School Law Review - December 2022

Table of Contents

December 2022 Supreme Court Clarifies Burden of Proving Violations of the OH Open Meetings Act

1

Two Recent COVID -19 Cases Related to Schools

2

Feds Stress Compliance with Special Education Requirements for Preschool-aged Children

3

OSEP Advises State Directors Regarding Serving Highly Mobile Students

4

Legislative Roundup: A Summary of Pending Education-Related Legislation

5

Appeals Court Rejects Hyper-Technical Procedural Defenses in Upholding the Termination of a Principal

8

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Ennis Britton

Deember 2022

Supreme Court Clarifies that Plaintiff Has Burden of Proving Violations of the Ohio Open Meetings Act On December 1, 2022, the Supreme Court of Ohio released a decision clarifying the burden of proof remains with a plaintiff in actions to enforce the Ohio Open Meetings Act (OMA). In State ex rel. Hicks v. Clermont Cty. Bd. of Commrs., Slip Opinion No. 2022-Ohio-4237, the Court rejected a burden shifting analysis created a decade ago by the Twelfth District Court of Appeals in State ex rel.

Hardin v. Clermont Cty. Bd. of Elections, 2012-Ohio-2569. As a result, it will be more difficult for plaintiffs to prevail in suits claiming violations of the OMA. Under the rejected framework created by Hardin, a plaintiff must first show that a meeting of a majority of the members of a public body occurred and the public had been excluded. Next, the public body would have a burden to show that the meeting fell under one of the exceptions to the OMA. Finally, the burden would shift back to the plaintiff to come forward with evidence that the exception claimed by the public body is not applicable or valid.

In rejecting the Hardin court’s framework, the Hicks court recognized that “the plaintiff must prove a violation of the OMA. There is no requirement for the public body to conversely prove that no violation occurred.” The Supreme Court recognized a presumption of regularity, i.e., in the absence of evidence to the contrary, courts will presume public officers properly performed their duties and acted lawfully. Under the Supreme Court’s interpretation of the OMA, it is sufficient that a public body show a proper motion to enter executive session under the requirements of R.C. 121.22(G)(1). Further, the Supreme Court clarified that a board need not create a detailed record of its executive session discussions.

Instead, “the only thing that the public body is required to record in its executive-session minutes is the statutorily permitted reason for the executive session.” As such, the OMA does not impose a duty to maintain a detailed record of executive session discussions.

Recognizing that its decision would make it more difficult to pursue alleged violations of the OMA, the Supreme Court explained that “the difficulty involved in proving a violation of the OMA is a policy choice for the General Assembly. If the General Assembly had been concerned about access to evidence in these types of cases, it could have written R.C. 121.22 to place the burden of production on the public body. It chose not to do so.”

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Regarding the specificity of the motion to go into executive session, the Supreme Court also rejected the argument that a public body must discuss every topic it includes in its motion to enter into executive session. Refusing to impose a rule not contained in the statute, the Supreme Court concluded that “a public body must be able to introduce a motion that includes all the topics it might reasonably discuss during an executive session.” A limitation remains, however, that public body “may not discuss any additional topics that are not in included in its motion to enter executive session.”

The Hicks decision should prove helpful in defending claimed violations of the OMA because the burden now clearly rests on a plaintiff to prove that an improper executive session occurred.

Two Recent COVID -19 Cases Related to Schools Another facet of the ongoing fallout of the COVID-19 pandemic is the litigation that has ensued, particularly in employment law.

Last month, there was progress in two cases stemming from the pandemic. The first involves the non-teaching employee employment statute, RC 3319.081, which requires that all non-teaching employees be “paid for all time lost when the schools in which they are employed are closed owing to an epidemic or other public calamity.” Prior to the pandemic, this generally only came up during snow days and other school closures. The second case is at the university level but involves one of the first causes of action under RC 3792.04, a statute enacted in 2021 which prohibits public schools and state institutions of higher education from discriminating against persons based on their vaccination status.

State ex rel. Ohio Assn. of Pub. School Emps. v. Willoughby-Eastlake City School Dist., 2022-Ohio-4242 The Eleventh District Court of Appeals has overturned an injunction that prohibited a reduction in force during the pandemic.

During the 2020-2021 school year, a School Board transitioned to remote instruction due to the pandemic. Buildings remained open for teachers, administrators, secretaries, and certain special education students. On November 19, 2020, the Board voted to implement a reduction in force of certain non-teaching employees.

The trial court granted a preliminary injunction in favor of the Union. In its order, the trial court determined the following with regard to the statutory language: COVID-19 is “an epidemic or other public calamity”; the laid-off employees are “employed,” despite the reduction in force; and even though students are being taught remotely, the schools are “closed” because the employees cannot report to the buildings to perform their duties. The trial court also concluded that it had jurisdiction to hear the matter because the rights asserted under R.C. 3319.081(G) are independent from the parties’ collective bargaining agreement.

Unfortunately, the Eleventh District Court of Appeals did not answer the questions of whether a reduction in force ends an employee’s eligibility to be paid wages for all time lost from a school closure, and whether a school building providing only remote instruction but which is still open to teachers, administrators, secretaries and special education students, is “closed.” The Appellate Court avoided those questions because the case was reversed on jurisdictional grounds. The Court found that the employees’ rights Ennis Britton

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regarding reduction in force were governed by the collective bargaining agreement. The collective bargaining agreement has a grievance process that is ultimately resolved through binding arbitration rather than litigation. The Court recognized that even though an employee may have rights provided by a statute (e.g. 3319.081 and 3319.17), if the application of the statute is dependent on an interpretation of a collective bargaining agreement, a court lacks jurisdiction over the case and it must be resolved through the grievance and arbitration process.

Siliko v. Miami Univ., 2022-Ohio-4133.

In this case, the Plaintiffs were employees that sued Miami University for claims alleging that the University’s vaccination policy violated the Ohio Constitution (“All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety”), as well as RC 2905.12 (Coercion); 3709.212 (a 2021 statute limiting the applicability of certain health department regulations related to disease prevention); 3792.04(B)(1) (requiring a vaccine); and 3792.04(B)(2) (discrimination on the basis of vaccination status).

Miami’s vaccination policy provided that all employees and students must be fully vaccinated by November 22, 2021, unless exempted. Requests for exemption were required to be submitted by October 15, 2021. Faculty, staff and students were also required to receive at least their first COVID-19 vaccine dose by October 25, 2021. The policy further provided that "exemptions may be granted for medical reasons, sincerely held religious beliefs or reasons of conscience (philosophical or ethical reason) and a deferral granted for pregnancy or nursing.” Individuals with an approved exemption were required to comply with COVID-19 testing and other educational and preventative health and safety measures. As for employees, the policy provided that "employees who choose not to be vaccinated and who do not receive an approved exemption will face disciplinary action."

The trial court dismissed the Plaintiffs’ complaint after finding that they lacked standing to challenge Miami University's vaccination policy because, at the time of filing the complaint, they either had obtained an exemption to the vaccine requirement or had failed to request an exemption. The Appellate Court agreed with the dismissal except as to the discrimination claims under RC 3792.04(B)(2). The Plaintiffs alleged that because the policy required exempted employees to take additional measures such as testing and other prevention, they were being treated differently than similarly situated vaccinated employees in violation of the statute. Additionally, the Plaintiffs alleged that the University had a bonus program to encourage vaccination, which only vaccinated employees were eligible for.

The Appellate Court found that this was enough to survive a motion to dismiss and reinstated that portion of the case. It should be noted that a motion to dismiss is a high standard and serves to test the sufficiency of the complaint to state an actionable claim. It is not a judgment on the merits. Ennis Britton will monitor this case as it proceeds and will provide important updates to our clients.

Feds Stress Compliance with Special Education Requirements for Preschool-aged Children Perhaps revealing enforcement priorities, the U.S. Department of Education’s Office of Special Education Programs (OSEP) and the U.S. Department of Health and Human Services’ Office of Head Start (OHS) recently issued a joint letter reminding state educational agencies (SEAs), local educational agencies (LEAs), and Head Start programs of their requirements to serve preschool-aged children under the Individuals with Disabilities Act (IDEA).

The letter asserts that “young children and their families have been disproportionately affected by service disruptions.” While acknowledging that the pandemic continues to present challenges to implementing appropriate programs and services to young children, “children with disabilities retain their rights under IDEA to receive appropriate special education and related services in accordance with their individualized education programs (IEP).” The letter stressed, “No IDEA requirements have been waived.”

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The letter concludes that data shows: • • •

initial evaluations have been delayed and not provided in a timely fashion; special education and related services included in IEPs are not being provided timely or IEPs are not being fully implemented; and placement decisions are not being made in accordance with IDEA’s least restrictive environment requirements.

The letter goes on to urge collaboration between SEAs, LEAs, and Head Start programs and provides links to resources to help meet the requirements of IDEA. As a result of the correspondence, one can conclude that challenges resulting from pandemic disruptions will not serve as a “get out of jail free” card. Both the US Department of Education and the Department of Health and Human Services have put LRAs and Head Start programs on notice of their expectations.

OSEP Advises State Directors Regarding Serving Highly Mobile Students Last month the Office of Special Education Programs and the Office of Special Education and Rehabilitative Services issued a letter to state directors of special education regarding the critical nature of ensuring prompt services for highly mobile students with disabilities.

The letter emphasizes the importance of providing prompt evaluations and services to highly mobile children with disabilities as required under the IDEA. It concludes by listing over 40 resources available to districts to ensure quality educational services for highly mobile children with disabilities.

This advisory communication reminds districts that military connected children, migratory children, children who are homeless, and children in the foster care system often experience difficulty becoming oriented into new and varying school expectations and may have difficulty communicating their needs and concerns within these contexts. As such, schools are reminded that the IDEA requires that evaluations be conducted in a timely manner and without undue delay. In those situations where a child transfers to a new school district after their previous district has begun but not completed an evaluation, the expectation is that both districts will cooperate to ensure completion of the evaluation as expeditiously as possible. This includes the timely exchange of relevant records between the school districts as an initial important step in ascertaining student needs.

The guidance further points out that while the use of a multi-tiered system of support (MTSS) is a useful tool in identifying student needs, it should not be used habitually as a delay in an initial evaluation for highly mobile children. Because this population is more susceptible to experience recurring educational disruptions, implementing special education and related services can be even more critical to student achievement and success. OSEP and OSERS jointly advise that postponing an evaluation to implement the MTSS process can be a denial of FAPE, resulting in significant compensatory service obligations. If a child transfers to a new school district during the same school year before the previous school district has completed the child's evaluation, the new school district may not delay the evaluation or extend the evaluation time frame in order to implement their MTSS process. And although the new school district may choose to provide interventions as part of their MTSS framework, in those situations where an evaluation had been commenced elsewhere, extended use of the interventions could be determined to be a violation under the IDEA. Finally, the letter recognizes the importance of providing ESY services to highly mobile children if the IEP team determined that such services were necessary for the provision of FAPE. This can be especially challenging when students transfer at the end of the academic year, however it does not appear that short notice to the receiving school of the right to these services will excuse the obligation to provide ESY. What this means for schools: This is a great reminder of the importance of promptly obtaining educational records of transfer students.

This is not only essential to ensure that an evaluation, once commenced, is promptly completed, but to provide continuity of services when the transitioning between districts occurs. https://sites.ed.gov/idea/idea-files/letter-to-state-directos-of-special-education-on-ensuring-a-high-quality-education-for-highly-mobil e-children-november-10-2022/ Ennis Britton

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Legislative Roundup: A Summary of Pending Education-Related Legislation HB 147 – Referred to the House Primary and Secondary Education Committee on March 29, 2022. The bill requires the Department of Education to develop a process by which a public school student or the student’s parent or guardian may request an investigation by the Department of a school’s compliance with its policy prohibiting harassment, intimidation, and bullying adopted under continuing law. The bill does not specify a time by which the Department must develop this process. Under the bill, upon receiving a request, the Department must conduct an investigation according to procedures developed by the Department. As a part of the investigation, the Department must provide the student and the school an opportunity for a hearing. If it determines that the school has not complied with the policy, the Department must order the school to comply “in a specified time and manner.”

HB 151 - PASSED by the House on June 1, 2022. Requires each school that participates in athletic competitions or events administered by an organization that regulates interscholastic athletic conferences or events to designate separate single-sex athletic teams based on the sex of the participants. Authorizes an athletic participant to file a civil action if the participant is deprived of an athletic opportunity or suffers harm as a result of a violation of the bill’s single-sex participation requirements or if the participant is subject to retaliation for reporting such a violation. Prohibits a state agency or political subdivision, accrediting organization, or athletic association that operates or has business activities in Ohio from taking adverse actions against a school, school district, or college or university that complies with the bill’s single-sex participation requirements.

HB 290 – Referred to the House Finance Committee on February 15, 2022. The bill expresses the intent of the General Assembly to create a “thorough and efficient” statewide foundation formula for the education of students, including those enrolled in school districts, community schools, STEM schools, and nonpublic schools. It specifies the formula will allow families to have the funding associated with their students follow them to the schools they attend. It also states the formula will ensure Ohio maintains strong funding for public and nonpublic schools while “cultivating innovation and opportunity” for children.

HB 333 - PASSED the House on May 18, 2022. Referred to Senate Primary and Secondary Education Committee. The bill requires the Department of Education, within 120 days after the bill’s effective date, to make recommendations for a job description for school counselors employed by public schools (school districts, community schools, and STEM schools). Each public school must consider the recommendations when preparing job descriptions for and assigning duties to school counselors. The Department’s recommendations must be based on the standards for school counselors most recently adopted by the State Board of Education. Additionally, the recommendations must specify the following breakdown of school counselor duties: 80% must be direct and indirect services to students in academic, career, and social and emotional development; and 20% must be program planning and social development.

HB 492 – PASSED by the House on June 1, 2022. The bill prohibits an individual from coaching an athletic activity at a public or chartered nonpublic school unless the individual has completed a student mental health training course approved by the Department of Mental Health. On and after the bill’s effective date, an individual must: (1) complete the training each time the individual applies for or renews a pupil activity program permit; and (2) present evidence of each successful completion to the State Board of Education. However, the individual may complete the training at any time within the duration of the individual’s new or renewed permit. Under the bill, “athletic activity” includes interscholastic athletics, practices, scrimmages, sponsored non-competitive cheerleading, and other sponsored and affiliated athletic competitions.

HB 497 – PASSED by the House on June 1, 2022. Beginning with students who enter the third grade in the current school year, the bill eliminates the retention of third-grade students who do not attain the required score on the third-grade English language arts achievement assessment under the Third Grade Reading Guarantee. In addition, the bill requires only one administration of the third-grade English language arts assessment per year.

However, it maintains the requirement that districts and schools offer intervention and remediation services to students reading below grade level.

HB 529 – Referred to the House Primary and Secondary Education Committee on May 24, 2022. The bill requires all school districts, governing authorities of community, STEM, and STEAM schools, and chartered and non-chartered nonpublic schools, by July 1 each year, to post on each district’s or school’s website a link to or title of all of the following materials used in each school, course, or classroom under the control of the district or school: 1. Textbooks; 2. Course syllabi that list all instructional materials and activities used for student instruction in each course, which includes textbooks, reading materials, videos, digital materials, websites, online applications (“apps”), and any other materials used for instruction; 3.

Summaries of each instructional course; 4. State academic standards related to each instructional course. Updates must be posted within 30 days of any revision and posted information must remain visible on the website for two years.

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HB 554 – PASSED by the House on May 25, 2022. Referred to the Senate Primary and Secondary Education Committee. The bill requires the State Board of Education, upon application, to issue nonrenewable, two-year temporary educator licenses to individuals with expired professional teacher certificates (issued under former law) or professional educator licenses. To qualify for a temporary license, an individual must not have any disciplinary sanctions on the expired certificate or license. Further, an individual who receives a temporary educator license must complete any training required by the district or school prior to providing instruction. The temporary license is valid for teaching in the same subject areas and grades for which the expired certificate or license was issued, including any endorsements attached to the certificate or license.

The bill also requires the State Board to issue a professional educator license with any applicable endorsements to an individual who, during the duration of the temporary license, completes either 18 continuing education units (180 contact hours) or 6 semester hours of coursework in the area of licensure or in an area related to the teaching field. The professional educator license and any endorsements are valid for teaching in the same subject areas and grades for which an individual’s expired certificate or license was issued.

HB 582 – Referred to the House Government Oversight Committee on March 1, 2022. The bill generally reduces from four years to two years the term of office of a member of a school district board of education who takes office on or after the bill’s effective date. Board members who take office prior to bill’s effective date will serve the remainder of their terms, as prescribed under current law. It also precludes school district board members from serving more than four successive two-year terms. Under the bill, terms are considered “successive” unless separated by a period of four or more years. In addition, the bill specifies that only terms that begin on or after the bill’s effective date count toward a member’s eligibility to hold office. Finally, the bill moves the election of school board members from nonpartisan to partisan and provides for primary elections.

HB 606 – PASSED the House on May 22, 2022. Referred to Senate Primary and Secondary Education Committee. The bill requires each public and chartered nonpublic school to create an individualized seizure action plan for each enrolled student who has an active seizure disorder diagnosis. It must be created by the school nurse, or another district or school employee if a school district or school does not have a school nurse, in collaboration with the student’s parent or guardian. Each plan must include: 1. A written request signed by a parent, guardian, or other person having care or charge of the student to have drugs prescribed for a seizure disorder administered to the student; 2. A written statement from the student’s treating practitioner providing the drug information for each drug prescribed for the student for a seizure disorder; and 3. Any other component required by the State Board of Education.

HB 616 – Referred to House State and Local Government Committee on May 31, 2022. Prohibits public schools and nonpublic schools that enroll students who are participating in state scholarship programs from teaching or providing training that promotes or endorses “divisive” or “inherently racist” concepts. Specifies that “divisive or inherently racist concepts” include (1) critical race theory, (2) intersectional theory, (3) the “1619 Project,” (4) diversity, equity, and inclusion learning outcomes, (5) inherited racial guilt, and (6) any other concept that the State Board of Education defines as divisive or inherently racist. School Boards would be prohibited from selecting any textbook or curriculum that “promotes” divisive or inherently racist concepts and the State Board would likewise be prohibited from adopting any standards, model curricula, professional development resources, classroom resources, or assessments promoting divisive or inherent racist concepts. health day absence without any need for “a physician’s or other health professional’s certification of the student’s condition.” In granting mental health days, a district may excuse students from school altogether or establish an in-school mental health program for students to attend in lieu of regular classes.

HB 633 – Referred to the House Primary and Secondary Education Committee on May 17, 2022. This bill would amend existing law which requires a parent to opt-out of disclosure of their child’s directory information to instead require prior written consent before disclosure of directory information.

However, the bill leaves in place several current exceptions that allow the sharing of directory information without consent. For example, employees of the state, a board of education, or other political subdivision may obtain public school records for “administrative use,” subject to several limitations on their use. Similarly, a student’s record can be transferred to an educational institution “for a legitimate educational purpose.” The prohibition of sharing directory information to a person or group that intends to use the same for profit-making activity remains intact.

HB 639 – Referred to House Health Committee on May 17, 2022. Beginning with the class of 2027, requires each student to complete self-defense instruction as part of the one-half unit of health instruction. Beginning with the 2023-2024 school year, requires each public and chartered nonpublic school to require individuals who provide high school health instruction to complete a course in self-defense training.

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HB 722 – Introduced September 15, 2022. Establishes a “Parental Bill of Rights” that Requires public schools to: 1. Provide parents with a notice about sexually explicit instructional materials, an opportunity to review them, and an opportunity to request alternative instruction; 2. Notify parents about school-provided healthcare services and work with them to create a healthcare plan for their children; 3. Notify parents about changes to the health services provided to their children by their school or the school’s ability to provide a safe learning environment; 4. Prohibit school personnel from encouraging a student to withhold from a parent information concerning the student’s health or well-being, unless that disclosure would result in abuse, abandonment, or neglect; and 5. Establish a process under which the district or school must resolve written concerns submitted by parents about topics addressed in the bill.

HB 739 – Introduced November 1, 2022. This bill provides that “No public or chartered nonpublic school shall discriminate against an individual, including by excluding, penalizing, or segregating the individual, refusing to enroll the individual, or withholding from or denying to the individual any advantage, facility, good, opportunity, privilege, or service,” whether or not the person has or has not had a COVID-19 vaccine or uses a “COVID-19 Immunity Passport,” which is defined as “a document, digital record, or software application indicating vaccination against or recovery from COVID-19.”

SB 260 – Referred to the Senate Local Government and Elections Committee on April 5, 2022. Expands political subdivision joint purchasing authority under Ohio Revised Code 9.48 to expressly include purchases for construction services. This is in direct response to a 2019 Ohio Attorney General Opinion that concluded that school districts cannot use cooperative purchasing for construction services pursuant to Ohio Revised Code 9.48. That Attorney General Opinion is not considered binding law and its rationale in interpreting Ohio law is certainly open to criticism.

SB 361 – Introduced October 3, 2022. The bill revises the law that permits a school district to employ as a teacher an eligible U.S. Armed Forces veteran who does not hold an educator license. The bill extends the authority to community and STEM schools. It also changes the eligibility requirements for a veteran and requires a veteran to register with the Department of Education. Finally, it requires a veteran to have an assigned mentor who meets prescribed qualifications.

SB 365 – Introduced October 27, 2022. Requires the State Board of Education to incorporate academic concepts of free market capitalism into the standards and model curriculum for financial literacy and entrepreneurship for grades 9 through 12. The bill also specifies free market capitalism concepts that the newly developed academic content must include: 1. Raw materials, labor, and capital are privately owned. 2. Individuals control their own ability to work and earn wages. 3. Private ownership of capital may take many forms, including via a family business, a publicly traded corporation, or a bank, among others. 4. Market prices are the only method to inform consumers and producers about the constantly changing information about the supply and demand of goods and services. 5. Both sellers and buyers seek to profit in a free market transaction, and profit earned can be consumed, saved, reinvested, or dispersed to shareholders. 6. Wealth creation involves asset value appreciation and depreciation, voluntary exchange of equity ownership, and open and closed markets. 7. The free market positively correlates with entrepreneurship and innovation. 8. The free market may involve externalities and market failures in which the cost of certain economic activities is borne by third parties.

9. The free market often accords with policies like legally protected property rights, legally enforceable contracts, patent protections, and the mitigation of externalities. 10. Free-market societies often embrace political and personal freedoms.

12/13/22 BASA: So, You Want To Be A Superintendent? Bronston McCord presenting 1/20/23 OASPA Conference: Basics of Certified Negotiations Hot Topics of Negotiations Hollie Reedy and Gary Stedronsky presenting 3/9/23 BASA: Women in Leadership Conference Pam Leist & Erin WessendorfWortan presenting

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Appeals Court Rejects Hyper-Technical Procedural Defenses in Upholding the Termination of a Principal DeVito v. Clear Fork Valley Local Schools Bd. of Edn., 2022-Ohio-3894 The Fifth Appellate District upheld the termination of a principal accused of, among other things, misconduct related to her evaluation duties. The principal allegedly asked a teacher to sign a blank document, recorded inaccurate observation/walkthrough times on six occasions, and copied/cut out signatures and stapled them into other documents.

The referee appointed to the termination appeal agreed with the Board on almost all specifications given for the termination. The Board adopted the referee’s 237-page report, but also expressed disagreement with the specifications the referee did not uphold, citing its interpretation of the relevant facts found by the referee and applying them to its own policies. As such, the Board voted in favor of termination.

The principal appealed to the court of common pleas, which upheld the Board’s decision. On appeal, the principal raised a plethora of defenses the trial court allegedly ignored and errors that it made. Many were hyper-technical defenses related to due process and some were just seemingly made out of thin air. While on the one hand, this is eye-roll inducing for the reader (and the defense attorney), on the other hand, this gave the appellate court the opportunity to make some definitive statements about the law in this arena, which is always helpful.

First, the Plaintiff tried to argue that there were procedural defects, such as the failure to issue a twenty-one-day notice of the hearing, the treasurer failing to sign the notice informing the plaintiff that the Board would consider her termination, and that the referee and the Board both departed from the specifications for termination originally provided by the Board.

The court rejected these arguments essentially on the basis that there was no harm caused by minor procedural defects. It held that the hearing scheduling requirements are merely directory and not mandatory or jurisdictional. With regard to the treasurer’s signature, the court found that the notice contained a typed signature line containing the treasurer's name, thereby giving appellant the identity of the treasurer and informing her that the letter came from the treasurer's office. The notice was in substantial compliance with the law and was therefore sufficient.

As to the minor deviations between the referee’s findings and the Board’s specifications for termination, the court noted that the very cases cited by the principal all reject a rigid standard of matching a Board's specification of grounds with identical grounds for termination found by the referee. Rather, Ohio appellate courts have allowed the Board's evidence to stand as long as the totality of the circumstances indicate that the teacher was sufficiently apprised of the issue in question to present countervailing evidence if so inclined.

The principal also attempted to attack the merits of the Board’s decision on even more ridiculous grounds than her procedural defenses and the court was predictably unassuaged. It went sort of like this: Ennis Britton

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Principal: The Board had to give me a chance to change my conduct before they could terminate me!

Court: No, they did not.

Principal: The Board had to consider my employment record before terminating me!

Court: No, they did not.

Principal: They didn’t read the transcript! The Board had to read the entire transcript of the hearing before making its final decision!

Court: No, they did not. The Board only had to consider the referee’s report in making its final decision. The trial court did, however, have to read the transcript, and concluded that the transcript showed you deserved to be terminated.

What does this mean for my District?

We should always of course be careful to meet all procedural requirements of the applicable law and CBA. But if you forget to put the letter in the mailbox with your left hand while blinking twice, the court is not going to hold that against you so long as the employee has sufficient information to assert their rights and prepare a defense.

Our Practice Ennis Britton has assembled a team of attorneys whose collective experience provides solutions for a variety of issues that school districts may encounter. From sensitive labor negotiations to complex real estate transactions, our legal experts offer the resources to ensure you remain compliant. We provide full legal representation for Ohio schools including: • Labor & Employment Law

• Construction & Real Estate

• Special Education

• Student Education & Discipline

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John Britton jbritton@ennisbritton.com

Robert J. McBride rmcbride@ennisbritton.com

Gary T. Stedronsky gstedronsky@ennisbritton.com

William M. Deters II wmdeters@ennisbritton.com

C. Bronston McCord III cbmccord@ennisbritton.com

Erin Wessendorf-Wortman ewwortman@ennisbritton.com

J. Michael Fischer jmfischer@ennisbritton.com

Jeremy J. Neff jneff@ennisbritton.com

Ryan M. LaFlamme rlafalmme@ennisbritton.com

Hollie Reedy hreedy@ennisbritton.com

Pamela A. Leist pleist@ennisbritton.com

Giselle Spencer gspencer@ennisbritton.com

• Board Policy & Representation

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