School Law Review - May 2022

Changes to Board of Revision Process Passed By Ohio General Assembly

Table of Contents

May 2022 Changes to Board of Revision Process 1 Passed By Ohio General Assembly

Beginning in 2023, Ohio school districts will need to adjust to new restrictions put in place by the General Assembly through House Bill 126. Governor DeWine signed HB 126 into law on April 21, 2022. Most of its provisions will not become effective until 2023.

School District Failed its “Child Find” Obligation

2

Professor That Refused to Use Transgender Student’s Preferred Pronouns Reaches Settlement

3

Restrictions on Original Complaints

School District Violated FERPA

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Although HB 126 does not eliminate a school district’s ability to file original complaints seeking an increase in value to real property, it does severely restrict when and how such complaints can be filed. This is the biggest impact of HB 126 because, as discussed below, the changes with respect to the filing of counter-complaints are not as severe.

Cincinnati 1714 West Galbraith Rd Cincinnati, OH 45239 (513) 421-2540 Columbus 300 Marconi Blvd, Suite 308 Columbus, OH 43215 (614) 705-1333 Cleveland 5000 Lombardo Center, Suite 120 Cleveland, OH 44131 (246) 487-6672

Beginning in 2023, school districts may only file original complaints alleging that properties are undervalued if the complaints are based upon arm’s length sales that occurred before, but not after, the tax lien date in question.

In addition, the sale prices must exceed the auditor’s value by 10% and $500,000. Prior to filing these complaints, a board of education must adopt resolutions that authorize the complaints and contain the required information set forth in the new statutory provision. Even before the resolutions are adopted, a school district must send written notice to the property owners by certified mail at least seven calendar days before the resolution is considered.

Counter-Complaint Changes HB 126 does not fundamentally alter a school district’s ability to file counter-complaints to contest requests for lower property values. The main change HB 126 makes with respect to counter-complaints is that it eliminates the requirement that the county auditor notify school districts of all complaints that seek a change in fair market value of $50,000 or more. Under current law, school districts receive notice of those complaints and have 30 days from the date they received notice to file counter-complaints.

Beginning in 2023, school districts must proactively obtain filed complaints from the county auditor. This might be accomplished through a standing request with the county auditor (which some auditors have indicated they are willing to entertain) or through public records requests. Additionally, instead of the deadline for counter-complaints being 30 days after the date a school

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district receives its copies of filed complaints, the new deadline is 30 days after the date the original complaint was filed.

Restrictions on Appeals Existing law allows a school district to appeal a decision of a county board of revision to the Ohio Board of Tax Appeals. HB 126 seeks to eliminate the right of a school district to appeal any decision of a county board of revision. On its face, this change will have serious implications for Ohio school districts. Under existing law, new evidence can generally be presented on appeal so many boards of education do not present much in the way of evidence at the county board of revision level.

Beginning in 2023, districts will want to strongly consider obtaining an appraisal or similar evidence when they file complaints and counter-complaints to ensure their evidence of valuation is considered.

Even though HB 126 seeks to prohibit school districts from appealing board of revision decisions, existing case law suggests that limited appeals can likely be had through a writ of mandamus, which is a process by which courts review decisions under an abuse of discretion standard.

Restrictions on Private Payment Settlement Agreements Effective July 20, 2022, school districts will no longer be able to enter into private payment settlement agreements with property owners. Under existing law, many school districts resolve board of revision complaints and appeals by entering into agreements with property owners whereby an owner agrees to pay the school district an amount of money to settle a dispute. Although such agreements were entirely permissible and represented a savings to taxpayers, HB 126 now prohibits them. However, under HB 126, school districts will remain able to resolve board of revision cases by agreeing with property owners to stipulated values.

What This Means For Your District Although these changes are not nearly as bad as they could have been considering that the Ohio Senate at one point proposed to eliminate the ability of school districts to altogether participate in the process, these changes will require boards of education to adjust their practices beginning in 2023. Ennis Britton will strive to make this process as seamless as possible for its board of revision clients. We will have more information on all of this in an upcoming free webinar.

School District Failed its “Child Find” Obligation Relying on Intelligence and Success and Not Considering Impacts of Mental Health A Federal court in Texas upheld an independent hearing officer’s decision that a school district failed its “child find” obligation under IDEA, when it failed to identify and evaluate a student that it had reason to suspect needed special education services. The court rejected the district’s assertion that since the student historically was highly intelligent and had academic success in the past, they did not have reason to suspect she may need special education services.

The student at issue had enjoyed many years of academic success, including participation in gifted and talented student programming from elementary school through middle school, enrollment in multiple advanced placement classes in high school, and a score in the 96th percentile on the PSAT. For the district this overshadowed her diagnosis of ADHD and prescription of ADHD and anxiety medications. The student throughout her 9th grade year began experiencing worse anxiety and depression causing her to seek the help of the school counselor and she was issued a “yellow pass” allowing Ennis Britton May 2022

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her to leave class to see the guidance counselor as needed. She also began to see a new outpatient therapist due to her self-injurious behavior and increased panic attacks. At the beginning of her 10th grade year the student’s parents placed her into an outpatient treatment program when the student reported self-injurious and suicidal thoughts. The parents informed the school counselor of this placement and worked with them to collect schoolwork and adjust her workload. After returning to school in November, she maintained “high academic performance” but her grades began to slip. Her parents were informed was failing a class. In December of that school year, the student’s therapists and parents determined she needed a higher level of care, resulting in a placement at a residential treatment facility and official withdrawal from school.

The student, through her parents, later brought many claims against the school and in a decision from an independent hearing officer, succeeded on the claim that the district failed their “child find” obligation under IDEA, which the school district appealed to federal court. The Child Find provision of the IDEA requires a school district to identify all students who may need evaluation for special education and related services. Even if students are only suspected of having a disability, not yet being diagnosed or still advancing grades the obligation still exists. This duty is triggered when the district, “has reason to suspect a student has a disability coupled with reason to suspect special education services may be needed to address that disability.” Once these suspicions arise, the school officials must evaluate that student within a reasonable time.

First the court answered, did the district have reason to suspect that the student may need special education services to address a possible disability? The district did not dispute that the student reported her increasing anxiety to her academic counselor, and that after her first placement in an outpatient facility her parents reported her self-injurious behavior and suicidal thoughts to the counselor. The school was also aware that following her return to class she was failing a class, proved by their communications with her parents. Together, the district’s knowledge of, “her ADHD, increasing anxiety and depression which required outpatient treatment for an extended time, and her eventual withdrawal from school to attend a full-time treatment facility presented sufficient reason to suspect she may have a disability and should be evaluated.”

The IHO found, and the Court agreed, that the school district had reason to suspect a the student had a disability in December of that school year. The school district could not avoid offering and evaluation simply because the student historically had very high achieving academic performance and superior intelligence. Instead, the Court stated that “[t]he more accurate barometer… is to determine whether the student is experiencing academic decline or difficulties that are unusual.”

C.B. v. North East Independent School District SA-20-CV-01441-JKP (2022).

What does this mean for your District School districts throughout the country have reported drastic increases in both the use of mental health services for students and the need for more both in-school and in communities. The use of these services, and a school’s knowledge that these services are in use by a student could give rise to child find obligations under IDEA depending on the broad circumstances for a child.

Caution should be exercised when students are withdrawing and/or reenrolling after seeking mental health treatment into school districts, as child find obligations under the IDEA may be triggered. It is important for school teams to consider a holistic approach in these circumstances and not only relying on historical grades and levels of intelligence. Teams should consider both historical and recent or drastic changes in behavior, attendance, academic performance, personality, etc. when considering if a student needs to be offered an evaluation under IDEA.

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Professor That Refused to Use Transgender Student’s Preferred Pronouns Reaches Settlement A Shawnee State University religion and philosophy professor was recently awarded $400,000 after a post-decision settlement was reached over his refusal to use a transgender student’s preferred pronouns. The professor’s lawsuit was originally filed in 2018 and a decision was rendered in his favor by the Sixth Circuit Court of Appeals in March 2021.

Ohio Professor Nicholas Meriwether has been employed at Shawnee State since 1996. He claimed in his lawsuit that he is an evangelical Christian with sincerely-held religious beliefs about gender, including that he believes a person’s gender cannot be changed after conception.

Professor Meriweather had a long history of referring to his students as “sir,” “ma’am,” “mister,” or “miss,” which he argued was intended to foster an atmosphere of seriousness and mutual respect. In 2018, he referred to a transgender student as “sir.” One of his students approached him and requested that he use a different pronoun than the student’s birth gender. Meriwether refused the request. He offered instead to refer to the student by their last name as a compromise, but the student filed a complaint with the school.

In response to the complaint, the University conducted a formal Title IX investigation. In a follow-up email to the professor, the school stated the following: “Every student needs to be treated the same in all of your classes. In other words, the policy seeks to ensure that what is done for one student is done for all to avoid issues of discrimination. This regards names, pronoun usage, and most any other matter.”

The university essentially proposed two options that would comport with the adopted policy: the professor could either stop using pronouns altogether or alternatively use pronouns that referred to each student’s self-asserted gender identity. At the conclusion of the investigation, the university determined that the professor violated antidiscrimination policies and placed a written warning in the professor’s personnel file. Meriweather filed suit against the university, citing a violation of his freedom of speech, freedom of religion, and due process.

The district court sided with the school and granted its motion to dismiss, stating they were allowed to limit speech with a nondiscrimination policy. The Sixth Circuit Court of Appeals strongly disagreed and held in favor of the professor’s First Amendment claims. In its decision, the court declared that if “professors lacked free speech protections when teaching, a university would yield alarming power to compel ideological conformity.” The case was remanded to the district court.

Before the case proceeded further, a settlement was reached in April 2022 and included a payment of $400,000 to Professor Meriweather for damages and attorney fees. The University also agreed to rescind the written warning and agreed to a term that essentially recognized the professor’s right to address students using pronouns that conform with his beliefs. Shawnee State University stated the “economic decision” to settle was due to the case “being used to advance divisive social and political agendas at a cost to the university and its students.”

Meriwether v. Hartop, 992 F.3d 492 (2021)

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School District Violated FERPA When it Accidentally Sent Information Pertaining to a Student’s Undisclosed Disability to an Unrelated Person In a letter to a Texas school district, the Student Privacy Policy Office (“SPPO”) found that the school district likely violated Family Educational Rights and Privacy Act (“FERPA”) but closed the parent’s complaint when the district took steps to correct the alleged privacy breach. The school district at issue accidentally mailed a student’s disability diagnosis and Medicaid account information to an unrelated family of a different student with a disability. The unrelated individual contacted the student’s parents who brought a complaint for the unauthorized disclosure of educational records under FERPA. FERPA is a federal law meant to protect the privacy of students' education records. To be considered protected in this case the records must be both (1) directly related to a student, and (2) maintained by an educational agency. Under FERPA, an educational agency or institution is prohibited from disclosing personally identifiable information from students' education records without consent.

The SPPO found that the record accidentally disclosed by the school district fell under the protection of FERPA as it was (1) directly related to the student since the record contained both the disability diagnosis of the student, and (2) the records were maintained by the district. While the SPPO found the disclosure was likely not intentional, it held that that fact was irrelevant as districts have a duty both not to intentionally disclose student records, but also take steps to avoid accidental disclosures.

Due to this, the SPPO found that the school district disclosed the record without consent and violated FERPA. However, since the incident occurred, the school district took its own “corrective actions.” These included having the unrelated party return the information, reviewing their related guidelines and procedures, and providing staff development to those who were involved in the incident. Because of these corrective actions the SPPO dismissed the complaint of the parent and did not order the district to complete any additional training.

What does this mean for your district Regular training on FERPA is important for all staff members who are in contact with education records and personally identifiable student information so that intentional and unintentional disclosures of education records and/or personally identifiable student information does not occur. However, in the event such disclosure does occur, school districts should take quick action to stop the disclosure(s), retrain staff, review procedures, and seek to have information/records returned can assist school districts in preventing the SPPO from institute corrective action against a district.

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Upcoming Presentations and Events Administrator’s Academy Series July 21, 2022 – Legal Update

Ohio Association of EMIS Professionals Annual Conference Gender and the Law

Superintendent Meetings Butler County ESC - Pamela Leist - May 12 Brown County ESC - Hollie Reedy - May 13 Hamilton County ESC William M. Deters II - May 13

- May 2 OSBA Board Leadership Institute Board-Superintendent Relations: Checking Your Alignment John Britton Southern Ohio ESC School Counselors Roundtable Serving LGBTQIA+ Students

Legal Updates OESCA - Giselle Spencer - May 3 CAPE Ohio - Ryan LaFlamme & Jeremy Neff - May 5

Jeremy Neff & Erin Wessendorf-Wortman - May 12 , Cuyahoga Falls Giselle Spencer - May 20

Muskingham Valley ESC - Hollie Reedy - May 16

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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

• Workers’ Compensation

• School Finance

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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