ended control would result in certain viewpoints being restricted from board meetings.  For example, the court stated, “the Superintendent will have an idea of what a prospective speaker's proposed subject matter will be before the Superintendent schedules an initial meeting with the speaker . . . .  The Superintendent can avoid scheduling an initial meeting with that critic, preventing him from complying with the Policy, which in turn bars the critic from speaking at the next meeting, thus censoring that critic's point of view.”

The court found that if the school wanted to keep the pre-board meeting conversation with the superintendent, the school would have to impose a reasonable time limit within which the superintendent must respond to the speaker's request, schedule the initial meeting, and hold the initial meeting.

Ironically, in response to the union’s challenge, the school district altogether canceled public comment at the board meetings.  The court acknowledged that “the board has the power to close its meetings to public comment if it so wishes," but "[t]he problem here . . . is the fact that the board allows public comment at its meetings but then maintain[ed] policies that have a significant potential to chill speech on the basis of content and viewpoint.”

Where boards allow public comment at meetings, boards should review policies and practices to ensure they do not risk chilling otherwise-permissible speech on the basis of speech content.

Ohio Department of Education Issues Guidance on New Truancy Laws

The Ohio Department of Education yesterday issued guidance on Ohio's new truancy laws, which beginning with the 2017-2018 school year, generally mandate that districts take an intervention-based approach to students who miss too much school.  

Included in the guidance is an awaited ODE model policy framework, which ODE describes as "a general, high-level model policy," with additional details being decided at the local level.  The guidance also includes ODE's answers to frequently asked questions about commonly used definitions, tracking and reporting attendance, districts' responses to habitual truancy and excessive absence, the role of the absence intervention team, and partnering with community agencies.

School districts should use the remaining summer weeks to adopt or fine-tune absence policies for the 2017-2018 school year, to the extent not already done.

 

Appeals Court Upholds Termination of Veteran Teacher

An Ohio appeals court recently upheld a school district's decision to fire a tenured teacher for "good and just cause" under Ohio Revised Code 3319.16.  Although the statutory "good and just cause" standard is a high hurdle, this case demonstrates that inappropriate physical contact with students, even when there is no intent to harm, can be sufficient grounds to terminate a veteran teacher.

In the case, two second grade students were physically fighting, and two school assistants intervened to break up the fight.  The assistants testified that they had the situation under control and had not been injured, nor were they in fear of injury.

Upon hearing the disturbance, the teacher entered the area and inserted herself into the situation.  She testified at hearing she did so because she believed the assistants to be in danger, with one of the students hitting an assistant.  As a result, the teacher picked the student up by his shirt, lifting him in the air and eventually pinning him on the ground with her knee.  

As a result, the school moved to terminate her employment, despite her being a 15-year teacher in the district.  The school found her conduct to be wildly inappropriate, and that her intervention only escalated the situation.  After a hearing before a state-level referee, the referee agreed, stating that "prior to the [teacher's] intervention, the situation was under the control of two other staff members.  It was the [teacher's] unilateral decision to insert herself into the situation that reignited the conflict.  When the [teacher] did insert herself into the situation, the evidence showed that the other staff members felt that they had things under control and that [the assistant] did not even feel threatened by Student A. The evidence established that [teacher's] intervention [led] to more flagrant acts from Student A leading to the [teacher's] confrontation with Student A." 

After reviewing the referee's report, the board of education accepted the referee's findings of fact and recommendation to terminate.  The teacher appealed the decision and each reviewing court, including the appeals court, upheld the board's decision.  The trial court explained that the facts demonstrated the situation was properly handled by the assistants and under control, and the teacher's rash intervention demonstrated her utter failure to be a force for calm and control.  Under those circumstances, the appeals court found the trial court did not abuse its discretion in affirming the school's termination decision.

 

Transgender Issues in Ohio Public Schools: Now What?

The question of treatment of transgender students has been a widely debated issue on the local, state, and federal level.  Schools in Ohio and across the country had been anticipating guidance from the United States Supreme Court on the level of protection offered to transgender students under federal law through the case Gloucester County School Board v. G.G.  That case is now on hold, but all Ohio schools remain governed by federal law and one or more court rulings that apply federal law to transgender rights.  As a result, it is not accurate to say that transgender issues in Ohio are purely governed at the local or state level.

As was widely publicized, on February 22, 2017, the U.S. Department of Education and the Department of Justice issued a letter withdrawing joint guidance previously issued by the Departments regarding transgender students in public schools.  The now rescinded guidance interpreted Title IX - a federal law - as requiring schools to treat transgender students consistent with their gender identity, including practices for addressing issues such as bathroom and locker room access.   In the letter withdrawing guidance, the Departments expressed that states and local school districts should control transgender policies and practices, but also stated that transgender students should be protected from discrimination, bullying and harassment, these being in large part federal law issues.

 In response to the Departments' withdrawal of transgender guidance, the U.S. Supreme Court decided not to immediately hear the Gloucester County School Board case, remanding it to the lower court.  

As a result, Ohio schools and others nationwide are left without Department guidance or a high court ruling on the issue of transgender rights.  Without it, Ohio schools may adopt a wait-and-see approach regarding U.S. Supreme Court guidance, and in the meantime review court rulings that do instruct Ohio public schools.  That includes a decision by a federal appeals court in Highland Local School District v. United States Department of Education, et al.  In that case the Sixth Circuit Court of Appeals - which governs Ohio - agreed with the lower court, finding that a transgender student should be allowed to use the restroom consistent with the student's gender identity, and should be called by the student's chosen name and associated pronoun, at least during the pendency of the case.  In part, the court relied on prior rulings that “sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination.”  However, it remains to be seen whether the Departments' withdrawal of guidance in favor of transgender protections will impact later Sixth Circuit decisions in the Highland case and others.  

Because of the ongoing changes to this area of the law, Ohio schools are well advised to reach out to legal counsel when a transgender student issue arises.  As a practical matter, often times these issues are addressed and resolved through open lines of communication and agreement between the school and district students and families.

New Ohio Law Expands Gun Rights in School Zones

In Ohio, a person who is issued a concealed handgun license may carry a handgun in certain circumstances and in certain places.  Before March 21, 2017, handguns were generally prohibited in school safety zones, with narrow exceptions.  Effective March 21, those narrow exceptions are expanded in favor of broader concealed carry rights for licensed gun owners.

Under Ohio Revised Code 2923.122, it is illegal to convey, attempt to convey, or possess a deadly weapon or a "fake gun" that is indistinguishable from a firearm in a school safety zone, even with a concealed carry license. A “school safety zone” includes school buildings and grounds as well as school buses and school activities.  There exist few exceptions to this general prohibition, including for example exceptions for police officers and certain authorized school personnel.  The new law (Senate Bill 199) expands these exceptions to the rule.

First, the law states that the prohibition against guns in a school safety zone does not apply to a person if all of the following apply:

  • The person is carrying a valid concealed handgun license or is a qualifying member of the military.
  • The person leaves the handgun in the motor vehicle.
  • The handgun does not leave the motor vehicle.
  • If the person exits the motor vehicle, the person locks the motor vehicle.

Second, the law also provides that the prohibition against possession of "fake guns" in a school safety zone does not apply when the object is used in school safety training. Existing law still exempts from the prohibition any school administrator, teacher, or employee who possesses an object that is indistinguishable from a firearm for legitimate school purposes; a student acting under the direction of a school administrator, teacher, or employee; or any other person who with the express prior approval of a school administrator possesses an object that is indistinguishable from a firearm for a legitimate purpose,

And third, under the new law, the prohibition against deadly weapons in school safety zones does not apply to a law enforcement officer who is authorized to carry deadly weapons, regardless of whether the officer is acting within the scope of the officer's duties.  Previously, only on-duty officers could carry a deadly weapon in a school safety zone.

Lawsuit Charges FieldTurf Sold Defective Synthetic Athletic Fields to Schools Nationwide

Late last year a lawsuit was filed against FieldTurf U.S.A., alleging that FieldTurf concealed known defects in the synthetic grass athletic fields it sells across the country.  The suit further alleges that even after FieldTurf knew about the defects, it sold to municipalities, schools and universities anyway.  FieldTurf allegedly marketed to customers in Ohio and other states that its synthetic fields last for 10 or more years, while knowing its product would deteriorate after only a few years.  As a result, the lawsuit alleges FieldTurf pocketed millions of dollars at the public’s expense.

This is a class action lawsuit, where the municipality who filed suit seeks to represent a “class” of plaintiffs who have been impacted by FieldTurf’s alleged misconduct.  The plaintiff in the case is proposing a nationwide class, thus encompassing Ohio school districts impacted by possible FieldTurf misconduct.  However, it will be later this year before we know for sure if the class will cover Ohio school districts.

If you have had performance issues with a FieldTurf product, you may consider monitoring this case and/or documenting those problems and reviewing them with your legal counsel. 

U.S. Supreme Court to Hear Landmark Transgender Rights Case March 28

The U.S. Supreme Court set March 28, 2017 as the date to hear oral arguments for a transgender rights case stemming from a school district's decision regarding a transgender boy's use of the boys' restroom.  In the case the public school district required the student to use alternative private restroom facilities instead of the restroom corresponding to his gender identity.

The Court is reviewing the case of Gloucester County School Board v. G.G. after staying, or putting on hold, a lower court's decision that would have required the school to allow the student to use the restroom corresponding to his gender identity.  In reviewing the case, the Court will examine the U.S. Department of Education's authority to interpret its own regulations in favor of transgender rights.  Specifically, the Obama administration's Department interpreted its Title IX regulation's prohibition against sex discrimination to include a prohibition against barring transgender students from using the bathroom that corresponds with their gender identity.  In this lawsuit, the school challenges the Department's right to do that.

The federal government faces a deadline at the end of February for filing a brief expressing its position in the case. The Obama administration supported the student in the federal appeals court.  It is unclear whether the Trump administration will withdraw that support and/or change its position, or whether the Department of Education under Secretary Betsy DeVos will withdraw its guidance in support of transgender rights under Title IX.   

Lindsay Gingo Named to List of “Rising Stars” in 2017 Edition of Ohio Super Lawyers

Lindsay F. Gingo has been selected to the 2017 Ohio Rising Stars list for the sixth year in a row. Each year, no more than 2.5 percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.

The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. For more information about Super Lawyers, visit SuperLawyers.com.