School Law Summary 2017-3
In this issue: Arbitration – Appeals • Arbitration – Collective Bargaining • Community Schools • Contract - Breach • Discrimination – Race • Employee Termination – Appeals • First Amendment – Retaliation • Fourth Amendment – Search And Seizure • Immunity – Political Subdivision • Individuals With Disabilities • Open Meetings Act • Public Records Act • Public Records Act – Redaction • Teacher Termination • Teaching License – Appeal
Appellate court agrees that arbitrator’s decision exceeded the scope of his authority.
Stephanie Rayfield, a teacher who had also been the varsity softball head coach for 15 years, reapplied for the supplemental head softball coach position for the 2012-13 school year. Both the superintendent and athletic director recommended her, but the Board instead hired Sam Keesey, who was not a district employee. Rayfield filed a grievance, which was subsequently denied by the Board and arbitration ensued. Prior to the 2014 arbitration date, Keesey was re-hired as varsity softball head coach for the 2013-14 school year.
The arbitration hearing took place on Feb. 18, 2014, resulting in the arbitrator sustaining Rayfield’s grievance for the 2012-13 school year and awarding back pay. However, in its post-hearing brief, the union asked for Rayfield to be reinstated as head coach for the 2014-15 school year. The arbitrator declined to make any award on that claim, stating that the grievance was based on an action that took place in the 2012-13 school year and remedies granted for the ensuing school years would be beyond the scope of the grievance and the arbitrator’s authority. The arbitrator’s decision was not appealed.
In May 2014 Rayfield reapplied to be head coach and the board re-hired Keesey, resulting in the filing of another grievance. The union alleged in this grievance that the board retaliated against Rayfield when it did not grant her an interview for the position. The union also alleged board violations of the negotiated agreement. In this arbitration, the arbitrator found the board had not retaliated against Rayfield, because it had a past practice of retaining incumbent coaches, and therefore the arbitrator could not apply any remedy prior to the then-current school year (2014-15) because the first arbitrator’s decision addressed the earlier events. However, because of the Board’s earlier contract violation (the first grievance/arbitration), Rayfield was not awarded the head coach position in subsequent years and lost the benefit of being an incumbent coach. The arbitrator awarded the head coaching position to Rayfield for the 2015-16 school year. The Board filed a motion to vacate/modify/correct this award with the trial court.
In August 2016, the trial court issued a judement entry, reversing the second arbitrator’s decision. The union appealed, arguing the trial court committed reversible error when it reversed the arbitrator’s final and binding award. The appellate court noted that generally, arbitrators’ awards are considered final because the purpose of arbitration is to end the controversy and avoid future litigation. However, the courts have vacated arbitrator awards if corruption, fraud, impartiality or misconduct is evident, or if the arbitrator exceeded his or her authority. In this case, the appellate court found the trial court’s holding that the arbitrator exceeded the scope of his authority to be appropriate, and held that the trial court properly vacated and reversed the arbitrator’s award in favor of the school district.
ARBITRATION – COLLECTIVE BARGAINING
Court of appeals dismisses union’s motion to vacate a lower court’s decision, holding a court can return a matter to a magistrate for further proceedings and that the appealed judgment entry which was not final.
The Youngstown Education Association (YEA) filed a grievance on behalf of one of its members charging the Youngstown City School District Board of Education (Board) with failing to provide the member disability income protection insurance. The Board and YEA then entered into a settlement agreement, but YEA later filed a grievance alleging that the Board failed to provide disability income protection for its member. At arbitration, the arbitrator determined the matter was not arbitrable because YEA had withdrawn its initial grievance pursuant to the settlement agreement, releasing the Board from any further claims raised in the grievance.
The YEA then filed a motion to vacate the arbitrator’ decision in the Mahoning County Court of Common Pleas and the Board responded with a motion to confirm the arbitrator’s decision. The magistrate hearing the case denied YEA’s motion and confirmed the Board’s motion. YEA filed an objection to the magistrate’s decision. The trial court then filed a judgment entry rejecting the magistrate’s decision and returned the matter to the magistrate for further proceedings. An appeal on this action was then filed.
The court of appeals, in dismissing YEA’s appeal, considered Civ. R. 53(D)(4), Ohio Revised Code (RC) 2505.02 and Ci.R. 53(D)(4)(a). The court found returning the matter to the magistrate for further proceedings to be appropriate since the judgment entry being appealed was not final. The trial court’s judgment entry did not affect a substantial right in an action that was a determining factor and did not fall under any of the other RC 2505.02 final order categories.
Court of appeals finds that duration of participation at online school is essential to determining whether a student has been “offered” learning opportunities.
Electronic Classroom of Tomorrow v. Ohio Dept. of Edn., 2017-Ohio-5607.
http://cases.justia.com/ohio/tenth-district-court-of-appeals/2017-16ap-863.pdf?ts=1498771257
The Electronic Classroom of Tomorrow (ECOT) is an online school. Students attend classes through a computer by logging in to ECOT’s online platform to access educational curriculum. ECOT is a community school that receives funding from the state of Ohio based on the number of full-time equivalent (FTE) students enrolled. The community school self-reports the number of FTE students to the Ohio Department of Education (ODE). ODE then has the right to adjust the payment to the community school to “reflect any enrollment of students in community schools for less than the equivalent of a full school year.” ODE performs periodic FTE reviews of community schools to investigate whether a funding adjustment is warranted. Such a review involves ODE personnel visiting the community school and identifying the records ODE would like to view in order to confirm the school’s reported FTE numbers.
ECOT learned in January 2016 that it would be subject to an FTE review for the 2015-16 academic year. That year, ECOT claimed a right to state funding for more than 15,000 FTE students, resulting in more than $100 million in state educational funds. Prior to the review, ODE sent ECOT a letter indicating that ODE would be requesting durational records showing how long or how often students had accessed learning opportunities over the course of the academic year. In its prior FTE reviews, ODE had not requested this “durational data.”
In March 2016, ODE conducted its initial FTE review of ECOT, using the files ECOT provided of 750 students that ODE had identified in advance of the preliminary review, including durational data. These reports showed that, on average, students spent only about one hour per day logged on to ECOT’s online educational platform.
In July 2016, ECOT filed a complaint against ODE seeking specific performance, declaratory and injunctive relief, and asking the trial court to block ODE from obtaining and considering durational data during the FTE review. ECOT also filed a motion for a temporary restraining order, which the trial court denied. The trial court determined that ODE did not violate state law by requesting and reviewing durational data, the FTE review manual was not an invalid administrative rule, and ODE did not violate the equal protection rights of ECOT families. ECOT appealed.
The court of appeals affirmed the decision of the trial court, finding that ODE was permitted to consider durational data in its 2015-16 FTE review of ECOT, that ECOT was not entitled to preliminary or permanent injunctive relief, and that the ECOT families did not establish a valid equal protection claim. The court found that a plain reading of the funding statute compelled the conclusion that although enrollment was a necessary predicate to funding, the amount of funding per student was dependent upon a measure of student participation. In other words, the court found that the duration of a student’s participation was essential to determining whether a student has been “offered” learning opportunities for purposes of calculating FTE.
Ohio appellate court finds educational service center (ESC) acted within its authority as an employer and as a result did not breach its contract with an intervention specialist.
Ruez v. Lake Cty. Educational Serv. Ctr., 2017-Ohio-4125.
https://www.supremecourt.ohio.gov/rod/docs/pdf/11/2017/2017-Ohio-4125.pdf
Patricia Ruez was employed by the Lake County Educational Service Center (LCESC) as an intervention specialist working with preschool children with special needs. During the 2014-15 school year, she split her time between Kirtland School District and Fairport Harbor School District, working two and a half days per week at each location for a total of five weekly workdays. LCESC’s Director of Early Childhood, Tippi Foley, testified that school districts contract annually with LCESC for services and make their own determinations regarding the amount of services required under such contracts. She also testified that both Kirtland and Fairport Harbor informed her that they would require fewer preschool intervention services in the 2015-16 school year. As a result of the lower demand, Ruez’s days for the 2015-16 school year were reduced from 183 to 72 by board of education vote on June 2, 2015.
Foley also testified that she continued to look for extra hours for Ruez, who did not respond to text messages. Ruez reached out to Foley to inquire about a full-time teaching position, but when Foley responded that the position paid less than what Ruez formerly made, Ruez made no further inquiries. In August 2015, Foley was notified that Ruez had retired, and as a result, Foley found replacement teachers for her positions. On Dec. 18, 2015, Ruez filed a complaint alleging breach of contract and age discrimination.
The trial court found that LCESC had not breached its contract with Ruez. The court noted that Ruez failed to state a claim for age discrimination and the reduction in funding from school districts requiring her services created a legitimate business reason for reducing her hours. Ruez’s appeal cited three assignments of error.
First, Ruez argued that Ohio Revised Code (RC) section 3319.17 allows educational service centers to reduce the number of teachers it employs when a school district terminates or does not renew its contract with the service center, and that because neither Kirtland nor Fairport Harbor terminated its contract, LCESC could not reduce her hours. She also argued that under RC 3319.17, LCESC was required to hire her for the open full-time position. The court disagreed with Ruez’s interpretation of the statute, noting that Ruez never applied for the open full-time position, and that RC 3319.17 authorized LCESC to take the action it did due to a reduction in funding for Ruez’s function by the two school districts. The court also cited Ruez’s employment contract with LCESC as further evidence that the service center acted within its contractual rights to reduce her hours.
Second, Ruez argued that LCESC discriminated against her on the basis of age. Here, because there was no direct evidence of age discrimination, the court applied a four-part test to determine whether there was indirect evidence of age discrimination. The test required Ruez to show that she: (1) was a member of the statutorily protected class, (2) was discharged, (3) was qualified for the position, and (4) was replaced by or the discharge permitted retention of, a person of substantially younger age. If Ruez met all four factors, the burden shifted to the district to provide a legitimate, nondiscriminatory reason for her discharge. If the district meets its burden, Ruez must then be afforded the opportunity to show that the district’s rationale was only a pretext for unlawful discrimination.
Here, the court found that Ruez met all parts of the text except the second in that she could not establish that she had been discharged either actually or constructively. Ruez argued that the reduction in hours was so extreme that it constituted constructive discharge. The court disagreed citing the facts that Ruez actually had continued employment and Foley continued to search for increased hours for Ruez, creating the prospect of increased hours in the future.
Finally, Ruez argued that LCESC’s reasons for reducing her hours were merely pretextual. The court disagreed, finding the reduction in funding from Kirtland and Fairport Harbor for the services Ruez provided to be a reasonable justification for reduction in her hours.
Terminated employee must produce actual evidence of discrimination, not “just believe” discrimination occurred, in order to prevail under Title VII.
Busby, an African-American female, was employed by the Syracuse City School District as a school monitor. While assigned to various buildings at differing times, some of her duties included assisting and intervening in issues occurring near entrances, and providing security and support for staff and students. She had several counseling sessions with building principals for using her cell phone while on duty as cell phone usage was prohibited by district policy. Additionally, Busby received counseling on confidentiality. Ultimately, on two separate occasions while Busby was stationed at a main building entrance, she failed to prevent students from running out of the building, which, when coupled with two additional counseling sessions for other incidents, led to her termination.
When meeting with the union, the district stated that the reason for Busby’s termination was “continued failure to perform the duties of [her] job, resulting in unsafe situations for students.” The union filed a grievance contesting the termination, which proceeded to arbitration. The arbitrator then reinstated Busby, but without back pay, noting her long service career and the fact that her misconduct did not rise to the level of gross incompetence. However, prior to the arbitration, Busby also filed a complaint with the New York State Division of Human Rights alleging the school district and building principal discriminated against her on the basis of race, color and gender. The same complaint also was filed with the Equal Employment Opportunity Commission (EEOC). The State Human Rights Division determined that there was no probable cause for her complaint because it could find no nexus between her termination under progressive discipline and her race, color or gender. EEOC then adopted the State Human Rights Division’s findings and dismissed Busby’s complaint.
Busby then commenced an action alleging unlawful discrimination under Title VII with the U.S. District Court. The case was initially dismissed, but Busby amended her complaint and the school district filed for a summary judgment, which Busby opposed. The district court, in considering the case, quickly focused on the point that Busby could not establish a prima facie case of discrimination because there was no evidence to support an inference of discrimination on the basis of race or gender. The court noted that most of her claims were based on the fact that Busby “just believed” the principal discriminated against her because she is an African-American woman. Additionally, the arbitrator who also heard her claims, highlighted that misconduct had taken place and since the arbitrator is independent, neutral and unbiased, his findings are “highly probative of the absence of discriminatory intent.” The court then granted the district’s motion for summary judgment and dismissed Busby’s amended complaint.
District court allows claims of race discrimination under 42 U.S.C. 1983 and equal protection clause claims against teacher to proceed to trial.
M.T. v. Benton-Carrol-Salem Local School Dist., N.D.Ohio No. 16-cv-2552, 2017 U.S. Dist. LEXIS 74453 (May 16, 2017).
https://docs.justia.com/cases/federal/district-courts/ohio/ohndce/3:2016cv02552/229304/14
M.T., a bi-racial student at Benton-Carroll-Salem Local School District, attended classes in a predominantly white school. M.T. claimed that his teacher, Russ Exlos-Raber, referred to him as a “brown dude” to the class on a day M.T. was absent. Exlos-Raber admitted he referred to M.T. as “brown-skinned” in an email to the district superintendent, Guy Parmigian, and school principal, Laramie Spurlock. M.T. alleged that, upon his return to school, Exlos-Raber asked him to hold out his hands and say what color they were. Following these circumstances, M.T. was taken out of Exlos-Raber’s choir classroom and placed in a class he had already taken.
M.T., through his parents, asserted four claims against the district and Exlos-Raber, Parmigian, and Spurlock individually and in their official capacities. He asserted violations of 42 U.S.C. 1983, Title VI, and the Fourteenth Amendment, and negligent hiring, training and supervision of employees. The court stated that while Exlos-Raber’s comments were racially insensitive, they did not shock the conscience. M.T. was not subjected to continual racial harassment or deprived of his right to attend school.
The court considered M.T.’s equal protection claims against each defendant separately. It granted summary judgment to the district on these claims on the bases that the district did not have a custom of racial discrimination and that M.T. failed to assert any facts that the school repeatedly ignored racial comments made by teachers to students. The court also granted summary judgment to defendants Parmigian and Spurlock, concluding that M.T. failed to assert any facts that they directly participated in or approved of the comments made by Exlos-Raber. Regarding Exlos-Raber, the court concluded that M.T. had alleged sufficient facts to allow his equal protection claims against the teacher to proceed to a jury.
On M.T.’s Title VI claim, the court granted summary judgment to the individual defendants because the school is the only party against which a claim could be brought. It also granted summary judgment to the school because it did not intentionally discriminate against M.T. or act with deliberate indifference to his claims. It took corrective measures in response to Exlos-Raber’s actions without unnecessary delay.
On M.T.’s negligent hiring, training and supervision claim, the court granted summary judgment to Exlos-Raber because he could not negligently hire, train or supervise himself. The court granted summary judgment to the school district and the other individual defendants because they did not act in such a way that would preclude the immunity described in Ohio Revised Code sections 2744.02-2744.3.
EMPLOYEE TERMINATION – APPEALS
Custodian’s termination upheld by court when employee failed to appeal the district’s termination notice within ten days.
Jenkins v. Northeastern Local Bd. of Edn., 2d Dist. Clark No. 2016-CA-72, 2017-Ohio-5497
Regina Jenkins was terminated from her employment as a custodian with the Northeastern Local School District for using profanity in front of students and being verbally abusive to other employees. Her employee union grieved the termination, but did not advance it to arbitration, agreeing that no contract language violation had occurred. However, the union did file a wrongful termination lawsuit with the courts. The trial court held that the contractual just cause standard for termination had not been met and ordered Jenkins reinstated with back pay. The entry also stated that the trial court’s decision was a final and appealable order.
The district then filed a motion for a new trial, asserting that there was an “irregularity in the trial court’s order” and, in a later motion, that the trial court lacked jurisdiction because Jenkins did not properly or timely appeal the district’s notice and termination order. Multiple successive motions were then filed by both parties with the trial court, and the pleadings ultimately concluded with a stay motion filed with the court of appeals. The appellate court focused its attention on the language of the collective bargaining agreement, which expressly provided for a post-termination appeals process with the Clark County Court of Common Pleas. However, because Jenkins did not perfect her termination appeal by filing a notice with the district within ten days of her receipt of the termination notice, she failed to properly invoke the trial court’s jurisdiction. The trial court’s decision was vacated for lack of jurisdiction, upholding Jenkins’ termination.
District court dismisses with prejudice former special education teacher’s claims of retaliation under Sec. 504 and 42 U.S.C. 1983.
Carpenter v. School Dist. No. 1, D.Colo. No. 16-cv-01706-RBJ, 2017 U.S. Dist. LEXIS 60349 (Apr. 20, 2017).
http://law.justia.com/cases/federal/district-courts/colorado/codce/1:2016cv01706/164350/37/
Shay Carpenter was formerly a special education teacher at Ellis Elementary School in School District No. 1 in Colorado. Carpenter was responsible for operating Ellis’s educational program — called Pragmatic Learning and Executive Functioning (PLEX) — for students from the district with autism. In the 2014-15 school year, Carpenter voiced her concerns about the PLEX program to district administrators and on her personal Facebook page. Among other things, Carpenter questioned the legality of the PLEX program, the requirement that students spend at least 60% of their time in the program, and the program’s student-to-staff ratio.
The district investigated Carpenter’s claims and concluded that the program complied with the Individuals with Disabilities in Education Act (IDEA). In November 2014, a school administrator directed Carpenter not to use the term “illegal” when describing PLEX or say anything critical about the district on her Facebook page, and to cancel a planned meeting with parents to discuss her complaints. Carpenter alleges that, over the next few months, the district retaliated against her by stating that she communicated too frequently and too much with parents and telling her she would be removed from the classroom because she had not attained highly qualified teacher status. She was not removed from the classroom.
In January 2015, Carpenter emailed administrators with concerns about safety in the classroom after an elementary school student allegedly assaulted another student, made death threats, physically intimidated staff with scissors, and stabbed other students with pens and pencils. The district conducted a threat assessment of the student and issued a one-day, in-school suspension. Carpenter, who felt the action was inadequate, requested a change in the student’s placement and told the district she would stop coming to school until the district responded. On Jan. 28, Carpenter was informed she would be issued a letter of reprimand for threatening not to show up for work. On Jan. 31, before the reprimand was issued, Carpenter resigned from her position.
Before resigning, Carpenter filed a complaint with the U.S. Department of Education’s Office for Civil Rights (OCR) alleging that the district did not make individual placement determinations for students in the PLEX program. After an investigation, OCR and the district entered into a resolution agreement under which the district did not admit liability or wrong-doing, but agreed to conduct a staffing meeting for all PLEX students and provide training to employees at Ellis about their responsibilities under IDEA.
In July 2016, Carpenter brought a complaint against the district, alleging retaliation under Sec. 504 of the Rehabilitation Act and a First Amendment retaliation claim under 42 U.S.C. 1983. She later amended the complaint to include an allegation of unlawful prior restraint under her First Amendment claim and a third claim for relief under 1983 for alleged violations of the Rehabilitation Act. The district filed a motion to dismiss all three for failure to state a claim. The court granted the district’s motion.
Regarding the claim of retaliation under Sec. 504, the court concluded that Carpenter did not suffer adverse employment actions. The adverse actions Carpenter described were “informal, vague verbal reprimands, unrealized threats, or even inaction,” and resulted, at most, in “only minor alterations to the plaintiff’s employment,” which did not suffice to establish a materially adverse employment action.
Regarding the First Amendment retaliation claim, the court concluded that Carpenter again failed to establish an adverse action by the district. Carpenter’s claims did not show that the district’s actions caused her to “suffer an injury that would chill a person of ordinary firmness from continuing to engage in [the protected] activity.” On the claim of prior restraint, the court concluded that Carpenter did not have standing to raise the claim because she did not make any allegations that the district’s actions caused her to fear some sort of job-related punishment if she violated its directives.
Finally, the court dismissed Carpenter’s last claim because nothing in Sec. 504 indicates that Congress intended to allow 1983 as an available remedy for violations of Sec. 504.
FOURTH AMENDMENT – SEARCH AND SEIZURE
Ohio Supreme Court finds school district’s search and seizure procedures appropriate to further the compelling governmental interest of protecting public school students from physical harm.
State v. Polk, 2017-Ohio-2735.
https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2017/2017-Ohio-2735.pdf
The court considered whether evidence seized during a warrantless search of an unattended book bag should have been suppressed. The search was conducted by a school employee responsible for the students’ safety and security (Robert Lindsey) and the school’s principal (Mr. Barrett), for the purpose of determining who owned the bag and ensuring its contents were not dangerous.
Robert Lindsey, a school safety and security resource coordinator for the Columbus City School District who was responsible for ensuring student safety, testified that the district’s Whetstone High School had an unwritten protocol requiring searches of all unattended book bags. The purposes of these searches were to identify the bag’s owner and ensure that its contents were not dangerous. Lindsey further testified that, on Feb. 5, 2013, a routine bus walk-through by one of the district’s bus drivers turned up an unattended book bag. Lindsey opened the bag enough to see inside and noticed a paper with a student’s (Polk) name on it. Lindsey testified that he recalled a rumor about Polk possibly being in a gang, and immediately took the bag to Whetstone’s principal, Mr. Barrett.
Together, Barrett and Lindsey emptied the contents of Polk’s bag, which Lindsey testified would have been done regardless of the rumor due to the district’s protocol requiring searches of all unattended bags. Upon emptying the bag, Lindsey and Barrett discovered bullets. Barrett notified a police officer, and the three determined Polk’s location in the school and subsequently moved him away from other students. The police officer placed Polk in a hold and instructed Lindsey to search the book bag he was carrying. This subsequent search revealed a handgun in the bag’s side compartment. Polk was charged with one count of conveyance or possession of a deadly weapon or dangerous ordnance in a school-safety zone.
Polk filed a motion to suppress the bullets and handgun, arguing the searches of both book bags were unreasonable under the Fourth Amendment and also that, regardless of the legality of the search of the bag Polk was carrying, the handgun should be excluded as fruit of the poisonous tree. The state filed a memorandum in opposition to Polk’s motion to suppress. The trial court granted Polk’s motion. It determined that Lindsey’s initial search of the unattended bag, which identified Polk as its owner and ensured its contents were not dangerous, was reasonable. However, the “second and more intrusive search” conducted jointly by Lindsey and Barrett was unreasonable, because it was based on Polk’s reputation, which doesn’t constitute reasonable grounds for such a search. The court of appeals affirmed the trial court’s decision and the state appealed to the Ohio Supreme Court.
On appeal, the state argued that: (1) the searches were constitutional if they complied with a public school’s reasonable protocol, and a public school employee’s subjective motive for performing a search is irrelevant; (2) the purpose of the federal exclusionary rule is to deter police misconduct, therefore, the exclusionary rule should not apply to searches performed by public school employees; and (3) suppression is proper only when deterrence benefits of suppression outweigh its substantial social costs. Here, the state argued that the search was reasonable because public schools are “special need” settings where students have limited expectations of privacy, and public schools have a compelling governmental interest to protect student safety.
Polk argued that while students have diminished expectations of privacy in public school settings, an expectation of privacy does still exist. He argued that, while Lindsey did have the authority to inspect the unattended bag to identify its owner and determine whether its contents were dangerous, the initial search of the bag satisfied these objectives. For that reason, the second, more intrusive search violated the Fourth Amendment. Lindsey testified that his initial action was simply to “peer inside the bag” and did not constitute an initial search.
In an amici curiae brief, the OSBA’s Legal Assistance Fund, together with the Buckeye Association of School Administrators, Ohio Association of School Business Officials, Ohio Association of Secondary School Administrators, Ohio Federation of Teachers and Ohio Education Association, supported the school district’s actions. The brief explained the importance of giving districts the ability to adopt reasonable policies designed to provide a safe and healthy learning environment.
In its analysis, the court, based on the standard set forth in T.L.O., considered whether the facts in Polk constituted an appropriate balance between the student’s expectations of privacy and the school officials’ responsibilities to maintain a safe learning environment. In considering the reasonableness of Whetstone’s protocol, the court applied the balancing test set forth in Acton, which weighs the importance of the government’s interest and the search protocol’s accomplishment of that governmental interest, against the nature of the privacy interest involved and the intrusiveness of the search. In considering these factors, the court found that, given current concerns over issues such as school shootings and bomb threats, ensuring safety in the school environment did create a compelling interest. The court then discussed the fact that Polk left his book bag on an empty school bus, an act which further reduced his expectation of privacy.
As a result, the court held that the school’s protocol requiring searches of unattended book bags for the purpose of determining ownership and whether contents were dangerous furthered a compelling governmental interest of protecting public school students from physical harm, and that the search of the unattended book bag in this case was limited to furthering that governmental interest. As a result, the court concluded that the search was reasonable under the Fourth Amendment and evidence recovered from the search was not suppressed.
IMMUNITY – POLITICAL SUBDIVISION
Ohio appellate court finds that a school district’s employment of an athletic coach is a government function for the purposes of sovereign immunity.
Wilson v. McCormack, 2017-Ohio-5510.
http://cases.justia.com/ohio/eleventh-district-court-of-appeals/2017-2016-a-0039.pdf?ts=1498511847
In June 2015, two students filed a complaint against the Jefferson Area Local School District alleging that Donald McCormack sexually assaulted them while employed by the Jefferson Board of Education as the assistant girls’ basketball coach at Jefferson High School. In its answer, the board raised the affirmative defense of statutory immunity. The trial court ruled that “providing a sports team is incidental to providing a public education” therefore, it constitutes a proprietary function to which immunity does not attach.
The board appealed arguing that sports teams are part of a public education system and, as a result, are a governmental function for the purpose of sovereign immunity. The students argued that the board was liable under an exception to immunity for “injury, death, or loss to person or property caused by the negligent performance of acts by their employees with respect to proprietary functions of the political subdivisions.” The board argued that the provision of a high school basketball team constitutes a governmental rather than proprietary function, so the exception would not apply.
In its analysis, the court considered the differences between governmental functions and proprietary functions. Under Ohio Revised Code (RC) section 2744.01, a “governmental function” is defined as: (1) a function imposed upon the state as an obligation of sovereignty and that is performed by a political subdivision voluntarily or pursuant to legislative requirement; (2) a function that is for the common good of all citizens of the state; (3) a function that promotes or preserves the public peace, health, safety or welfare; that involves activities that are not engaged in or not customarily engaged in by nongovernmental persons; and that is not specified in the section as a proprietary function. Under the same statute, a “proprietary function” is defined as: (1) a function that is not described under the definition of governmental function; (2) a function that promotes or preserves the public peace, health, safety, or welfare and that involves activities that are customarily engaged in by nongovernmental persons.
Here, the board argued that sports and extracurricular activities are so intimately related to the school experience that they constitute a provision of a public education. The board also argued that the provision of sports teams is a governmental function because it is regulated by the Ohio Revised Code. The court agreed and held that the provision of sports programs is a governmental function and as a result, the hiring, retention and supervision of a high school basketball coach is an inherent part of that activity. The trial court’s decision regarding the board’s immunity was reversed and the case remanded.
District court upholds hearing officer’s conclusion that the district’s experts were more credible than the parents’ and that the district provided a student with a free appropriate public education (FAPE).
T.M. v. Quakertown Community School Dist, E.D.Penn. No. 16-3915, 2017 U.S. Dist. LEXIS 60187 (Apr. 19, 2017).
https://scholar.google.com/scholar_case?case=9660919807157376463&hl=en&as_sdt=6&as_vis=1&oi=scholarr
T.M., a student diagnosed with autism, global apraxia and an intellectual disability, attended school in the Quakertown Community School District in Pennsylvania. T.M. had received specially designed instruction and been enrolled in autistic support classes since kindergarten. Over that time, T.M. had shown improvement under his Individual Education Programs (IEP).
In January 2015, when T.M. was in fourth grade, his parents arranged for an independent evaluation. The independent evaluator recommended an overhaul of T.M.’s IEP, including 20 hours a week of direct, one-on-one Applied Behavior Analysis (ABA) programming provided by a personal care assistant. The school rejected the evaluator’s recommendations, but agreed to reconsider them later.
In September 2015, the parents requested a due process hearing. The parents argued that the district failed to properly evaluate T.M.'s ability and potential, resulting in an inappropriate educational program. Following a hearing, the hearing officer found that the district provided T.M. with FAPE. The hearing officer found the district’s staff members more credible than the parents’ independent evaluator. The parents appealed the hearing officer’s decision.
The parents contended that T.M.’s IEP failed to provide him with a meaningful educational benefit at the time it was developed, and that the district failed to properly identify and evaluate his needs and adequately supervise the IEP’s implementation. The court reviewed the district’s identification and evaluation of T.M.’s needs and upheld the hearing officer’s finding that the district appropriately identified and evaluated all of his disability-related needs.
Regarding the implementation of T.M.’s IEP, the court considered whether the district was required to provide the student with a strict ABA program or a program based on ABA principles. The court compared the credentials of the parents’ independent evaluator with the district’s “well qualified and experienced” special education staff members. It then upheld the hearing officer’s conclusions that the district’s experts were better qualified and had spent more time with T.M. than the parents’ evaluator — 1400 hours over the course of two years compared to 16 hours over the course of two days.
Regarding the evaluator’s recommendation that the district provide 20 hours of ABA services each week, the court concluded that the district’s ABA-based programming was both appropriate and appropriately implemented, and that 20 hours of ABA services each week would remove T.M. from socialization opportunities. The court stated: “The district’s IEPs and related services were specifically designed to meet T.M.’s needs and were reasonably calculated to enable him to make progress appropriate in light of his unique circumstances.”
District court denies district’s petition to dismiss parents’ claim on the basis that the issue is not moot and that parents’ need not exhaust remedies under IDEA to pursue ADA and Sec. 504 claims.
A.A. v. Walled Lake Consolidated Schools, E.D.Mich. No. 16-14214, 2017 U.S. Dist. LEXIS 91933 (June 15, 2017).
http://law.justia.com/cases/federal/district-courts/michigan/miedce/2:2016cv14214/316097/21/
The parents of a child with Downs syndrome and speech apraxia filed a lawsuit under the Individuals with Disabilities Education Act (IDEA). Parents wanted the district to place their son in a general education classroom; the district wanted to place the student in a classroom with cognitively impaired (CI) students. The parents contend that the district denied their child of a free appropriate public education (FAPE) in the least restrictive environment.
Under an agreement between the parents and the district, the student started school in the 2015-16 school year on a trial basis in a general education classroom. After the school year began, the district determined that the student’s placement should be changed to its original assignment in the CI classroom. The parents filed an administrative complaint about the change in their child’s placement. The Michigan Department of Education concluded that the student’s placement should not be changed until the state could complete its investigation of the parents’ complaint. During these proceedings, the student stayed in the general education classroom.
In April 2016, the district filed for a due process hearing and asked the administrative law judge (ALJ) to issue a stay-put order keeping the student in the CI classroom. The ALJ concluded, in light of the fact that the student had never been in the CI classroom, that he should stay in the general education classroom.
On Sept. 2, 2016, the ALJ issued her decision and order concluding that the student had not received FAPE in a general education classroom. She determined that the CI classroom placement was the appropriate placement in order for FAPE and issued a stay-put order that the student should stay in that classroom. On the same day, the parents revoked their consent for special education services. They later appealed the ALJ’s decision and subsequently argued additional claims under the Americans with Disabilities Act (ADA) and Sec. 504 of the Rehabilitation Act.
The district asked the court to dismiss the parents’ appeal because: (1) it was moot as the parents had revoked their consent for the student to receive special education services; and (2) the parents must first exhaust their remedies under IDEA before pursuing claims under ADA and Sec. 504.
Regarding the district’s first argument, the court concluded that the parents’ appeal was not moot because the question of whether and to what extent the student can be mainstreamed will recur each time the district prepares or amends an IEP for the student. The court also concluded that the student remains eligible for, and interested in, special education services even though his parents have temporarily revoked their consent, and that the dispute about his classroom placement is a live controversy.
Regarding the district’s second argument, the court relied on the Supreme Court’s recent decision in Fry v. Napoleon Community Schools and concluded that the parents, having exhausted the IDEA’s administrative process, were free to bring additional claims under ADA and Sec. 504.
Jurisdiction under IDEA requires administrative procedures for the determination of a student’s custody to be exhausted before a temporary restraining order can be granted by the courts.
J.D., an adopted 15-year-old deaf and autistic student with a history of violent behavior, was placed with his biological maternal grandmother while his adoptive parents went to Nicaragua with their other eight biological children to pursue bee-keeping as a humanitarian calling. When J.D. was placed with his grandmother, a Grandparent Power of Attorney (GPOA) was executed, so she could take responsibility for J.D.’s care. At that time, J.D.’s parents resided in the Graham Local School District and had entered into an agreement with the district to place J.D. in a specialized school in Pennsylvania, called Pressley Ridge.
Since J.D.’s grandmother also lived in the Graham Local School District, J.D.’s parents believed the GPOA also entitled J.D. to continue his education at Pressley Ridge. However, the school district disagreed and filed a declaratory judgment with the juvenile court to invalidate the GPOA. The district also refused to continue paying for J.D.’s placement at Pressley Ridge on the grounds that he no longer resided in the district. Pressley Ridge then notified the grandmother that if payment was not received, J.D. would be discharged into her care.
J.D.’s parents and grandmother moved for a temporary restraining order requiring the district to continue paying for his placement at Pressley Ridge and argued that the district’s refusal to pay violates J.D.’s right to a free appropriate education (FAPE) under the Individuals with Disabilities Act (IDEA). The district argued the court lacked jurisdiction because the standards for injunctive relief had not been met and the determination of custody (per the GPOA) is pending before the juvenile court, which requires this court to abstain from the case.
The U.S. district court agreed with the school district and denied the request for a temporary restraining order. The court noted that jurisdiction under IDEA requires the party seeking relief to first exhaust administrative procedures. In J.D.’s situation, the administrative procedures had begun, but had not been exhausted. At that time, an administrative officer had ruled on a “stay put” order, but had not made any final determinations regarding a due process complaint and no hearing had occurred.
The court then examined other cases in which 42 U.S.C. Sec. 1983 was subject to the IDEA’s exhaustion of administrative requirements and was guided by another sixth circuit case, Doe v. Dublin City School District, 453 F. App’x 606 (6th Cir. 2011). In that case, although the district’s conduct was “far from exemplary,” it had not clearly failed to follow the requirements of IDEA in a manner that demonstrated resort to the administrative process would have been futile. The court then drew a direct parallel between J.D.’s case and Dublin, noting that Graham Local School District’s conduct was also far from exemplary, but still complied with the administrative process and there was no reason to believe that it would prove futile. Therefore, the request for a temporary restraining order motion was denied.
State Board of Education’s deliberations that led to the decision to “claw back” ECOT’s funding were quasi-judicial and exempt from the Open Meetings Act.
Electronic Classroom of Tomorrow v. Ohio State Bd. of Edn., Franklin C.P. No. 2017-CVH-065315 (July 12, 2017).
On June 14, 2017, the Electronic Classroom of Tomorrow (ECOT) filed an action against the State Board of Education (SBOE) seeking to invalidate the board’s resolution to “claw back” approximately $60 million in full-time equivalency funding that ODE previously paid to ECOT. ECOT argued that the adoption of that recommendation was invalid because it was made in violation of Ohio’s Open Meetings Act.
The SBOE argued that it was entitled to judgment on the pleadings as a matter of law because the Open Meetings Act does not apply to the SBOE when it engages in quasi-judicial functions. In May 2017, a hearing officer issued a 100-page report, recommending that the state of Ohio recover $60 million in funds previously awarded to ECOT. The SBOE noticed the June 12, 2017 meeting on June 8. Soon after the meeting began, SBOE adjourned into executive session to conference with its legal counsel and discuss the hearing officer’s recommendation. After SBOE reconvened the public meeting, its legal counsel gave a 6-minute presentation related to SBOE’s consideration of the ECOT resolution. The board then deliberated publicly for nine minutes before taking a vote on a resolution to adopt the hearing officer’s decision.
The court found that the informal hearing process that occurs when a community school appeals a determination by ODE in which the community school owes money to the state was a “quasi-judicial” proceeding. The court found that SBOE exercised its discretion in deciding a justiciable conflict that required evaluation and resolution. Therefore, the court held that SBOE’s deliberations that led to the decision were quasi-judicial in nature and not within the purview of Ohio Revised Code section 121.22. As a result, the court found that ECOT’s complaint alleging violations of the Open Meetings Act failed as a matter of law.
This case has been appealed to the Tenth District Court of Appeals.
Special Master recommends dismissal of claim for production of records, but grants claim for denial of access to records within a reasonable period of time.
Foulk v. City of Upper Arlington, Ct. of Cl. No. 2017-00132-PQ, 2017-Ohio-4249.
https://scholar.google.com/scholar_case?case=8223173634018044922&hl=en&as_sdt=6&as_vis=1&oi=scholarr
On Jan. 10, 2017, the Upper Arlington City Council held a special meeting pursuant to public notice. The city attorney and several other city employees attended. Robert Foulk requested a recording of the council meeting.
On Jan. 19, the city clerk provided a redacted copy of the recording, claiming that 14 minutes of the recording involved attorney-client privileged information. Foulk filed a complaint on Feb. 6, alleging denial of access of public records. On Apr. 6, the court ordered the city to submit, under seal, the unredacted recording of the council meeting. On Apr. 17, the city filed an unredacted recording of the meeting, along with a Notice of Waiver of Privilege.
The special master appointed to offer a report and recommendation recommended that the court dismiss as moot Foulk’s claim for production of the complete Council meeting recording. However, the special master found that the 88-day delay between the initial production and the final production violated the “reasonable period of time” for production of the withheld 14 minutes.
The city argues that the withheld communications were protected from disclosure by the attorney-client privilege. Foulk argued that the attorney-client privilege was waived by the presence of a non-essential third party during the communication. The special master agreed with Foulk and held that the city did not meet its burden to show that the claimed attorney-client privilege was not waived (or never attached) by the voluntary disclosure of the communication to an unnecessary third party. This conclusion was in addition to the special master’s determination that the communication was not made in confidence when it was spoken during the open session of a public meeting.
As a result, the special master recommended that the court issue an order dismissing the claim for production of records, but granting Foulk’s claim that he was denied access to all requested public records within a reasonable period of time.
The Ohio Court of Claims adopted the recommendation of the special master on June 19, 2017.
Board member failed to allege valid claims under Stored Communications Act or Wire Tap Act after district fulfilled public records request for emails.
Thacker v. Cuyahoga Heights Bd. of Edn., N.D.Ohio No. 1:16 CV 2706, 2017 U.S. Dist. LEXIS 79212 (May 19, 2017).
In January 2016, Melynda Schuckert, a board member on the Cuyahoga Heights Board of Education made a public records request for all business-related emails to or from Dr. Holly Thacker, another member of the school board. In February, the treasurer of the district, who was responsible for fulfilling public records requests, directed the district’s IT director to collect the requested emails and to disseminate emails to the public without regard to the content or subject of the emails. The IT director ran a search of all emails from Dr. Thacker that were contained on the district’s servers and created links, which were forwarded to the treasurer, and ultimately the public.
Dr. Thacker alleged that none of the emails complied with the district’s policy regarding public record requests and that the emails were turned over in violation of the Stored Communications Act (SCA) and the Wire Tap Act (WTA). The board moved to dismiss the claims, asserting that there was no secondary liability under either statute.
The court agreed with the board of education and dismissed the claims against the board. The court found that the collection of emails in response to a public records request from its own server was authorized and fell within an SCA exception. SCA does not prohibit a provider from accessing emails stored on the provider’s server. Similarly, the court found that none of Dr. Thacker’s allegations supported a claim that the board “intercepted” any of Dr. Thacker’s emails. Rather, any emails that were disclosed by the district were collected from documents stored on the district’s servers. As a result, the court found that the complaint failed to state a claim against the board for violation of the Wire Tap Act.
PUBLIC RECORDS ACT – REDACTION
Ohio appellate court finds school district appropriately redacted certain W-2 information, as it does not document the actions of the school board or school district.
State ex rel. Louisville Edn. Assn. v. Louisville City School Dist. Bd. of Edn., 5th Dist. Stark No. 2016CA00159, 2017-Ohio-5564.
In its June 15, 2016 request, Relator, the Louisville Education Association (LEA), sought “all administrative W-2’s for fiscal years 2013, 2014 and 2015.” Respondent, Louisville City School District Board of Education, provided the requested W-2s, but redacted certain information from them and advised LEA that the redacted information was not a public record. LEA filed a complaint requesting the court issue a writ of mandamus ordering the production of certain information that was redacted from the requested W-2 forms. The board answered, arguing the requested information was not subject to disclosure.
In its analysis, the court noted that for the purposes of Ohio’s Public Records Act, a public record is any record “kept by any public office.” Further, under the Act, a “record” is defined as “any document, device, or item, regardless of physical form or characteristic * * * created or received by or coming under the jurisdiction of any public office of the state or its political subdivisions, which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.”
Because the issue here related to redaction of a public record, the court then turned to an analysis of the provisions dealing with redaction, noting that “the public office or person responsible for the public record shall notify the requester of any redaction or make the redaction plainly visible.” The court went on to note that the Public Records Act provides an appropriate opportunity for the public office to review records prior to their release to appropriately redact any exempt information.
Here, the board redacted all boxes that would have revealed deductions for tax sheltered accounts, charitable contributions, and the amount of taxes withheld based upon employee elections. The court found the redacted information was not a public record because the information did not serve to document the organization or function of the school district. Rather, the redacted information revealed choices or actions made by employees. As a result, the court granted the board’s motions for summary judgment.
Ohio appellate court upholds trial court’s decision affirming a school board’s termination of a teacher’s contract.
Smith v. Columbus City Schools Bd. of Edn., 2017-Ohio-2870.
https://www.supremecourt.ohio.gov/rod/docs/pdf/10/2017/2017-Ohio-2870.pdf
On Apr. 23, 2015, Pamela J. Smith, a teacher at Fairmoor Elementary School, was in the school’s office area when she overheard commotion in the lobby near the school’s front doors. Two second-grade students, Student A and Student B, were yelling at each other. Karlynn Hornsburger, a kindergarten assistant working in the school’s office at the time and Michelle Kulewicz, a general instructional assistant who also was nearby, attempted to de-escalate the situation.
Hornsburger and Kulewicz stood back-to-back, each facing one of the students in an attempt to separate the students from one another. Both women testified that during this time neither of them was concerned that either of the second-grade students posed a serious physical threat to them. Kulewicz testified that she knew that by attempting to de-escalate the situation, Student A might hit her, but even if that occurred that she knew it would not really hurt her. As a result, neither Hornsburger nor Kulewicz called for any assistance.
Upon hearing the disturbance, Smith entered the lobby. Student A swung at Kulewicz, coming close, but not hitting her. Smith thought she saw Student A hit Kulewicz, and as a result, approached yelling, “you don’t hit a teacher.” Smith denied touching the student, but Hornsburger and Kulweciz stated that Smith picked up Student A by his shirt, lifting him into the air and against the wall. They also stated that when the student began to hit and swing at Smith, she pushed Student A to the ground and knelt over him with her knee on his chest. Student A then left the building. Kulewicz and Hornsburger called Linda Willis, the school’s principal, to the lobby. Willis followed the student outside and brought him back to the school with the assistance of the Columbus Police Department.
A disciplinary hearing was held as a result of the incident where the Columbus City Schools Board of Education adopted a resolution reflecting its intent to terminate Smith’s employment contract for good and just cause. The resolution stated three grounds for termination: (1) her interaction with Student A; (2) her conduct upon learning she was being assigned to another work location pending the investigation into the Student A incident; and (3) previous disciplinary actions against her. Smith requested a hearing before a referee. After the hearing, the referee submitted a report and recommendation finding that Smith’s conduct represented good and just cause for her termination and recommending termination of Smith’s employment. The board accepted, approved and adopted the referee’s findings of facts, conclusions of law and recommendation, and acted to terminate Smith’s employment.
Smith appealed to the trial court pursuant to Ohio Revised Code (RC) section 3319.16. The trial court affirmed Smith’s termination, noting that evidence accepted by the referee established that, prior to Smith’s intervention, the situation was under the control of two other staff members, and it was Smith’s unilateral decision to insert herself into the situation that reignited the conflict. Smith then appealed the trial court’s decision arguing that: (1) the trial court did not give proper weight to Smith’s belief that Kulewicz was being attacked and that Smith needed to intervene in order to help Kulewicz; and (2) the trial court should have applied RC 3319.41(C) because her use of force to quell a disturbance that threatened physical injury to Kulewicz was reasonable and necessary.
The court noted that the decision to terminate a contract requires a two-part analysis: (1) factual basis for the allegations giving rise to the termination; and (2) the judgment as to whether the facts, as found, constitute gross inefficiency, immorality, or good cause as defined by statute. The court also noted that a board of education has the right and responsibility to review a referee’s findings, but those findings must be accepted unless such findings are against the greater weight or preponderance of the evidence. And a common pleas court may reverse a board’s decision to terminate only when it finds that the order is not supported by or is against the weight of the evidence.
Here, the court found that the referee and the trial court both concluded that Smith’s intervention was unnecessary because the situation was under control and being appropriately handled by two other staff members. The court also found that RC 3319.41(C) did not apply to Smith’s conduct because, based upon the evidence presented to the referee, the disturbance caused by two second-grade students did not threaten physical injury to others. As a result, the appellate court affirmed the judgment of the Franklin County Court of Common Pleas.
Ohio court of appeals upholds denial of statutory immunity for supervisors in employee termination case.
Spitulski v. Toledo City School Dist. Bd. of Edn., 6th Dist. Lucas No. L-16-1225, 2017-Ohio-2692.
http://law.justia.com/cases/ohio/sixth-district-court-of-appeals/2017/l-16-1225.html
Ronald Spitulski was employed by the Toledo City School District as a supervisor of the pupil personnel center. He was responsible for conducting suspension appeals and expulsion hearings. In 2012-13, Spitulski’s supervisor received complaints that Spitulski acted unprofessionally in his treatment of a non-attorney parent advocate, several parents and a character witness. In addition, Spitulski admitted that he lost almost a year’s worth of digitally-recorded hearings that he conducted during the 2012-13 school year. In October 2013, the board provided written notice of its intent to terminate Spitulski’s employment. Spitulski submitted a written request for arbitration to be conducted by an independent referee, and the board invoked the hearing procedures provided by RC 3319.16. In August 2014, a neutral referee found that “good and just cause” did not exist to terminate Spitulski’s employment. Notwithstanding, the board passed a resolution in December 2014 to terminate Spitulski’s employment contract. Spitulski filed a complaint against the board and his supervisors.
Spitulski alleged that his supervisors assembled and created documentation designed to lead to his discharge. Spitulski alleged that his supervisors told him “they’re asking me when you’re going to retire,” and “you’ve got too much gray hair.” And he claimed that the district tried to coerce him into signing an unlawful retirement agreement. In October 2016, the trial court denied summary judgment for Spitulski’s supervisors, rejecting their assertions that they were statutorily immune from liability as employees of a political subdivision. Spitulski’s supervisors appealed.
On appeal, Spitulski raised a number of factual issues purportedly questioning whether Spitulski’s supervisors conduct was malicious, in bad faith, or wanton and reckless, thereby defeating their claim of immunity. He insisted that these questions should be answered by the trier of fact, thus rendering summary judgment inappropriate. The court agreed with Spitulski, resolving all questions of credibility in Spitulski’s favor and determining that a reasonable jury could find that Spitulski’s supervisors acted with a malicious purpose, in bad faith or in a wanton or reckless manner. As a result, the court found that the trial court did not err in denying Spitulski’s supervisors’ claim of statutory immunity and remanded to the trial court for proceedings consistent with its decision.
Appeals court upholds dismissal of intervention specialist’s administrative appeal regarding the revocation of her teaching license for conduct unbecoming an educator because she shared test answers with her students.
Routson-Gim-Belluardo v. Ohio Dept. of Edn., 2017-Ohio-2611.
https://www.supremecourt.ohio.gov/rod/docs/pdf/2/2017/2017-Ohio-2611.pdf
Gloria Routson-Gim-Belluardo held a five-year “professional education of the handicapped teaching license” and was employed by the Jefferson Township Local School District as an intervention specialist. During the 2013-14 school year, Belluardo was subject to the Ohio Teacher Evaluation System (OTES) assessments for the first time. Half of her score was based on her students’ academic growth or progress during the school year. The students’ growth or progress was measured by their performance on a Student Learning Objective (SLO) test administered at the beginning and end of the school year.
The particular SLO used in Belluardo’s classroom was the San Diego Quick Assessment (SDQA) involving the student’s ability to read a list of words. The purpose of the test was to identify students’ proficiency with word decoding rather than with word recognition; that is, whether the students were able to correctly decode the words by distinguishing sound-letter relationships, rather than to correctly pronounce the words because they recognized them. The SDQA featured a list of ten words for each grade level. The instructions were to begin with a list several grades below the student’s grade level and continue progressing through the lists until the student missed three or more words.
Belluardo administered the test to her students in October 2013 and April 2014. She also administered the test additional times for her students with special needs. Belluardo printed out a list of the words that her students with special needs had missed on previous tests for study. All of Belluardo’s students met or exceeded the expectation of one full grade level of academic growth as measured by the SLO.
In May 2014, the district’s superintendent placed Belluardo on unpaid administrative leave based on allegations that she had given her students the answers to test questions and that the resulting test scores would directly affect her performance evaluation. Subsequently, the district terminated Belluardo’s employment, and the termination was affirmed by the court of common pleas and appeals court.
In March 2015, the Department of Education began proceedings to limit, suspend or revoke Belluardo’s license. She requested a hearing, which was held in August 2015. The hearing officer concluded that Belluardo had engaged in conduct “unbecoming an educator” when she provided the SDQA words to her students to prepare for the test. The hearing officer recommended revocation of Belluardo’s teaching license and that she be ineligible to reapply for two years. Belluardo filed objections to the hearing officer’s report. The state board of education overruled her objections and adopted the hearing officer’s report, revoking Belluardo’s license and allowing reapplication in the recommended time.
Belluardo appealed the decision of the hearing officer on the basis that she did not intend to benefit from her actions and that, as a result, they did not constitute academic fraud within the Ohio Revised Code (RC) section 3319.31 definition. Upon review, the trial court concluded that intent was not a necessary element of RC 3319.31.
The appeals court concluded that, in reviewing the decision of an administrative agency charged with overseeing its field of interest, it must “generally consider the agency’s interpretation of a statute it must administer, as long as the interpretation is reasonable.” Based on the record before it, the court determined that, as a result of Belluardo’s actions, the SLO was unable to accurately measure the academic improvement of her students. It concluded that Belluardo had conflated word recognition with word decoding, and had only prepared the students to recognize specific words rather than decode words based on phonetic sound-letter relationships. On that basis, the appeals court found that the hearing officer’s report concluding that Belluardo had engaged in conduct unbecoming an educator, and the board’s action based on that report, were reasonable, and it upheld the revocation of Belluardo’s license.
Belluardo has filed an appeal that is currently pending before the Supreme Court of Ohio.