Sandra R. McIntosh has joined our firm

Scott Scriven LLP is pleased to announce that Sandra R. McIntosh has joined the firm as of counsel. Sandy will be focusing on our education law practice. Sandy brings with her a wealth of experience including the representation of K-12 educational institutions in employment, special education, Title IX, and other matters in both state and federal courts and administrative agencies. Sandy also brings extensive litigation experience including jury trial, due process hearing and termination hearing experience. Sandy will be a great asset to our firm and our clients.

Please stop by and meet Sandy at the Ohio School Boards Association welcome reception on Sunday, November 7 from 6 PM to 7 PM in the main concourse. Scott Scriven LLP is proud to be a sponsor of this reception and looks forward to seeing everyone there.

Governor DeWine Signs H.B. 244 Prohibiting COVID-19 Vaccine Mandates and Discrimination Based on Vaccination Status in Public School Districts

On July 14, 2021, Governor Mike DeWine signed Ohio House Bill 244 into law. The bill creates a new section of the Ohio Revised Code, Section 3792.04, which prohibits public school districts from requiring an individual to receive a vaccine for which the U.S. Food and Drug Administration (“FDA”) has not granted full approval. The law also prohibits public school districts from discriminating against an individual who has not received a vaccine for which the FDA has not granted full approval. This includes, “by requiring the individual to engage in or refrain from engaging in activities or precautions that differ from the activities or precautions of an individual who has received such a vaccine” (emphasis added).
Presently, the FDA authorizes the use of the major COVID-19 vaccines (Pfizer, Moderna, and Johnson & Johnson) under an emergency use authorization – it has not yet granted full approval. While the FDA has not indicated a timeline for full approval, White House Chief Medical Advisor Dr. Anthony Fauci has expressed confidence in at least one of the vaccines receiving full approval by the end of the year. Earlier this week, Dr. Fauci remarked in an interview, “[t]he efficacy or the effectiveness in the real world is unquestioned, so we’re going to get a full approval, [t]he question is, it’s just going to take a little bit more time.”
The provisions of House Bill 244 do not go into effect until October 13, 2021. However, unless and until the FDA issues full approval for the COVID-19 vaccines, public school districts must be mindful of the new restrictions. Practically, this means a district’s COVID-19 policies and procedures, including any masking or social distancing requirements, must apply uniformly to all students, staff and visitors, regardless of COVID-19 vaccination status.
In addition, the new law requires public school districts to permit children of military families to participate in certain technology-based educational opportunities when relocating into or out of the district due to the family receiving permanent change in station orders. Districts must permit such children to apply for enrollment in the same manner as resident students, regardless of if the child resides in the district.
This communication is intended as general information and should not be relied upon as legal advice. If legal advice is required, please contact any of our attorneys at (614) 222-8686, or via email.

New CDC Guidance for COVID-19 Prevention in Schools

On July 9th, the Centers for Disease Control and Prevention (CDC) released updated guidance related to the prevention of COVID-19 in schools. The updated Guidance for COVID-19 Prevention in Kindergarten (K)-12 Schools outlines strategies for K-12 schools to reduce the spread of COVID-19 and maintain safe operations.
In its updated guidance, the CDC emphasizes the benefits of in-person learning for students and notes that schools should prioritize the safe return to in-person learning in the fall. The new CDC guidance:
  • Outlines a number of ways schools can promote vaccines among teachers, staff, families and eligible students.
  • Recommends masks should be worn indoors by all individuals (age 2 and older) who are not fully vaccinated and notes that consistent and correct mask use by people who are not fully vaccinated is especially important indoors and in crowded settings, when physical distancing cannot be maintained.
  • Provides that masks need not be worn outdoors; however, people who are not vaccinated should wear a mask in crowded outdoor settings or during activities that involve sustained close contact with other people who are not fully vaccinated.
  • Recommends schools maintain at least 3 feet of physical distance between students within classrooms, combined with indoor mask wearing by people who are not fully vaccinated, to reduce transmission risk and notes that when it is not possible to maintain a physical distance of 3 feet, it is especially important to layer multiple other prevention strategies.
The CDC emphasizes implementing layered prevention strategies to protect people who are not fully vaccinated and the need for localities to monitor community transmission, vaccination coverage, screening testing and occurrence of outbreaks to guide decisions on the level of layered prevention strategies. Screening testing, improving ventilation, handwashing and respiratory etiquette, staying home when sick and getting tested, contact tracing in combination with isolation and quarantine and cleaning and disinfection are noted as important prevention strategies for in-person learning in schools.
The CDC advises that its guidance is meant to supplement—not replace—any federal, state, local, territorial or tribal health and safety laws, rules and regulations with which schools must comply and that the adoption and implementation of its guidance should be done in collaboration with regulatory agencies and state, local, territorial and tribal public health departments, and in compliance with state and local policies and practices.
This communication is intended as general information and should not be relied upon as legal advice. If legal advice is required, please contact any of our attorneys at (614) 222-8686, or via email.

U.S. Supreme Court Rules on Student Free Speech Case

Today, the U.S. Supreme Court issued its ruling in Mahanoy Area School District v. B.L. With this case, the U.S. Supreme Court opined that Mahanoy Area School District violated B.L.’s First Amendment rights when it punished her for posting vulgar criticism of her cheerleading program via social media while outside of school. In order to put this opinion into context, below is a brief summary of the legal precedents leading up to today’s opinion, the facts of the Mahanoy case, and the implications of the Court’s ruling today.

Previous Free Speech Cases

When dealing with student free speech issues, one should always start with the premise that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969). That being said, the U.S. Supreme Court has also stated that “[t]he constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings, and the Constitution does not compel school officials to surrender control of the American public school system to public school students.” Bethel Sch. Dist. No. 403 V. Fraser, 478 U.S. 675 (1986). Based on the holdings in Tinker and Bethel, the U.S. Supreme Court has previously opined that a school’s authority to discipline a student changes depending on whether the speech was conveyed at school or outside of school.

In-School Speech

Student speech occurring while in school, on school property, or at a school sponsored event can be disciplined as follows:

  1. A public school may categorically prohibit vulgar, lewd, indecent, or plainly offensive speech. See Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986);
  2. A public school may regulate speech related to the promotion of drug use. See Morse v. Frederick, 551 U.S. 393 (2007);
  3. A public school may regulate speech appearing in a school-sponsored forum or a forum that appears school-sponsored (e.g., post to school’s twitter) when the speech is inconsistent with pedagogical concerns. See Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988); and
  4. A public school may regulate speech that is reasonably likely to substantially and materially interfere with schoolwork or discipline. See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).

Out-of-School Speech

In general, a public school district can discipline student speech occurring off school property where the speech has a substantial nexus to the school and will interfere or disrupt schoolwork or discipline. For example, a district was not permitted to discipline a student for creating a fake MySpace profile of his high school principal from his grandmother’s home because there was not “a sufficient nexus between the speech and a substantial disruption of the school environment” since no classes were cancelled, no widespread disruption occurred, and there was no violence or student disciplinary action. Layshock v. Hermitage School District, 593 F.3d 249 (3d Cir. 2010). By contrast, a district was permitted to discipline a student for posting disparaging, sexual remarks about another student on MySpace from her home computer because the student’s speech interfered with and disrupted schoolwork, and the student could reasonably have expected that the content would reach the school and impact the school environment. Kowalski v. Berkeley County Schools, 652 F.3d 565 (4th Cir. 2011)(citing Tinker).

Additionally, a public school can discipline student speech occurring outside of the school setting if the speech conveys a “true threat.” Speech conveys a “true threat” when the speaker reasonably could have foreseen that the speech would be perceived as a threat, or whether a reasonable recipient would perceive it as such. For example, a district can discipline a student for sending personal messages via MySpace to his friends threatening to shoot people at the school on a specific date because the messages constituted a “true threat” and the threat of a school shooting certainly qualified as speech that “might reasonably lead school authorities to forecast a substantial or material interference with school activities” or that collides with the rights of other students to be secure.” Wynar v. Douglas County School District, 728 F.3d 1062 (9th Cir. 2013).

Summary of Facts in Mahanoy Area School District v. B.L.

In 2017, B.L. was a high school cheerleader in the Mahanoy Area School District. Toward the end of her freshman year B.L. tried out for the high school varsity cheer squad. Soon after learning that she did not make the team, she posted a snap (via the snapchat app) with a picture of herself and a friend sticking out their tongues and their middle fingers. The photo included the caption: “f*** school f*** softball f*** cheer f*** everything” (the original caption was not censored). Notably, B.L.’s snap was taken and sent on a Saturday, off school property, using her personal cell phone and her personal snapchat account.

One of B.L.’s friends who received the snap preserved it with a screenshot and showed it to her mother, who happened to be a cheer coach. Upon deliberation, the cheer coaches determined that the snap violated the cheerleading code of conduct (i.e., an extracurricular student code of conduct). As a consequence, B.L. was suspended from cheerleading for her entire sophomore year.

Ruling in Mahanoy Area School District v. B.L.

Today, the U.S. Supreme Court ruled that the Mahanoy Area School District violated B.L.’s right to freedom of speech when it suspended her from cheerleading for a year. In short, the Court applied the Tinker standard, and found “no evidence in the record of the sort of ‘substantial disruption’ of a school activity or a threatened harm to the rights of others that might justify the school’s action.” In so ruling, the Court opined that it was not a substantial disruption for students to spend 5 to 10 minute discussing the post in algebra class over several days. Additionally, the Court’s opined that it was not a substantial disruption that other cheerleaders found the post upsetting. As additional support for its decision, the Court cited the following facts of the Mahanoy case:

  • “[B.L.]’s posts appeared outside of school hours from a location outside of school.”
  • “She did not identify the school in her posts or target any member of the school community with vulgar or abusive language.”
  • “B.L. also transmitted her speech through a personal cellphone, to an audience consisting of her private circle of Snapchat friends.”

In general, the Court’s opinion emphasized that public schools have a diminished interest in disciplining out-of-school speech as compared to in-school speech. In supporting this general message, the Court articulated a few doctrinal statements that may be helpful for future cases. These statements include:

  • “Geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related responsibility.”
  • “When it comes to political or religious speech that occurs outside school or a school program or activity, the school will have a heavy burden to justify intervention.”
  • “The strength of [the school’s] anti-vulgarity interest is weakened considerably by the fact that B.L. spoke outside the school on her own time.”
  • “[T]he school itself has an interest in protecting a student’s unpopular expression” because “America’s public schools are the nurseries of democracy.”

Despite this general message, the Court did acknowledge that there are certain situations where a public school district has a significant interest in disciplining out-of-school behavior and/or speech. The Court’s list included:

  • “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.”

In summary, the ruling in Mahanoy confirms that public school districts should continue relying on the Tinker standard when determining whether it has the authority to discipline out-of-school speech – i.e., there must be a substantial nexus to the school and evidence that the speech will interfere or disrupt schoolwork or discipline. Additionally, the Court’s opinion makes it clear that public schools’ decisions to discipline out-of-school speech will be harshly scrutinized by courts, particularly where there is not clear evidence of a substantial disruption or the speech does not fall into one of the four significant interest categories set forth by the Court.

This communication is intended as general information and should not be relied upon as legal advice. If legal advice is required, please contact any of our attorneys at (614) 222-8686, or via email.

Ohio Supreme Court Rules Boards of Education May Not Authorize Employees to Carry Firearms Without Undergoing Approved Peace-Officer Training

This morning, in a 4-3 decision, the Ohio Supreme Court ruled that state law prohibits a board of education from employing a person who goes armed while on duty in his or her job unless the employee has completed an approved basic peace-officer-training program, or has 20 years of experience as a peace officer.
This ruling directly impacts boards of education that previously authorized certain employees to go armed while on duty and carry concealed weapons on school property. Until now, many districts only required those employees to undergo a concealed carry course with additional active shooter training.
The Court’s ruling means employees must immediately cease carrying firearms on district property unless they have at least 20 years of experience as a peace officer, or until they have completed an extensive peace-officer-training program approved by the State of Ohio (currently, 737 hours). Boards of education may not authorize any employee to carry a firearm that does not meet these requirements.
Though this ruling has immediate consequences, the Ohio General Assembly is currently considering a bill to amend the statutory language which resulted in the decision. The legislation, House Bill 99, is presently in the House Criminal Justice Committee. We will continue to track the progress of this legislation and its impact on districts’ ability to authorize employees to carry firearms while on duty.
As always, please contact any of our attorneys if you have additional questions or want assistance reviewing how this ruling impacts your school district.
This communication is intended as general information and should not be relied upon as legal advice. If legal advice is required, please contact any of our attorneys on our cell phones, at (614) 222-8686, or via email.

Federal Paid Holidays – Juneteenth

Signing of S. 475

Yesterday afternoon, President Biden signed Senate Bill 475 officially declaring June 19th a federal holiday named “Juneteenth National Independence Day” to commemorate the anniversary of the Union Army arriving in Galveston, Texas to take control of the state and enforce the freedoms granted by the Emancipation Proclamation (signed about 2.5 years earlier).

Soon after the President signed the bill into law, there were questions as to whether federal employees would be able to observe the federal holiday in 2021. Since June 19th falls on a Saturday this year, its first day of observance as a federal holiday is today – June 18, 2021. However, the U.S. Office of Personnel Management (essentially the federal government’s HR department) announced yesterday that “most federal employees will observe the holiday tomorrow, June 18th.”

How Does This Affect Ohio Public Schools?

This all begs the question, are Ohio public school districts required to treat today as a paid holiday? The short answer is no – unless your district has obligated itself to observe all federal holidays through board policy or a collective bargaining agreement.

Legal Analysis for Ohio Public Schools

Ohio public school districts are required to observe certain paid holidays. See R.C. 3319.087. The statute requires school districts to pay all regular nonteaching school employees (whether salaried or hourly) their regular salary or regular rate of pay for certain enumerated holidays. The list of holidays differs slightly depending on whether the employee maintains an eleven / twelve month contract, a nine / ten month contract, or a contract for fewer than nine months. Below is a list of the paid holidays Ohio public schools are required to observe:

  • Eleven & Twelve Month Regular Nonteaching Employees: New Year’s day, Martin Luther King day, Memorial day, Independence day, Labor day, Thanksgiving day, and Christmas day.
  • Nine & Ten Month Regular Nonteaching Employees: New Year’s day, Martin Luther King day, Memorial day, Labor day, Thanksgiving day, and Christmas day.
  • Fewer than Nine Month Regular Nonteaching Employees: Entitled to any of the above listed holidays which fall during the employee’s time of employment.

When a regular nonteaching employee is required to work on any of the above-listed paid holidays, the statute requires the District to grant compensatory time off to that employee for which she shall be paid her regular salary or her regular rate of pay.

While R.C. 3319.087 lists up to seven required paid holidays, it also permits school districts to declare additional paid holidays. In practice, if districts choose to grant additional paid holidays, it is achieved through a collective bargaining agreement or board policies. As such, we recommend that districts review the language in classified collective bargaining agreements and related board policies to determine if the district has an obligation to observe this newly established federal holiday.

As always, please contact any of our attorneys is you have additional questions or want assistance reviewing your collective bargaining agreement(s) or board policies.

This communication is intended as general information and should not be relied upon as legal advice. If legal advice is required, please contact any of our attorneys on our cell phones, at (614) 222-8686, or via email.

In case you missed it: Title IX training available in February

Scott Scriven LLP Title IX Training

On August 14, 2020, new Title IX regulations became effective, requiring your district’s Title IX team to update its response to allegations of sex discrimination and harassment.  Our training sessions are designed to provide you with the information you need to implement the new regulations and comply with the law, while identifying best practices to address discrimination or harassment in your district.  Our attorney trainers have all been trained and certified by the Association of Title IX Administrators.

Introduction to Title IX

This 30-minute virtual webinar will provide all K-12 employees with the information needed to understand their obligations under the law, including the definition of sexual harassment and their obligations to report allegations of sexual harassment to the Title IX Coordinator.  Intended as an introduction, this training will provide an overview of Title IX, its new regulations, and serve as a base for future Title IX training necessary for your Title IX Team.

This pre-recorded webinar will be available for download, free of charge, starting July 15.

Advanced Title IX Training

The following advanced courses build off the introductory training and provide role-specific responsibilities for each member of your Title IX Team.  These training sessions will be live, interactive and virtual.  Participants will be able to ask questions during the training and via the chat feature.  Prior to the training, participants will receive course materials including forms, templates and flowcharts to assist in compliance.

Title IX Coordinator Training

Learn the responsibilities and requirements of the Title IX Coordinator, including taking a case study example from start to finish with template documents you can take with you to help streamline and simplify the process at your home district.  This course is three hours in length, with a break and an opportunity for questions and answers.  This training is recommended for all members of the Title IX team, but will focus on the Title IX Coordinator’s responsibilities.

Date:               February 17, 9 am – noon (Click here to register)

Trainer:          Julia A. Bauer

Cost per person is $100.

Title IX Investigator Training

Investigating is a skill that takes training and practice.  This session will focus on investigation techniques and approaches, with a primary focus on the specific requirements of investigations under the new regulations.  Participants will be given checklists to ensure compliance.  This course is three hours in length, with a break and an opportunity for questions and answers.  This training is recommended for all members of the Title IX team, but will focus on investigations.

Date:               February 18, 9 am – noon  (Click here to register)

Trainer:          Jessica K. Philemond

Cost per person is $100.

Title IX Decision Making and Drafting Reports Training

The session will prepare you to draft concise and compliant investigation reports and determinations of responsibility, with checklist templates provided to participants.  It will also  focus on the decision-making and appeals processes for Title IX, including evidentiary issues and grounds for appeals.  This course is three hours in length, with a break and an opportunity for questions and answers.  This training is recommended for all members of the Title IX team, but will focus on decision-making and appeals.

Date:               February 19, 9 am – noon  (Click here to register)

Trainer:          Elizabeth A. Braverman

Cost per person is $100.

Custom Title IX Training

Districts interested in scheduling a customized training for their Title IX Teams may select this option.  This training will be custom-tailored to your district’s Title IX policy and processes and designed for your specific needs and concerns.   Contact Julia Bauer or Jessica Philemond for more details:

julia@scottscrivenlaw.com

jessica@scottscrivenlaw.com

 

COVID-19 Vaccination of School Employees

COVID-19 Vaccination of School Employees

Adult school employees are included in Phase 1B of Ohio’s vaccination plan, which is expected to begin on February 1, 2021. Phase 1B vaccination efforts prioritize employees of school districts that intend to be in or return to in-person or hybrid learning by March 1, 2021. To identify those school districts, the Ohio Department of Education created a Commitment to Return to In-Person or Hybrid Learning Form (“Commitment Form”), which is available on ODE’s Reset and Restart website.

Superintendents must sign and submit the Commitment Form to schools@odh.ohio.gov by Monday, January 18, 2021 to be prioritized during Phase 1B. Superintendents who submit the Commitment Form are expected to indicate the number of staff they believe will take the vaccine and whether a community partner has been identified to help administer the vaccines to school personnel.

Does your district’s plan meet the definition of “in-person” or “hybrid” learning?

Most likely yes, as long as it includes some aspect of in-person learning. The Commitment Form provides the following definitions:

  • In-Person Learning: a district is in an “in-person learning” model if “all students have the option of in-person instruction, even if schedules are somewhat adjusted.”
  • Hybrid Learning: a district is in a “hybrid learning” model if it is using “a mix of in-person and remote education.” Hybrid models come in many forms, such as “two consecutive (or nonconsecutive) days a week in-person, alternate weeks in-person, or selected grade ranges or schools as fully remote or fully in-person.” A district may be using a hybrid model even if “some grade levels are entirely in-person or entirely remote.”

Does a superintendent need the board of education’s approval to sign the Commitment Form? 

No, unless the district wishes to change a learning model that was previously approved by the board before the superintendent signs and submits the Commitment Form to ODE (for example, if the board previously approved a fully remote model, but the district now wishes to transition to hybrid or in-person learning).

Can an employer require employees to get the COVID-19 vaccine? 

In short, yes. The U.S. Equal Employment Opportunity Commission (“EEOC”) issued guidance advising that the Americans with Disabilities Act (“ADA”) does not prohibit employers from requiring employee vaccinations, as long as the employer first determines that an unvaccinated employee would “pose a direct threat to the health or safety of individuals in the workplace” (see Question K.5).  Despite this guidance, a school district will likely have an obligation to collectively bargain with the applicable labor union before adopting such a rule. Additionally, if individual employees object to a vaccine requirement for disability or religious reasons, the district would be required to engage in an interactive process and provide reasonable accommodations to qualifying employees.

While school districts may have the option to mandate employee vaccinations, whether a school district should require vaccinations is a thornier issue to be carefully considered by the board in consultation with legal counsel.

How will you count the number of employees willing to be vaccinated? 

As described above, districts that complete the Commitment Form will be expected to indicate the number of staff they believe will take the vaccine, which will impact the number of vaccines allotted to the district. One way to calculate this number is through an employee survey. The EEOC has issued guidance advising that the ADA does not prohibit employers from asking employees whether they plan to or have already received the vaccine.

As a reminder, issues related to COVID-19 are fluid and subject to rapid change. Additional information about Coronavirus and the State’s response can be found here.

This communication is intended as general information and should not be relied upon as legal advice. If legal advice is required, please contact any of our attorneys on our cell phones, at (614) 222-8686, or via email.

 

 

House Bill 436

New Requirements Regarding Screening and Intervention for Children with Dyslexia
On January 9, 2021, Governor DeWine signed House Bill 436 which establishes new requirements. HB 436 establishes new requirements regarding screening and intervention for children with dyslexia. Below is a summary of highlights from HB 436, which includes mandatory student screening and new professional development requirements for educators with a tiered timeline for implementation, beginning with the 2022-2023 school year. The Ohio Department of Education (ODE), in collaboration with a newly formed committee called the Ohio Dyslexia Committee (to be made up of appointees of the State Superintendent of Public Instruction, International Dyslexia Association in Ohio, Chancellor of Higher Education, and the State Speech and Hearing Professionals Board), will maintain a list of approved courses that fulfill the new professional development requirements. Each approved course will align with a guidebook to be developed by the Ohio Dyslexia Committee, be evidence-based, and require instruction and training for identifying characteristics of dyslexia and understanding the pedagogy for instructing students with dyslexia.
Teacher Training and Certification Requirements
  • Beginning in the 2022-2023 school year, school districts must establish a multi-sensory structured literacy certification process for teachers providing instruction to students enrolled in grades K-3 that aligns with the guidebook developed by the Ohio Dyslexia Committee.
  • Educators must obtain professional development in dyslexia instruction (between 6 and 18 clock hours), staggered depending on the grades of students for which the teacher provides instruction:
    • Beginning of 2023-2024 school year-Kindergarten & 1st grade teachers, including special education teachers
    • Beginning of 2024-2025 school year-2nd & 3rd grade teachers, including special education teachers
    • Beginning of 2025-2026 school year-Special education teachers in 4th through 12th grades
  • Any professional development course completed by a teacher prior to the effective date that is then included on the list of approved courses will count toward the number of instructional hours in approved professional development courses.
Student Screening Requirements
  • School districts shall do the following:
    • Beginning in the 2022-2023 school year, screen all students for dyslexia who are either enrolled in grades K-3, or who are enrolled in grades 4-6 and whose parent or classroom teacher requests a screening. Each school district shall also screen all students for dyslexia who are enrolled in grades K-6 and transfer into the district or school midyear.
    • Beginning in the 2023-2024 school year, screen all students for dyslexia who are either enrolled in Kindergarten, or who are enrolled in grades 1-6 and whose parent or classroom teacher requests a screening.
    • Identify each student that is at risk of dyslexia based on the student’s results on the tier one screening measure and notify the student’s parent that the student has been identified as being at risk.
    • Monitor the progress of each at-risk student toward attaining grade-level reading and writing skills for up to six weeks. If no progress is observed during the monitoring period, the district or school shall notify the parent of the student and administer a tier two dyslexia screening measure to the student. Tier two screening results must be provided to the student’s parent. If the student is identified as having dyslexia tendencies, the student’s parent must be provided with information about reading development, risk factors for dyslexia, and descriptions for evidence-based interventions. If a student demonstrates markers for dyslexia, the student’s parent must be provided with a written explanation of the district or school’s multi-sensory structured literacy program.
  • School districts shall also do the following:
    • Comply with the guidebook regarding best practices and methods for universal screening, intervention, and remediation using a multi-sensory structured literacy program, to be developed not later than December 31, 2021 by the Ohio Dyslexia Committee;
    • Select screening and intervention measures to administer to students from measures identified by ODE, in collaboration with the Ohio Dyslexia Committee;
    • Establish a multidisciplinary team to administer screening and intervention measures and analyze the results of the measures. The team shall include trained and certified personnel and a stakeholder with expertise in the identification, intervention, and remediation of dyslexia; and
    • Report the results of screening measures to ODE.
This communication is intended as general information and should not be relied upon as legal advice. If legal advice is required, please contact any of our attorneys at (614) 222-8686, or via email.

H.B. 404 Enacted by the General Assembly

Last week, the Ohio General Assembly enacted H.B. 404. The bill extends and expands several temporary laws enacted in response to the COVID-19 pandemic. Many of the new law’s provisions impact schools and their operations. The bill contains an emergency clause and will become effective immediately when signed by the Governor.

Extension of Authority for Remote Board Meetings

The new law extends the temporary law permitting political subdivisions, including boards of education, to continue to conduct meetings and hearings by teleconference, video conference, or other similar electronic technology through July 1, 2021. The previous law was set to expire December 1, 2020.

Relief from Penalties for Failure to Administer Assessments to Certain Individual Students

The new law provides school districts may not be penalized for failing to administer in the fall of 2020 an otherwise required Kindergarten Readiness Assessment, diagnostic assessment, or third-grade English Language Arts achievement assessment to a particular student, if:

  • The student is being quarantined;
  • 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 the testing;
  • The student resides in a geographic area subject to an order issued by the Governor, the Department of Health, or the board of health of a city or general health district requiring all persons in that area to remain in their residences; or
  • The student is receiving instruction primarily through a remote learning model up through the deadline for the prescribed assessments, and the assessment cannot be administered remotely.

Kindergarten and First Grade Health Screenings

The new law provides school districts may not be penalized for failing to conduct an otherwise required health screening for a particular student in kindergarten or first grade prior to November 1, 2020, if:

  • The student was being quarantined;
  • The student, or a member of the student’s family, was medically compromised, and the student could not attend school, or another physical location outside of the home, for the screening;
  • The student resided in an area subject to a stay-at-home order from the Governor, Department of Health, or local board of health; or
  • The student was receiving instruction primarily through a remote learning model, and the screening could not be administered remotely.

The law requires boards to conduct these screenings for the 2020-2021 school year; however, the district may forego screenings until they can be conducted safely.

Optional Transportation and Funding for Community Schools

The new law permits a community school to accept responsibility to provide or arrange for transportation of its students for the 2020-2021 school year by December 31, 2020 (rather than January 1 of the preceding school year as otherwise required under continuing law). If a community school accepts responsibility to provide or arrange for transportation, it must receive state transportation funding for the entire school year.

Educator Evaluations

The new law extends and expands several changes to educator evaluations. H.B. 404:

  • Specifies for the 2020-2021 school year a board of education may elect not to complete a performance evaluation of a district employee, including a teacher, school counselor, administrator, or superintendent if the board determines it is impossible or impracticable to do so.
  • Extends to the 2021-2022 school year a prohibition against using value-added data, other high-quality student data, any other metric used to evaluate positive student outcomes, or any other academic growth data to measure student learning attributable to a teacher, principal, or school counselor while conducting performance evaluations.
  • Extends to the 2020-2021 school year a separate authorization for a board to complete a principal’s performance evaluation without a student growth measure.
  • Extends the authority for a school district that did not participate in the OTES 2.0 pilot program 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.
  • Specifies a teacher who did not have a student growth measure as part of an evaluation for the 2019-2020 or 2020-2021 school year must remain at the same point in the teacher’s evaluation cycle, and retain the same evaluation rating, for the 2020-2021 and 2021-2022 school year as for the 2019-2020 school year.

College Credit Plus Extension, Waiver & Modification Authority

The new law extends the authority for the Chancellor of Higher Education to extend, waive, or modify requirements of the College Credit Plus Program for the 2020-2021 and 2021-2022 school years. Under H.B. 197, this authority was granted for the 2019-2020 school year only.

Extension of Food Processing Exemption for Certain Summer Food Programs

The new law extends from December 1, 2020, to July 1, 2021, the termination date of provisions authorizing the Director of Agriculture to exempt certain schools or entities from regulation as food processing establishments.

Additional Extension of HB 197 Deadlines

The Act extends from December 1, 2020, until July 1, 2021, certain deadlines initially extended by H.B. 197, enacted this past spring. The new law:

  • Extends, from December 1, 2020, until July 1, 2021, the temporary extension of deadlines under H.B. 197 of the 133rd General Assembly, which a state agency must meet if the deadlines occur on or before April 1, 2021.
  • Extends, from December 1, 2020, until July 1, 2021, the deadline for any action needed to maintain a valid license, if that deadline originally was set to expire between March 9, 2020 and April 1, 2021.
  • Extends, from December 1, 2020, until July 1, 2021, the deadline for renewing a license, if that license originally was set to expire between March 9, 2020 and April 1, 2021.

As a reminder, issues related to COVID-19 are fluid and subject to rapid change. Please note this new law supplements and supersedes prior updates. Additional information about Coronavirus and the State’s response can be found here.

This communication is intended as general information and should not be relied upon as legal advice. If legal advice is required, please contact any of our attorneys.