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Arizona House Bill 2078; Ohio v. Polk; TN Special Education: Education Newsletter - August 7, 2017

Arizona

House Bill 2078 (signed April 17, 2017)

This bill restructures post-secondary credit system for high school students. Unlike dual enrollment programs, a student enrolled in concurrent coursework will attend regular classes at a community college campus. The high school pays the costs of the community college course, provides academic support for the student on the high school campus, and awards high school credit for the course.

Arizona Expands Empowerment Scholarship Accounts

Arizona has also recently expanded its school voucher program to allow all students to be eligible for funding. Previously, only certain students meeting eligibility requirement could get vouchers. This expansion will be incremental over several years and ultimately be available to all students unless otherwise capped. There is a cap of 5,000 additional students per year, which will be topped off at 30,000 students in 2022. Although the bill barely passed the Arizona General Assembly, proponents are still seeking to remove the cap and expand eligibility to all 1.1 million students in Arizona.

Florida

House Bill 7069 (signed June 15, 2017)

HB 7069 provides a sweeping overhaul of the Florida Charter School program and modifies various charter school provisions, including those related to open enrollment procedures, charter contracts, administrative fees, reporting requirements and the calculation and authorized uses of charter school capital outlay. Chief among the changes are a requirement of school districts to share local millage revenue with charter schools and authorization for high-performing charter schools to establish more than one charter school if it operates near a low-performing school and serves students from that school.

The bill also (a) creates the Schools of Excellence Program to provide administrative flexibility to the state’s highest performing schools, (b) appropriates $30 million in scholarships to enable students with disabilities to attend private schools, (c) requires all public elementary schools to provide 30 minutes of recess, (d) creates a “Schools of Hope” program, which would allow charter schools to more easily replace schools that have received consistent Ds or Fs on state report cards, and (e) removes and relaxes some state testing requirements.

Indiana

House Bill 1382 (signed April 28, 2017)

HB 1382 creates new procedures for renewing a charter where a charter school fails to meet statutory minimum standards. These new procedures allow authorizers to appeal to the State Board of Education for permission to renew in lieu of closing a charter school. The new law also provides that the authority to authorize new charter schools may be suspended if an authorizer renews the charter of, grants a new charter to, or fails to close a school that the State Board ordered closed. Authorizers are now also responsible for ensuring that charter schools are in compliance with legal standards. In addition to authorizer changes, HB 1382 also redefines “virtual charter schools” and requires that these schools adopt student engagement policies, which may permit virtual charter schools to withdraw students who regularly fail to participate in courses.

House Bill 1007 (signed April 20, 2017)

Pursuant to HB 1007, a new course access program has been devised, thus allowing students to choose certain classes to take outside their current public school. The Indiana Department of Education is tasked with establishing an authorization process for course providers and a list of approved courses by June 30, 2018. Negotiations to determine tuition costs will also be left to the Department. Under limited circumstances, such as where the proposed course does not further the student’s efforts to meet graduation/certificate requirements or when enrollment in the course would cause the student to exceed normal course load limits, schools will be permitted to block a student’s enrollment in courses through the access program.

Kentucky

Senate Bill 1 (passed on April 10, 2017)

SB 1 streamlines how students are taught and tested and how teachers are evaluated. In the spring of grades 10 and 11, students must take a college admissions and placement exam paid for by the Kentucky Department of Education (KDE). In certain circumstances, KDE must also pay for the cost of any assessment taken by a high school student to receive an industry-recognized certification, credential or licensure. This bill also requires teachers without continuing service status to be evaluated annually, while teachers with continuing service status must be evaluated every three years, and requires KDE to revise the state accountability system to include an annual overall summative performance evaluation of each school and district.

House Bill 471 (signed March 27, 2017)

This bill provides a funding mechanism for public charter schools in Kentucky, using state and federal funds. This bill follows HB 520 approving charter school in the State of Kentucky. Both bills are effective June 29, 2017.

Other

Kentucky also recently passed bills about Schools Calendars (SB 50), Bible Literacy (HB 128), and Religious Expression (SB 17).

Michigan

House Bill 4327 (introduced on March 7, 2017)

This bill has been proposed to amend three sections of the Revised School Code to provide a geographic preference for low-income students at public school academies (PSA), urban high school academies, and schools of excellence. If the bill is passed as introduced, PSAs could grant an enrollment preference in a specified area if 70 percent of students in that area qualify for free and reduced-price lunch. The students granted the enrollment preference must also qualify for free and reduced-price lunch. The bill has been introduced in the Michigan House and referred for a second reading, but has not yet been subject to a vote.

Michigan has also introduced legislation to move all new teacher pension plans to a 401(k) style system, a move which some argue benefits charter schools.

Ohio

HB 49

The Ohio General Assembly passed the state’s two-year operating budget on June 30, 2017, which included such measures pertaining to charter schools as:

  • Requiring Department of Education to notify sponsors of their ratings before the evaluations are made public and providing an appeal process to dispute such ratings prior to their release.

  • Repealing Governor Kasich’s Straight A program. That program has awarded more than $300 million to local schools since 2014 for projects aimed at improving student achievement or saving money.

  • Appropriating $8 million for “high performing” charter schools for facility improvements and construction.

  • Elimination of social studies state testing requirements in 4th and 6th grade. In lieu of state tests, the bill requires schools to provide instruction and assessment based on locally selected measures.

  • Provides for students to earn integrated credit through courses that address more than one subject area.

  • Requires the Department of Education to develop a framework to use in granting units of high school credits to students who demonstrate subject area competency through work-based learning experiences, internships, or cooperative education.

Governor Kasich did veto such notable provisions as:

  • A provision that would have required the Joint Education Oversight Committee, a bipartisan legislative committee, to hold hearings regarding and approve any changes to the Ohio Department of Education’s requirements for student funding audits and reviews – a source of substantial controversy and litigation in recent years.

  • A provision that would have allowed schools to provide state tests in paper and pencil format as opposed to only by computer.

  • A provision that would have exempted private schools with over 75% of enrolled students qualifying as students with disabilities from state testing and graduation requirements.

  • A provision that would have allowed community schools sponsors who had their authority revoked in the 2015-2016 school year to have a path to an exemption for the 2017-2018 school year.

  • A provision that would have allowed Education Service Centers (ESCs) to sponsor a community school anywhere in the state, rather than limiting this to their home district.

  • A provision that would have eliminated the state’s resident educator process for licensure.

  • A provision that would have increased the progress component (i.e., the “value-added” component) of Academic Performance from 20% to 60% in the sponsor evaluation rating.

Ohio v. Polk, 2017-Ohio-2735

The Supreme Court of Ohio concluded that in light of a high school’s compelling interest in ensuring that unattended book bags do not contain dangerous items and of the student’s diminished expectation of privacy in his unattended bag, the school’s protocol requiring searches of unattended book bags to identify their owners and to ensure that their contents are not dangerous did not violate the Fourth Amendment. The Supreme Court of Ohio reasoned that the search of the student’s unattended book bag was limited to fulfilling the purposes of the schools’ search protocol – to identify the bag’s owner and to ensure that its contents were not dangerous – was not an illegal search, and the firearm and bullets discovered were therefore admissible evidence in the student’s resulting criminal trial.

Tennessee

House Bill 310 (passed on May 19, 2017)

A link to the bill follows this short summary. HB 310 sets aside Six Million Dollars to create a charter school facilities fund where charter schools across the state can apply for grants to assist with facility needs. This bill also allows local districts to charge an authorizer fee to cover the cost of charter oversight. School boards can levy a fee between 1-3 percent of per-pupil funding depending on how many charter schools are within the district. The fee is capped at $35,000 per school. Among other changes, the bill redefines “charter agreement” to a fixed-term renewable agreement, removes, preferences for out of district enrollment and creates an easier process for siblings of students already enrolled in the charter school to enroll. This bill also allows for conditional approval of new charter school so they can begin to raise capital and makes it mandatory that they adopt national authorizing standards for application approval.

House Bill 267 (signed May 11, 2017)

This bill increases the authorized application fee for certain charter schools and establishes an annual authorizer fee applicable when an LEA is the chartering authority (up to $2,500) with each charter school application the charter school files. Pursuant to present law, this provision will still apply only to the application for a public charter school to be formed by the creation of a new school (as opposed to converting a school). This bill adds an annual authorizer fee that will apply when an LEA is approved as a chartering authority or renewed as a chartering authority, and to any charter school currently authorized by an LEA.

Except for the authorizer fee, this bill prohibits requiring a charter school to pay a fee as a condition of approval or recommendation of approval from a chartering authority or to purchase any services from the chartering authority. This bill authorizes a public charter school and chartering authority to mutually agree to execute a service agreement, separate from the charter agreement, for performance of services.

District Violated Federal Special Education Laws

A federal judge ruled that the Hamilton County Department of Education violated multiple federal laws protecting students with disabilities when the district removed a student with Down syndrome from a regular classroom setting in one elementary building and segregated him in a comprehensive development classroom in another elementary school building. The judge ruled that a district cannot be so swift to place a student in an environment that is more restrictive than necessary, especially when a less restrictive environment may be better for the child’s development.

Texas

Senate Bill 1480 (passed on June 1, 2017)

In 2011, the legislature established a framework to allow charter schools to participate in the guaranteed bond program of the permanent school fund. SB 1480 gives qualified charter schools access to the total capacity of the program (rather than just the available capacity) equal to the number of charter school students as a percentage of the total public school population. This bill will increase the number of students enrolled in Texas charter schools by providing additional capacity to the Permanent School Fund (PSF) to guarantee the financing of public charter schools. The capacity for the program will go from $1 billion to an estimated $4 billion beginning September 1, 2017.

House Bill 2442 (signed June 15, 2017)

HB 2442 addresses the required minutes of operation for districts and charter schools, the Pledge of Allegiance and minutes of silence, full days and half days, blended learning and related funding determinations. In addition, a further facilities funding bill and the Texas Charter Schools Association’s top legislative priority, facilities (SB 457/HB 2337), was not achieved, but went further in the legislative process and had more support than in any prior session with SB 457 passing out of the Senate, not once but twice.

Senate Bill 1658 (engrossed on April 24, 2017)

SB 1658 establishes a method for disposing of property held by a charter school that has ceased to operate. An open-enrollment charter school ceases to operate if the school’s charter has expired or been revoked or if the school has otherwise ceased operation as a public school. At cessation of operation, all remaining funds must be returned to the Texas Education Agency (TEA). While an open-enrollment charter school is in operation, the charter holder holds title to any property purchased with state funds and may exercise complete control over the property as permitted by law. If a charter school ceases to operate, TEA must direct the charter holder to dispose of property purchased with state funds through one of several methods. Decisions made by TEA are final and cannot be appealed.

House Bill 191/Senate Bill 16

Recently bills have been introduced that would create a commission to recommend improvements and adjustments to the public school finance system. Other recent bills addressing school funding include Senate Bill 2 creating a private school choice program and additional funding for charter and other public school facilities.

Washington, DC

Council Bill 220313 (introduced on June 6, 2017)

Council Bill 220313 proposes to amend the Healthy Schools Act of 2010 by changing nutrition and wellness policies in district schools. The bill would repeal the reimbursement for meeting lunch nutrition guidelines but would add an annual subsidy for schools implementing breakfast in the classroom. Vegetarian food options will be required. Schools would be encouraged to procure food consistent with the Good Food Purchasing Program. The bill would require schools to post menu, nutrition and sourcing information for school meals on their websites.

Charter School Votes to Unionize

The teachers at a D.C. middle school became the first in the nation’s capital to unionize and will move forward with the collective bargaining process.

District-wide voucher program

The local D.C. council has opposed the GOP-controlled United States Congress’s efforts to turn the entire district into a voucher program. Currently, 1,100 students per year are eligible to use vouchers to attend schools outside of their local district. This includes private, religious schools. This bill has not seen further action in 2017.

DL v. District of Columbia, No. 16-7076 (D.C. Cir. 2017)

The parents of six children sued the District for violations of the Child Find laws under the Individuals with Disabilities Education Act by failure to provide special education services to preschoolers with disabilities in a class action certified by the district court. The district court also issued an injunction forcing the District to comply with the laws and the DC Circuit rejected challenges to the injunction, the certification of sub-classes and the mootness.

Supreme Court of the United States

Trinity Lutheran Church of Columbia, Inc. v. Comer (decided June 26, 2017)

The U.S. Supreme Court held that the Missouri Department of Natural Resources violated the rights of Trinity Lutheran Church of Columbia, Inc. under the Free Exercise Clause of the First Amendment by denying the church a grant on account of its religious status. The Court held that governments cannot deny a church a public benefit for which it is otherwise qualified to receive simply because it is a religious institution. This decision may open the door to challenges of Blaine Amendments, constitutional provisions in various states that block public funding to educational institutions that have a religious affiliation.

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About this Author

Amy Borman, Dickinson Wright Law Firm, Education and Real Estate Law Attorney
Member

Ms. Borman represents educational institutions in their continuing compliance with state and federal laws. She has been a guest speaker at businesses, universities and schools throughout the United States and Europe. Ms. Borman assisted Iceland in debating and passing a new education funding law. Her seminars include governance, school public funding, business and finance, special education, open meetings and public records, competitive and strategic use of innovative laws, as well as general inspirational speaking engagements.
 

614-744-2571
Adam  Schira, Dickinson Wright Law Firm, Education Law Attorney
Associate

Mr. Schira provides legal services to school districts, community schools, career-technical schools, and other educational institutions in a wide range of legal areas and matters, including:

  • Federal and state education laws and regulations

  • Labor and employment

  • Staff and student disciplinary matters

  • Policy review

  • Contract negotiations

  • Public records issues

  • Discrimination claims

  • Special education matters

614-744-2932