U.S. Supreme Court Sides with Coach and On-Field, Post-Game Prayer

In a 6-3 opinion, the U.S. Supreme Court decided the case of Kennedy v. Bremerton School District, holding that the free exercise and free speech clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal; the Constitution neither mandates nor permits the government to suppress such religious expression.

In this case, a Washington school district football coach, Joseph Kennedy, had a personal practice of giving “thanks through prayer on the playing field” at the conclusion of each game. Mr. Kennedy offered his prayers after the players and coaches had shaken hands, by taking a knee at the 50-yard line and praying “quiet[ly]” for “approximately 30 seconds.”  Initially, Mr. Kennedy prayed on his own but over time, some players asked whether they could pray alongside him. Mr. Kennedy responded by saying, “This is a free country. You can do what you want.” The number of players who joined Mr. Kennedy eventually grew to include most of the team, at least after some games. Sometimes team members invited opposing players to join. Other times, Mr. Kennedy prayed alone. Eventually, Mr. Kennedy began incorporating short motivational speeches with his prayer when others were present. Separately, the team at times engaged in pregame or postgame prayers in the locker room. The Supreme Court noted that it seemed this practice was a “school tradition” that predated Mr. Kennedy’s tenure.  Mr. Kennedy explained that he “never told any student that it was important they participate in any religious activity” and said that he “never pressured or encouraged any student to join” his postgame midfield prayers.

This went on for many years, until an employee from another school commented positively on the practice to a Washington District principal.  The District then contacted Mr. Kennedy about “two problematic practices” - specifically, the “inspirational talk[s]” that included “overtly religious references” likely constituting “prayer” with the students “at midfield following the completion of . . . game[s]” and the fact that Mr. Kennedy had led “students and coaching staff in a prayer” in the locker-room tradition that “pre-dated [his] involvement with the program.”  The District explained to Mr. Kennedy that it sought to establish “clear parameters” “going forward,” and instructed Mr. Kennedy to avoid any motivational “talks with students” that “include[d] religious expression, including prayer,” and to avoid “suggest[ing], encourag[ing] (or discourag[ing]), or supervis[ing]” any prayers of students, which students remained free to “engage in.” The District also explained that any religious activity on Mr. Kennedy’s part must be “nondemonstrative (i.e., not outwardly discernible as religious activity)” if “students are also engaged in religious conduct” in order to “avoid the perception of endorsement.” 

Mr. Kennedy ended the locker-room prayers and the practice of incorporating religious references or prayer into his postgame motivational talks to his team on the field.  But because of his “sincerely-held religious beliefs,” he felt “compelled” to offer a “post-game personal prayer” of thanks at midfield. He asked the District to allow him to continue that “private religious expression” alone. He noted that, consistent with the District’s policy, he “neither requests, encourages, nor discourages students from participating in” these prayers, and emphasized that he sought only the opportunity to “wai[t] until the game is over and the players have left the field and then wal[k] to mid-field to say a short, private, personal prayer.” He said that it would be acceptable to him to wait to say his “prayer while the players were walking to the locker room” or “bus,” and then catch up with his team.

He also noted that the District policy prohibited him from “discourag[ing]” independent student decisions to pray.  Yet the District issued him another letter that forbade Mr. Kennedy from engaging in “any overt actions” that could “appea[r] to a reasonable observer to endorse . . . prayer . . . while he is on duty as a District-paid coach.” The District did so because it judged that anything less would lead it to violate the Establishment Clause.  After receiving that letter, Mr. Kennedy offered a brief prayer following the next game.  It was noted that, when he bowed his head at midfield, most of his players were engaged with singing the school fight song to the audience.  Though Mr. Kennedy was alone when he began to pray, players from the other team and members of the community joined him before he finished his prayer. This event spurred media coverage about the exchange between the District and Mr. Kennedy on this topic, and ultimately the District placed robocalls to parents to inform them that public access to the field was forbidden, it posted signs and made announcements at games saying the same thing, and it had the police secure the field in future games.

Before a game a few days later, the District sent another letter to Mr. Kennedy in which the District expressed appreciation for Mr. Kennedy’s efforts to comply with the District’s directives, including avoiding “on-the-job prayer with players in the . . . football program, both in the locker room prior to games as well as on the field immediately following games,” and also admitted that, during Mr. Kennedy’s recent postgame prayer, his students were otherwise engaged and not praying with him, and that his prayer was “fleeting.” Yet the District explained that a “reasonable observer” could think government endorsement of religion had occurred when a “District employee, on the field only by virtue of his employment with the District, still on duty” engaged in “overtly religious conduct.”  The District thus made clear that the only option it would offer Mr. Kennedy was to allow him to pray after a game in a “private location” behind closed doors and “not observable to students or the public.” Still after that evening’s game, Mr. Kennedy knelt at the 50-yard line, where “no one joined him,” and bowed his head for a “brief, quiet prayer.”  And, again, after the final relevant football game of the season, Mr. Kennedy knelt alone to offer a brief prayer as the players engaged in postgame traditions.  While he was praying, other adults gathered around him on the field.

Shortly after the final game, the District placed Mr. Kennedy on paid administrative leave and prohibited him from “participat[ing], in any capacity, in . . . football program activities.”  In a letter explaining the reasons for this disciplinary action, the superintendent criticized Mr. Kennedy for engaging in “public and demonstrative religious conduct while still on duty as an assistant coach” by offering a prayer following the games.  The letter did not allege that Mr. Kennedy performed these prayers with students, and it acknowledged that his prayers took place while students were engaged in unrelated postgame activities.  Additionally, the letter faulted Mr. Kennedy for not being willing to pray behind closed doors.  In a subsequent Q&A document provided to the public, the District admitted that it possessed “no evidence that students have been directly coerced to pray with Kennedy.”  The Q&A also acknowledged that Mr. Kennedy “ha[d] complied” with the District’s instruction to refrain from his “prior practices of leading players in a pre-game prayer in the locker room or leading players in a post-game prayer immediately following games.”  But the Q&A asserted that the District could not allow Mr. Kennedy to “engage in a public religious display” since otherwise, the District would “violat[e] the . . . Establishment Clause” because “reasonable . . . students and attendees” might perceive the “district [as] endors[ing] . . . religion.” While Mr. Kennedy received “uniformly positive evaluations” every other year of his coaching career, after the 2015 season ended in November, the District gave him a poor performance evaluation, which advised against rehiring Mr. Kennedy on the grounds that he failed to follow district policy regarding religious expression and “failed to supervise student-athletes after games.” Mr. Kennedy did not return for the next season.

Mr. Kennedy sued the District in federal court, alleging that the District’s actions violated the First Amendment’s Free Speech and Free Exercise Clauses.  The District Court sided with the District, concluding that a “reasonable observer . . . would have seen him as . . . leading an orchestrated session of faith” and that if the District had not suspended him, the District might have violated the Constitution’s Establishment Clause.  On appeal, the Ninth Circuit affirmed.

Yet the U.S. Supreme Court disagreed and held that Mr. Kennedy’s prayer was protected by the Free Exercise and Free Speech Clauses of the First Amendment and did not violate the Establishment Clause of the First Amendment.  The Court found that Mr. Kennedy’s speech was private speech, not government speech.  When he prayed during the three football games at issue, he was not engaged in speech “ordinarily within the scope” of his duties as a coach.  He did not speak pursuant to government policy nor was he seeking to convey a government-created message. He was not instructing players, discussing strategy, encouraging better on-field performance, or engaged in any other speech the District paid him to produce as a coach. Further, the timing of the prayers also confirmed for the Court that this was private speech.  The prayers occurred during the postgame period when coaches were free to attend briefly to personal matters - everything from checking sports scores on their phones to greeting friends and family in the stands. The Court found that it did not matter that Mr. Kennedy’s prayers took place “within the office” environment - here, on the field of play; instead, what mattered was whether Mr. Kennedy offered his prayers while acting within the scope of his duties as a coach, which the Court found that he did not.

The Court also found that Mr. Kennedy did not compel students to pray.  The Court noted that the District itself was not concerned at the time that Mr. Kennedy coerced, required, or asked any student to pray.   Instead, the Court found that Mr. Kennedy did not seek to direct any prayers to students or require anyone else to participate, and, therefore, no students were coerced to participate.

Finally, the Court addressed the District’s position that any visible religious conduct by a teacher or coach should be deemed impermissibly coercive to students, as a matter of law.  The Court noted that an Establishment Clause violation does not automatically follow whenever a public school or other government entity “fail[s] to censor” private religious speech.  Nor does the Clause “compel the government to purge from the public sphere” anything an objective observer could reasonably infer endorses or “partakes of the religious.”  The Court noted that this would result in schools being required to fire teachers for praying quietly over their lunch, for wearing a yarmulke to school, or for offering a midday prayer during a break before practice. Ultimately, the Court explained that permitting private speech is not the same thing as coercing others to participate in it.

This case has significant implications for school districts and alters what was generally understood a responsibility to separate religious practice from government conduct under the Establishment Clause. It creates new and important factors to consider when addressing employee religious activity.  Please contact your legal counsel when such First Amendment issues arise.

U.S. Supreme Court Decides State Funds Must Go to Private Religious Schools Too

With mounting concerns regarding the separation of church and state in public schools, the U.S. Supreme Court ruled on June 21, 2022, that the state of Maine’s “nonsectarian” requirement for otherwise generally available tuition assistance payments to parents who live in school districts that do not operate a secondary school of their own violates the free exercise clause of the First Amendment.

The case of Carson v. Makin involves a tuition assistance program enacted for parents who live in school districts in the state of Maine that neither operate a secondary school of their own nor contract with a particular school in another district. Under that program, parents designate the secondary school they would like their child to attend, and the school district transmits payments to that school to help defray the costs of tuition; however, Maine has limited tuition assistance payments to “nonsectarian” schools.  Two families filed suit because their children attended religious schools in Maine that otherwise met the requirements for the tuition assistance program except for the fact that the schools were sectarian.  The parents alleged that the “nonsectarian” requirement violated the Free Exercise Clause and the Establishment Clause of the First Amendment, as well as the Equal Protection Clause of the Fourteenth Amendment. The District Court rejected their constitutional claims and the First Circuit affirmed.  The U.S. Supreme Court took the case and held that the “nonsectarian” requirement for otherwise generally available tuition assistance payments violates the Free Exercise Clause.

Here, Maine offers its citizens a benefit: tuition assistance payments for any family whose school district does not provide a public secondary school, yet disqualifies certain private schools from public funding “solely because they are religious.” The Court held that a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause.  The Court found that a State’s anti-establishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.  The Court noted that Maine’s decision to continue excluding religious schools from its tuition assistance program involved stricter separation of church and state than the federal Constitution requires, and on the other end, violated the Free Exercise Clause of the First Amendment.  The Court did note that states need not subsidize private education, but once a state decides to do so, it cannot disqualify some private schools solely because they are religious. 

Ohio Law Addresses Substitute Teacher Shortage

On June 24, 2022, Governor DeWine signed House Bill (“HB”) 583 into law. The bill extends a provision of Senate Bill 1 that took effect last October 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. To continue to take advantage of this flexibility, boards must again take action to establish their own education requirements for the hiring of substitute teachers. It is advised to review current policy, potential job postings and/or job descriptions, as well as any other local requirements that may conflict with the relaxed qualifications for substitute teachers for the upcoming school years.

Notably, unlike previous legislation, HB 583 does not contain an emergency provision, so the effective date is not until after the 2022-2023 school year begins – i.e., effective September 22, 2022. It is important to be mindful of the effective date for the 2022-2023 school year if employing substitutes under the relaxed requirements.

Ohio House Bill 99 Authorizes Arming School Staff

Currently, Ohio law generally prohibits a person from being armed in a school safety zone, with the exception of state or federal law enforcement personnel who are authorized to carry deadly weapons, and security officers/staff with extensive peace officer training who are employed by a school board and authorized to carry while on duty.

However, on June 13, 2022, Governor DeWine signed into law Ohio House Bill 99, effective September 12, 2022, that expressly overrules the 2021 Ohio Supreme Court decision in Gabbard v. Madison Local School District Bd. of Education to allow a school employee who has written authorization from a school board to be voluntarily armed in a school safety zone, provided that:

• the employee completes an initial 24-hour training program (a significant reduction to the previously required 700 hours of peace office training);

• the employee submits to an annual criminal records check;

• the school board notifies the public, by whatever means the school regularly communicates, that the board has authorized one or more staff members to go armed within its school district; and

• the employee submits to eight requalification training hours on an annual basis. 

Boards of education are permitted, but not required, to require additional training.

House Bill 99 also expands the Ohio School Safety Center (OSSC) and creates a new OSSC Safety & Crisis Division. The new OSSC Safety & Crisis Division will be led by a chief mobile training officer who will oversee 16 new regional training officers working within the 16 established Ohio Department of Education school safety support team regions. This new team of 17 OSSC staff members will develop the required initial training curriculum, yearly requalifying curriculum, and optional additional training curriculum for those authorized by their school districts to carry a firearm on school grounds. Training modules will include scenario-based training, as well as instruction on mitigation techniques, communications, neutralization of potential threats and active shooters, accountability, reunification, psychology of critical incidents, de-escalation techniques, crisis intervention, trauma and first aid care, history/pattern of school shootings, tactics of responding to critical incidents, tactical live firearm training, and realistic urban training. More information regarding Governor DeWine’s school safety initiatives can be found here.

Ultimately, HB 99 does not require a board of education to arm school employees. This was emphasized in a recent letter from Governor DeWine to state school superintendents. Rather, HB 99 emphasizes that the decision to arm school staff is a local decision up to each individual school board. If a board is considering arming staff, it is advised to notify its liability insurance carrier, solicit feedback concerning the risks associated with this level of authorization, and consult with legal counsel regarding unintended consequences that may result in liability to the school district due to arming school staff.

Ohio Supreme Court Clarifies Strict Liability for Public Officials for Misappropriated Public Money

The case of State ex rel. Yost v. Burns, recently decided by the Ohio Supreme Court, clarified that a public official cannot be held strictly liable for the misappropriation of public money when neither the official nor any of the official’s subordinates collects or receives, and therefore does not control, the funds.

In that case, the treasurer of an Ohio community school pled guilty to embezzlement of funds from the community school.  The situation arose from an Audit Report that made a Finding for Recovery against the community school and the treasurer specifically, as well as three other individuals and one entity. 

Six years after the Audit Report was closed, the Ohio Attorney General filed a lawsuit against Robert Burns, who had served as the director of the community school at the time of the misappropriation by the treasurer.  While Mr. Burns was not named in the finding for recovery, the Attorney General later sought to collect the misappropriated funds from Mr. Burns based on the finding for recovery against the treasurer and others. The Attorney General maintained that Mr. Burns was responsible for approving budget expenditures through Ohio Department of Education’s accounting system, which, along with the approval of the treasurer, triggered the release of public funds from the ODE for deposit into the community school’s bank accounts.  Mr. Burns reported to the community school governing board in his role as director.  Mr. Burns had no authority to disburse public money from any of the school’s bank accounts, nor did he have any supervisory responsibilities over those accounts. Those duties belonged to the treasurer, who Mr. Burns did not supervise, manage, or have any authority over. 

By way of background, as public officials, certain school district employees are bound by R.C. 9.39, which states that “[a]ll public officials are liable for all public money received or collected by them or by their subordinates under color of office.” 

The Attorney General contended that in exercising this budget approval responsibility, Mr. Burns “collected” public money within the meaning of R.C. 9.39, and could therefore be held strictly liable for the findings for recovery made against the treasurer and others, despite the fact that Mr. Burns had no control over the funds.

The Ohio Supreme Court held that a public employee cannot collect or receive public money, let alone be held strictly liable for the misappropriation of that money within the context of R.C. 9.39 without controlling it. Accordingly, it found that Mr. Burns could not be held strictly liable for the misappropriated public money from the community school, because the funds were never in his possession and he never exerted any control over them.  Even though the money could not have been received or collected without Mr. Burns requesting funds from ODE, the Court still found that Mr. Burns himself did not receive or collect those funds.

This holding limits the extension of strict liability to administrators who do not exert the requisite level of fiscal control over public funds.  Here, it was the director of a community school.  But a similar extension of strict liability, left unchecked, could have been made to public school district administrators with no fiscal control but who do come into contact with public funds.  The Supreme Court has likely prevented such a result.

Juneteenth a Required Paid Holiday for 11- and 12-Month Nonteaching School Employees

Last month, Governor DeWine signed into law Senate Bill 11, impacting the paid holidays required for eleven- and twelve-month regular nonteaching school employees, pursuant to section 3319.087 of the Revised Code. This recent change clarified prior law enacted last year, that provided Juneteenth as a paid holiday for only nine- and ten-month regular nonteaching employees (who likely do not work during June). 

Effective June 10, 2022, school districts are required to grant Juneteenth as a paid holiday for their regular nonteaching employees who are employed on an eleven- or twelve-month basis, so long as an employee accrues earnings on the next preceding and next following scheduled work days before and after Juneteenth, or where the employee was properly excused from attendance at work on either or both of those days.

School districts are not required to provide Juneteenth as a paid holiday for any other employees of the district.  Though, a school district may, at its discretion, grant Juneteenth as a paid holiday to other employees. Should that be the case, school districts should consider the appropriate method of doing so, which may include modifying board policy, entering into a memorandum of understanding, and/or amending individual employment contracts, depending on the circumstances.

ODE Implements New Transportation Monitoring System

Effective April 1, 2022, the Ohio Department of Education’s Office of Field Services and Transportation will have a new compliance monitoring system for school district pupil transportation services. This system is designed to allow monitoring and enforcement of transportation responsibilities as outlined in state law – specifically, the requirement to transport all eligible students, including those who attend private or community/charter schools.

With recent bus driver staffing shortages, it is critical that school districts understand the new monitoring process and their obligations related to pupil transportation to avoid any reduction in transportation funding.

As part of the new monitoring process, school districts are required to complete a list of assurances and submit it to the Office of Field Services and Transportation no later than August 1 prior to each school year. The new system also includes a formal complaint process for individuals – namely, parents or community or nonpublic schools – to report a school district(s) for non-compliance. The complaint process includes reporting schools for the following issues/concerns regarding non-compliance:

• The school district is not providing transportation to those eligible K-8 community and/or nonpublic school students living less than a 30-minute drive from the school in which the student would attend if he/she were attending the public school district of residence.

• The school district is not providing transportation for all eligible K-8 students who live more than two miles from the school they attend.

• Special education transportation should be provided to any eligible student in preschool through grade 12. The school district is not providing transportation to students with disabilities in accordance with Ohio Administrative Code 3301-51-10.

• The school district of residence is not providing transportation from the public high school to career technical education programs.

• The school district is not providing transportation for the eligible community and/or nonpublic K-8 students each day the community and/or nonpublic schools are in session.

• If a school district received the start and end times (bell schedule) from the community and/or nonpublic schools by April 1, it did not develop a transportation plan within 60 days of receiving the start and end times.

• The school district is not able to deliver eligible students to their respective school buildings as outlined in law: no earlier than 30 minutes prior to the start of school; and pick up no later than 30 minutes after the school day ends.

• An agreement has not been developed to provide another mode of transportation, such as mass transit systems, for K-8 students between the community or nonpublic schools and the school district.

• If an eligible student enrolled after July 1, the school district did not develop a transportation plan within 14 business days of receiving a request for transportation services from the student’s parent or guardian.

• According to Ohio Revised Code 3327.02, the district did not declare transportation of students impractical within 30 calendar days prior to the first day of instruction or within 14 days of enrollment.

• The school district time schedule was adopted later than 10 days after the school year began.

Once a complaint is filed, the Office of Field Services and Transportation will reach out to the school district within three (3) business days and begin its investigation.

The investigation will be completed within 10 business days after the receiving the complaint and will focus on whether the district has been out of compliance for a consistent or prolonged period of time. “Prolonged” is defined as 10 consecutive school days of non-compliance; “consistent” is defined as 10 total school days of non-compliance in any given semester.

If there is a finding of non-compliance, the Office of Field Services and Transportation will submit to the Office of Budget and School Finance the number of days to be deducted from the district’s transportation funds in accordance with R.C. 3327.021. Any district found to be non-compliant may be required to undergo additional review by the Office of Field Services and Transportation.

Ohio Department of Health Updates K-12 Requirements for Reporting COVID-19 Cases

Effective March 10, 2022, the Ohio Department of Health rescinded the September 3, 2022, order that required certain reporting and notification of COVID-19 cases in K-12 schools to parents and to local health departments. K-12 schools are no longer required to maintain a reporting system for parents to report positive tests or cases; no longer required to notify parents or guardians of the existence of a case of COVID-19 among staff, students, and/or coaches; and no longer required to report such a case to the local health department (unless the test is done by the school, and the result is positive). As a result of this change, families no longer need to report positive cases of COVID-19 to their child’s school.

Though K-12 schools are no longer obligated to report positive COVID-19 cases, subject to the above exception, other Ohio Department of Health recommendations remain in effect regarding mitigation strategies like thoroughly cleaning and sanitizing shared materials, encouraging students to wash and sanitize their hands throughout the course of the school day, practicing social distancing, and vigilantly assessing members of the school community for symptoms of COVID-19 . ODH’s Mask to Stay/Test to Play recommendations remain in effect as well regarding recommended quarantine and isolation measures for district students.

Ohio House Bill 51 Allows Virtual Public Meetings Through June 30, 2022

On February 17, 2022, Governor DeWine signed House Bill (“HB”) 51 to allow a public school district board of education, among other public entities, to hold and attend meetings and conduct and attend hearings virtually, through June 30, 2022, effective immediately.

Authorization for virtual board meetings was first issued on March 9, 2020, via Ohio HB 197, during the period of emergency declared as a result of the COVID-19 pandemic, and was later extended through July 1, 2021, in accordance with Ohio HB 404. Since that time, some boards and other public entities have been looking for reauthorization to hold virtual meetings.

Effective February 17, 2022, HB 51 authorizes a board to hold and attend meetings and hearings by means of teleconference, video conference, or any other similar electronic technology. This aligns to prior authorizations for virtual board meetings/hearings.

Any resolution, rule or action taken pursuant to this emergency provision will have the same effect as if it had occurred during an open meeting. Board members who attend meetings or hearings by teleconference, video conference, or any other similar electronic technology, must be considered present as if attending in person, permitted to vote, and must be counted in determining whether a quorum of the board is present.

Boards are required to provide notice of virtual meetings or hearings at least twenty (24) hours in advance to allow individuals to determine the time, location, and the manner in which the meeting or hearing will be conducted, and are further required to provide the public with access to the meeting or hearing. (Recall also, that for special meetings, continuing law requires the purpose of the meeting to be timely noticed as well.) In doing so, school boards must ensure that the public is able to observe and hear each member’s discussion and deliberation. Public access to meetings may be provided via live-stream, internet, local radio, television, cable, or public channels, call-in information for a teleconference, or any other similar electronic technology.

If your board wishes to take advantage of the authorization to hold virtual meetings or hearings, the board should be careful to review board policy to determine whether current policy limits or prohibits virtual meetings or the authority of board members who attend virtually, and review policy regarding public participation to determine whether public comment can be accomplished in accordance with current policy. Some boards of education previously authorized virtual meetings through amended policy or resolution. It is advisable that boards revisit previous authorizations to determine whether they need to reauthorize authority to conduct virtual meetings and/or hearings and how public comment will (or will not) be achieved.

Gingo & Bair Law, LLC Welcomes Attorney Kyle Wheeler

We are pleased to announce Kyle Wheeler has joined the firm as our newest associate attorney.  A native to the area, Kyle grew up with a strong appreciation for public education, with a parent serving as a leader for Ohio public schools. After obtaining his undergraduate degree in business from The Ohio State University, graduating cum laude, Kyle earned his law degree from Cleveland Marshall College of Law, again graduating cum laude. Prior to joining Gingo & Bair Law, Kyle worked as an associate attorney for an Ohio-based law firm with a practice focused on education law.

Kyle advises public school districts and boards of education on a variety of education law matters, including labor and employment issues, student rights and discipline, human resources, public records law, special education, employee benefits, labor disputes, student privacy issues, and board governance. He has served on negotiations teams in bargaining for teachers and non-teaching staff, defended boards of education in labor arbitrations, termination proceedings, and before the State Employment Relations Board. In addition, Kyle has also litigated in state and federal court, as well as with state and federal administrative agencies.

Adding Kyle 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 excited about this new endeavor, thrilled to work with Kyle, and look forward to expanding our vision of providing exceptional legal services in education.

Ohio Law Addresses Temporary Measures for Employment of Substitute Teachers

Late last month, Governor DeWine signed Senate Bill 1 into law.  While most of the law is effective January 27, 2022, a few provisions related to the employment of substitute teachers went into effect on October 28, 2021, since the law declared those to be emergency provisions.  

Specifically, for the 2021-2022 school year only, a school district, community school, STEM school, chartered nonpublic school, ESC, or regional council of governments consisting of one or more ESC can 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.  

These temporary measures regarding the employment of substitutes are only valid for the 2021-2022 school year. Information from ODE is available here.

ODE Issues Guidance on Temporary Online Learning or Closures Due to COVID-19 Outbreaks

Beginning with the 2021-2022 school year, school districts have the option to operate an online learning school in accordance with section 3302.42 of the Revised Code.  Originally, ODE’s guidance clarified that the decision to operate an online learning school is not intended to be a transition strategy for a short-period as school districts continue to address the ongoing pandemic. Schools were further guided by ODE not to depend on online learning to account for instruction on days schools may be closed for a period of time for calamity or other unforeseen circumstances, including COVID-19 related issues.  Essentially, the original guidance was geared toward not permitting school districts to utilize an online learning school for temporary placement of students whose learning environment was impacted due to COVID-19.

Last week, ODE issued updated guidance regarding temporary placement(s) for students who may need to switch to online learning due to COVID-19-related issues, such as short-term illness, quarantine, or classroom or building closures.  The newly released guidance indicates that schools may temporarily switch a student to online learning due to COVID-19 related issues that require a student to be away from the school building.  Specifically, ODE stated the temporary online placement can be for the duration of a quarantine period or while the student is sick.

ODE further clarified that school districts who submitted a blended learning declaration by the July 1, 2021 deadline may rely on a blended learning model to shift to remote learning due to COVID-19-related issues like closure of a classroom, building, or the entire district.  Importantly, school districts that utilize a blended learning model should ensure that they meet the legal definition of blended learning, which requires that students are primarily participating in in-person learning over the course of the school year.  The definition of blended learning was changed by House Bill 110 and redefined as “the delivery of instruction in a combination of time primarily in a supervised physical location away from home and online delivery whereby the student has some element of control over time, place, path, or pace of learning.” ODE has clarified the definition of “primarily” under a blended learning model to mean “a student that spends a minimum of 51% of time in school.”  If a student is spending 51% of the time at home engaged in online learning, the student would be participating in online learning, not blended learning. 

Importantly, ODE makes clear that the absence of a blended learning model, online learning school or other permissible online option that meets legislative requirements (this does not include a remote learning plan, as the flexibility districts were provided last year does not apply to the 2021-2022 school year), the state mandated minimum number of instructional hours must be met in another way, like extended hours or additional school days. Therefore, schools should critically examine their instructional model options in the event of a school building closure due to COVID-19.

Ohio Law Prohibits Mandating COVID-19 Vaccine and Discrimination Against Unvaccinated in Public Schools; Has Direct Impact on Implementation of New ODH Guidance on COVID-19 Prevention

In mid-July, House Bill 244 was signed into law, with the law effective on October 13, 2021. The new law states that a public school:

1. Cannot require an individual to receive a vaccine that has not received full FDA approval, which currently includes all COVID-19 vaccines. Based on information currently available, likely none of the current COVID-19 vaccines will have full FDA approval - as opposed to FDA Emergency Use Authorization - prior to the start of the 2021-2022 school year.

2. Cannot discriminate against someone who has not received the vaccine, including requiring that person to “engage in or refrain from engaging in activities or precautions that differ from the activities or precautions” from those who are vaccinated.

The law’s anti-discrimination language will have a significant impact on schools, and require that decisions be made on the basis of something other than vaccination status, if full FDA approval is not granted by the bill effective date, October 13, 2021. This will likely result in an all-or-nothing and/or one-size-fits-all approach to certain health and safety precautions for groups of students, including the current consideration of masks. Again, both vaccinated and unvaccinated individuals must be treated the same starting October 13, unless full FDA approval is granted.

With respect to masking, schools should keep in mind that this issue will likely remain fluid, like many issues during the COVID-19 pandemic. Currently, there is a CDC order in place that requires the wearing of masks by people on public transportation conveyances, including school buses. And so, schools should anticipate mandating masks on buses unless and until this order is expires; there is currently no expiration date stated in the order. Additional guidance from the CDC regarding masks on buses is available here, which was echoed in recent Ohio Department of Health Guidance.

Please note state and federal agencies have provided guidance to schools regarding masks for the 2021-2022 school year. The Ohio Department of Health on July 26 announced recommended protocols for the upcoming 2021-2022 school year, with new guidance published July 27. The state will not be issuing a universal mask mandate. Instead, ODH is strongly recommending that those who did not get the vaccine wear a mask while in the academic setting. ODH also stated that, in general, mask use is not necessary when outdoors; however, particularly in areas of substantial to high transmission, ODH recommends that people who are not fully vaccinated wear a mask in crowded outdoor settings or during activities that involve sustained close contact with others who are not fully vaccinated.

However, it is important to note that the ODH guidance on masks that recommends a school should differentiate between those who are vaccinated and those who are not cannot be fully implemented in Ohio public schools starting October 13, if the FDA does not give full approval to the vaccines. That is because doing so would differentiate between those who are vaccinated under emergency authorization and those who are not, which is prohibited by House Bill 244.

On July 27, the CDC also issued new guidance on mask wearing in schools that conflicts with ODH recommendations. While previous CDC guidance stated that masks should be worn indoors by all individuals (age 2 and older) who are not fully vaccinated, the new CDC guidance recommends universal indoor masking for all teachers, staff, students, and visitors to K-12 schools, regardless of vaccination status.

The American Academy of Pediatrics took the same approach as the new CDC guidance, recommending that all students older than 2 years and all school staff should wear face masks at school (unless medical or developmental conditions prohibit use). Among other reasons, the AAP made this recommendation given the potential difficulty in monitoring or enforcing mask policies for those who are not vaccinated.

Schools should consider that decisions on masking may have a direct impact on quarantine decisions during the school year. The Ohio Dept. of Health’s guidelines on quarantines are available here. According to ODH’s ongoing recommendations, in summary, fully vaccinated students and adults possibly exposed to COVID-19 do not have to quarantine, unless symptoms develop. However, unvaccinated students and adults may continue to attend in person without quarantine only if the school has documented COVID-19 prevention policies; the exposure occurred within a classroom environment or while on required school transport (e.g., school bus); the person with COVID-19 and any associated contacts were wearing face masks that covered their nose and mouth at all times; distancing between students is maximized in classroom and other settings, ideally a 6-foot distance, but 3 feet is acceptable; and they remain symptom-free.

As with the mask guidance, schools will also have to face the issue of carrying out quarantines under the anti-discrimination mandates of House Bill 244, again, if full FDA approval is not granted for the vaccines by October 13.

Several New Cases Have Sweeping Impact on Ohio Public Schools

U.S. Supreme Court - Off-Campus Student Speech

First, on June 23, 2021, the U.S. Supreme Court decided the case of Mahanoy Area School District v. B.L., finding that a Pennsylvania school district violated the First Amendment rights of a student, B.L., when it suspended her from cheerleading based on her off-campus social media posts.  After the student did not make the varsity cheerleading team, she posted two images on Snapchat accessible to her Snapchat “friends” using vulgar language and gestures.  The posts were made off-campus and on the weekend.  Some of her Snapchat “friends” were other district students and members of the cheerleading squad.  One of her Snapchat “friends” took a screenshot of B.L.’s Snapchat post and shared it with members of the cheerleading squad.  From there, one student showed the images to her mother, who was a cheerleading coach and ultimately several cheerleaders and other students approached the cheerleading coaches “visibly upset” about the posts.  Discussion of the posts continued during class for about 5-10 minutes for “a couple of days”.

The coaches discussed with the principal and decided that because the posts used profanity in connection with a school extracurricular activity, they violated team and school rules.  Accordingly, the coaches suspended B.L. from the junior varsity cheerleading team for the year.  B.L. and her parents sued, alleging that the school improperly punished B.L. for her speech that was protected by the First Amendment. 

In an 8-1 decision, the Supreme Court sided with the student and found that the suspension violated her First Amendment rights.  In its decision, the Court created some parameters on when public school districts can discipline students for off-campus speech.  The Court started with the long-standing rule established under the Supreme Court case of Tinker v. Des Moines Dependent Community School Dist., that school districts have a “special interest” in regulating on-campus student speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”  Yet the Court found that, when addressing student off-campus speech, this standard is limited for three reasons: (1) the school is not typically acting in the place of the parents (in loco parentis) since, based on geography, off-campus speech normally falls within the zone of parental, rather than school-related, responsibility; (2) regulating off-campus speech, coupled with the existing regulations of on-campus speech, would amount to control over all the speech a student utters 24/7, which requires courts to be more skeptical of a school’s efforts to regulate off-campus speech; and (3) the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus.

Yet the Court did not preclude schools from ever regulating off-campus student speech, going so far as to note that schools’ “regulatory interests remain significant in some off-campus circumstances.”  The Court identified factors or situations that strengthen a school district’s regulatory abilities, including serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices, including material maintained within school computers.

School districts should carefully review the factors identified by the Supreme Court when off-campus incidents arise, to ensure any potential discipline is not violative of the First Amendment. 

Ohio Supreme Court - Arming School Employees

On the same day, the Ohio Supreme Court held that school staff members must satisfactorily complete an approved basic peace-officer-training program or have 20 years of experience as a peace officer prior to being permitted to be armed while on duty at school.  Prior to this ruling, the rules on arming school employees were unclear, with no direct legislation relating to arming teachers and a 2013 letter from then-Attorney General Mike DeWine that stated that “Ohio law does not prevent a local school board from arming an employee, unless that employee’s duties rise to the level that he/she would be considered ‘security personnel,’” in which case the employee would be required by statute to have specific training or experience.

This case, Gabbard v. Madison Local School Dist. Bd. of Edn., arose because the Board of Education passed a resolution authorizing certain school district employees to carry a deadly weapon or dangerous ordnance on school property “for the welfare and safety of [its] students.”  Numerous school districts around the state passed similar resolutions in an effort to define the carrying of weapons by staff at school.  In response to the resolution, five parents filed a lawsuit against the Board stating that the resolution violated Ohio law that requires school employees authorized to carry weapons to complete an approved basic peace-officer-training program or have 20 years of experience as a peace office.

The Court agreed with the parents, holding that ORC 109.78, which states that a district shall not employ a person as a “special police officer, security guard, or other position in which such person goes armed while on duty” unless that person has completed a peace officer training program or has 20 years of active duty as a peace officer, was unambiguous and applicable to school district employees.  Specifically, the Court held that the provision in the statute regarding “other position in which the person goes armed while on duty” is applicable to school district employees, regardless of whether being armed is part of the employee’s job duties and regardless of whether they volunteer to be designated to carry a weapon.  The Court also looked to ORC 2923.122, which criminalizes the possession in or conveyance into a school safety zone of a deadly weapon or dangerous ordnance, except by persons who act in accordance with written authorization from a board of education.  The Court found that ORC 2923.122(D)(1)(a) does not clearly constitute a legislative grant of power for school boards to authorize their employees to go armed so long as the employees undergo whatever training a board might deem advisable, and does not otherwise change the requirements the Supreme Court found applicable from ORC 109.78.

Based on this decision, schools are prohibited from employing a person who goes armed while on duty in his or her job unless the employee has satisfactorily completed an approved basic peace-officer-training program or has 20 years of experience as a peace officer.  Districts that passed resolutions contrary to this ruling must now ensure that all armed staff members meet these requirements.

Sixth Circuit Court of Appeals - Public Participation at Board Meetings

Two weeks later, the Federal Sixth Circuit Court of Appeals, which encompasses Ohio, decided another case involving Madison Local School District, Ison, et al. v. Madison Local School Dist. Bd. of Edn., regarding the Board’s public participation policy. 

While the Board generally allowed time for community members to speak during every Board meeting, it enacted a Public Participation Policy with specific requirements for participation, including that: only Madison residents could participate in Board meetings, anyone wishing to participate must complete a “public participation form,” in person, at least two business days before the meeting, participants must limit their speaking time to three minutes, and must address the presiding officer, not Board members individually.  The Policy also authorized the presiding officer to:

• prohibit public comments that are frivolous, repetitive, and/or harassing;

• interrupt, warn, or terminate a participant’s statement when the statement is too lengthy, personally directed, abusive, off-topic, antagonistic, obscene, or irrelevant;

• request any individual to leave the meeting when that person does not observe reasonable decorum; [and]

• request the assistance of law enforcement officers in the removal of a disorderly person when that person’s conduct interferes with the orderly progress of the meeting.

The Public Participation Policy was challenged by four community members who, after a 2016 shooting at Madison Local School District, began attending Board meetings to address their concerns about the Board’s handling of gun-related issues.  The pre-registration requirement of the policy was used twice to prevent the community members from speaking at a meeting, and the authority of the presiding officer to manage the content of participants’ speech was also used to interrupt one of the community members during a meeting.  In their suit, the community members alleged that the Board had violated their First Amendment rights.  Specifically, the court looked at three things: (1) whether the policy’s restrictions on “personally directed,” “abusive,” and “antagonistic” statements, and the application of those restrictions, discriminated based on viewpoint and were unconstitutionally applied to silence one of the plaintiffs; (2) whether the in-person preregistration requirement for public participation impermissibly prevented individuals from speaking; and (3) whether the policy itself, and the Board’s discretion in implementing it, was unconstitutionally vague.

The Court began by examining the forum in which the speech occurred - here, a Board of Education meeting.  Such board meetings have been established to be “limited public forums”, meaning the meetings are “limited to use by certain groups or dedicated solely to the discussion of certain subjects.”  In a limited public forum, the government may institute reasonable time, place, or manner restrictions on speech, provided the restrictions are unrelated to the content of the speech.  Such restrictions must be narrowly tailored to serve a significant governmental interest and leave open ample alternative channels for communication of the information. 

The Court first looked to whether the Policy’s restrictions on “abusive,” “personally directed,” and “antagonist” statements impermissibly discriminated based on viewpoint.  The Court found that the restrictions prohibit speech purely because the speech disparages or offends, and that the Board had used these Policy provisions to stop individuals from speaking for these reasons.  Specifically, the Board President testified that he stopped one of the plaintiffs from speaking once he started offending people.  Therefore, the Court held that these terms in the Policy were per se unconstitutional and that their application to the plaintiffs constituted impermissible viewpoint discrimination.

Regarding the other two allegations, the Court found that the in-person preregistration requirement was permissible because it was content-neutral and narrowly tailored to serve the Board’s interest of reserving time for those individuals who were mostly likely to follow through and participate in the meeting.  The Court also found it was permissible for the policy to give the presiding officer discretion to interpret “reasonable decorum,” although noting that it had already struck down the presiding officer’s discretion to institute “abusive” and “antagonistic” restrictions.

Boards of education should assess their current policies regarding public participation at board meetings to ensure they are compliant with the Court’s holding.

Ohio Budget Bill Changes Rules on Declaring the Impracticality of Student Transportation

Effective September 30, 2021, while districts still maintain the ability to determine that it is impractical to transport an eligible nonpublic school student, Ohio House Bill 110 requires that the determination be made not later than 30 calendar days prior to the first day of student instruction in the district. The deadline for district determination for students who enroll after the first day of instruction in the district is 14 calendar days after the student enrolls. The determination may be made by the Superintendent but must be later approved by the board at its next meeting.

In addition to reporting its determination of impracticality to ODE, the district must issue a letter to the student’s parent, guardian, or other person in charge of the student, the nonpublic or community school in which the student is enrolled, and to the state board with a detailed description of the reasons for which such determination made.

Boards of education must continue to offer to provide payment in lieu of transportation after declaring transportation impracticality, but payment must be at least fifty percent (50%) of the amount established by the Ohio Department of Education as the average cost of pupil transportation for the previous school year.  A parent, guardian, or other person in charge of the student who rejects payment in lieu of transportation and requests mediation may authorize the nonpublic or community school in which the student is enrolled to act on the parent’s, guardian’s, or other person’s behalf during the mediation proceedings.

If ODE determines the district failed to provide required transportation to the student, then the district will pay to the student’s parent, guardian, or other person in charge of the student, an amount equal to fifty percent (50%) of the cost of providing the transportation to the student as determined by the district, but not more than two thousand five hundred dollars ($2,500).

Additionally, HB 110 requires that ODE monitor each city, local, and exempted village school district's compliance to provide student transportation. If ODE determines a consistent or prolonged period of noncompliance, the department will deduct from the district's payment for student transportation the total daily amount of that payment for each day that the district is not in compliance.

Please note the above changes to section 3327.02 of the Revised Code do not alter the initial process for declaring transportation impractical. Declaring transportation impractical is determined on a case-by-case basis - e.g., student-by-student. In determining whether transportation is impractical, the board must still consider the following factors prior to making a final determination: 1) time and distance required to provide the transportation; 2) the number of pupils to be transported; 3) cost of equipment, maintenance, personnel and administration essential for the transportation; 4) similarity or equivalence of services provided to other students eligible for transportation; 5) whether and to what extent the additional service unavoidably disrupts current transportation schedules; and 6) whether other reimbursable types of transportation are available. After weighing the above-stated six (6) factors, the board may adopt a resolution declaring the impracticality of transportation. The resolution must name all affected students and set forth the reasons for its determination for each instance/student. The district must then provide the parent/guardian with notification of that resolution and ask for the parent/guardian to accept or reject the determination.  At the same time, the district is to provide the parent/guardian with information regarding their rights, should they choose to reject the determination.

HB 110 also indicates that no city, local, or exempted village school district may arrange for transportation of pupils via mass transit system for students enrolled in a community or nonpublic charter school in grades K-8, unless the district enters into an agreement with that school authorizing such transportation. For students enrolled in grades 9-12, the district may provide for transportation using vehicles operated by a mass transit system as long as the student is assigned to a route that does not require the student to make more than one transfer.

Ohio Budget Bill Permits Online Learning Schools, and Amends Blended Learning Rules

On July 1, 2021, Governor DeWine signed House Bill 110, Ohio’s operating budget for fiscal years 2022-2023.  HB 110 addresses K-12 schools and contains important changes to policy and programs that impact local school districts for the 2021-2022 school year.

The following is a summary of the HB 110 provisions that apply to school districts for new provisions on Online Learning and changes to the rules regarding Blended Learning. 

Online Learning Schools

Any local, city, exempted village, or joint vocational school district may operate a school using an online learning model.  ESC’s are excluded here, but districts can contract with ESCs to provide educational delivery of an online learning model.

An online learning school reflects a different model than the remote learning plan that was authorized during the 2020-2021 school year, as well as the amended blended learning model and/or alternative school that are available options for this school year. 

Online learning is defined as a scenario where students work primarily from their residences on assignments delivered via an internet- or other computer-based instructional method. While similar to remote learning in some ways, the requirements for operating an online learning school versus the use of a remote learning plan (available last school year) are critically different. The following is required to operate an online learning school:

• An online learning school within the district must operate as a separate school with its own IRN.

• Students engaged in online learning must be assigned and enrolled in the designated online school (EMIS reporting).

• Students shall be provided with a computer, at no cost, for instructional use.

• Districts shall provide a filtering device or install filtering software that protects against internet access to materials that are obscene or harmful to juveniles on each computer provided to students for instructional use.

• Students shall be provided internet access, at no cost, for instructional use.

• An online learning school must provide a comprehensive orientation for students and their parents or guardians prior to enrollment or within thirty days for students enrolled.

• The district/online learning school shall implement a learning management system that tracks the time students participate in online learning activities. All student learning activities completed while off-line shall be documented with all participation records checked and approved by the teacher of record.

In addition, the state board of education must include standards for the operation of online learning in Ohio’s operating standards. The online learning operation standards must provide for the following:

• Student-to-teacher ratios whereby no school or classroom is required to have more than one teacher for every one hundred twenty-five students in online learning classrooms.

• The ability of all students, at any grade level, to earn credits or advance grade levels upon demonstrating mastery of knowledge or skills through competency-based learning models. Credits or grade level advancement shall not be based on a minimum number of days or hours in a classroom.

• An annual instructional calendar of not less than 910 hours.

• Adequate provisions for:

• Licensing of teachers, administrators, and other professional personnel and their assignment according to training and qualifications.

• Efficient and effective instructional materials and equipment, including library facilities

• Proper organization, administration, and supervision of each school, including regulations for preparing all necessary records and reports and the preparation of a statement of policies and objectives for each school.

• Buildings, grounds, and health and sanitary facilities and services.

• Admission of pupils, and such requirements for their promotion from grade to grade as will ensure that they are capable and prepared for the level of study to which they are certified.

• Requirements for graduation

Districts planning to operate an online learning school should notify the Ohio Department of Education of that fact by Aug. 1, 2021, and request that the school be classified as an online learning school. Superintendents should complete a School District Online Learning Form and email it to: onlineLearning@education.ohio.gov.

ODE also issued guidance to clarify that the decision to operate an online learning school is not intended to be a transition strategy for a short period as school districts continue to address the ongoing pandemic but rather should be approached with a sense of permanency and longevity.  As such, school districts should not depend on online learning to account for instruction on days schools may be closed for a period of time for calamity or other unforeseen circumstances, but instead will need to rely on traditional options like use of blizzard bags or other calamity day procedures.

Changes to Blended Learning

Blended learning remains an option for school districts for the 2021-2022 school year, but the definition of blended learning has changed in critical ways.  HB 110 defines blended learning as “the delivery of instruction in a combination of time primarily in a supervised physical location away from home and online delivery whereby the student has some element of control over time, place, path, or pace of learning.” School districts that may have originally intended to use a blended learning model as an alternative to a remote learning plan so that students could continue to receive the majority of instruction at home no longer have that option in terms of the location of service. According to HB 110, operating a blended learning model now requires that instruction be delivered primarily in a location away from home.  Moreover, a school operating a blended learning model is no longer exempt from state mandated minimum hours of instruction.  HB 110 requires that blended learning programs must have a minimum of 910 hours of instruction.

In addition, and to reiterate, the 910-hour requirement is now a requirement for both the new Online model and Blended learning. ODE made clear in its FAQ that state funding will be reduced for those students who are under the minimum hours of instruction. Specifically, ODE stated that “students can generate full funding if they engage in at least 910 hours of instruction. This is a combination of logged online learning activities and appropriately approved time related to off-line learning activities. For students who engage in less than the minimum hours of instruction, the district will be required to reduce the student’s percent of time element in EMIS data reporting. This will have the impact of reducing the student’s calculated full time-equivalency (FTE) and the amount of funding the student generates for the district. The district should be prepared to provide evidence that supports the claimed engagement for each student.”

If a school no longer wishes to operate a blended learning program in light of the recent changes, it must notify ODE of that fact by August 31st of this year.  

ODE Provides Guidance on Educator Evaluations for 2020-2021 School Year

House Bill 404 granted school districts flexibility around educator evaluations for the 2020-2021 school year.  Specifically, a school district board of education may elect not to conduct an evaluation of a teacher, school counselor, administrator, or superintendent for the 2020-2021 school year if the district board determines that it would be impossible or impracticable to do so.  ODE has issued FAQs that provide additional information about these changes.

ODE clarified that a district can make a determination on a case-by-case basis on whether to evaluate a particular educator or whether to obtain an exemption.  Yet ODE reinforced that school districts should collaborate with their collective bargaining units to determine whether to complete evaluations, including whether to complete evaluations for certain educators while foregoing others.  For example, a district may decide to complete only evaluations for educators who are eligible for continuing contract, or to complete only evaluations that were in progress and had reached a certain point in the process.  Please note, unlike last year and the flexibility provided by House Bill 197, House Bill 404 did not alter evaluation deadlines.  For instance, evaluation deadlines for teachers remain May 1 to complete the teacher evaluation and May 10 to provide to the teacher a written report of the results.

For educators the district determines not to evaluate, the “COVID-19” option must be selected under the “Exemption” tab within eTPES and OhioES.  ODE has clarified that evaluations must either be completed or closed with an exemption.  ETPES and OhioES will remain open until June 15, 2021, to enter and finalize evaluation data. 

When an exemption is selected, any evaluation evidence already collected for the 2020-2021 cannot be used for evaluation purposes.  Yet ODE did state that such evidence can “continue to be used for educator self-reflection” and for Professional Growth Plans or Improvement Plans for the 2021-2022 school year.

For districts utilizing OTES 1.0, ODE provided a chart to show the impact of districts’ decisions regarding evaluations this school year. This includes that for teachers on the less frequent evaluation cycle (skilled and accomplished) who have completed evaluations in 2020-2021, ODE confirmed that such teachers remain at the same point in the evaluation cycle and retain the same evaluation rating for the 2020-2021 and 2021-2022 school years as for the 2019-2020 school year.

Under OTES 2.0, ODE also provided a chart to show evaluation decision impact. That includes that teachers on the less frequent evaluation cycle who have a completed evaluation in 2020-2021 may move ahead in the evaluation cycle, again, only under OTES 2.0. ODE gave the following example: under OTES 2.0, a teacher with an Accomplished rating in year 2 of the less frequent evaluation cycle who has a completed evaluation in 2020-2021 would move ahead to Accomplished year 3 in 2021-2022.

It is important to keep in mind that districts that chose to delay implementation of OTES 2.0 this school year are required to implement OTES 2.0 in the 2021-2022 school year unless the district is operating under a collective bargaining agreement entered into prior to November 2, 2018.  If so, those districts are required to implement OTES 2.0 upon expiration of the collective bargaining agreement entered into prior to November 2, 2018.  

Contact your legal counsel for questions and concerns about making decisions on how to handle evaluations for the 2020-2021 school year.

Federal Coronavirus Relief Law Does Not Mandate Extension of FFCRA Paid Leave Entitlements

This week the $900 billion federal coronavirus relief bill was signed into law, and among its voluminous provisions is new language addressing the Families First Coronavirus Response Act (FFCRA).

Starting January 1, 2021, employers, including school districts, are no longer required to provide up to 80 hours of emergency paid sick leave, or up to 12 weeks of leave for childcare issues (with the first two weeks being unpaid leave or emergency paid sick leave, and the next 10 weeks being partially paid expanded family and medical leave). However, under the new law, private employers that choose to allow employees to take leave under the FFCRA framework will continue to be eligible for a payroll tax credit from January 1 through March 31, 2021. However, public employers (including schools) have not been and continue to be ineligible for the tax credit.

As a result, public school districts’ FFCRA mandate expires December 31, 2020. Schools should expect questions from employees and labor unions regarding this issue, and should consider planning now regarding how COVID-19-related leaves will be handled.

EEOC Provides Guidance on Mandatory Vaccination for Employees

The Equal Employment Opportunity Commission (EEOC) recently published guidance confirming that employers can implement and enforce a policy requiring employees to receive the COVID-19 vaccine, with certain exceptions to that general rule.

Specifically, under the Americans with Disabilities Act (ADA), employers must attempt to accommodate employees who decline the vaccine due to a disability. Furthermore, for employees who decline the vaccine due to sincerely held religious beliefs, employers likewise must attempt to accommodate those employees, unless doing so would present an undue hardship.  Further, based on the facts and circumstances of each case, if the employer determines an unvaccinated person physically present at work poses a direct threat to the health and safety of others, and that threat cannot be appropriately addressed through reasonable accommodations, then the employer may exclude the employee from being physically present at work. However, even under those circumstances, the employer must then determine whether other reasonable accommodations (e.g., remote work) can be provided.

Employees can be asked to provide proof of receiving the vaccine (for example, from his/her own medical provider), but employers must be careful to avoid running afoul of the Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA) in doing so, and should carefully tailor and consider seeking legal guidance regarding any questions asked of employees and the information required to show proof.

Given it is anticipated that school staff in Ohio will have priority access to the vaccine, schools should consider starting to plan now for whether vaccination will be mandatory. In addition, local issues must be taken into consideration for each individual district’s plans, and any existing board policies and/or applicable labor contract provisions should be considered.

Ohio House Bill 404 Extends Virtual Meetings Authority, Addresses Educator Evaluations and More

On November 24, 2020, Governor DeWine signed House Bill 404 to extend many of the provisions included in House Bill 197 that went into effect last spring to provide relief to Ohio school districts during the pandemic.  House Bill 404 is considered emergency legislation and takes effect immediately. 

The following is a summary of the HB 404 provisions that apply to school districts. 

Virtual Board Meetings until July 1, 2021

In accordance with HB 404, a public school district board of education may hold and attend meetings and may conduct and attend hearings by means of teleconference, video conference, or any other similar electronic technology until July 1, 2021.  More information regarding the requirements for virtual board meeting is included in our March 26, 2020 client alert and can be found here.

Educator Evaluations

HB 404 allows (but does not require) a board of education to elect not to conduct evaluations of district employees, including teachers, school counselors, administrators, or a superintendent for the 2020-2021 school year, if an evaluation has not been completed before November 24, 2020, should the district board determine it would be impossible or impracticable to do so. If a district board elects not to evaluate an employee for the 2020-2021 school year, the employee will be considered not to have had evaluation procedures complied with and shall not be penalized for the purpose of reemployment. As such, districts should consider consulting with legal counsel before deciding to waive evaluations.

HB 404 also states that the district board may collaborate with any bargaining organization representing employees of the district in determining whether to complete evaluations for the 2020-2021 school year. The bill does not prevent a district board from using an evaluation completed prior to November 24, 2020 in employment decisions.

For the 2020-2021 and 2021-2022 school years, districts are prohibited from using value-added progress dimension, any other high-quality student data, any other metric used to evaluate positive student outcomes, or any other student academic growth data to measure student learning attributable to a teacher, principal or school counselor while conducting performance evaluations.  Rather a district board may use only the other evaluation factors and components to conduct a teacher’s, principal’s, or school counselor’s performance evaluation.  However, the district is not prohibited from considering as part of the evaluation how a teacher, principal, or school counselor collects, analyzes, and uses student data, including student academic growth data or positive student outcomes data to adapt instruction to meet student needs or improve performance.

HB 404 further specifies that any teacher who did not have a student academic growth measure as part of the teacher's evaluation for the 2019-2020 or 2020-2021 school years shall remain at the same point in the teacher's evaluation cycle, and shall retain the same evaluation rating, for the 2020-2021 and 2021-2022 school years as for the 2019-2020 school year. We expect further guidance from ODE on this and other points related to evaluations.

HB 404 further extends the authority for a school district that did not participate in the teacher evaluation pilot program established for the 2019-2020 school year to continue evaluating teachers on two-year or three-year evaluation cycles, even if the district completes an evaluation for those teachers in the 2020-2021 school year without using a student growth measure.

State Assessments and Health Screening

For the 2020-2021 school year only, a district or school shall not be penalized for failing to administer the third-grade English language arts assessment, diagnostic assessments, and/or the Kindergarten Readiness assessment in the fall of the 2002-2021 school year to an qualifying student.  However, a district or school may elect to administer one of the above-referenced assessments.

In addition, no public school shall be penalized for failing to conduct health screenings of a kindergarten or first grade student prior to November 1, 2020 if that student was a qualifying student prior to that date, and schools may forego health screenings for the 2020-2021 school year until they can be conducted safely for a qualifying student. However, upon receiving a request of the parent, guardian, or custodian for a health screening for a qualifying student, the school shall conduct such screening.

To be considered a qualifying student, one or more of the following must apply:

1.     The student is being quarantined.

2.     The student, or a member of the student’s family, is medically compromised and the student cannot attend school, or another physical location outside of the home, for testing.

3.     The student resides in a geographic area that is subject to an order issued by the Governor, the Department of Health, or the board of health of a city or general health district that requires all persons on that area to remain in their residences.

4.     The student is receiving instruction primarily through a remote learning model up through the deadline for the prescribed assessments, and the assessments cannot be administered remotely.

State-Issued Licenses Set to Expire On or Before April 1, 2021 Extended Until July 1, 2021

HB 404 includes a general provision regarding licenses and certifications issued by state agencies, and how such licenses will be addressed during the extended period of emergency.  That would include, for example, teaching licenses and other licenses/certifications issued by the Ohio Department of Education.  HB 404 extends current law deadlines for licenses/certifications set to expire on or before April 1, 2021 to remain valid until July 1, 2021, unless it is revoked, suspended, or otherwise subject to discipline or limitation under the applicable law for reasons other than delaying taking action to maintain the validity of the license in accordance with the deadline extension.

College Credit Plus

For the 2020-2021, and 2021-2022 school years only, the Chancellor of Higher Education, in consultation with the Superintendent of Public Instruction, may waive, extend, suspend, or modify requirements of the College Credit Plus program if the Chancellor, in consultation with the Superintendent, determines the waiver, extension, suspension, or modification is necessary in response to COVID-19.

Seamless Summer Food Program Regulation Exemption Until July 1, 2021

HB 404 extends the Director of Agriculture’s temporary authority to exempt a school from regulation as a food processing establishing until July 1, 2021, if the school: (1) has been issued a food service operation license; or (2) is transporting food only for purposes of the Seamless Summer Option Program or the Summer Food Service Program administer by the U.S.D.A.