Do I Need an Attorney, an Advocate, Both or Neither?

When do you need a special education attorney versus a parent advocate?

Federal and state laws require school districts to find and identify children with disabilities. Parents can request that their child be evaluated, and schools must respond appropriately. Once children have been identified, the schools are required to determine if they are eligible for special education services, and if they are, to provide those services in an appropriate manner.

In many cases, and with the right information, parents can advocate effectively for their child in the special education setting. The special education process was set up to be relatively non-adversarial and to allow parents to be members of the IEP team and collaborate with schools. However, some school districts push back when parents question their decisions, fail to truly inform parents of their rights under IDEA and Section 504, and fail to identify, evaluate or provide appropriate services to children with disabilities. If you are experiencing push back, you suspect something is wrong but cannot get your school to listen, or you believe your child is not getting services that allow him or her to progress appropriately, it may be time to call for help.

Your next decision is whether to call a special education attorney or parent advocate.

Abdnour Weiker, LLP has both advocates and special education attorneys to handle cases. Our advocates are many times more financially affordable to families, typically billing at 50% of the attorney hourly rate. Another benefit to hiring Abdnour Weiker, LLP is that you can start with an advocate but if the situation ever progresses to needing an attorney, our attorneys are already up to speed and familiar with your case. That means less time transitioning from an advocate to an attorney, and less money spent by the family.

Both advocates and attorneys should have a solid understanding of the IDEA and 504 frameworks at the state level, disabilities, educational theories and practices, and school environments. They should be aware of appropriate interventions for children with disabilities, be able to connect you with resources and services outside the school, and be adept at effectively communicating with school districts.

Here are some tasks that BOTH special education attorneys and advocates should be able to do well:

• Evaluate initial and triennial Evaluation Team Reports

• Advocate for and help draft appropriate and effective IEPs

• Advocate for Section 504 eligibility and help draft appropriate and effective 504 plans

• Advocate for Independent Educational Evaluations

• Evaluate and advocate for Functional Behavior Assessments & Behavior Intervention Plans

• Advocate for students with behavioral disabilities and protect those students when schools want to discipline them

• Understand and advocate for effective progress monitoring

So, when should you consider a special education attorney?

Advocates and attorneys should be able to evaluate your case to determine if you need legal or advocate assistance. However, the following may be red flags to alert you that an attorney may be needed:

• Your child’s needs concern specific areas of law such as placement outside of the school, your legal rights of confidentiality, etc.;

• Your child faces expulsion and/or criminal charges for conduct within the school;

• The school has brought in an attorney to help them, or you need to answer a letter written by an attorney; or

• You need to move beyond advocacy to file a formal complaint or due process with the Ohio Department of Education, or a complaint with the Office of Civil Rights.

The best way to determine if you need an advocate or attorney is to call one and ask. A responsible advocate will tell you when you need an attorney, just as a responsible attorney will tell you when you can use an advocate. Make sure they listen more than they talk – the hallmark of effective advocacy is in their listening skills!

Questions? Call us at 614.745.2001 or visit www.Lawyers4Students.com

What is NIL and what does it mean for student athletes?

“NIL” has become THE hot acronym in college sports. It stands for “name, image, and likeness”, and describes rights that have now been recognized in Ohio through Executive Order 2021-10d, signed by Governor DeWine on June 28th of this year. The Order went into effect on July 1st. Simply put, Governor DeWine’s action now allows college student-athletes in Ohio to be compensated for their names, images, and likenesses.

For much of collegiate sports history, schools could only compensate students for their athletic with academic scholarships and nothing more. It wasn’t until 2014 that the National Collegiate Athletic Association (NCAA) granted permission to member athletic conferences to give scholarships that cover the cost of attendance in full.

In June of this year, the U.S. Supreme Court altered college sports forever with a “game changing” ruling. In its unanimous NCAA v. Alston decision, it ruled that the NCAA’s cap on academic benefits violated federal anti-trust laws. Regarding NIL rights, Justice Kavanaugh stated in his concurring opinion that if other NCAA limitations on student-athlete benefits were challenged in a court of law, those too would likely be ruled to be in violation of anti-trust laws.

It was after the Alston ruling that the states got into the act, passing legislation or issuing executive orders to clarify how each would handle these newly-recognized rights. Governor DeWine’s executive order did just that. It does contain limitations. Student-athletes may not enter into contracts with companies engaged in certain businesses: marijuana, nicotine products, alcohol, gambling, adult entertainment, and controlled substances. Further, student-athletes may not have their sponsors’ logos presented during team activities or activities that may conflict with school functions.

When entering into an NIL contract, the student-athlete must disclose the contract to the school and before it becomes effective, the school may determine that it conflicts with the school’s policies or relevant team rules or policies. If the school makes such a determination, the student-athlete has the opportunity to renegotiate the contract to eliminate the conflict. It is important to note that schools cannot claim that any NIL money that the student-athlete receives is part of his or her academic-athletic scholarship.

There are just over 490,000 student-athletes in the United States. Many are now taking advantage of their new status and negotiating sponsorship deals. Social media platforms, especially Tik Tok, are providing access to advertisers that want these new faces to create self-aware ads and skits. Student-athletes have created clothing lines, hosted sponsored podcasts, and done meet-and-greets. It truly is the “Wild West” for this new phase of endorsements.

Albeit Weiker is able to assist college student-athletes with NIL opportunities. For more information, please contact us at 614-745-2001.

Public schools with "mask optional" policies risk losing immunity.

A.         The Choice

Boards of education in Ohio have been placed in a tough position to start the school year. Boards have been forced to choose whether to require masks for their students and employees. Schools were placed in this position because the state legislature effectively removed the power of the Governor and the Ohio Department of Health to issue mask mandates (and most other related health orders). 2021 Sub.S.B.  No. 22.

With this authority removed, the Ohio Department of Health can now only “recommend” that schools require masks for the upcoming school year. See, COVID-19 Health and Prevention Guidance for Ohio K-12 Schools, Ohio Department of Health (Rev. July 26, 2021). Some local health departments have more recently heightened this to “strongly recommend” full masking of all students since infections associated with the Delta variant have increased, just in time for the start of the school year. Mask Advisory Issued for All Residents Indoors Regardless of Vaccination Status, Franklin County Public Health Advisory (August 5, 2021).

The response by boards of education at public schools has been mixed. Some boards of education have appreciated the risk to students and employees articulated by local health authorities and have adopted a full masking requirement for the start of the 2021-2022 school year. Other boards have recognized the potential for an increased risk for the unvaccinated, including those age 11 and under who do not have access to a vaccine, and opted to require masks for everyone at the elementary level.

A surprising number of boards have opted for a completely voluntary mask policy, perhaps because they believe masking is a purely personal decision, or that the risks articulated by health departments and federal agencies are overstated. There’s been some healthy (and unhealthy) debate surrounding the issue, which has included a variety of reasons for schools opting to go “mask-optional.”

B.         Sovereign Immunity; Exceptions Allowing Claims

One reason that boards may feel confident in adopting a mask-optional policy is because boards of education enjoy state sovereign immunity for decisions made in the exercise of their governmental functions. R.C. 2744.02(A)(1). School employees enjoy similar immunity for decisions made within the scope of their duties. R.C. 2744.03(A)(6).

Importantly, however, sovereign immunity is not absolute and the decision to go mask-optional could expose a school board--or a school employee recommending such a policy--to an increased risk of liability.

To begin, sovereign immunity does not apply to contract claims, claims that arise from an employment relationship with the school, or claims brought by an employee related to his or her “conditions…of employment.” R.C. 2744.09(A)-(C). Sovereign immunity also does not apply to “civil claims based upon alleged violations of the constitution or statutes of the United States.” R.C. 2744.09(E).

Therefore, one could easily imagine a teacher or other school employee asserting a claim that the employment agreement has been violated due to a voluntary masking policy in a pandemic, or that the conditions of employment have been improperly altered, making the employee more vulnerable to infection. Such a claim could be bolstered by high infection rates in any given school or by the fact that most school districts in the state required masks for all students and staff just last school year.

Sovereign immunity could also be side-stepped by any aggrieved party by asserting a claim under a federal statute or the U.S. Constitution. The federal statute possibilities are numerous, but the Americans With Disabilities Act would be one leading example, as this law requires reasonable accommodations to be made for students and employees with disabilities. 29 C.F.R. Part 1630, et seq. Other claims could come through the “state-created danger” theory under the Fourteenth Amendment of the U.S. Constitution, especially given that school-age children in Ohio are required by law to attend school. See, DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 199-200 (1989)("[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being”); see also, R.C. 3321.01(A)(1)(compelling students in Ohio to attend school).

Further, while school employees (such as superintendents and principals) enjoy immunity protections similar to those provided to boards of education, this immunity does not apply where “the employee's acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner.” R.C. 2744.03(A)(6)(b). So, depending on the specific circumstances surrounding a risk of infection, or an actual transmission of the virus, there could be individual liability for school employees for school-level decisions that ignore a known risk, assuming the decision could reasonably be considered reckless, in bad faith or malicious.

In sum, there are very plausible exceptions to sovereign immunity for mask-optional policies.

C.         Additional Immunity for Covid-Related Claims; Similar Exceptions

Notably, the Ohio legislature provided schools with another layer of immunity for Covid-related claims in 2020 with House Bill 606. This was signed by Governor DeWine on September 14, 2020, and provides in pertinent part:

No civil action for damages for injury, death, or loss to person or property shall be brought against any person [including schools and state institutions of higher education] if the cause of action on which the civil action is based, in whole or in part, is that the injury, death, or loss to person or property is caused by the exposure to, or the transmission or contraction of, MERS-CoV, SARS-CoV, or SARS-CoV-2, or any mutation thereof. 2020 Am.Sub.H.B. No. 606, §2(A).

However, an exception to this law exists for reckless and intentional conduct, very similar to the exception for sovereign immunity above. Immunity under H.B. 606 does not apply if, “it is established that the exposure to, or the transmission or contraction of, any of those viruses or mutations was by reckless conduct or intentional misconduct or willful or wanton misconduct on the part of the person [or school] against whom the action is brought.” Id. "Reckless conduct” is defined in the law as:

Conduct by  which, with heedless indifference  to the consequences, the person disregards a substantial and unjustifiable risk that the person's conduct is likely to cause an exposure to, or a transmission or contraction of, MERS-CoV, SARS-CoV, or SARS-CoV-2, or any mutation thereof, or is likely to be of a nature that results in an exposure to, or a transmission or contraction of, any of those viruses or mutations. Id., §2(D)(3).

To be sure, the same law prevents health orders and recommendations from being introduced as evidence in tort actions. Id., §2(B). Even so, the infection rates and/or exclusion of students from the classroom because of necessary quarantining could be enough to prove that any given school district violated a duty of care to its students or employees, and that the act of implementing a mask-optional policy was reckless. This is especially true where a school continues with a mask-optional policy despite an ongoing or increasing risk.

Finally, the immunity under house Bill 606 is temporary and is due to expire on September 30, 2021, unless it is extended by the legislature. Id., §2(E).

In sum, the immunity laws that boards of education, superintendents and principals may be relying upon may not be as strong as they think when they adopt a district-wide mask-optional policy. While the decision is within a board of education’s discretion, it should be made with caution and an understanding of this exposure.

Mark Weiker, Esq., Student and Educator Rights Attorney, Albeit Weiker, LLP

www.Lawyers4Students.com

Compensatory Education & Recovery Services

Compensatory Education & Recovery Services: COVID-19 CONSIDERATIONS FOR STUDENTS ON IEPs & 504 Plans

On March 12, 2020, Governor DeWine ordered all of Ohio’s public, community and private K-12 school buildings to be closed due to the ongoing coronavirus health crisis. If a school district closed to prevent the spread of COVID-19 and did not provide educational services to the general student population (whether via in person or virtual instruction), then the district was not required to provide services to students with disabilities during that time period.

However, once schools resumed, the district, to the greatest extent possible, was required to make every effort to provide special education and related services to the child in accordance with their Individualized Education Program (IEP) or 504 Plan.[1] Schools had a lot of flexibility in how to provide these services to students throughout the pandemic, but ultimately, the requirement for schools to provide Free Appropriate Public Education (FAPE) to students receiving special education services was not waived due to the COVID-19 pandemic.

COMPENSATORY SERVICES

Although compensatory services (also called compensatory education or comp ed) are not addressed in the Individuals with Disabilities Education Act (IDEA) or other federal or state regulations, most state education agencies have released guidance surrounding compensatory education as well as the potential for recovery services that may be needed as a result of COVID-19 school closures. Compensatory services are educational services above and beyond what is normally due to a student, resulting from a failure of the school to provide those services under a child’s IEP or 504 Plan. The purpose is to place the student in the position they would have been in if the school had provided the appropriate services, or to “compensate” the student for learning and skills that were lost when special education and related services were not provided. Under compensatory services, there is no obligation to provide a minute-by-minute or day-for-day compensation for the time missed, although sometimes it is determined that missed services will be calculated by minutes or days and made up as an equitable remedy. However, in some cases, comp ed could be more than what was lost depending on the child’s circumstances as each situation should be determined on a case-by-case basis.

Recent case law has established that “whereas ordinary IEPs need only provide ‘some benefit’, compensatory awards must do more – they must compensate.” [2]However, since school building closures were due to a public health emergency, the typical framework used to determine whether or not compensatory services should be provided may not be appropriate under the circumstances, as most school districts did not outright fail to provide FAPE. Rather, they were unable to provide a Free Appropriate Public Education because of state-mandated school closures.

Notably, if the child with a disability was refused services by a school district or did not receive services or instruction during building closures while students in general education were receiving services, then actual compensatory services may be warranted.

RECOVERY SERVICES

As school districts begin to return to normal, most are planning on how best to meet and transition the needs of students who receive special education and related services during such an unprecedented time. Many states have announced recovery services or COVID-19 specific compensatory services, which refer to services determined by the IEP or 504 team needed to remedy a student’s skill regression, behavior loss, and/or lack of progress that resulted from a school district’s inability (not intentional failure) to provide FAPE during an unavoidable closure. Recovery services should be considered only after a period of recoupment is assessed. This occurs when a student receives the services set out in their IEP or 504 Plan for a set period of time once schools reopen, thus allowing them time to “recoup” the lost skills or behavior or to make progress to the level(s) determined appropriate by the IEP or 504 team prior to the extended school closure. If the student continues to show gaps in their learning and skills after this period, they may need additional supports and services to “recover” from the interruptions in the delivery of their services during COVID-19. Recovery services are also not defined in the IDEA but have been increasingly used to describe a school district’s response to the gaps in student learning caused by COVID-19 and the school closures beginning in the 2019-2020 school year. As with compensatory services, recovery services should be based on a child’s individual needs, assessments and progress documentation.

ESY SERVICES

Compensatory and recovery services are not the same as Extended School Year services (ESY). ESY services provide individual instruction and services to a child in order to prevent the severe or considerable loss of skills or learning during time outside of the regular school year. ESY services are not dependent on the appropriateness of services provided in an IEP or 504 Plan, and a child may be entitled to ESY services as well as compensatory or recovery services. These services may look similar in practice and delivery but should be made on an individualized determination based on what is necessary for the child to make meaningful progress in the least restrictive environment.

            A child is not automatically entitled to compensatory, recovery or ESY services by virtue of state-wide school closures alone. Parents and guardians of children with disabilities should know the difference between these services to which their child may be entitled. School districts should never pressure families to waive special education services, including compensatory, recovery or ESY services. Families and schools should work together to determine what educational services will be provided based on the individual student’s needs. Ultimately, due to the nature of the shutdown resulting from a global pandemic, education agencies and courts will likely show deference to the emergency determinations made by school officials during this unprecedented time. Parents should regularly communicate with their child’s school and document these conversations about the potential for additional services related to COVID-19.

KEY POINTS/RECAP

• If a school district intentionally fails to provide FAPE to a child with a disability, they may be entitled to compensatory services.

• If a child with a disability tends to regress after long break periods, they may be entitled to extended school year services.

• If a school district was unable to provide special education and related services to a child with a disability during a school closure, and the child has not made progress in their learning after a period of recoupment, they may be entitled to recovery services.

• A child with a disability is not automatically entitled to these services due to COVID-19 school closures; rather, the determination of services should be made on an individualized basis by the IEP or 504 team.

• Compensatory, recovery and ESY services can be provided over an extended period of time but should be provided in the least restrictive environment for students receiving special education.

by LAUREN A. SABO, Esq. / Albeit Weiker, LLP

Questions? Contact us at (614) 745-2001

[1] 34 CFR §§ 300.101 and 300.201 (IDEA), and 34 CFR § 104.33 (Section 504)

[2] Reid ex Rel. Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005)

Updates on State Testing for Spring 2021: Ohio School Law

Does my child have to participate in spring testing?

We can all agree that 2020 was a year like we have never experienced before. The educational institutions tried their best to accommodate the changing situation and help support students the best that they could. One of those ways was to forgo the traditional state testing in the spring of 2020. As the new school year began and schools had a better plan in place for how they would educate our children, the state agreed to bring back the mandatory state testing but gave districts a lot of flexibility on when those tests would occur. This spring is no different.

Here are some facts from the Ohio Department of Education regarding the spring testing:

• Due to technology and test security requirements, there is no option to remotely administer state tests.

• Districts should prioritize safety while putting forth a good-faith effort to communicate with parents and students about the importance of assessments and the requirement to conduct testing on-site.

• Testing windows have been extended with many more options for districts to choose from. 

• No student should be retained for not meeting the promotion score or reading subscore on Ohio’s State Test for grade 3 English language arts unless the child’s principal and reading teacher decide otherwise. Meaning, the Third Grade Reading Guarantee has been changed for the 2020-2021 school year. 

• Federal and state laws require all districts and schools to test all students in specific grades and courses. There is no law that allows a parent or student to opt out of state testing, and there is no state test opt-out procedure or form. That being said, a parent can withdraw a child from participation in certain state tests, but there may be consequences for the student, the student’s teacher, and the school and district.

  • Districts and schools receive no credit when a student doesn’t participate in state testing. This can negatively impact a district’s state A-F report card grades.

  • Districts and schools cannot count students who do not take all required state tests in their average daily membership (ADM) for state funding.

  • Teachers will not have access to advanced diagnostic information from state tests, such as student growth projections, to help inform instruction.

  • A lack of state test scores can affect a student’s ability to graduate high school.

While I understand why a parent would not want to subject their child to a standardized assessment when the child’s learning has been significantly impacted this year, and mental health is a very serious concern for our kids, the school psychologist in me is telling you to let them take the test. Here is the thing, anxiety over these tests stems from the pressure that children feel to pass the test. That pressure comes from home and school. Take away the pressure and reassure your child that you could care less about their score. And when those scores do come home, put very little stock into what is on that paper. All our children have suffered one way or another this year and their educational progression has likely been impacted.  Be sympathetic to their situation. Listen and reaffirm their feelings. But I urge you not to remove this speedbump because when we are uncomfortable, but push on, we build character and resiliency. Our kids need to be resilient because there will be many moments in their lives when they will want to turn away from what makes them uncomfortable but doing so will stifle their personal growth.

Authored by Danielle Randolph, M.Ed., Ed.S., Special Education Advocate at Albeit Weiker, LLP

Questions? Call us. 614-745-2001

Can I Leave Work to Attend an IEP Meeting?

FMLA LEAVE MAY BE AVAILABLE TO PARENTS TO ATTEND IEP MEETINGS

On August 8, 2019, the U.S. Department of Labor, Wage and Hour Division (“the DOL”) issued guidance on whether an employee may take protected leave under the Family and Medical Leave Act (“FMLA”) to attend a meeting to discuss the Individualized Education Program (“IEP”) of the employee’s son or daughter. U.S. Dept. of Labor, WHD, FMLA 2019-2-A(August 8, 2019). 

1. FMLA Leave

As a starting point, FMLA provides that an employee eligible for FMLA may take up to 12 weeks of job-protected, unpaid FMLA leave per year “to care for the spouse, son,daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.” 29 U.S.C. §2612(a)(1)(C); see also 29 U.S.C. §2611(11); 29 C.F.R. §825.112–.115.

2. IDEA and Related Services 

Alternatively, the Individuals with Disabilities Education Act (“IDEA”) requires public schools to develop an IEP for astudent who receives special education and related services, with input from the child, the child’s parents, teachers, school administrators, and related services personnel. Under IDEA, “related services” may include such services as audiology services, counseling services, medical services, physical therapy, psychological services, speech-language pathology services, rehabilitation counseling services, among others.

3. DOL Conclusion

Considering both statutes, the DOL instructed that attendance at IEP meetings does qualify FMLA-covered leave so long as the employee’s son or daughter suffers from a “serious health condition” as defined in the law. FMLA defines a “serious health condition” as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider. Many students receive “continuing treatment” by a healthcare provider pursuant to their IEP. 

4. FMLA Medical Certification

An employer may require the parent to provide a medical certification in order to verify the existence of the child’s serious health condition. This certification is a standard FMLA form issued by a health care provider, further supporting the request for leave. This certification would verify that the child’s condition qualifies as a “serious health condition” under FMLA. 

5. Parents Input is “Essential”  

In issuing the guidance, the DOL recognized that the parents in question attend IEP meetings in order to “help make medical decisions concerning their children’s medically-prescribed speech, physical, and occupational therapy, to discuss their children’s wellbeing and progress with the providers of such services, and to ensure that their children’s schoolenvironment was suitable to their medical, social, and academic needs.” The DOL also instructed that, a parents’ attendance at IEP meetings is often “essential to [the parent’s] ability toprovide appropriate physical or psychological care” to theirchildren, further justifying the application of FMLA protected leave for IEP meetings. 

6. Intermittent Leave 

Under FMLA, an employee may use the leave intermittently or on a reduced leave schedule when medically necessary because of a family member’s serious health condition. 29 U.S.C. §2612(b)(1); 29 C.F.R. § 825.202. This means that the employee may apply the FMLA leave as-needed, for portions of a workday, rather than in a scheduled days or in continuous days. Intermittent leave is the type of leave most parents would need to request and use for IEP meetings. 

Finally, the DOL instructed that the child’s doctor does not need to be present at IEP meetings in order for the leave to qualify under FMLA. The conclusion provided by the DOL alsoapplies to any special education meetings held pursuant to IDEA. 

This article was authored by education and employment attorney, Mark A. Weiker. 

Questions? Call us. 614.745.2001

K-12 Students: 3 Things To Do If You (Or Your Child) Are Suspended or Expelled from School

Written by Mark Weiker, Esq. from Albeit Weiker, LLP; education law attorney focused on student rights & father of two.

Unfortunately, it remains the norm for primary and secondary schools throughout the country to use suspension and expulsion as a remedy for bad behavior, despite almost no evidence that removing students from the educational environment works to deter bad behavior or increase academic performance.  

To the contrary, data from the U.S. Department of Education, Office for Civil Rights indicates that even a single suspension increases the likelihood of future misconduct, and can lead to lower graduation rates and increased involvement in the juvenile justice system. So, it is an understatement to say that suspension and expulsion can be disruptive to a student’s education and social progression. 

In Ohio, suspensions and expulsions are allowed under state law. Out-of-school school suspensions may be issued for up to 10 consecutive school days. Expulsions (which, if issued, always follow a suspension) may be issued for up to 80 days for common rules violations, and up to one year for more serious offenses such as bringing a weapon onto school property or making a bomb threat. (Note that Ohio students in grades K-3 may only be suspended or expelled for these more serious offenses.) Permanent exclusion is also a possibility for students who commit very serious criminal acts. Suspensions and expulsions include complete removal of the student from the school environment.

If you or your child are facing suspension or expulsion, you should consider taking these steps to protect yourself and mitigate any negative impact to your or your child’s education:

#1 – Review the Notice Carefully 

You should first receive a Notice of Intent to Suspend/Expel, informing you of the alleged infractions, followed by an actual Notice of Suspension/Expulsion, notifying you that you have been suspended/expelled. Review the alleged infractions in the student handbook and in the school’s policies and compare the definitions for the infractions to what took place. Pay close attention to the appeal deadlines. This is a good time to contact an attorney if you plan to use one. 

#2 – Always Appeal 

You should appeal the suspension/expulsion, even if you’re not sure whether you plan to pursue the appeal. An attorney can appeal for you, but the deadline to appeal can be as short as 2-3 days, so you may need to appeal before you find an attorney. Make sure you submit the appeal in writing in accordance with the instructions on the notice. You are entitled to separate suspension and expulsion appeal hearings (if you are dealing with both), although you may ask to combine them if they would be redundant. An appeal hearing will be scheduled, usually within days. You can always request an extension in order to prepare for the hearing, gather records, obtain counsel, etc. 

The hearing will provide you a chance to explain your side of the story and submit evidence. You may also call witnesses to the hearing, although the process is less formal than court. Obviously, you need to prepare very well for your hearing, highlighting the reasons that you believe suspension/expulsion is not warranted. Your appeal can be withdrawn if you change your mind or determine that the suspension/expulsion is acceptable. 

#3 – Complete All Assignments While You Are Out of School

In Ohio, schools must give students at least 50% credit during an out-of-school suspension. The same is not true for expulsion. Nonetheless, during the pending appeal(s) and through any suspension/expulsion period, complete as much work as you can. Try to stay as current with your assignments as possible. The reasons for this are twofold: (1) this keeps you from falling too far behind academically during the appeal hearings and any imposed suspension/expulsion period, and (2) this indicates to the hearing officer(s) that you are both capable and motivated to continue learning. This can help you in your appeal hearing because you can argue that you are a contributing student who can seamlessly transition right back to the classroom environment. 

We hope you can avoid suspension and expulsion altogether. But, if you find yourself in trouble, taking these three steps will help to mitigate the negative effects of suspension/expulsion.

If you have questions about school discipline, or need representation, call us at (614) 745-2001. 

A Teacher's Guide to Beating First Week Jitters

It’s about that time of year again. The time when the specialty sections of Kroger and Target are stocked with rainbow bins, cartoon backpacks, and discount Crayolas. The time when you frantically fill your calendar with shopping trips, haircuts, and last minute summer fun. That’s right--it’s back to school season!

The bittersweet ending of summer brings up all sorts of questions for parents and students alike. 

What will the new teacher be like? 

What if they can’t figure out the new school building?

Will we have the same issues we had last year? 

Will my kid have any friends? 

Trust me parents, first week jitters are totally normal. Change is hard--especially when it involves your kiddos. Luckily, because of my job, I have learned plenty of ways to help keep yourself, and your kids, calm and help ease this (sometimes painful) transition back into school. 

1. For elementary school learners, spend some time reading stories about transitioning back into school. 

Children’s literature just keeps getting better and better. You can find all sorts of stories that model some of these trickier social situations (like going back to school) and use them as springboards for conversations with your kiddos. 

Here are some of my favorites! 

The Pout Pout Fish and David are both parts of larger series of books, so if your little ones fall in love with the characters, they’ll make for great stories to keep around the house. All of these titles can be found at your local library or on Amazon.

2. Start adding small parts of the school morning routine into your mornings. 

Whether you have a teenager who loves to sleep until 11 or an elementary student who is up at the crack of dawn, transitioning kids into a school routine can seem like a menacing task. Daycare schedules and babysitters are totally different than getting them dressed, fed, and out of the house by 7:30 am. 

Take some time to sit and process. Think about what you want your school morning routine to look like. Do you want them up by a certain time? Will they pack their own lunch or pick out their own clothes this year? What time will they need to be awake? What do you need to do and what do they need to do in order to have somewhat successful mornings?

Once you have your brainstormed list, pick one thing to begin working on now with your kids.  Slowly getting them used to the new routine will help alleviate some of those negative emotions and difficult transitioning that all kiddos go through. When they know what to expect, they will be able to relax (and so will you). 

One thing I love doing for my younger students is providing a visual schedule. Simply designing a little chart with pictures for each step of the morning routine can promote their independence and help reduce a lot of anxiety. I’ve also found visual schedules help with the constant questions like “Mommy, daddy, what’s next? What are we doing? When is breakfast? When are we leaving?” You know the drill. 

Here is an example of a super simple visual schedule you could use with your kids! Remember, these can be changed and personalized to meet the needs of students at all ages. 

3. Attend school open houses/other first week events 

If you’ve had your kids in school for a long time, open houses can feel mundane and boring--even pointless. But even though you know the schools like the back of your hand, your kids may not feel the same way. Meeting the teachers, walking through their schedule, and finding their locker (just to name a few) are all crucial steps for your child to feel comfortable, settled, and ready to take on their first day. 

Open houses are a great time for us teachers to get some ‘face time’ with you as parents to starting building the relationship you’ll need throughout the year. Starting off in a positive, low stress context is a much better foundation than waiting till that first phone call home about behavior. Also, teachers are ready to interact during events like this and have the time for a five or ten minute conversation--trust me, those chances to talk are few and far between during the school day--so take advantage of them now!

4. Figure out school transportation and start on the very first day

I have known so many parents who want their child to ride the bus but, on the first day, drive them to school. Now I know there is nothing that gets those likes like a first day of school picture, but trust me, put them on the bus and drive to school without them. Doing so helps cement their routines down and also helps alleviate any bus anxiety. If mom or dad is waiting at school for them, they will feel much more confident. 

If you have a teenager who will be driving for the first time, encourage them to take a test drive and find out about parking. High school lots can be a little complicated and a lot of schools require student parking passes within the first week. Knowing these answers will help your older child feel ready for their new found independence. 

5. Make the most of your last few weeks of summer 

It might seem counterintuitive, but so much of school readiness is based on what happens at home. These last few weeks are the perfect time to make some more memories with your children. Give yourself permission to have the water balloon fight, make the special treat, or do the messy art project. So much growth happens during the school year and the time right before it all starts is definitely special.

Trust me, when students come into school with a rich history of stories and experiences, it enhances their language and literacy skills. I know how hard it is to balance all the aspects of work and kids, but it will be so worth it. 

I hope you found these helpful and that you are ready to take on the year! 

P.S: if you are wanting to buy anything beyond those silly school supply lists, teachers will literally always request Ziploc bags, tissues, hand sanitizer, and wine ;)

Special thanks to Rachel Dalton, our guest AW Teacher Blogger!

Need Help with IEPs, student discipline defense, or school related issues? Call us. 614.745.2001.

Talking to Children About Terrorism

Written by Danielle Randolph, School Psychologist & AW's newest Student Advocate

In today's world, parents are faced with the challenge of explaining violence, terrorism and war to children. Although difficult, these conversations are extremely important. They give parents an opportunity to help their children feel more secure and understand the world in which they live. The following information can be helpful to parents when discussing these issues:

Listen to Children:

• Create a time and place for children to ask their questions. Don't force children to talk about things until they're ready.

• Remember that children tend to personalize situations. For example, they may worry about friends or relatives who live in a city or state associated with incidents or events.

• Help children find ways to express themselves. Some children may not be able to talk about their thoughts, feelings, or fears. They may be more comfortable drawing pictures, playing with toys, or writing stories or poems directly or indirectly related to current events.

Answer Children's Questions:

• Use words and concepts your child can understand. Make your explanation appropriate to your child's age and level of understanding. Don't overload a child with too much information.

• Give children honest answers and information. Children will usually know if you're not being honest.

• Be prepared to repeat explanations or have several conversations. Some information may be hard to accept or understand. Asking the same question over and over may be your child's way of asking for reassurance.

• Acknowledge and support your child's thoughts, feelings, and reactions. Let your child know that you think their questions and concerns are important.

• Be consistent and reassuring, but don't make unrealistic promises.

• Avoid stereotyping groups of people by race, nationality, or religion. Use the opportunity to teach tolerance and explain prejudice.

• Remember that children learn from watching their parents and teachers. They are very interested in how you respond to events. They learn from listening to your conversations with other adults.

• Don't confront your child's way of handling events. If a child feels reassured by saying that things are happening very far away, it's usually best not to disagree. The child may need to think about events this way to feel safe.

Provide Support:

• Don't let children watch lots of violent or upsetting images on TV. Repetitive frightening images or scenes can be very disturbing, especially to young children.

• Help children establish a predictable routine and schedule. Children are reassured by structure and familiarity. School, sports, birthdays, holidays, and group activities take on added importance during stressful times.

• Coordinate information between home and school. Parents should know about activities and discussions at school. Teachers should know about the child's specific fears or concerns.

• Children who have experienced trauma or losses may show more intense reactions to tragedies or news of war or terrorist incidents. These children may need extra support and attention.

• Watch for physical symptoms related to stress. Many children show anxiety and stress through complaints of physical aches and pains.

• Children who seem preoccupied or very stressed about war, fighting, mass shootings, or terrorism should be evaluated by a qualified mental health professional. Other signs that a child may need professional help include: ongoing trouble sleeping, persistent upsetting thoughts, fearful images, intense fears about death, and trouble leaving their parents or going to school. The child's physician can assist with appropriate referrals.

• Let children be children. They may not want to think or talk a lot about these events. It is OK if they'd rather play ball, climb trees, or ride their bike, etc.

Violence in the world is not easy for anyone to comprehend or accept. Understandably, many young children feel confused, upset, and anxious. Parents, teachers, and caring adults can help by listening and responding in an honest, consistent, and supportive manner. Most children, even those exposed to trauma, are quite resilient. Like most adults, they can and do get through difficult times and go on with their lives. By creating an open environment where they feel free to ask questions, parents can help them cope and reduce the possibility of emotional difficulties.

Credit: Talking To children about terrorism and war. (2011). American Academy of Child and Adolescent Psychiatry, 87.

Questions? Call us. 614-745-2001.

Beating Summer Scaries (For You, Teacher)

Hey there. 

I see you in your yoga pants and top knot.

I know you don't know what day it is.

I'm right there with you.

A fellow teacher on summer break.

These last two months have been glorious for us:

Unlimited pee breaks,

Finishing our coffee while it's still warm,

Having more than 20 minutes to eat lunch,

Not having to tell anyone "people don't want you to lick them,"

(Unless you have a little one at home, God bless your soul).

The pace of summer is a delightful break from the frantic, absurd pace we are expected to keep during the other 10 months of the year. It’s a time to refocus, relax, and just BREATHE. Our summers are, simply put, crucial.

If you’re anything like me, gearing back up to school can be the scariest part of the year. What will my new class be like? How will the administrator and I get along this year? What if I still can’t get my test scores up? Wait, I have that kid on my roster? 

Beginning of the year anxiety is a real thing and it affects every teacher I’ve ever met. Between all the beginning of year PD, it often feels like there isn’t room to process through these feelings and prepare ourselves for the new batch of little ones entering our rooms. I wanted to take a minute to make some recommendations that work for me to slow myself down and get to the bottom of my anxiety about the new school year.

1. Meditate

Okay, I know what you’re thinking. Meditating is for crunchy hippies. Also sitting still for long periods of time is way too hard. And intimidating. And boring. 

Listen. 

I felt the same way when I started, but honestly nothing has helped me more. Meditating is basically just learning how to focus your attention which, for a teacher who has to think of literally seven million things all at once, can be a very powerful tool. 

There are all kinds of apps to help begin your journey with meditation. A couple I love are Headspace and Pacifica, which have both free and paid features. Another easy way to get started with meditation is through an easy visualization you can do independently at any time for any length of time. You can do this sitting, standing, or anywhere you feel relaxed. 

Take some deep breaths and start to focus on where you feel your breath in your body. Focus on filling up your belly, inhale and count to four, exhale and count to four. Repeat until you begin to feel relaxed. 

Think of yourself sitting on a nice, grassy hill, watching clouds float past you in the blue sky. The weather is a perfect 75 degree day with a nice breeze, not too hot and not too cold. The grass under you feels soft and inviting. One by one, watch each cloud pass from your left to your right, moving across the sky. Once you’ve watched a few clouds, begin to place your thoughts on the clouds one at a time. Place one thought on each cloud that comes into your view. Your thoughts can be long or as simple as a word or a feeling.  Watch each thought move from your left to your right and slowly exit your view. Keep watching your thoughts float by until you feel settled, grounded, and ready to move on with your day. 

You can repeat this exercise as many times as you need during your chaotic days at work. I tend to do mine as I walk to pick my students up from lunch as a sort of ‘midday check-in’ with myself.

Always remember your blue sky.

2. Cultivate time throughout the week for yourself 

As teachers, for our seven (or eight or nine) hours with students, we always have to be “on.” Our jobs, and often our personal lives as well, do not permit for any time just for us. When we go home, we are greeted with our own children or families who demand attention and care even though we already overexerted our sympathy muscles at work. It is absolutely exhausting to put so much into work and home; it leaves us feeling drained and powerless. 

One thing I’ve started incorporating is doing something little for myself each day. The term “self care” is so overused and has come to mean little more than sheet masks and bubble baths--but honestly, we all need to take better care of ourselves. You can start by making a list of things that make you feel like you. For me, that list includes writing, washing my hair, doing a sugar scrub, making a yummy dessert, and going on a walk without my phone. What feels good for you will be totally different from your friends, partner, and coworkers, and that is OKAY. 

Start with one minute a day. Find a time that works for you and start incorporating a little time just for YOU back into your hectic days. Yes, it will take work. Yes, it feels completely unnatural. Yes, it might feel selfish. But you are not able to pour out from a completely empty cup; the longer you spend focusing on everyone else, the more burned out you will become. Trust me, everyone in your life will be better off when you take time to recharge and relax. No one can be ‘on’ 24 hours a day, 7 days a week. Spend time with yourself, it’s okay, I promise. 

3. Plan your weeks

Last winter, I invested $15 in a planner.  It has hourly spots for each day, from 6am to 11pm, along with space for writing about your dreams and your goals. As I started to use my planner, I noticed a shift in myself. When I set aside time for exercise at the beginning of the week, during the week it became a lot easier to go to a yoga class. When I set aside time to write in my journal, I knew what nights I needed to put my phone away early. This intentionality in my schedule started to shift my ability to use my evenings after school as ways to care for myself and further my goals, rather than just vegging out on Stranger Things for hours at a time. 

Planning your week will help you set aside those moments for yourself and help you realize just how much time you have outside of school. Even if your evenings are full of baseball practices, dance rehearsals, and piano lessons, I think you’ll be pleasantly surprised at how much time you can redeem back. And even if there isn’t any extra time, you’ll know exactly what your week holds. Knowing what is coming and when it’s coming is a great trick to cut down on anxiety and rushing around that leads to extra stress.

4. Work on professional boundaries 

How many of us stay for hours after work doing tasks that could either have been done during planning or could be done at home? I know I for one, am guilty! 

I know planning is so much easier when you are close to your resources and materials. Lugging materials to prep, especially for primary grades, is super annoying. Planning at home can be difficult with your kids running around demanding attention, and honestly, it’s sometimes nice to just sit in the quiet building and get a bunch of work done. There is definitely a time and a place for long planning sessions; but staying late every day is a great recipe for burnout.

Start thinking now about what you want your boundaries to be for work. Do you want to leave within an hour of students leaving? Do you want one long planning day a week? Do you want to prep materials each morning before students get there? Think of what would work for you and your schedule. When the year starts, stick to your boundaries! If coworkers come in wanting to chat or co-plan, tell them times you’d be available. You are in control of your schedule and thinking it through ahead of time will help you communicate clearly with your co-workers and will help you manage your time well. 

SPACE.

5. Let it go

Once I was talking with a coworker and commiserating about keeping our classrooms and houses clean and she jokingly remarked, “Man. You know we wouldn’t be teachers if we didn’t have control issues about something.” At first I was slightly offended (I don’t have control issues, okay?), but the more I thought about it, the more her joke made sense. 

As teachers, we are paid to develop and create an environment that promotes learning in all types of students. But, since so much of teaching is out of our control, we are left with a whole lot of amazing, creative ideas that we either can’t afford or aren’t allowed to do because of testing, ‘rigor,’ and district expectations. This frustration continues to build and build in us until we feel like exploding. Why can’t we be allowed to just do what we know is best for kids? Isn’t that why we have college degrees? 

Last year, I had the opportunity to watch an absolutely amazing intervention specialist in my building teach a room of kindergarteners about control. She used a visual of concentric circles to show the kiddos things they could control and things they couldn’t. As I sat on that 5-year old sized chair, I realized that so much of what I worry about on a daily basis at work is simply out of my control. I cannot control where students are when they come to me, the curriculum mandated to me by my district, the conditions of my school, the people’s attitudes around me.

I can control how much I let these things affect me and where I choose to direct my stress. I can control how much work I choose to ‘take home.’ I can control my attitude and responses to stressful situations, even when everyone else around me is spinning out. 

Take some time to reflect on what you can and cannot control in your room and in your school. If you can’t control it, it’s time to let it go. Let go of the Pinterest boards and lower those expectations. I like to reflect on the phrase, “be gentle with yourself.” When you feel stressed about meeting those expectations, remind yourself that you are allowed to struggle and be imperfect and frustrated. You do not have to be a perfect teacher or perfect parent every day. There are going to be days that are amazing and fulfilling; but there will also be days where your lessons completely fall flat and you want to rip your hair out. 

Bring yourself back into balance by choosing which issues are going to be the ones that cause you to stand up and advocate for your students and which ones you are going to let go. By controlling your responses, you will be able to save your precious energy for the battles that really matter (and trust me, we both know there will be plenty). 

Alright, that’s enough from me. Go enjoy your last afternoon by the pool, or that last margarita before 4pm. 

Here’s to a great year full of possibilities! 

-A fellow teacher on summer break

A special thanks to our guest blogger, Ms. Dalton, an elementary teacher on the west side of Columbus, meditator, dog mom, and AW guest blogger.

Are you a teacher or administrator in need of representation? Call us. 614.745.2001.

E+R=O: A Special Education Mindset

E + R = O: A Special Education Mindset

Fighting for an individualized and appropriate education

Let’s imagine you are not receiving progress reports on your child’s Individualized Education Plan (IEP). You have that parental instinct that something isn’t right. How do you stand up to district administrators, who are specifically trained in the field of education? Do you “let it go” and just hope everything works out? No! 

Urban Meyer led The Ohio State University Football Team to a National Title using this simple equation, E + R = O. The equation comes from the book Above the Line, coauthored by Meyer and Wayne Coffey. (Highly Recommended by #teamAW!) The book is not a focus on football, but on mindset and taking action. Which is what we need to do when advocating for our kids. Special Education is full of unexpected, emotional, and confusing events. From initial diagnosis to having a gut feeling that your child is not receiving the correct services to meet their individual needs. Now what?

It begins with a simple, powerful equation that affects everything we do.

EVENT: There are often unexpected, emotional, & confusing events

RESPONSE: Advocating for your child, by choosing your response

OUTCOME: Control of your child’s education is the outcome

The R factor is the most important. R is your response to the event that occurred at school, or your response to the feeling that your child is not thriving. Here are a few appropriate responses in the realm of Special Education:

1. Do your homework and research everything you can before walking into any meeting;

2. Understand the acronyms, and that an ETR and IEP can come down to semantics but have major consequences;

3. Be ready to justify what you are fighting for;

4. Be your child’s best advocate; sometimes you need help understanding, interpreting, and navigating the special education process. Whether it is you or you combined with an advocate for your child, make your response! 

In special education, the response can change the outcome of your child’s educational future. Advocate for your child. If you are told no, think of another response to control the outcome. 

Questions? Call us. 614.745.2001. We have the Special Education team to support you.

Own a dog? Fostering a dog? You NEED to read this!

Thank you to our first guest blogger, friend of the firm and Senior Assistant City Attorney  for the City of Columbus, Isaac Rinsky.

Mr. Rinsky is assigned to the Franklin County Environmental Court and has some great, easy to read info and tips for dog owners.

Imagine venturing out for a walk with your big snow boots and hat with your excited and cooped up dog.  All of a sudden, you see another adventurer walking towards you with their faithful canine companion.  As they approach, you realize that their dog is much bigger than yours.  You also realize that their dog is not on a leash. Several thoughts enter your head. Shouldn’t their dog be on a leash? What if their dog runs towards me and my dog?  What if their dog attacks me and my dog?

These are thoughts that undoubtedly all dog owners/walkers have pondered.

Before we address those questions, should we not first consider:  Who is responsible for the dog?

Many a distempered citizen has appeared in the Franklin County Environmental Court, just waiting for their chance to exclaim, “I am not the owner of that dog!”  What they fail to realize, and what is consolingly whispered to them, is that the Ohio Revised Code holds owners, keepers, or harborers of dogs responsible for many dog related offenses.  Some common examples of harboring or keeping a dog include: (1) Walking the dog, (2) Dog sitting, (3) Living in the same house with the dog, (4) Picking up the dog at the pound.  These are just a few common examples.  So before you agree to take care of a dog for a friend or pick it up at the pound, make sure to confirm that the dog is licensed and vaccinated.  If that dog gets loose while it is within your control, you may be held responsible.

Do you have to have your dog on a leash in Columbus? 

If you are on your own property, you must keep your dog confined to that property.

If your dog is a female and is in heat, then you must keep the dog on a leash if you leave your property. Otherwise, no leash required.

However, if you decide not to restrain your fur baby, here are some things to consider.  You or some other person must maintain reasonable control over your dog at all times.  So, if you are walking your dog without a leash, you better make sure he/she is well trained and will respond to verbal commands.

What if a dog attacks me or my dog?

If a dog is attacking you, you may have the right to injure or kill that dog.  If a dog is attacking your dog, you most likely cannot kill that dog. See O.R.C. 955.28(A).

If you are bit by a dog, or a dog kills your dog, then the owner, keeper, or harborer of the offending dog can be criminally liable.  If, after an investigation by Franklin County Animal Control, it is determined that a dog caused physical harm to a person, or that it killed another dog, the owner, keeper, or harborer of the dog can be charged with a fourth degree misdemeanor. The offending dog can also be designated as dangerous.

If a dog is designated as dangerous, this designation can be appealed within ten days.  The court will then determine whether there is sufficient evidence to show that the dog, without provocation, either caused injury (other than serious injury or death) to a person, or killed another dog. “Without Provocation” means that the dog was not teased, tormented, or abused by a person, or that the dog was not coming to the aid or defense of a person who was not engaged in illegal or criminal activity and who was not using the dog as a means of carrying out such activity.

If poor Fluffy is designated as dangerous, it does not mean she will be put down.  She can still live to a ripe old age barking at the sky and stealing hot dogs off the table.  You will have to register her as dangerous, have her fixed, microchipped, and she will have to wear a special collar to identify her as “dangerous”.  You also will have to confine her in a more secure manner than before.  See O.R.C. 955.22(D).

If, heaven forbid, Fluffy causes serious physical harm to a person, then the court may order her to take a forever nap.  Euthanasia is not required in this scenario, but if it is not ordered, the person responsible will have to obtain liability insurance for Fluffy that equals or exceeds $100,000.

What if Buddy got loose despite my best efforts to keep him contained in my yard?

Unfortunately, many courts in Ohio have held that dog confinement offenses are strict liability. This includes jailable offenses for confinement of dogs.  If Buddy picked the lock on your gate, or jumped over an impossibly high fence while you were at work, you could still be on the hook for his delinquency.

Hopefully this information will assist you and your furry friend this season.  Make sure your dog is registered, vaccinated, and under your control or confined to your yard at all times.  If not, you might find yourself talking to a Deputy from Franklin County Animal Control.  And they may ask you, “Who let the dogs out?”

Questions? Call us! 614.745.2001

Applying for Grad School? What you need to disclose.

When applying to graduate programs, especially law school, many applications require that all applicants disclose any criminal or academic misconduct. But it can be tricky to know what you do and do not need to disclose.

One simple answer is to read any disclosure questions carefully. While the disclosure questions can be lengthy, it is very important to read the entire question for two reasons: (1) To make sure that you do not mistakenly withhold any information and (2) To know specifically what you do and do not need to disclose.

Not all schools are the same and it is very possible that some schools require different information that other schools. Failing to disclose required information can result in having to take extra application steps, not being accepted to the school, or having your acceptance revoked. Ensuring that you are disclosing all relevant information can help ensure an easier application process. Reading the disclosure question thoroughly will help guarantee that you disclosed all requested information.

Tips to answering application disclosure questions:

1. Read the question thoroughly

2. WHEN IN DOUBT, DISCLOSE

3. Know your criminal and academic history

Honesty is the best policy when it comes to disclosures on applications. If you are in doubt about whether to disclose a piece of information or not, it is always better to be honest and disclose rather than trying to hide the information. You also have the option of contacting the school and asking if a piece of information needs to be disclosed or not. It is important to know the  status of any criminal or academic misconduct you may have because in some cases if the charge was dismissed or expunged, you may not be required to disclose the misconduct. It will be stated in the disclosure question whether dismissed or expunged misconduct must be disclosed or not.

While some schools may require you to disclose minor traffic infractions, such as speeding, it is unlikely that a simple speeding ticket or other minor traffic violation will negatively affect your admissions odds. However, failing to disclose may negatively affect your admissions chance!

In short, make sure to read the disclosure questions carefully to find out exactly what must be disclosed, and if you are still on the fence about whether to disclose or not, always disclose.

Questions? Call us! 614.745.2001

Article written by Avery Young, 2L at Capital University Law School and Law Clerk for Albeit Weiker, LLP

Straight From A Student's Mouth: My experience defending a charge of cheating.

Straight from a student's mouth:

A college student found herself charged with academic misconduct (a.k.a. cheating). Here's her story.

"Last semester, I was in a Marketing class required to pursue my Human Resources degree in the Fisher College of Business at Ohio State. It was not the most difficult class, nor the most interesting. Each week, we had weekly warm ups and quizzes on chapters from the text. These assignments were issued via Pearson, an online education service that students at Ohio State used to do online work. For some classes, including Marketing, Pearson made up the questions based on the textbook. These questions stayed the same every semester, and students often made quizlets (an online study tool, comparative to online flashcards) to study from. These quizlets included the quiz question and the answer, and were public. If you searched the question, the answer would come up online. These online assignments were open notes; therefore, we were allowed to use our computers and resources.

GroupMe is an app that allows for large groups to communicate without the annoyance that large groups texts bring - we all know those. A GroupMe was created for Marketing for questions that may arise during the class; when are the exams, what do they cover, etc. Soon, people began posting the answers to the quizzes and warm ups, because everyone knew we all looked them up and this saved time. One week, I posted a warm up and quiz because I felt bad I never posted anything. No one really checked the GroupMe except for the answers to the quizzes and warm ups, so no one noticed 83 people had joined it. People kept adding other people, and one girl decided to turn in the GroupMe group at the end of the semester.This case was brought to the Committee of Academic Misconduct (COAM). Almost an entire semester later, COAM gave out punishments. Everyone who had been in the GroupMe but not posted any warm ups or quizzes were put on academic probation and had to retake the class. Everyone who had posted also was put on academic probation, had to retake the class, and was suspended for two semesters. So I was suspended for two entire semesters for posting one warm up and one quiz within fifteen minutes of each other all because I had felt bad I never posted. I would have finished the class with an 88.9%.As an HR major, I pride myself on ethics. I am involved in other activities outside of school, including a sorority, president of another organization, and have had multiple internships not only in the summers, but part time while being a full time student. Therefore, it was extremely shocking and upsetting that I, a student who gives my all in the Fisher College of Business and balances my time with things that will strengthen me, got suspended. I was due to graduate this Spring, in 2018. I would no longer be able to graduate on time. Telling my family, friends, and peers was not only hard, it was embarrassing.The suspension was to be the Spring 2018 semester and Summer 2018. I would then finish my classes fall 2018, and graduate. However, since I was a Human Resources major, and the classes I needed to take to get my degree were only offered in the Spring, my suspension essentially became three semesters since I would need to stay that extra spring semester. I hired AW, and my attorney wrote a strong appeal letter that allowed my suspension to be summer and the next fall (2019), so I could finish my classes this spring, and just get my degree a year later in Spring 2019. This allowed me to work or do whatever I would like for a year, rather than having to take a break and then go back to school.As hard and challenging as my situation was, and still is, it brought about some good things. Although it was difficult to remain positive throughout this experience, I knew if I held my head high things would workout, and they did. I have a great job in the field I want to pursue, and am trying to make the best of the situation.If it can happen to me, it can happen to anyone. I try to remember the old saying, 'When one door closes, another door opens.' I am now motivated and determined again."   

Changing Student Records

Parents and Students Have a Right to Request Amendment or Removal of an Education Record

Students ages 18+ and parents of students under age 18 have a right under federal law to request removal or amendment of inaccurate files contained in the student’s education record. The right exists under the Family Educational Rights and Privacy Act (“FERPA”) and it applies to students of all ages (pre-school to Ph.D.) who attend or attended schools that receive federal funding. This includes all public schools and many private schools.

Initial Request to Amend of Remove an Education Record 

If a parent or student believes an education record (including any disciplinary record or special education record) contains information that is inaccurate, misleading, or in violation of the student’s privacy, they must start by requesting that the school remove or amend the record. 34 C.F.R. § 99.20. Although not required, it is best to make the initial request in writing.

Under FERPA, the school must then decide, within a reasonable time, whether or not to amend the record as requested. If it complies with the request, the process ends.

If the school decides not to amend or remove the record as requested, it must notify the parent or student of its decision and also inform the parent or student that they have a right to a hearing on the matter. Id.

Required Hearing and Applicable Rules 

A school must provide a parent or student, on request, a hearing to challenge the content of the student’s education records on the grounds listed above. 34 C.F.R. § 99.21. The hearing must be held within a reasonable time following the request. The school must give the parent or student notice of the date, time, and place, reasonably in advance of the hearing. 34 C.F.R. § 99.22.

The hearing may be conducted by any person, including any school official, who does not have a direct interest in the outcome of the hearing. The school must give the parent or student a full and fair opportunity to present evidence relevant to the request for amendment or removal. The parent or student may be represented by an attorney at their own expense.

Following the hearing, the school must deliver its decision in writing within a reasonable period of time. The decision must be based solely on the evidence presented at the hearing and must include a summary of the evidence and the reasons for the decision.

Good Outcome: Written Notice That the File Will be Amended 

If, as a result of the hearing, the school decides that the information is inaccurate, misleading, or otherwise in violation of the privacy rights of the student, it must: (1) amend the record accordingly; and (2) inform the parent or student of the amendment in writing. 34 C.F.R. § 99.21.

Bad Outcome: Right of Parent or Student to Place a Statement in the Record 

If, as a result of the hearing, the school decides that the information in the record is not inaccurate, misleading, or otherwise in violation of the student’s privacy, it must inform the parent or student that they may place a statement in the record commenting on the contested information or indicating why they disagree with the decision of the school, or both. Id.

If the parent or student provides a statement and the school places it in the student’s record, the school must: (1) maintain the statement with the contested part of the record for as long as the record itself is maintained; and (2) disclose the statement whenever it discloses the portion of the record to which the statement relates. Id.

What to Do When a School Refuses to Follow the Process

A parent of a student may file a written complaint with the Family Policy Compliance Office of the U.S. Department of Education regarding any alleged violation of FERPA. The Complaint form is available at http://familypolicy.ed.gov/complaint-form.

Questions? Call us! 614.745.2001

Do you have a gifted student?

Suspect a student is gifted?

Parents, students or teachers can refer a potentially gifted child for screening at any grade. Public school districts in Ohio must provide screenings at least twice per year, and must have a procedure for parents to appeal any decision about the results or scheduling of testing, or the placement of a student in a gifted program.Early identification is especially important because the benefits of gifted education are cumulative. Alternatively, gifted students who aren't identified may eventually exhibit behavioral and learning issues in a regular classroom environment. School districts should provide standardized testing, which is a useful method of identifying gifted students.Once a student is identified as gifted, the school's principal or gifted coordinator should be contacted to discuss the next steps, and to develop a Written Education Plan (WEP) for the student.An important caveat to gifted education: All public school districts are required to meet minimum standards for identifying gifted students, but are not required to provide gifted or advanced educational curriculum. This means that some districts offer gifted reading, others gifted science or math, while still others may not offer any gifted programs at all.This means that the gifted child might need to transfer schools in order to receive an advanced curriculum in their area of giftedness. If your child moves schools, you should request that your former district transfer the educational file to the new district. All public districts in Ohio must honor students' gifted identification if it was from another Ohio school. Finally, districts are required to enact a policy for gifted education; be sure to request the policy if anything is unclear.

Students with disabilities

Students with a disability—such as physical disability, mental illness, learning disability such as dyslexia, autism, or Attention Deficit Hyperactive Disorder (ADHD)—may also be gifted. These children are considered "Twice Exceptional."Identifying these students can be challenging because the characteristics and symptoms associated with certain disabilities can overshadow high cognitive ability and/or exceptional aptitude. The new regulations provide increased protection and specialized gifted testing of individuals with disabilities that reflect the student's aptitude or achievement and not their disability.Remember though, by law gifted students with disabilities must receive special education services from their public school to accommodate any special needs, but they are not required to receive gifted instruction.

Gifted academics

The results of gifted screening will determine the areas in which the child exhibits high levels of accomplishment. Gifted instruction can take many forms: a self-contained classroom for gifted students in a particular academic area; a self-contained general education classroom for only gifted students; co-teaching with a general education teacher and a gifted instructor who "pushes in" for specific lessons; push-in services for differentiated learning in the general education classroom; honors courses; International Baccalaureate courses; Advanced Placement courses; grade acceleration; dual enrollment opportunities such as College Credit Plus; and others.Whichever models of gifted instruction a district provides, it is essential that parents stay aware of and involved in their student's learning.The new regulations strengthen the standards for professional development of gifted teachers, and increase the communication between schools and families with gifted students.The Written Education Plan (WEP) must be updated annually, and parents should stay in close contact with their student's gifted teacher to ensure his or her needs are being addressed. A gifted child—when provided with the appropriate services and education—can flourish academically, embrace learning, and expect a future full of opportunity.

The role of an attorney

Gifted students who are not appropriately challenged often have behavioral issues in later school years that can culminate in suspension and expulsion. This can be especially true of those children considered "Twice Exceptional." Although districts are not required to provide gifted instruction, students who are considered "Twice Exceptional" have additional protections.A recent United States Supreme Court case, Endrew F. v. Douglas County School District, rejected a lower court ruling that the standard for educational services for disabled children was to provide "merely more than de minimus" educational benefit.Instead, schools must provide educational services "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Additionally, "every child should have the chance to meet challenging objectives." The objectives are generally aligned with curriculum for non-disabled children, but that alignment is only a guide, and can be replaced by individual goals specific to each child.Skillful education attorneys can help parents advocate for gifted services based on the individual needs of their disabled, twice exceptional child.

https://www.ohiobar.org/ForPublic/Resources/LawYouCanUse/Pages/Ohios-Standards-for-Gifted-Student-Education.aspx

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Educators & Social Media Interactions

Many of you have heard about the teacher fired for her Twitter response to a student's  misspelling of the word tomorrow. See: http://abc6onyourside.com/news/nation-world/experts-defend-school-staffer-fired-after-correcting-students-spelling-on-twitter

While the teacher's response in the article certainly appeared to be more playful than harassing, it does highlight the inherent problem facing educators interacting with students on social media. The first rule and best rule to follow is that educators should not interact with students via social media, text message or alternative messenger apps such as SnapChat or Kik. When the school itself authorizes or instructs its employees to use these platforms to inform students and parents, extreme caution should be exercised.

The real challenge is that social media and messenger platforms are inherently informal. Educators can be lured into making seemingly humorous comments which others (namely parents) would consider rude or disrespectful. This means that posts originally intended to be playful (like the one in the article) are ultimately viewed as harassing. Teachers can easily forget that, notwithstanding the apparent equivalent "user" status they have with students online, they remain in a position of power over students in the real world. This means that comments from a teacher or educator carry more weight than comments made by peers, and can easily be considered an abuse of power. This is often how educators and schools using social media end up in awkward positions.

In addition to discipline or termination of employment, educators also risk license suspension or revocation for improper communications made on social media or by text. Based on recent license suspensions and revocations, it appears that the Ohio Department of Education is taking a tough stance on all questionable or informal electronic communications between students and teachers. For these reasons, it is sage advice for all educators to avoid social media or texting communications with students altogether if possible. If the employer-school authorizes or instructs teachers to use these platforms to communicate with students and/or parents, all communications should be about school business with no exceptions. And never get lured into making a joke at a student's expense.

Remember: in addition to representing students and parents, we counsel teachers and administrators through employment related matters in order to keep quality educators in schools. 

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Dyslexia 101

Does your child struggle to read?

• Does your preschooler have trouble with common nursery rhymes, can’t learn and remember the names of the letters in the alphabet, or have a hard time recognizing common rhyming patters like cat, rat and bat?

• Does your kindergartener or first grader read “puppy” instead of the written “dog” when looking at an illustration? Does he or she have trouble sounding out words or connecting letters with sounds?

• If your child is a second grader or up to young adult, does reading come slowly, does he or she avoid it if at all possible?

• If in high school, is a foreign language almost impossible to learn?

• For all age groups, does your child have difficulty finding the right words to say, pronounce names and places incorrectly?

 What are your child’s strengths?

• Does your child have a great imagination, a good understanding of concepts, like to solve puzzles?

• Does your child have excellent verbal comprehension?

• Does your high school student have good thinking skills like reasoning and abstraction?

• Does he or she learn best by doing, or excel in areas not driven by reading?

• For more clues, please see The Yale Center for Dyslexia and Creativity, http://dyslexia.yale.edu/clues1.html.

If some or all of the above answers are positive, your child may have DYSLEXIA, a very common learning disability. Some experts say up to 80% of all people with learning disabilities have dyslexia.

Here’s the good news:

Dyslexia is treatable. Schools can help.

 What is dyslexia?

Dyslexia has nothing to do with intelligence. People with dyslexia are scientists, architects, authors and more. Go ahead, Google famous people with dyslexia. You’ll find lots of amazing people who have overcome their dyslexia and done incredible things.

You may be thinking that dyslexia is only about reversing letters, and your child doesn’t do that. Dyslexia is now understood to be a disorder of the language system in the brain.

Dyslexia “reflects a deficiency in the processing of the distinctive linguistic units, called phonemes, that make up all spoken and written words.” Shaywitz, S. (1996), Dyslexia: A New Model of the Reading Disorder Emphasizes Defects in the Language-Processing Rather than the Visual System, Scientific American, 275(5) 98.

That means that your child’s brain has trouble decoding words, or breaking words into their distinctive sounds.

Think of your brain like a bunch of paths in the forest. Typical readers can see the word “bed” three times, sound it out and remember it, and the fourth time they see the word, their brain sends a signal from the logic part to the long term memory part that what they are seeing is the word “bed.” The signal travels a distinctive or well-worn neural path from the logic to long-term memory. They’ve got it.

In a dyslexic brain, the neural path from logic to long-term memory is not distinctive or well worn. There may be branches or blocks preventing the signal from going though, or the path may be so lightly drawn that is really isn’t a path. Dyslexic readers will have to see and focus on the word “bed” over four hundred times to have it go to long-term memory!

Researchers at the Yale Center for Dyslexia and Creativity have taken numerous fMRIs of typical and dyslexic brain to show these differences.   Their website is a wonderful resource. Dr. Sally Shaywitz of the Yale Center also has a great book called Overcoming Dyslexia that is well worth reading, and has excellent pictures of the fMRIs.

What can you do?

The brain is most pliable and able to put down new neural pathways in childhood. The time to act is now – delays in reading prevent children from learning and will make them fall further and further behind in school. Teachers call the K-3 grades the “Learning to read” grades, and grades 4 and up “Reading to Learn.”

Dyslexia is not a life sentence!

Dyslexia is treatable. Evidenced-based multisensory programs like Orton Gillingham, Wilson Reading Method or LindaMood Bell are effective at teaching dyslexic students to read and actually lay down the neural pathways that are blocked or missing. The programs are multisensory and intensive, and while they take several years, if done correctly and by qualified teachers, they do work.

First things first: evaluate your child and find out exactly what is wrong.

If your car stops running, you have several options, but just knowing that the car doesn’t start is not enough to determine the problem. Reading problems are the same. You need to know specifically what is wrong so you can know the specific type of education intervention that is necessary.

The first thing you need is an evaluation to determine if your child has dyslexia. You can see a specialist privately, or you can ask your child’s school to evaluate. There are pros and cons to both methods. Private evaluations by qualified professionals can be costly, but if dyslexia is found, they will unequivocally state that your child has dyslexia and needs specific educational methods to address reading deficits.

Did you know that schools have the responsibility to identify children with disabilities?

A federal law called Individuals with Disabilities Education Act or IDEA makes states responsible for finding children with disabilities and then educating them according to their unique needs.   This means that Ohio has the responsibility to search out children with disabilities, from birth through age 21.

If you suspect your child may have dyslexia, you have the right to request an Evaluation from the school.

If the school determines your child has dyslexia, it will implement an Individualized Education Plan (IEP) tailored to his or her needs, and your child will receive the educational services he or she needs to learn how to read. If dyslexia is in your child’s evaluation, schools must use programs or curricula that are evidence-based to address the dyslexia.

 Is it really that easy?

In some enlightened school districts, it really is that easy. Unfortunately, most school districts make it very, very difficult. If you are running into roadblocks, consider hiring an advocate or attorney.

What if the school won’t conduct an evaluation?

At this point in the process, some school tell parents that they are going to try different interventions before evaluating the child. This is often called response to intervention (RTI). RTI sounds reasonable, but legally schools must try these interventions at the same time as they evaluate the child – they can’t unnecessarily delay an evaluation.

 What happens at an evaluation?

An evaluation must be completed within 60 days of getting your consent to evaluate. It must meet certain requirements. For example, an email telling you your child has been given one test and found not to have a disability is not an evaluation as Ohio defines it.   Some of the rules for an acceptable evaluation are:

• An evaluation should be done on a form called PR-06 (Evaluation Team Report),

• An evaluation team includes the parents, the child’s teacher, and many other staff from the school district.

• The team must formally meet to discuss the results of the evaluation,

• Parents must be given the report so that they can meaningfully participate in the meeting,

• The school must not use one single assessment to determine if your child has a disability, but use a variety of assessments and strategies, including information from the parents, the classroom teachers, and medical professionals if necessary.

What does the evaluation team decide?

The evaluation team has to decide three things at the meeting:

1. If the child has a disability

2. If that disability has an adverse effect on the child’s education, and

3. If the child needs special education and related services.

Individualized Education Program (IEP)

If the team decides the answer is yes to all three of the above questions, your child will be identified as having a disability, and the school will have 30 days to write an Individualized Education Plan, or IEP. Your child is covered under IDEA and has the right to specialized instruction and accommodations.

This is where is becomes very important to have “dyslexia” in the evaluation, not just “learning disability.” The goals and services of the IEP must be written specifically for your child with dyslexia, and must be tailored to actually provide educational services to address the dyslexia.

What if you disagree with the team’s determination?

Parents are a part of the evaluation team, but the school district makes the ultimate decision. If you disagree with the evaluation results, you are entitled to ask for an Independent Educational Evaluation (IEE) at pubic expense. This is an evaluation done by a non-school related professional. The school may not just deny your request, but must respond in one of two ways:

1. Grant you the IEE, or

2. Prove to a hearing officer that their decision was correct.

When should I bring in outside help?

Unfortunately, many schools put up roadblocks for students with dyslexia. District may not evaluate, may evaluate but not be specific enough in the report to find dyslexia, or may offer educational services that are not scientifically tailored to actually help. We have seen IEPS that only look at how fast a child reads, not whether they understand what they are reading. We’ve seen schools deny dyslexia as though it doesn’t exist, or blame behavioral problems on children when the underlying problem is their dyslexia. The school to prison pipeline for struggling readers is tragically all too real.

If your school is putting up roadblocks, consider bringing in a skilled advocate or attorney to help ensure that your child gets the appropriate educational services and accommodations. There is no reason children with dyslexia should struggle to read.

Questions? Call us! 614.745.2001

College Code of Conduct - Quick Q & A

College Students Often Caught Off Guard by Code of Conduct

Q: What is a college code of conduct?A: The code of conduct is a set of rules that governs student behavior on campus. This includes the regulation of academic behavior (e.g. plagiarism, cheating, academic dishonesty), as well as non-academic behavior (e.g., alcohol or drug violations, hazing, harassment, sexual assault).Courts view codes of conduct as contracts between students and colleges, and hold that students agree to the terms of these contracts when they enroll. The terms can be surprising and regularly catch students off guard. Unfortunately, students usually don’t read the “contract” until after they have been accused of an infraction.

Q: Can the code of conduct be applied off campus?A: Yes. The code of conduct can regulate some off-campus activity. Courts have held this to be a proper extension of the school’s jurisdiction so long as the school properly identifies the prohibited, off-campus behavior in the code of conduct and there is some connection between the behavior and campus. For example, colleges may impose sanctions for out-of-control parties (in which other students attend), stalking or harassment of another student off-campus or actions that demonstrate unprofessionalism for a particular profession.

Q: Can I use an attorney for code of conduct proceedings?A: Yes, but codes of conduct may limit your use of an attorney. Even for public universities, courts have determined that students do not have an absolute right to counsel in code of conduct proceedings. The right to counsel only exists when an attorney appears on behalf of the university or when the proceeding was “subject to complex rules of evidence or procedure.”Your school may allow you to use an attorney, but in an “advisory capacity” only. This means that the attorney can advise you, but cannot speak on your behalf. This is commonly called “potted plant” representation. Attorneys may not be allowed at all for purely academic issues (e.g., grade appeals). Private schools may also prohibit the use of attorneys because certain constitutional due process protections may not apply.

Q: Why should I hire an attorney who can only advise me?A: You may think that hiring an attorney is futile in such a circumstance, but an attorney can help in a number of ways. The attorney can: help you understand the risk involved in requesting a hearing versus accepting responsibility; help you prepare questions and evidence; identify additional protections that may exist (e.g., protections for disabled students, minimal constitutional due process standards, etc.); and provide guidance throughout the hearing itself. There are also several factors to consider if you are facing a pending criminal charge in addition to a code of conduct violation. When procedural errors do occur, attorneys can help students properly identify the errors and file an appeal.

Q: How much evidence must the school have against me in order to find me guilty of a code violation?A: Regardless of the alleged conduct, the “preponderance (greater weight) of the evidence” standard is universally applied during code of conduct hearings. Very little evidence may be used to find a violation. This can be a rude awakening, especially for students charged with violations that may result in a substantial suspension or dismissal. Dismissed students can be left holding hefty student loan debt with no corresponding degree, all based on a panel’s determination that it was “more likely than not” that a violation occurred.

Q: Can the school fine me?A: Yes. Some schools impose monetary fines for code of conduct violations. Fines can range from nominal amounts to several hundred dollars. Schools cite fines as a deterrent to unwanted behavior, although the practice has raised some ethical questions in the last few years.

Q: Can I appeal a decision?A: Yes, but the time to appeal a code of conduct panel decision can be very short, often between three and seven days. You may lose your right to an appeal simply by taking too long to check your mail or consult with an attorney.

This “Law You Can Use” column was prepared and published for use by the Ohio State Bar Association (OSBA). It was authored by Mark A. Weiker, an attorney with Abdnour Weiker, L.L.P., who practices education law and represents students and educators. The column offers general information about the law. It is not intended to be legal advice. Seek an attorney’s advice before applying this information to a legal problem.    

Questions? Call us! 614.745.2001