New DOE Regulations: Can Your College Withhold Your Transcript?

On July 1, 2024, several new federal regulations went into effect in a bid by Department of Education officials to “oversee predatory and low-quality institutions of post-secondary education”.

            Perhaps the most prominent change is that federal regulations no longer permit colleges that receive federal financial aid to withhold transcripts for course credits paid for with federal money. As it would be extremely difficult for institutions to determine which credits in a student’s transcript were paid for with federal funds, and subsequently to solely release transcripts with those courses, it is likely that this change to the federal regulation will amount to a national ban on the practice of withholding student transcripts when there is a balance owed by the student.

            Students throughout the United States have struggled to get their higher education institution to release their transcript because they owe a balance to the institution. This phenomenon creates stranded credits, or academic credits that a student has earned but which cannot be verified due to the institution’s refusal to release the transcript. If a student cannot get their transcript, they cannot prove the credits they have earned to any other institution and have to start over if they wish to continue their education elsewhere. According to the 2024 Transcript Regulation Impact Survey (TRIS) by the American Association of Collegiate Registrars and Admissions Officers, there are 6.5 million people in the United States with stranded credits with roughly $15 billion in debt owed to higher education institutions.

            This practice of withholding transcripts is utilized by higher education institutions to force students to pay the debts owed on their balance in order to have access to the formal record of their academic progress. This practice disproportionately impacts low-income students and students of color, and further bolsters inequities in the education system. Encouraging institutions to stop engaging in this predatory practice is one thing the Department of Education can do to help students that are struggling under the burden of student debt.

            Students aren’t out of the woods yet, though: several of the new regulations are already facing legal challenges, and whether this particular regulation remains in place will likely depend on how federal courts interpret the recent Supreme Court ruling in Loper Bright Enterprises v. Raimondo, which curtailed Chevron[1] deference and substantially limited the regulatory power of federal agencies.

            If you are a student struggling to get your higher education institution to release your transcript due to a balance owed, we recommend you consult with an attorney to see if you can use these new regulations to your advantage and get your transcript released to you.

Written by education attorney, Megan Mitchell at Abdnour Weiker, LLP

www.Lawyers4Students.com

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[1] In Chevron v. Natural Resources Defense Council,  the Supreme Court held that when a legislative delegation to an administrative/regulatory agency was not explicit but was implicit, the court could not substitute their own interpretation of the statute for a reasonable interpretation by the agency. This case created what is known as Chevron deference, wherein courts deferred to federal agencies on their reasonable interpretations of the regulatory statutes. In the recent decision in Loper, the Supreme Court has effectively put an end to the practice of Chevron deference.

Ensuring Access: Parental Rights for Private School Transit in Ohio

There is a strong emphasis on school choice in Ohio, which provides families with the
opportunity to select the most appropriate schooling path for their children. In some cases, families opt for private or nonpublic schools that best align with their values and educational preferences. A critical aspect that often arises in this decision-making process is the challenge of transportation. Luckily, Ohio state law outlines specific parental rights related to private school transportation coordinated by their local school district of residence.

Right to Private School Transportation

Under Ohio Revised Code (ORC) 3327.01, Ohio has outlined specific rights related to transportation for students to attend the private school of their choice from their public school district of residence. This statute states that if a student is attending a private school, parents have the right to request transportation services from their local district if the private school is located 30 minutes or less from the school building within the school district of residence that the child would attend had they been enrolled within the district.

The request for transportation services is typically made to the local district’s board of education. Families should be sure to adhere to any deadlines or requirements for submitting transportation requests. Once the request is received, the board must review it and determine whether or not they can practically provide transportation.

Understanding Impracticality and Initiating the Appeals Process

The concept of impracticality is a critical factor in determining whether a local district must provide transportation to a nearby private school. Districts have the right to declare transportation “impractical” for a student to a private school based on the consideration of all six of ORC 3327.02(A)’s statutory factors:

(1) The time and distance required to provide the transportation;
(2) The number of students requesting to be transported to the same or nearby schools;
(3) The cost of providing transportation in terms of equipment, maintenance, personnel, and administration;
(4) Whether similar or equivalent service is provided to other students eligible for transportation both within and outside the district;
(5) Whether and to what extent the additional transportation service would unavoidably disrupt current transportation schedules; and
(6) Whether other reimbursable types of transportation are available.

If the district determines that providing transportation is impractical, they must notify the family in writing along with a specific offer of a payment-in-lieu of transportation and the opportunity to reject this offer and pursue mediation procedures with the Ohio Department of Education and Workforce (“ODE”). If mediation fails to resolve the dispute, ODE will then conduct a formal appeal hearing.

Importantly, once a parent initiates mediation procedures with ODE, the district becomes obligated to provide transportation for the student to the private school until an agreement or decision on the case has been reached.

Approaches to the Appeals Process

There are various strategies and evidence that families may use to help show to the assigned hearing officer that the district's decision was erroneous, and that transportation is practical. One key aspect to challenge is the district's determination of impracticality based on distance. The parent can provide evidence such as maps or official travel time estimates demonstrating that the private school is within a reasonable distance for transportation. This can include documentation showing typical commuting routes, traffic patterns, and actual travel times during school hours.

Gathering testimonials from other parents or community members facing similar transportation challenges can provide additional support. Additionally, seeking expert opinions from transportation specialists can bolster the argument for the practicality of transportation to the private school. It is also important to highlight any precedents or comparable cases where transportation was deemed practical for similarly-situated private schools and/or students, which can underscore the reasonableness of the district’s decision.

Implications of Hearing Outcomes

Initiating an appeal under ORC 3327.02 is not just about advocating for one student’s transportation needs; it can have broader implications for other families within the district. If the appeal is successful and transportation is mandated, the district must continue to provide transportation services. This sets a precedent that benefits not only the appealing family but other families facing similar challenges.

However, if the appeal is denied and transportation is deemed impractical, this decision becomes binding. This means that neither the appealing family nor any other family in the district attending the same private school can appeal the district's decision regarding transportation so long as the facts remain comparable. It will be important for a family to seek legal counsel to assist with presenting a strong case, navigating procedural challenges, and safeguarding the overall rights and education of the student during this process.

Written by attorney Renee Stromski at Abdnour Weiker, LLP

http://www.Lawyers4Students.com

Special Education Basics: The Difference Between IEPs and 504s

Most parents of children with disabilities do not have extensive experience advocating for accommodations within their school system. In an ideal world, a school would promptly and properly identify the needs of students with disabilities and work to ensure parents understand their options. Since this ideal is not always upheld, it is important to understand the core tenets of special education law. One of the most common issues parents run into is understanding the difference between an Individualized Education Program (IEP) and a 504 Plan. Both IEPs and 504 Plans offer formal assistance and accommodations for K-12 students who are struggling in school. However, there are some key differences between the two.

An IEP is a written program that provides with specificity what, if any, free special education resources, services and supports will be put into place to meet your child’s unique needs. This includes any specialized instruction your child may engage in. The written IEP will also set specific learning goals for your child. The underlying law that applies with an IEP is the Individuals with Disabilities in Education Act (IDEA). This is a federal law focused on special education for children with disabilities.

A 504 Plan is a plan established by the school to determine what free supports and accommodations the school will put into place to ensure your child can learn alongside their peers in the classroom. Unlike an IEP, there is no standard 504 Plan and a 504 Plan need not necessarily be a written document - although most schools do produce written plans. A 504 Plan does not typically set specific learning goals like an IEP does. The underlying law that applies with a 504 Plan is Section 504 of the Rehabilitation Act of 1973. This is a federal civil rights law that focuses on stopping discrimination against people with disabilities.

Under the IDEA, a parent or guardian must give written consent before a child is evaluated for IEP eligibility and give written consent before the school can begin implementing the services described in the IEP. Under Section 504, a parent must consent to an evaluation but it does not have to be in writing. An IEP must be reviewed at least once a year, and a child on an IEP must be re-evaluated every three years in order to determine if services are still needed. For a 504 Plan, the rules vary by state although most schools loosely follow the same timeline as an IEP.

So, how do you determine which of these two options would best suit your child? In order to qualify for an IEP, a student’s school performance must be adversely affected by one of thirteen qualifying disability categories under the IDEA. The child must need specialized instruction in order to progress in school. Conversely, to qualify for a 504 a child need only have any disability that interferes with the ability to learn and progress in a general education classroom setting. The disability must substantially limit one or more basic life activities for the student. Because the requirements to qualify for an IEP are stricter than those for a 504 Plan, a child who does not qualify for an IEP may still qualify for a 504 Plan.

If you think your child might need an IEP or a 504 Plan, reach out to your school administrators and request an evaluation for your child. If you have questions about your child’s IEP or 504 Plan, contact an education advocate or attorney.

Written by education attorney, Megan Mitchell at Abdnour Weiker, LLP

www.Lawyers4Students.com

Understanding the Basics of Open Enrollment in Ohio: FAQs for Parents and Guardians

In this article, we address the frequently asked questions (FAQs) that parents and guardians commonly inquire when contemplating open enrollment for their children in Ohio. Whether you're exploring educational alternatives or seeking to understand the implications of such a decision, these FAQ responses aim to provide clarity and insight into the open enrollment process.

What is open enrollment?

Created in 1989, open enrollment, also known as inter-district enrollment or intradistrict transfer, allows students to enroll into another school district by following that district’s open enrollment policies and procedures. Students enrolled under an open enrollment policy must be allowed to attend tuition free.

• Who is eligible for open enrollment in Ohio?

Eligibility criteria vary by district, but generally, students who reside within Ohio and meet specific residency and enrollment requirements can apply. For example, a student must be enrolled in their resident home district to participate in open enrollment.

• What is the application process for open enrollment?

School districts are responsible for creating their own applications and procedures for open enrollment, which should be adopted by the district’s Board of Education and included in Board policy. The Ohio Department of Education annually updates their listing of open enrollment policies in Ohio school districts, which can be found here.

Parents and guardians typically need to complete an application form provided by both the home and receiving districts. The application may require supporting documents such as proof of residency. Further, students must apply for open enrollment on an annual basis. Though the receiving district may limit enrollment due to capacity or eliminate open enrollment in following years, students enrolled in the previous year when open enrollment is continued must be given priority.

• Is there a deadline for applying for open enrollment?

Deadlines vary by district, so it is important to check with both the resident and receiving districts for specific dates. However, the Ohio Department of Education has suggested the following timelines:

May 1 - Open enrollment applications are due in the superintendent’s office of the district considering open enrollment students.

June 15 - School districts inform parents/guardians whether the student has been accepted through open enrollment. 

June 30 - Parents/guardians notify the school district whether or not their child will attend the district under open enrollment.

• Will transportation be provided for open enrollment students?

The receiving district is required to provide transportation to the student, but only from an existing bus stop within the district and only for the same grade levels that they transport their resident students. Transportation from outside the district is the responsibility of the parents or guardians.

• Will my child be guaranteed enrollment in the receiving district?

Admission is typically subject to space availability and other factors determined by the receiving district's policies. There may be instances where applications are denied due to capacity constraints. A student can also be refused in order to maintain racial balance in a particular school building, and the district must specify criteria used to determine racial balance in its Board policy. However, a school district may not discriminate against any student because of a disability condition; nonetheless, special education students may still be refused admission if the district does not have the available services necessary to meet the needs of the student’s Individualized Education Plan (IEP).

• Can my child participate in sports or extracurricular activities at the receiving district?

Policies regarding participation in extracurricular activities vary by district. Further, if a student wishes to change schools through open enrollment, the student should consult with the school administration and follow the guidelines for athletic eligibility as established by the Ohio High School Athletic Association (OHSAA).

• What are the benefits of open enrollment for my child's education?

The decision to open enroll in another school district should be carefully considered based on your child's individual needs, interests, and educational goals. Parents and guardians should consider how the curriculum, extracurricular activities, and other aspects of the educational experience may differ between districts. It is also essential to be aware of any potential impacts on graduation requirements or transfer credits.

Parents and guardians considering open enrollment should contact both their resident and receiving districts for additional information and guidance tailored to their specific circumstances.

Renee Stromski is a Student Rights Attorney in Ohio with Abdnour Weiker, LLP

Student Privacy Rights Under FERPA: What To Do If Your Student’s Privacy Is Violated

Most parents are aware that their students have some privacy rights that schools must take appropriate action to protect. However, many parents are not aware of what establishes those privacy rights and, perhaps more important to parents, what can be done to protect them.

The Family Educational Rights and Privacy Act (FERPA) was adopted in 1974 as a Congressional response to the abuse of student records nationwide. FERPA serves two main functions: 1) guarantee access to students records for both students and parents; 2) limit third-party access to student records.

When processing a records request, a school must determine whether the materials requested qualify as education record materials. An “education record” includes records, files, documents and other materials, which: (1) contain information related to a student; and (2) are maintained by an educational institution. This includes things like a student’s academic work, test scores, psychological records, and family background. An education record does not include things like personal notes of a teacher or counselor, personnel records or law enforcement records.

So what happens when a student’s school releases part of their education record to a third party in violation of FERPA? One of the most common questions we receive is how parents can sue their child’s school for violating FERPA. Unfortunately, they cannot. FERPA creates no private right of action in the event of a school violation, meaning individuals cannot sue for a violation in court. Instead, in the event of a FERPA violation, a parent or student may file a Complaint with the Student Privacy Policy Office (SPPO) of the Department of Education alleging a violation.

A Complaint must be filed within six months of the violation, or within six months of when parents first knew or should have known of the violation. In this process, timeliness is key. Following a complaint, the SPPO will determine whether the school violated FERPA, and whether the school has a practice or policy of violating FERPA.

If the SPPO finds that a school has a practice or policy of violating FERPA, SPPO will then provide steps that the school must take to comply and provide a reasonable period to comply. If a school still does not comply, SPPO may withhold further payments made under any federal program and either issue a cease-and-desist letter or terminate federal funding.

Although there is no private cause of action guaranteed under FERPA it is still important that parents make their voices heard through the SPPO Complaint process. When facing the restriction or elimination of federal funding, schools will typically clean up their act with regard to maintaining FERPA-protected information. If you believe your child’s private, FERPA-protected information has been wrongfully distributed by their school, we encourage you to file a complaint with the SPPO and make your voice heard.

For more information about FERPA, check out the Special Education Legal Clinic’s FERPA video: SELC Understanding FERPA. Further SELC Workshops on other topics are also available.

Megan Mitchell is an education attorney in Michigan at Abdnour Weiker, LLP

www.Lawyers4Students.com

Michigan must extend right of child sex assault survivors to sue

In recent years, Michigan has become a poster child for shocking examples of large-scale sexual abuse of children and young adults, as the horrific crimes of Larry Nassar at Michigan State University and Robert Anderson at the University of Michigan have come to light. Countless other survivors, whose abusers are not public figures, have gone unrecognized in the media.

While the Michigan Legislature made a temporary exception for Nassar’s victims, the state’s current statute of limitations for survivors of childhood sexual assault is frustratingly narrow. Survivors can only file civil lawsuits until they are 28 years old — one of the most restrictive policies in the country. That means that too many survivors are denied access to justice and the opportunity to hold their abusers accountable. 

As an attorney who has dealt with many cases of childhood sexual assault — and as a long-time board member of The Firecracker Foundation in Lansing, which provides holistic healing services for children who have experienced sexual trauma — I’ve seen firsthand how this restriction prevents valid claims from going forward. 

Many victims of sexual assault can take years to process their abuse. In fact, the average victim of child sex abuse is 52 years of age by the time they report what happened to them, according to Child USA, a national nonprofit that fights to prevent child abuse and neglect. Tragically, the Department of Justice estimates that 86 percent of child sexual abuse goes unreported, due to trauma, power dynamics and institutions that protect abusers. 

Thankfully, the Michigan Legislature is finally on the cusp of taking consequential action. A new set of bills, introduced by State Rep. Julie Brixie of Meridian Township in 2023, would have extended the civil statute of limitations, allowing victims of childhood sexual abuse to file claims until they are 52 years old. The bill also included a two-year amnesty period, effective after the law is enacted, that would have allow anyone to file lawsuits against their abusers, no matter how long ago the abuse took place.

Similar bills have been introduced in past sessions of the state legislature, only to languish due to fierce opposition from the very institutions that protected and enabled abusers, such as universities, churches and other organizations concerned with their financial liability, according to reporting from the Associated Press. Unfortunately, the bills did not make it through the legislative process in 2023.

That’s shameful. We can’t let it happen again. 

Childhood sexual abuse has a deep and long-lasting effect on survivors. Survivors are frequently diagnosed with depression, anxiety and post-traumatic stress disorder. Many have difficulty forming healthy romantic relationships. Self-harm and suicide attempts can result. The economic impact of this type of abuse can be devastating as survivors find themselves unable to maintain steady employment. Our state has a responsibility and an obligation to give survivors the tools they need to heal and to provide an avenue for authentic and meaningful justice. 

For too long, Michigan has failed survivors of child sexual abuse. These bills are expected to be reintroduced in the 2024 legislative session.  They represent a huge first step toward bringing Michigan in line with numerous other states that protect the rights of abuse survivors. It’s the least we can do for those who have had so much taken from them. 

Liz Abdnour is a partner at Abdnour Weiker, LLP

www.Lawyers4Students.com

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

Board of Education Candidates in Ohio Can Be Surprised by State Law Disqualifying Some Candidates from Serving

School board elections are incredibly important to voters because of the direct impact that these elected officials could have on a family. Given the importance of these elections, it is surprising that one Ohio law disqualifying board of education candidates from serving on the board is not more known and understood.

According to Section 3313.33(B) of the Ohio Revised Code, no school board member shall have, “directly or indirectly, any pecuniary interest in any contract of the board.” What is a pecuniary interest?

In a 2014 Opinion, the Ohio Attorney General defined a “pecuniary interest” as simply an interest involving money. This law is certainly triggered when a school board member owns a company that does business in some capacity with the school district in which they serve. This makes sense.

However, this law also prohibits a school board member from being employed at a company that does business with the school district. In a 1999 Opinion, the Ohio Attorney General determined that a mere employment relationship is enough to trigger this rule. This is the case even if the employee’s specific duties and compensation are not directly linked to the contract with the district. The OAG reasoned that the existence, operation, and staffing level of the employer may be affected by the funds that are received from the school district. Even a pecuniary interest that is “small” and “indistinct” is enough to bar these relationships.

So, what happens when a school board member is simultaneously employed by a company that does business with the school district? In the same 2014 Opinion, the OAG explained that whenever a board member takes action in any matter in which he/she has a pecuniary interest, that action is void. Depending on the nature of the matter, this can have a substantial impact on the school district in which the member is serving.

For this reason, it is imperative that board of education candidates know the law and understand whether it disqualifies them from serving on the board of education.

What College Students Should Know About Off-Campus (Mis)Conduct

Most students know that their college or university can impose sanctions for their on-campus misconduct. What students may not know, however, is that their actions off-campus, including at home or on break, could also lead to sanctions.

Colleges and universities have expressed an interest in regulating students’ off-campus behaviors for a variety of reasons. First, universities want to protect their reputations as reputable institutions of higher learning and may discipline students for their off-campus misconduct to deter future behaviors that are contrary to their values and/or breach their codes of professional conduct. Second, certain kinds of off-campus behavior pose risks to other students’ safety and well-being—such as underage drinking, harassment, discrimination, violence, and drug abuse— and universities intervene to protect the campus community at large from these threats. Lastly, as social media use expands, it is increasingly difficult for universities to tell where on-campus behavior ends and off-campus behavior begins, so officials will sanction students more readily overall for uploading offensive content or engaging in cyberbullying.

Although no bright-line standard exists to predict precisely when a university will exercise jurisdiction, it is generally understood that the university disciplinary process can come into play where the student’s off-campus conduct “impacts the mission” of the institution or “causes substantial disruption” to the university community. As long as the school can demonstrate that there is a link between the off-campus behavior and the on-campus environment, it is permissible for the school to apply its code of conduct to these incidents.

However, it is important to know that, as of 2020, Title IX coverage does not extend to non-school-sanctioned activites occurring off-campus. Since its enactment in 1972, Title IX has prohibited sex-based discrimination, including sexual harassment, in educational activities. Under the 2020 regulations, the jurisdictional scope of Title IX has been narrowed, providing that if the alleged conduct occurs beyond the scope of an educational program, the school must dismiss the Title IX complaint. The school may still initiate its own disciplinary investigation, however, based on its own code of conduct.

Alternatively, crimes committed in a student’s hometown, while away on spring or summer break, or almost anywhere else, can follow students back to campus. This is because most schools consider their students to be representatives of their community no matter where they go. In other words, students are expected to always live in adherence to their institution’s values and morals. This is especially true for graduate or professional students. Universities can easily learn of students’ arrests or citations. So, students should err on the side of caution and be prepared for discipline that could arise from off-campus criminal acts.

Overall, university students are often held responsible for conducting themselves appropriately whether they are at home, school, or elsewhere. Whatever they may be facing, students are always encouraged to seek out legal counsel to guide them through the disciplinary process and to make sure their rights are protected at all stages of the proceedings.

Five Reasons That College Students Should Have an Education Attorney on Retainer

Going to college is an exciting time in a young person's life. It's a time of growth, learning, and independence. However, it's also a time when students may encounter legal issues they never anticipated. That's why having an education lawyer on retainer during college can be a wise decision. In this article, we'll explore the top five reasons why college students should consider having a lawyer readily available.

1. Legal Protection for Common Student Issues: College life can bring about various legal challenges, such as housing disputes, cheating allegations, code of conduct hearings, or even minor criminal matters. Having an education lawyer on retainer ensures you have expert advice when these issues arise. An education attorney can help you navigate the complexities of university policies and hearings, landlord-tenant and rommmate disputes, and even represent you in court if necessary.
2. Academic and Disciplinary Matters: College students can sometimes find themselves in situations where they face academic misconduct allegations or disciplinary (or "code of conduct" actions). College is much different than high school and the sanctions for misconduct can be severe. An education lawyer can assist you in understanding your rights, preparing your defense, and ensuring that the university follows its own procedures during disciplinary hearings.
3. Contract Review: Students often enter into agreements while in college, like leases, rental agreements, or employment contracts. A lawyer can review these contracts to ensure they are fair and protect your interests. They can also advise you on your rights and responsibilities under these agreements.
4. Criminal Charges and Offenses: Sometimes, students may find themselves on the wrong side of the law, whether it's underage drinking, drug possession, or another criminal offense. A lawyer can provide essential legal counsel, help you understand the potential consequences, and work on your defense strategy if needed. An education attorney can help you if the criminal matter results in a conduct matter with your college or university.
5. Preventive Legal Advice: Having a lawyer on retainer isn't just about reacting to legal issues; it's also about preventing them. A lawyer can provide guidance on how to stay within the bounds of the law. They can advise you on matters that may carry legal risks. Additionally, a lawyer can educate you on your rights, ensuring you understand how to protect yourself legally in various situations, from new business ventures to hosting parties to employment matters. This knowledge can be invaluable in avoiding legal troubles in the first place.

Your college's office of Student Legal Services may be able to help in certain, limited circumstances, but not when the opposing party is the university itself (like in code of conduct or academic misconduct proceedings) or another student at the university (like in a roommate dispute or Title IX hearing). Student Legal Services offices are operated by the college, and therefore they may have a conflict of interest with matters involving the college itself or other students at the college.

In conclusion, college can be an amazing time for personal and academic growth, but it's also a period when young adults may face unexpected legal challenges with serious implications. Having a private education lawyer on retainer can provide college students with a safety net and peace of mind. Lawyers can help you navigate legal issues, protect your rights, and offer guidance to prevent problems from arising in the first place.

The education lawyers at Abdnour Weiker, LLP are here to help. Our mission is to protect the rights and futures of students and educators. We operate in Ohio, Pennsylvania and Michigan.

Check us out at www.Lawyers4Students.com

Five Big Changes Coming to Ohio Education Laws in the 2023-24 School Year that Parents Should Know

On July 1, 2023, the Ohio House and Senate approved a new 2-year state budget, which was signed into law by Ohio Governor Mike DeWine on July 5, 2023. Here are the most important provisions impacting education for Ohio parents and students:

PRIVATE SCHOOL VOUCHERS (aka EdChoice Scholarship): All Ohio school children will be eligible for a school “voucher” to help cover the cost of tuition participating private schools. Children whose families earn up to 450% of the federal poverty level (~$135,000/year for a family of four) will be eligible to receive a full EdChoice Scholarship in the amount of $6,165 (k-8) and $8,407 (high school). Higher earning families are still eligibile, but may receive reduced scholarship amounts. This does not affect families receiving the Autism Scholarship or Jon Peterson Special Needs Scholarship.

SIGNIFICANT FUNDING FOR PHONICS-BASED READING: The reconciled bill includes a significant investment in childhood literacy, particularly for phonics-based reading programs (a.k.a. the “Science of Reading”). The bill moves to eliminate “cueing” reading programs that have been used by school districts and educators for decades, but considered ineffective by many literacy experts. The funding in the new law includes allocations for training of teachers and district implementation over the next two years.

TOP 5% SCHOLARSHIPS FOR GRADUATES: Ohio high school students who graduate in the top 5% of their classes will be eligible for $5,000 scholarships to attend Ohio colleges and universities.

PARENTAL CONSENT FOR SOCIAL MEDIA: Children younger than 16 must get parental consent when they create new social media accounts starting Jan. 15, 2024. While not directly related to education funding, this budget item was initially requested by the Governor in an effort to protect the mental health of Ohio teenagers. It was included in the final bill.

NEW TEACHER PAY: The minimum annual salary for new public school teachers was increased modestly from $30,000 to $35,000. Many districts already have adopted salary schedules above this amount for first-year teachers. A proposal to increase the minimum salary to $40,000 was ultimately rejected.

Read more here: https://apnews.com/article/ohio-state-budget-taxes-education-vouchers-6f3c3abf4db444124d6c7b19090f5cc8

Abdnour Weiker, LLP (https://lawyers4students.com/)

2023 Ohio Summer Camp List

Summer camp is a longstanding tradition that provides a unique opportunity for children to embark on exciting adventures, make lasting memories, and develop crucial life skills. Summer camp serves as a chance for children to step outside their comfort zones and discover their independence. These unique experiences provided by summer camps build resilience and prepare children to face challenges with confidence.

We are pleased to provide a compiled list of various summer camps and programs available to children across Ohio.

* - inclusive of children of all abilities/programs may be modified)
** - requires diagnosis to attend
*** - requires diagnosis but is inclusive to typically-developing siblings and peers

Northeast Ohio (including Cleveland, Akron, Canton, and Youngstown)

1. Akron ArtWorks
   Akron, Ohio
   Type: Art
   Ages: 4-17 years
2. Akron Rotary Camp**
   Akron, Ohio
   Type: Traditional, Specialty (Disability Support)
   Ages: 6-21 years
3. Beck Center for the Arts*
   Lakewood, Ohio
   Type: Art, Dance, Theatre
   Ages: 4-18 years
4. Bellwether Farm Summer Camps
   Wakeman, Ohio
   Grades: 2-12
   Type: Traditional, Religious
5. Bright Futures Preschool Summer Program*
   Cleveland, Ohio
   Type: Traditional, Specialty (Disability Support)
   Ages: 3-5 years
6. Camp Cheerful by Achievement Centers for Children*
   Strongsville, Ohio
   Type: Traditional, Specialty (Disability Support)
   Ages: 5 years through Graduation
7. Camp Cornerstone
   Independence, Ohio
   Type: Specialty (Bereavement)
   Ages: 6-12 years
8. Camp Curiosity at Great Lakes Science Center
   Cleveland, Ohio
   Type: STEM
   Grades: K-2
9. Camp Frederick
   Rogers, Ohio
   Type: Traditional
   Grades: K-12
10. Camp Gilmour at Gilmour Academy
    Gates Mills, Ohio
    Type: Traditional, Academic
    Ages: 3-12 years
11. Camp Happiness by Catholic Charities Diocese of Cleveland**
    Wickliffe, Ohio
    Type: Traditional
    Ages: 5-21 years
12. Camp Ho Mita Koda**
    Newbury Township, Ohio
    Type: Traditional, Specialty (Disability Support)
    Grades: K-11
13. Camp Nuhop**
    Perrysville, Ohio
    Type: Traditional, Specialty (Disability Support)
    Ages: 6-29 years
14. Cedarbrook Camp of Ohio at Stony Glen
    Madison, Ohio
    Type: Traditional, Religious
    Grades: 1-12
15. Common Ground Center Summer Camps
    Oberlin, Ohio
    Type: Traditional, Adventure
    Ages: 6-15 years
16. FACEtime Summer Camp at Cleveland Hearing & Speech Center**

Cleveland, Ohio
Type: Specialty (Disability Support)
Ages: 9-16 years

1. Falcon Camp
   Carrollton, Ohio
   Type: Traditional
   Ages: 6-16 years
2. Kids Summer Camp at LifeCenter Plus Health and Fitness Center
   Hudson, Ohio
   Type: Traditional
   Ages: 5-12 years
3. Red Oak Camp
   Kirtland, Ohio
   Type: Traditional, Horse
   Grades: 1-10
4. SMILE Summer Camp at Peak Potential Therapy
   Northfield, Ohio
   Type: Traditional, Therapeutic, Specialty (Disability Support)**
   Ages: 6-16 years
5. Thrive Summer Camp at Therapy & Wellness Connection*
   Brecksville, Ohio
   Type: Traditional, Therapeutic, Specialty (Disability Support)
   Ages: Children of all ages

Central/Southeast Ohio (including Columbus and Athens)

1. Camp Architecture and Design at Columbus Center for Architecture and Design
   Columbus, Ohio
   Type: STEM
   Grades: 3-8
2. Camp Echoing Hills***
   Warsaw, Ohio
   Type: Traditional, Specialty (Disability Support)
   Ages: 13-Adulthood
3. Camp Hamwi by the Central Ohio Diabetes Association**
   Danville, Ohio
   Type: Traditional, Specialty (Disability Support)
   Ages: 3-17
4. Camp Nuhop**
   Perrysville, Ohio
   Type: Traditional, Specialty (Disability Support)
   Ages: 6-29 years
5. Camp Oty'Okwa
   South Bloomingville, Ohio
   Type: Traditional, Adventure
   Grades: 2-12
6. Camp Wyandot
   Westerville and Hocking Hills, Ohio
   Type: Traditional, Adventure
   Grades: K-12
7. Day Camp and Kindergarten Enrichment at Enchanted Care Learning
   Greater Columbus Area, Ohio (7 locations)
   Type: Traditional
   Ages: K-6
8. Future Pastry Chef Camps at Our Cupcakery
   Dublin, Ohio
   Type: Specialty (Cooking)
   Ages: 8-14 years
9. IDEAS Summer Camps for Boys & Girls

Columbus, Ohio
Type: Traditional
Grades: Preschool-8

1. RAW Camp at Rising Appalachia
   Millfield, Ohio
   Type: Adventure
   Ages: 6-17 years
2. Recreation Unlimited Camps***
   Ashley, Ohio
   Type: Traditional, Specialty (Disability Support)
   Ages: 5-Adulthood
3. Summer Camps and Programs at BalletMet
   Columbus, Ohio
   Type: Dance
   Ages: 4-8 years
4. Summer Challenge Day Camp at Central Community House**
   Columbus, Ohio
   Type: Traditional
   Ages: 5-13 years
5. Summer Experience at Columbus Academy
   Gahanna, Ohio
   Type: Traditional, Academic
   Grades: Preschool-12
6. Tennis Ohio at ACEing Autism**
   Columbus, Ohio
   Type: Sports
   Ages: 5-18 years

Southwest Ohio (including Cincinnati and Dayton)

1. Abrakadoodle Art Camps for Kids
   Greater Cincinnati, Ohio
   Type: Art
   Ages: 3-12 years
2. Aullwood Summer Earth Adventure
   Dayton, Ohio
   Type: Traditional, Adventure
   Grades: K-6
3. Camp Ashreinu
   Cincinnati, Ohio
   Type: Traditional
   Ages: 1.5 years-Grade 7
4. Camp Chabad
   Cincinnati, Ohio
   Type: Traditional, Religious
   Ages: 2 years-Grade 9
5. Camp-A-Palooza at Kids First Sports Center
   Cincinnati, Ohio
   Type: Traditional
   Grades: K-7
6. Cincinnati Reds Baseball & Softball Camps
   Various Locations in Central and Southeast, Ohio
   Type: Sports
   Ages: 6-14 years
7. Cincinnati Shakespeare’s Theatre Summer Camp
   Cincinnati, Ohio
   Type: Theatre
   Grades: 1-12
8. Dayton Live Creative Academy Summer Camp
   Dayton, Ohio
   Type: Performing Arts
   Grades: Preschool-12
9. Gorman Heritage Farm’s Summer Day Camp
   Evendale, Ohio
   Type: Specialty (Farm and Animals)
   Ages: 5-13 years
10. Great Parks Day Camps
    Cincinnati, Ohio
    Type: Traditional
    Ages: 3-15 years
11. Images of Afrika Summer Camp at Bi-Okoto
    Cincinnati, Ohio
    Type: Traditional, Culture
    Ages: Children of all ages
12. Museum Camps at the Cincinnati Museum Center
    Cincinnati, Ohio
    Type: Traditional
    Ages: 5-14 years
13. Ohio Sports Academy Summer Camps
    Springboro, Ohio
    Type: Sports
    Ages: 4-12 years
14. Saint Ursula Academy (SAU) Summer Academy
    Cincinnati, Ohio
    Type: Traditional
    Grades: 3-8
15. Summer Art Camp at the Taft Museum of Art
    Cincinnati, Ohio
    Type: Art
    Grades: 1-12
16. Summer Camps at Best Point Education and Behavioral Health*
    Cincinnati, Ohio
    Type: Traditional, Specialty (Disability Support)
    Ages: 4-25 years
17. Summer Camps at Green County Parks and Trails
    Xenia, Ohio
    Type: Traditional
    Ages: 3-13 years
18. Ursuline Academy Summer Camps
    Cincinnati, Ohio
    Type: Traditional
    Grades: 1-9

Northwest Ohio (including Toledo and Sandusky)

1. Bellweather Farm Summer Camps
   Wakeman, Ohio
   Type: Traditional
   Grades: 2-12
2. Brightside Academy Ohio’s Summer Camp Adventures for Kids
3. Capable Kids Summer Program
   • Toledo, Ohio
   • Type: Traditional, Specialty (Disability Support)
   • Ages: 2 years-Grade 5
4. Courageous Community Services’ Courageous Acres*
   • Whitehouse, Ohio
   • Type: Traditional
   • Ages: 5 years-Adulthood
5. Happy Camper Camps at St. Ursula Academy
   • Ohio
   • Type: Traditional
   • Grades: K-8
6. Imagination Station Summer Camp
   • Toledo, Ohio
   • Type: STEM
   • Ages: 6-13 years
7. Path Finders Camp
   • Toledo, Ohio
   • Type: Therapeutic, Specialty (Bereavement)
   • Ages: 6-15 years
8. Scap4Art Summer Camp
   • Maumee, Ohio
   • Type: Art
   • Ages: 6-12
9. Summer Art Camps at the Toledo Museum of Art
   • Toledo, Ohio
   • Type: Art
   • Ages: 6-18 years
10. Summer Camps at the Notre Dame Academy
    • Toledo, Ohio
    • Type: Traditional
    • Grades: K-9
11. SummerTime Camp at Maumee Valley Country Day School
    • Toledo, Ohio
    • Type: Traditional
    • Grades: Preschool-12
12. Wolcott House History Summer Camp
    • Maumee, Ohio
    • Type: Historical
    • Grades: 3-6

Online Summer Camps

1. Brain Chase: Summer Learning Challenge
   Type: Traditional
   Grades: 2-8
2. National Computer Camps Virtual Online Camp
   Type: STEM
   Ages: 8-18 years
3. STEAM Camps at MehtA+ Tutoring
   Type: STEM, Art
   Grades: 5-12

Please note that this list does not capture the endless opportunities for summer programming available to children. For more programs, be sure to check out your local YMCA, Jewish Community Center (JCC), Boys and Girls Club, Brightside Academy Ohio, Salvation Army, Easterseals, Girl Scouts, Boy Scouts, Camp Invention, Code Ninjas, Classroom Antics, Challenge Island, Snapology, college, university, zoo, or recreation center. Have an AWesome summer and stay safe!

Compiled by Renee Stromski,Esq.

Need Help with your Special Education matter? Call us. 614-745-2001

Residency: What does it mean to be a resident of a school district for attendance purposes?

In Ohio, all school-age children have the right to attend the public school of the district in which they reside without charge. But what does residence actually mean for a student? This is an important question as the answer determines what public school your child can attend for free.

The general rule is that the residence of a child is the same residence as their parent. While that seems like a simple answer, it is not always that easy to determine residency. Below are a few questions and answers to help provide guidance on what residency means.

Who is considered a “parent”? Because a child’s residence is determined by the residence of their parent, it is important to consider which parent is important here. Generally speaking, a “parent” can be either of the child’s natural or adoptive parents. However, if a child’s parents are divorced or separated, then “parent” means the parent who is the residential parent and legal custodian of the child. If both parents share custody of a child under a shared parenting plan, then both parents could be considered a “parent” for school residency purposes.

Is it possible to have more than one residence? Yes, it is possible for a child to have more than one residence for school attendance purposes. This can happen if a child’s parents reside in more than one school district or when custody is shared under a shared parenting plan. If a child does have more than one residence, the child could attend either school district free of charge.

What does it mean to “reside” somewhere? We know a child’s residency is the same as their parents. But what does it actually mean to reside somewhere? When determining residency, courts look at several factors and a determination is made after considering all of the circumstances. The Court in Kenton Board of Education v. Day stated,

One cannot establish residency merely by purchasing a house or apartment building or even by furnishing such a house or apartment so that it is suitable for the owner’s use. ‘Residence’ involves something more. It must be a place where important family activity takes place during significant parts of each day; a place where the family eats, sleeps, works, relaxes, plays. It must be a place, in short, which can be called a home.

As you can see from the above quote, merely owning property in a district is not enough to establish residency for your child. You must actually live there. 

How will the school district actually know whether I live there or not? If a school district has doubts as to whether you or your child actually reside in the school district, they can:

• follow your child home from school each day to see where they are going;
• make several unannounced home visits;
• request and review copies of the Deed, Lease, utility bills, etc.;
• request to enter your home to determine if your house is lived in; and
• once in the home, they can request to look in various rooms and, in the refrigerator, to determine if the home is “lived in.”

Again, if you reside in a school district, your child has the right to attend school in that district free of charge. However, there are several exceptions where a school may allow a non-resident child to attend school in that district for free as well. Here are the most common exceptions:

• when a child is attending a school through a district’s open enrollment policy;
• a student’s parent is having a house built in the district (subject to a 90-day time limitation and requiring additional supporting documents);
• a student’s parent is purchasing a house in the district (subject to a 90-day time limitation and requiring additional supporting documents);
• a student is admitted as a foreign exchange student;
• when a student is a child of a district employee; and
• through a Superintendent’s Agreement.

If you are having issues with your child’s school or if you have questions regarding residency requirements, you can always contact an education-focused attorney to help you.

Written by Jessica Moore, Esq.

Questions? Call us! 614-745-2001

EdChoice Scholarship Applications Now Open for the 2023-24 School Year to Cover Private School Tuition

The Ohio EdChoice Scholarship Program (“EdChoice”) has expanded its eligibility for 2023-24 allowing more students to attend private schools in the state. EdChoice provides state-funded scholarships to k12 students who:

• Are assigned to attend a “low performing” public school building;
• Whose family meets the income eligibility requirements (at or below 250% of the federal poverty guidelines);
• Have a sibling who previously received an EdChoice Scholarship;
• Previously received an Autism Scholarship or Jon Peterson Scholarship, but no longer need special education services; or
• Who are foster children.

(A more comprehensive list is available at the link below.)

Applications for the 2023-24 school year opened on February 1, 2023 and will remain open through the 2023-24 school year. Families must contact the private school they are interested in attending and complete the enrollment process for that school. The selected private school must be an EdChoice-participating school. Once accepted for enrollment at the private school, parents may apply for the scholarship directly through the school.

The scholarship amount is currently $5,500 for grades k-8 and $7,500 for grades 9-12. EdChoice will pay either the full scholarship amount or the private school’s actual tuition amount, whichever is less. If the tuition amount is more than the scholarship, families are responsible for the difference, but only for families with a total gross income at 201% or higher of the federal poverty guidelines.

Click HERE for a list of low performing public schools, participating private schools or to learn more about EdChoice.

Written by Mark Weiker, Esq. of Albeit Weiker, LLP

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Questions? Call us! 614-745-2001

TRUANCY EXPLAINED

As parents of school-age children, we know that children need to attend school on a consistent basis to facilitate learning and thriving.  There is also a legal component to a child’s school attendance of which parents should understand the process, procedure, and rules.  The following will lay out and explain truancy and the rules surrounding it in effort to provide parents, guardians, and caregivers a better understanding of the requirements and procedure. 

            Pursuant to Ohio Revised Code §2151.011 (B)(18), a “habitual truant" is any child of compulsory school age who is absent without legitimate excuse for (1) 30 or more consecutive hours, (2) 42 or more hours in one school month, or (3) 72 or more hours in a school year.  Once a student reaches one of these thresholds, the school is legally required to work with the student and their family in effort to rectify the reasons for the absences. 

            At the outset, it should be noted that a school cannot suspend or expel a student solely on the basis of habitual truancy.  Moreover, a school cannot file truancy charges prior to implementing an Absence Intervention Plan.  These two facts are meant to hopefully put a parent or guardian’s mind at ease that simply because a student has enough absences to meet the truancy threshold, it does not mean that the student will immediately face charges in juvenile court.

Absence Intervention: Initial Requirements and Timeline[1]

            As a matter of procedure, Ohio law requires that before truancy charges are filed, a school must work with the student and their family to address the reason(s) for the absences.  Additionally, the Absence Intervention Team, which includes the student, family, and school staff, must create an Absence Intervention Plan (“AIP”).  The team develops a student-centered AIP that will help identify specific barriers and solutions to attendance.  In terms of initial steps following the triggering absence, Ohio law requires that the school meet several deadlines.  Within seven days of the triggering absence, the school must create an Absence Intervention Team and make three meaningful attempts to obtain the participation of the student’s parent or guardian.  Within ten calendar days of the triggering absence, the student must be assigned to their Absence Intervention Team.  Within 14 days of the team’s creation, the team must develop the student’s AIP.  Following the creation of the AIP, the school district has seven calendar days to make reasonable efforts to provide written notification of the AIP to the parent or guardian.  The student then has 60 calendar days to participate and make satisfactory progress on the plan.

Filing Truancy Charges1

            If the student does not participate or make satisfactory progress on the plan, the attendance officer must file a complaint in juvenile court against the student on the 61st calendar day after the implementation of the AIP.  Whether there has been satisfactory participation or progress on the part of the student is determined by the Absence Intervention Team.  Generally, filing charges is a last resort for the school district.  However, once the 61^st day is reached and there has been insufficient improvement, the attendance officer has no choice and is legally required to file a truancy complaint.

            Although the general time frame is 61 calendar days, if a student is absent without a legitimate excuse for 30 or more consecutive hours or 42 or more hours in one month, the district attendance officer is required to file a truancy complaint.  This rule does not apply, however, if the team has found that the student has made sufficient and substantial progress on the AIP.  Thus, this rule has more flexibility than the 61^st day rule.

What happens when charges are filed?[2]

            Once truancy charges are filed, the parent or guardian will receive a summons in the mail identifying the charge as well as an initial court date.  Depending upon the county, the case may get sent directly to a diversion program if the student is a first-time offender.  If the student is sent to diversion, the student and the parent or guardian will meet and work with a diversion officer to identify the barriers to attendance as well as create a goal sheet to focus on improving attendance.  The benefit of diversion is that if a student successfully completes their goals, the charge will be removed from their record.  If the child goes to court on these charges, the possible consequences can include probation, community service, court-ordered counseling, loss of a driver’s license, and fines. 

Franklin County: Truancy Intervention Prevention Plan (TIPP)[3]

            Franklin County Juvenile Court currently has a grant-funded Truancy Intervention and Prevention Program (TIPP) which has the goal of preventing truancy even before the need for an AIP.  TIPP Truancy Officers partner with participating local school districts to enforce attendance laws and also work with students in a school setting to monitor attendance.  This program is one more way to hopefully prevent students getting to the point of habitual truancy that several local school districts, including, Canal Winchester Local Schools, Gahanna-Jefferson Public Schools, Groveport Madison Schools, Hilliard City Schools, New Albany-Plain Local Schools, Reynoldsburg City Schools, South-Western City School District, are utilizing.

Conclusion

            The prospect of truancy charges being filed against your child is a scary and unnerving place to find oneself as a parent or guardian.  It is important to understand what a school district is required to do prior to filing such charges, but also when they are required to file such charges.  It is best to maintain open communication with the school district during the AIP process in order to help support the attendance of the student and hopefully avoid ending up in juvenile court.

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[1] https://education.ohio.gov/Topics/Student-Supports/Attendance-Support/Ohio-Attendance-Laws-FAQs#FAQ4883

[2] https://www.ohiobar.org/public-resources/commonly-asked-law-questions-results/education/parents-must-take-responsibility-for-truant-students/

Authored by Amy Solaro, Esq. of Albeit Weiker, LLP

Questions? Call us. 614-745-2001

[3] https://drj.fccourts.org/DRJ.aspx?PN=School_Truancy.htm

Relief Has Been Denied in Most Anti-Masking Lawsuits Against Schools

Mark Weiker, Esq., Albeit Weiker, LLP

Over the last two years, Ohio school boards have become a lightning rod for citizens to unload their personal and political thoughts on almost everything pandemic related. From virtual learning to masking to quarantining, school boards have absorbed the diverse and sometimes raucous opinions of their constituents. Outcomes in recent lawsuits suggest that courts are largely unwilling to interfere with the discretion of school boards to make unpopular decisions.

Montgomery County Schools Cases

In September 2021, the U.S. District Court for the Southern District of Ohio in Dayton dismissed three separate lawsuits brought by pro se parents against three different Montgomery County Schools (Huber Heights City Schools, Mad River Local Schools and Northmont City Schools). The parents each alleged that the schools’ policies requiring masks were a violation of their children’s constitutional rights. The dismissals by the Court were not based on the merits of the claims, but rather on a rule prohibiting parents from filing pro se claims in federal court on behalf of their minor children.[i] The Court held that, “the rule against non-lawyer representation protects the rights of those before the court by preventing an ill-equipped layperson from squandering the rights of the party he purports to represent.”[ii]

Chillicothe City School District Case

On Nov. 1, 2021, four parents filed a lawsuit against the Chillicothe City School District and school administrators alleging that the school’s policy requiring masks was “arbitrary, capricious and based on ignorance due to failure to inquire into facts.”[iii] The parents’ pro se claims brought on behalf of their minor children were dismissed sua sponte by the Court for the same reason as those in the Montgomery County cases, while claims brought by the parents on their own behalf survived. Nonetheless, the parents’ request for a Temporary Restraining Order (TRO) was denied because the parents “[had] not shown that they [were] likely to succeed on the merits of the remaining claims or that irreparable injury would accrue from denying the motion.”[iv]

In addition to the Chillicothe case, at least two other cases included requests for a TRO by parent-plaintiffs, and the courts denied the requests in both cases.

Mayfield City School District Case

In September 2021, a parent in the Mayfield City School District sought a TRO against the school district because the school board was attempting to institute a mask requirement.[v] The parent argued that the mask mandate caused “immediate and irreparable harm” to students, staff, and the general community.[vi] The parent also alleged that the mandate was a violation of her daughter’s constitutional rights and impeded on her daughter’s fundamental right to a public education.[vii]

The Court denied the motion for TRO because the parent failed to meet the necessary elements, finding that masking did not impede on the student’s ability to attend school. The Court also found that there was likely no chance of irreparable harm to the plaintiff’s daughter or other minors should the mask mandate be allowed to stand.[viii] Notably, the Court identified that, “the mask mandate was implemented to prevent serious injury, illness, and death in the District and broader community…[and] the risks associated with not wearing a mask in public schools are well-documented and supported by scientific evidence.”[ix]

Forest Hills Local School District Case

In another case filed in September, a plaintiff in the Forest Hills Local School District took issue with the meeting in which the school board adopted the mask policy. The plaintiff alleged a violation of the Open Meetings Act[x] and sought a TRO preventing the school board from enforcing the mask requirement.[xi] The Court denied the relator’s request for a TRO after holding a conference with the parties.[xii] After the TRO was denied, the plaintiff filed an affidavit to have the judge disqualified due to the judge’s comments at the conference, but the Ohio Supreme Court determined that the judge was not prejudicial.[xiii]

Hudson City School District Case

A more recent case was filed by three parents in the Summit County Common Pleas Court on Jan. 10 against the Hudson City School District. The parents sought injunctive relief prohibiting the school district from enforcing masking and quarantine rules absent a health department order, among other requests for relief. As of February 7, 2022, no hearing on injunctive relief has been scheduled or held, and no such relief has been ordered by the court, although the case is still pending.

While some case dismissals have been procedural, and others are only denials of immediate injunctive relief, the outcomes to date indicate a reluctance on the part of Ohio courts to disrupt the difficult decisions made by local boards of education—at least when it comes to masks.

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[i] See P.G. v. Huber Hts. City Schl Dist., 3:21-cv-257 (S.D. Ohio, Sept. 23, 2021), citing Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002).

[ii] Id., citing Bass v. Leatherwood, 788 F.3d 228, 230 (6th Cir. 2015).

[iii] Wettersten v. Chillicothe City Schl. Dist., 2:21-cv-5187 (S.D. Ohio, Nov. 1, 2021).

[iv] Id.

[v] P.M. v. Mayfield City Sch. Dist. Bd. of Educ., No. 1:21 CV 1711 (N.D. Ohio, Sept. 13, 2021).

[vi] Id. at 2.

[vii] Id.

[viii] Id.

[ix] Id. at 4.

[x] Doe v. Forest Hills Loc. Schl. Dist., A-2102899 (Hamilton Cty., Aug. 18, 2021) (documents sealed).

[xi] In Re Disqualification of Jenkins, No. 21-AP-114, ¶¶17-18 (Sep. 22, 2021).

[xii] Id.

[xiii] Id. at 2.

Understanding Amended Ohio House Bill 244 - The Vaccine Discrimination Bill

With schools, masks, and vaccinations being at the top of many parent’s minds, the recently passed, soon to take effect Amended House Bill (H.B.) 244 has been the subject of much discussion.  Set to take effect on October 13, 2021, the relevant amendment of H.B. 244 prohibits public schools from the following:

• Requiring any individual to receive a vaccine that has not been fully approved by the United States Food and Drug Administration (FDA); and,
• Discriminating against any individual who has not received a vaccination, which includes requiring an unvaccinated individual to engage in or refrain from engaging in activities or precautions that differ from the activities or precautions of a vaccinated individual.[1]

In application, H.B. 244 has far-reaching effects in terms of restricting how public school districts and public colleges and universities in Ohio are able to structure their COVID-19 policies.

Under H.B. 244, a public school, college, or university may not require that any student or employee receive a COVID-19 vaccine if the vaccine has not received full FDA approval.  Currently all three vaccines being administered in the United States – Pfizer-BioNTech, Moderna, and Janssen – have only been authorized for emergency use.[2]  Pfizer-BioNTech and Moderna have both applied for full approval, but there is no clear timeline on when approval will be granted.  This means that unless and until any of these vaccines are fully approved by the FDA, H.B. 244 will prevent vaccine mandates in Ohio public schools.

Additionally, H.B. 244 specifies that Ohio public schools cannot discriminate between vaccinated and unvaccinated persons.  Specifically, a public school cannot compel unvaccinated persons to adhere to different restrictions and requirements than vaccinated people.  The most visible and prevalent way this will appear is H.B. 244’s application to school mask policies.  Under H.B. 244, a public school cannot require unvaccinated persons to wear masks, while permitting vaccinated persons to be mask-free.  Practically speaking, H.B. will require public schools to create a one-size-fits-all COVID-19 policy as it relates to vaccine status for the upcoming school year and beyond.  Public schools will be unable to incentivize receiving a vaccine with the prospect of an optional mask.

What should also be noted is that H.B. 244 only applies to public schools, colleges, and universities.  As such, private educational institutions are not impacted by H.B. 244 and may implement vaccine mandates as well as mask and testing mandates that apply unequally depending upon COVID-19 vaccination status.  Despite the inapplicability to private schools, such schools would be wise to be aware of the implications of H.B. 244.

With no federal mandate and a patchwork of policies across the country and the state, the amended provisions of H.B. 244 forces public educational institutions into adopting all or nothing policies related to COVID-19 which they must carefully craft to avoid running afoul of this amended bill.

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[1] Am. H. B. No. 244 (134^th G.A.)

[2] https://www.fda.gov/emergency-preparedness-and-response/coronavirus-disease-2019-covid-19/covid-19-vaccines

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