Lindsay Gingo Law, LLC Welcomes Attorney Sarah Kutscher

Lindsay Gingo Law, LLC is pleased to announce that Sarah Kutscher has joined the firm in an Of Counsel role beginning this 2018-2019 school year.  Sarah has dedicated her career to education law, and brings with her significant experience in supporting districts in all aspects of special education, including providing guidance on state and federal laws, consulting on school boards’ obligations regarding the identification and evaluation of students with disabilities, and developing Individualized Education Programs (IEPs) and Section 504 Plans.

Sarah shared that "I am thrilled to be joining Lindsay Gingo Law! By aligning our efforts, we will continue to provide high-level and individualized counsel to our clients."  Likewise, the firm is absolutely thrilled to have Sarah.

In addition to special education, Sarah's practice spans the entire scope of school law.  This includes, for example, labor and employment matters, student rights and discipline, and school finance.  She also has experience with administrative level hearings and cases filed with the Ohio Department of Education; the U.S. Department of Education, Office for Civil Rights; the Equal Employment Opportunity Commission; and the Ohio Civil Rights Commission.  Sarah has successfully litigated cases in both state and federal court in employment, civil rights, residency, and school finance matters.  She also clerked with the U.S. District Court for the Northern District of Ohio.  

Sarah received her J.D., magna cum laude, from DePaul University College of Law, and her undergraduate degree from Northwestern University, cum laude.

Lindsay Gingo Law, LLC provides comprehensive education law guidance based on the unique needs of its client school districts, recognizing that a one-size-fits-all approach is not compatible with today's complex PreK-12 structure.   With an understanding of small-firm and large-firm models, the firm provides districts with "in-house" professional services that foster a close attorney-client relationship rooted in trust and confidence.

Supreme Court Bans Mandatory Union Fees for Public-Sector Workers

In a much anticipated case, the U.S. Supreme Court in Janus v. AFSCME Council 31 overturned 40 years of precedent by ruling that mandatory public-sector union dues are unconstitutional.

In a 5-4 vote issued today, the majority held that states and public-sector unions may no longer require workers to pay agency fees. "Neither an agency fee nor any other payment to the union may be deducted from a nonmember's wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay," Justice Samuel Alito Jr. wrote for the majority.

In dissent, Justice Elena Kagan said the decision will have far-reaching consequences. "Public employee unions will lose a secure source of financial support. State and local governments that thought fair-share provisions furthered their interests will need to find new ways of managing their workforces," she wrote.

This decision overturns the 40-year-old Abood v. Detroit Bd. of Educ., which allowed collecting agency fees from all unit employees to cover costs related to collective bargaining, contract administration, and grievances, but not the union’s political and ideological projects. 431 U.S. 209 (1977).

As a result, effective immediately, fair share fees may no longer be lawfully collected from public sector employees. Agency fee arrangements that have been negotiated in a collective bargaining agreement must cease immediately. This Supreme Court decision takes precedence over any contractual bargaining language.  Schools are also receiving alerts on this from the Ohio Education Association and other public sector unions.  

Schools should continue to collect dues from current union members.   Members looking to make changes to their membership would follow any standard procedures regarding withdrawal from the union.

Ohio School Security Tax Levy Dollars Can Be Used for Mental Health Treatment

An existing Ohio law permits a school district to levy a property tax exclusively for school safety and security purposes. Ohio House Bill 24 - signed by Governor Kasich on March 30, 2018 - newly defines "school safety and security" to include, without limitation:

1.  Funding permanent improvements to provide or enhance security;

2.  Employing or contracting with safety personnel;

3.  Providing mental health services and counseling; or

4. Providing training in safety and security practices and responses.

Prior to House Bill 24, the law did not specify what types of expenditures fit into the category of "safety and security."  The above list provides specific purposes for the expenditures, but again, it is a non-exclusive list.  Boards may use the tax levy dollars for other safety and security measures, as determined by the school board at its reasonable discretion.  

The inclusion of mental health services and counseling in the bill was the result of a last-minute amendment, added in the wake of the Parkland, Fla. school shootings with the hope of encouraging boards of education to utilize this levy option in the law.

Surveillance Videos: Guidance on Handling Parent Records Requests

Parents sometimes request to see surveillance video footage containing multiple students' images, when that footage is the basis for their own child's discipline at school.  But is disclosing that video footage to one parent, unlawfully revealing personally identifiable information about other students depicted in the video? It is a grey area in the law because of the competing rights of the parties involved.

The U.S. Department of Education, Family Policy Compliance Office ("Office"),  published a guidance document (Letter to Wachter), offering the Office's framework for responding to such a request.  In that case the question involved surveillance video of a hazing incident involving multiple victims, perpetrators, and bystanders who were shown in the video footage.

The Office examined whether the surveillance video was an education record for the students involved, and whether the District was permitted to release the video to an individual parent of an involved student with or without the other parents' consent.  The Office likewise examined whether written statements about the hazing incident were education records and subject to disclosure with or without the other parents' consent.

The Office explained that generally, the Family Educational Rights and Privacy Act ("FERPA") is the federal law that protects the privacy of students' education records and the personally identifiable information contained in those records, including generally requiring parental consent prior to disclosure.   The Office further explained that FERPA does not provide a blanket right to copies, but a right to access.  FERPA further provides that when education records contain information related to more than one student, a parent may inspect and review or "be informed of" only the specific information about his or her own child.  According to the Office, only when the information about another student cannot be segregated and redacted without destroying its meaning may personally identifiable information about another student be disclosed without consent.

In light of this guidance, the Office found that the video and witness statements were education records for the perpetrators and victims, but not for the bystanders.  Further, the parents of the alleged perpetrator had the right under FERPA to inspect and review information in the video and witness statements that were about the alleged perpetrator, even though they also contained information that was directly related to other students.  This was lawful so long as the information in the records could not be segregated and redacted without destroying its meaning.

Thus, the Office directed the school district to review the video and witness statements to determine whether any personally identifiable student information could be redacted prior to disclosure.   Because the school district at issue did not have and could not afford software to blur the video, the likely result would be allowing parents to view the videotape, but not provide a copy (unless copies were necessary to provide access).  With regard to the witness statements, likely some redaction could be done (e.g., redacting student witness names) prior to disclosure.

In Ohio, FERPA applies to school districts along with numerous other laws governing records.  Schools are well advised to utilize this Family Policy Compliance Office's letter as guidance, but seek additional legal review, as the disclosure of student information is a fact-specific inquiry.

 

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.