Q:       What laws cover student educational records?

A:        Student education records are protected by federal law, the Family Educational Rights and Privacy Act (FERPA), and Ohio’s student privacy law (Ohio Revised Code § 3319.321). These laws are similar in application, with some minor differences.

Q:       What do the laws require?

A:        FERPA and Ohio’s student privacy law have two primary functions in common. Both laws: 1) guarantee parental access to education records, and 2) prohibit the disclosure of education records to third parties without parental consent.

Q:       What is considered an “education record?”

A:        An “education record” includes records which: 1) contain information directly related to a student, and 2) are maintained by a school. This could include birth certificates, names of parents, immunization records, grades, disciplinary records, etc.

Q:       How is access to education records guaranteed?

A:        Both FERPA and Ohio’s student privacy law require schools to provide parental access to the education records of children under age 18. Parents have the right to see everything in the student’s education record, except information about other students or information protected by another state or federal law. Schools must comply with a request for access within a reasonable period of time, but in no case more than 45 days after the request.

Q:       How are education records protected from third parties? 

A:        Both laws prohibit the disclosure of “personally identifiable information” in education records to third parties without the prior written consent of the parent. Personally identifiable information generally includes any information that would make the student’s identity traceable.

Q:       Are there exceptions that allow disclosure without consent?

A:        Yes. Several exceptions allow disclosure without parental consent. For example, schools may release records to school officials with “legitimate educational interests,” such as disclosure of student records to the student’s teacher or to an in-school therapist treating the student.

            Other exceptions allow schools to release education records to a school where the student is transferring, to persons acting with a subpoena, or to health and safety personnel during an emergency.

Q:       What is directory information?

A:        Through its policies, school districts may designate certain student information as “directory information.” Directory information generally includes information that could be found in a school yearbook, playbill or athletic program, such as a student’s name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, dates of attendance and graduation, and awards received.

            Directory information may be disclosed without prior written consent. School districts must provide public notice of designated categories of directory information and allow a reasonable time for parents to “opt-out” of the release of this information.

Q:       Do students have rights to review their educational records before they turn age 18?

A:        Not really. Although both laws allow elementary and secondary schools to give students under age 18 the right to inspect and review their own educational records, the schools are not required to give minors this right. Parents, however, must be allowed to inspect and review their minor children’s education records.

Q:       Does a student have the right to view his or her records at age 18?

A:        Yes. All rights granted to parents under FERPA and Ohio law transfer to the student when the student reaches age 18, or when the student starts attending a postsecondary institution. This includes the right to access education records and to consent to the release of education records.

Q:       Can the parents of a college-age student access their child’s education records?

A:        Maybe. A postsecondary institution may provide parents with access to their child’s education records, without the child’s consent, if the parents claim the student as a dependent for IRS tax purposes. A college or university may also notify parents of students under age 21 if the student has violated any law or policy concerning the use or possession of alcohol or a controlled substance.

Q:       What schools are required to comply with these student record laws?

A:        The federal FERPA law applies to all educational agencies receiving federal funds under any program administered by the U.S. Department of Education. This includes all public school districts and most private and public postsecondary institutions. Some private schools may not receive funds from the U.S. Department of Education and, therefore, may not be subject to FERPA. Ohio’s student privacy law only applies to public schools in Ohio.

Q:       Does divorce affect a parent’s right to see his or her child’s educational records?

A:        A parent who is separated, divorced and/or not the student’s residential parent is permitted access to any records under the same terms and conditions as the residential parent, provided that the parents are not subject to any parenting agreement or court order to the contrary. Separated, divorced and/or non-residential parents may also provide the written parental consent to release records, barring a written parenting agreement or court order to the contrary.

This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by Columbus attorney Mark A. Weiker of Albeit Weiker, LLP. The column offers general information about the law.  Seek an attorney’s advice before applying this information to a legal problem.

According to Ohio law (Ohio Revised Code Section 3319.16), a tenured teacher has the right to a hearing before a school board determines whether there is “good and just cause” to terminate that teacher’s employment contract.

Q:       What conduct constitutes “good and just cause” for a tenured teacher’s employment contract to be terminated?

A:        The Supreme Court of Ohio addressed that question in a case that involved the Mount Vernon City School Board’s termination of a tenured teacher’s employment contract. In Freshwater v. Mount Vernon City School District Board of Education, the teacher who brought the lawsuit argued that the school board did not have “good and just cause” to terminate his employment contract as is required by Ohio law.

            In its decision, the Supreme Court found that “good and just cause” includes “insubordination” by a teacher. The Court further defined “insubordination” as the willful disobedience of, or refusal to obey, a reasonable and valid rule or regulation of the school board.

Q:       Must a school board inform a tenured teacher that the school board intends to consider terminating the teacher’s employment contract?

A:        Ohio law requires a school board to provide written notice to the teacher. The notice must state that the board intends to consider terminating the teacher’s employment contract, and provide the specific reason(s) for termination. For example, if insubordination is the reason for termination, then the school board’s written notice must state the specific instances when the teacher willfully disobeyed or refused to obey a school board rule.

Q:       Can the teacher contest the charges in the written notice?

A:        The teacher has ten days after receiving the written notice to demand a hearing. The teacher also has the right to demand that the hearing be conducted by an impartial hearing referee. The person serving as the hearing referee may not be a member of the school board, an employee of the school or the spouse of a person employed by the school. The Ohio Superintendent of Public Instruction gives the teacher and the school board a list of three individuals qualified to serve as a hearing referee. If the teacher and the school board cannot agree on one of those three individuals, then the Superintendent appoints one of them to serve as referee.

Q:       What are the teacher’s rights at this hearing?

A:        Both the teacher and the school board have the right to be present during the hearing and to have attorney representation at the hearing. Evidence presented at the hearing is confined to the reasons for termination stated in the school board’s written notice to the teacher. The teacher and the school board may each introduce and examine their own witnesses and may cross-examine the other party’s witnesses. Both the board and the teacher may also submit documents into evidence. A complete stenographic record of this hearing is required. It is typically prepared by a court reporter.

Q:       What does the hearing referee do?

A:        After hearing all the evidence, including witness testimony, the hearing referee must prepare and submit a “report and recommendation” to the school board. The report includes the referee’s findings of fact, conclusions of law and the referee’s recommendation to the school board. The referee determines whether facts show that the teacher engaged in the acts as the school board’s letter charged and whether those facts constituted good and just cause for termination. Then, the referee recommends either termination or continuation of the teacher’s contract. The referee must send this report and recommendation to the school board within ten days after the hearing.

Q:       Must the school board accept the referee’s report and recommendation?    

A:        If the referee’s findings are supported by the evidence in the hearing record, the school board must accept the referee’s findings of fact. Courts have held that a school board has the discretion to decide whether to accept or reject a referee’s recommendation, but the board’s decision cannot be contrary to law. For example, if a referee recommends that the employment contract should not be terminated because the findings of fact clearly did not constitute good and just cause, and if the record of the hearing supports the referee’s findings of fact, then a school board’s decision to ignore the referee’s recommendation and terminate the tenured teacher’s employment contract would be contrary to Ohio law. 

This “Law You Can Use” consumer legal information column was provided by the Ohio State Bar Association. It was prepared by Stow attorney Ronald E. Alexander. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

Ohio’s “compulsory attendance” law requires all parents or guardians to send their children between the ages of 6 and 18 to a school that meets the State Board of Education’s minimum standards.

Q:       Can my children be excused from compulsory school attendance to be homeschooled? 

A:        Yes. You can ask your children’s public school district to excuse them from the compulsory attendance requirement so you can teach them at home (known as “homeschooling”).

Q:       If I want to homeschool, must I be my children’s teacher? 

A:        Not necessarily. A parent need not be the homeschool teacher, but the teacher must be deemed qualified to teach the state-required subjects and must, at minimum, have a high school diploma/GED or standardized test scores demonstrating high school equivalence.

Q:       What if I don’t have the minimum qualifications to teach my children at home? 

A:        If you are not minimally qualified, but want to provide the instruction yourself, you must find someone with a college degree to supervise your teaching until your child’s test results demonstrate reasonable proficiency or until you obtain a high school diploma or GED.

 

Q:       Who decides if I am qualified to homeschool my child?

A:        You will need to apply to the superintendent of the public school your child currently attends or is entitled to attend. The superintendent will examine your application and determine whether you are minimally qualified according to state requirements. 

Q;       What information must I provide on my homeschooling application?

A:        On your application (usually provided by the superintendent), you must give basic personal information and agree to provide your child with a minimum of 900 hours of home education each school year. Subject areas must include language, reading, spelling, writing, geography, national and state history, national, state and local government, mathematics, science, health, physical education, fine arts (including music), first aid, safety and fire prevention. You must also provide a brief outline of the intended curriculum and a list of teaching materials to be used.

Q:       What if our family’s religious beliefs conflict with the state’s required subject matter? 

A:        You do not have to include any concept, topic or practice that conflicts with sincerely held religious beliefs. 

Q:       How long does it take for my homeschooling application to be reviewed?

A:        The superintendent must review any application within 14 calendar days of receipt and determine if it is complete and complies with minimal requirements. If it is acceptable, the superintendent will excuse your child from school attendance for the remainder of the current school year. If incomplete or unacceptable, the superintendent will notify you and give you 14 calendar days to supply any necessary information.

            If the superintendent still denies your application, he or she must provide reasons for the denial and inform you of your right to a due process hearing. After the due process hearing, the superintendent will make a final determination. If your application is denied again, you have 10 days to appeal to the county juvenile judge. 

            Until the superintendent approves your homeschool application, your child must attend school. 

Q:       If I homeschool my children, must I show evidence of their academic progress?

A:        Yes. For each school year completed at home, you must submit to the superintendent: 1) the results of a nationally-normed, standardized achievement test; 2) a written narrative report prepared by a licensed teacher or a mutually agreed-upon third party; or 3) an alternative agreed-upon academic assessment.

Q:       What if my child isn’t meeting the necessary proficiency levels? 

A:        You must show the superintendent an appropriate remediation plan and provide quarterly updates on your child’s progress. 

Q:       Can my children re-enroll in the public school? 

A:        Yes. Your children can enroll or re-enroll in their residential public school district. The superintendent determines the appropriate placement considering your children’s most recent annual academic assessment report, scores on standardized achievement tests and other evaluation information. 

Q:       Is online schooling the same as homeschooling?

A:        No. Most online schools are publicly funded charter schools (“community schools”) where instruction is provided by a licensed teacher. 

Q:       Can my homeschooled child participate in a school district’s sports programs and extracurricular activities? 

A:        Yes. Ohio law now allows homeschooled children to participate in extracurricular activities offered by the public school they are entitled to attend. The law only applies to programs not included in any graded course, and homeschooled children must meet the same nonacademic requirements (e.g., tryouts) and financial requirements (e.g., payment of fees) as other participating children.

Q:       Will my homeschooled children get a regular high school diploma? 

A:        The State Board of Education does not recognize high school diplomas of homeschooled children. Also, colleges or employers may require homeschooled children to complete the GED test or other assessments to show they have met requirements that are equivalent to a high school diploma.

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by attorney Mark A. Weiker of the Columbus firm Means, Bichimer, Burkholder & Baker Co., LPA, a member of the OSBA Education Committee. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

Q:       Are students protected by the Fourth Amendment to the United States Constitution? 

A:        Yes. Under the Fourth Amendment to the U.S. Constitution, all people, including public school students, are protected against “unreasonable searches and seizures.” Any type of search that school officials conduct implicates the Fourth Amendment and its protections. 

Q:       Is a drug or alcohol test considered a search under the Fourth Amendment? 

A:        Yes. A drug test (usually administered by obtaining a urine sample) or alcohol test (usually administered through a breathalyzer) both qualify as a “search” under the Fourth Amendment. Since the Fourth Amendment applies to drug/alcohol tests administered to students, the question often becomes whether it was reasonable to conduct the search or test.   

Q:       When can public school officials test students for drugs or alcohol?  
A:        Public schools are responsible for ensuring the safety of all students. For this reason, public school officials are not held to the higher “probable cause” standard law enforcement officers must meet to conduct searches. School officials also do not need a search warrant to conduct a search (or test).  Rather, school officials may test a student for drugs or alcohol if they have a “reasonable suspicion” that a student is under the influence of drugs or alcohol at school or during a school-sponsored event. 

Q:       What does it mean to have a reasonable suspicion? 
A:        Having a “reasonable suspicion” means that there are reasonable grounds to suspect that a search (or test) will provide evidence that the student violated a school policy or rule. The reasonableness of any search (or test) depends on the facts and circumstances of each situation. 

Q:       What are some examples of reasonable suspicion? 

A:        If a student is noticeably impaired and has alcohol on his/her breath, school officials would have a reasonable suspicion to conduct a breathalyzer test. Also, noticeable impairment combined with information received from a credible source about the same student’s recent consumption of drugs or alcohol would likely constitute a reasonable suspicion. However, a student’s misbehavior alone would not justify drug/alcohol testing if there were no other indicators that the student was using drugs or alcohol. 

Q:       Can a school implement a random drug-testing policy for all students? 
A:        No; public schools may not implement a purely random (or “suspicionless”) drug-testing policy for all students in attendance. Such a policy has been held to violate the Fourth Amendment. However, public schools may implement a random drug testing policy for all students who participate in competitive activities (specifically including, but not necessarily limited to athletics, band, choir and cheerleading). Also, one court upheld a random drug-testing policy to include any student who received a school parking permit. So, practically speaking, a public school can randomly drug test a large portion of its students. 

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by attorney Mark A. Weiker of the Columbus firm Means, Bichimer, Burkholder & Baker Co., LPA. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

            Serious educator misconduct is exceedingly rare, but stories of neglect and abuse of children by teachers are deeply troubling. In Ohio, laws help to ensure that unprofessional educators cannot simply leave one school and commit further misconduct at another.

Q:       What is educator misconduct?

A:        Ohio law has long prohibited “conduct unbecoming” the teaching profession, and in 2008, the Ohio State Board of Education specifically defined such misconduct in the Licensure Code of Professional Conduct for Ohio Educators (Code). These rules require educators to:

• behave in a professional manner;
• maintain a professional relationship with all students;
• accurately report information required by the local board of education or governing board, state education agency, federal agency or state or federal law;
• adhere to federal, state and local laws and statutes regarding criminal activity;
• comply with state and federal laws related to maintaining confidential information;
• serve as positive role models and refrain from using, possessing or unlawfully distributing illegal or unauthorized drugs;
• ensure that school property, public funds or fees paid by students or the community are used in the best interest of students and not for personal gain;
• fulfill all of the terms and obligations of their employment contract.

Q:       What happens when an educator is accused of violating the Code?

A:        It depends on the seriousness of the allegation. The vast majority of allegations found to be true are handled internally by school districts. A school does not have to report violations to the Ohio Department of Education (ODE) if the teacher continues to be employed, but if the teacher leaves the school’s employ due to actual or alleged misconduct, then the school must file a report. When ODE receives such a report, it determines if an investigation is appropriate. Nearly 90 percent of these reports are found to be without merit, either due to a lack of evidence of misconduct or because ODE determines that the alleged misconduct is not serious enough to warrant discipline. When discipline is warranted, possible penalties range from admonishment to denial, suspension and revocation of an offending educator’s license.

Q:       Who makes a report to ODE, and when is it required?

A:        Anyone can report suspected educator misconduct. Reports of prior criminal convictions, which are automatically generated from licensure applications and periodic background checks of current educators, represent the vast majority of reports ODE receives. Children services and school districts are the next largest sources of reports. Some school district reports are voluntary, but districts must report to ODE whenever an employee leaves employment due to actual or alleged misconduct, or when an investigation into alleged misconduct is underway. This report is required whether the employee is fired, resigns or leaves the employment in another way. The superintendent must provide all employee reports (except for those involving the superintendent or treasurer, which must be reported by the school board president).  Only school superintendents and board presidents are required to make reports to ODE, but any person may make a report and is protected from liability if it is made in good faith.

            Also, “mandatory reporters” (those holding certain state-issued licenses, including children services and law enforcement personnel, as well as teachers and school administrators) must report to law enforcement or children services if they suspect any person, including an educator, of child neglect or abuse. Unlike reports to ODE, these reports are required even if the school still employs the suspected individual, and all licensed educators (not just superintendents and board presidents) must report. Further, the law requires educators to err on the side of reporting if there is any doubt, so even a low level of suspicion can trigger a report. Once the reporting requirement is triggered, it is illegal for an individual to delay reporting while an internal investigation is completed. Children services staff conducts most investigations internally, but law enforcement agencies become involved in serious matters. Failure to make mandatory reports can result in criminal charges for the licensed individual, along with professional sanctions.

Q:       Can schools allow an employee to resign quietly to avoid the reporting requirements and bad publicity for the district? 

A:        No. Schools must report to ODE whenever a separation of employment results from actual or alleged misconduct, even if the employee resigns before the school completes its investigation. This reporting requirement is not negotiable, and the school superintendent’s failure to make a required report is a criminal violation. Moreover, in cases of suspected abuse or neglect, the school must make a separate report to children services or law enforcement without delay and regardless of the employment decisions made by a district or the suspected individual.

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Bill Deters and Jeremy Neff, attorneys with Ennis, Roberts & Fischer in Cincinnati. The column offers general information about the law. Seek an attorney’s advice before applying this information to a legal problem.

Q:       What is an online school? 

A:        In Ohio, an online school (a.k.a. “virtual school” or “e-school”) is a type of community school, meaning that it is a non-profit, non-sectarian school that operates independently of any traditional school district. Online schools have existed in Ohio since 2000. These schools typically accept students from across the state because there are no district boundaries as with traditional schools. Students of online schools may attend class from a home computer or may use a local computer lab or classroom established by the online school. Like all community schools, online schools must operate under a contract with a non-profit sponsoring entity, which could be a traditional school district or an educational service center.

Q:       How are online schools approved to operate?

A:        Online schools must be approved to operate (“chartered”) by the Ohio Department of Education (ODE). As of 2013, the ODE approves no more than five new online schools each year. The ODE’s criteria for approval is based largely on the proposed sponsor’s experience in education and the quality of education that the ODE determines the school’s proposed sponsor and/or operator is able to provide. If approved, an online school must continue to comply with the standards for operation adopted by the ODE. The online school must also abide by the contract with its sponsoring entity. 

Q:       How are online schools funded?

A:        Online schools, like other community schools, are publically funded. They receive per-pupil foundation payments from the ODE for regular and special education students enrolled in the school. Online schools are also eligible for federal funding and private grants. Online schools do not receive real estate tax revenues like traditional school districts. 

Q:       Are online school teachers licensed?

A:        Yes. Online school teachers must comply with all of the ODE’s certification and licensing requirements, although teachers may teach outside of their areas of certification. Most online school administrators do not have to be licensed, however. 

Q:       Must online school students take the same tests Ohio requires for public school students?

A:        Yes. Online school students must take all state-required tests, including diagnostic assessments, proficiency tests, the Ohio Achievement Assessment (OAA) and the Ohio Graduation Test (OGT). 

Q:       How is online schooling different from home schooling?

A:        Although online school students may actually do the majority or even all of their school work at home, they are not considered to be “home schooled.” Rather, home schooled students are students excused from attending their traditional school district so they can receive instruction from a parent or guardian. To be approved for home instruction, the parent/guardian directing the home education must provide certain assurances to the superintendent of the traditional school district about his/her ability to teach effectively. The parent or guardian must teach certain core subjects, including but not limited to history, government, language, reading, writing, mathematics, science, health, physical education and the fine arts. Each home-schooled student must also be provided a minimum of 900 hours of education each school year.  Once approved for home schooling by the superintendent, the parent/guardian selects the educational materials and takes responsibility for educating the student.

            One important difference between online schooling and home schooling is that students who graduate from online schools receive diplomas that are recognized by the State Board of Education, while home-schooled students do not. This is not to say that home schooled students cannot receive credit for their previous education or continue to college. Colleges, universities and employers have discretion in deciding whether to accept credits or credentials issued by a home-schooled student. 

            Another difference surfaced with a law enacted in the fall of 2013 that requires traditional public school districts to give home-schooled students residing in the district the opportunity to participate in extracurricular activities offered by the district. This same opportunity to participate is currently not offered to students attending online schools. However, online schools may offer their own extracurricular activities and social opportunities for their students. 

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by attorney Mark A. Weiker of the Columbus firm Means, Bichimer, Burkholder & Baker Co., LPA. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

Q:       What is a joint vocational school (JVS)? 
A:        JVS districts are considered public school districts in Ohio. They provide career-technical education and workforce development for students from member high schools, which are usually located within a designated geographic area. (As an alternative to becoming a member of a JVS district, a public high school may provide career technical education “in-house” and invite students from other public school districts to attend.) 

Q:       What kind of career preparation does a JVS provide?
A:        JVS districts provide students with training through hands-on labs and workforce development. Programs may be offered in a number of diverse fields, including but not limited to agriculture, business and marketing, construction, education, engineering and science, law and public safety, government and public administration, hospitality and tourism, health sciences and information technology. 

Q:       How are joint vocational schools funded?

A:        JVS districts receive per-pupil foundation payments from the state, similar to traditional public schools. In addition, JVS districts may receive funding from taxes assessed on property owners in the district. JVS districts are also eligible for federal funding. 

Q:       Are joint vocational school teachers licensed?
A:        JVS teachers are required to comply with all of the Ohio Department of Education’s certification and licensing requirements for career-technical educators. 

Q:       How are joint vocational school students tested?

A:        JVS students must take state-approved career-technical assessments. JVS students must also take all graduation tests required of traditional public school students.

Q:       Can a student who graduates from a JVS qualify for admission to a college or university?
A:        Yes. While some JVS programs prepare students to enter the workforce immediately after high school, many programs are specifically designed to prepare students to transition into postsecondary education. JVS districts are also required to offer students a “dual enrollment” opportunity, often achieved through the post-secondary options program, which allows students to earn college credit before they graduate from high school. 

Q:       Is transportation provided to joint vocational schools?

A:        Transportation must be provided to the JVS district by the public high school that serves as the student’s home district. Transportation is provided between the home district’s high school and the JVS. 

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by attorney Mark A. Weiker of the Columbus firm Means, Bichimer, Burkholder & Baker Co., LPA. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.