Supreme Court Holds that Revenue Loss is a Sufficient Reason to Deny Petition for Territory Transfer
The Ohio Supreme Court in Spitznagel v. State Board of
Education, 2010 WL 2430984 (June 17, 2010) held that the State
Board of Education may consider a loss of revenue as a sufficient
reason to deny a proposed transfer of school territory.
In Spitznagel, more than 75% of the registered voters in
the Village of Walton Hills, a community served by the Bedford City
School District ("Bedford"), signed a petition requesting
the State Board of Education to transfer the Village from Bedford
to Cuyahoga Heights Local School District. Both school districts
submitted the required answers to questions from ODE per O.A.C.
3301-89-02, and the State Board appointed a referee to decide the
petition.
After a hearing, the referee denied the proposed transfer. The
referee focused on the financial detriment to Bedford as the main
factor against the transfer - noting evidence presented by Bedford
that it would lose at least $4 million annually from real estate
taxes in Walton Hills. The referee held that it was "wholly
foreseeable that the loss of the Walton Hills tax monies would
cause the closing of facilities, reduced educational programming,
staff and faculty cutbacks, and other curtailments."
After receiving the referee's report, the State Board remanded
the matter back to the referee to consider what effect H.B. 66, a
personal property tax measure, would have on the transfer.
Following a hearing, and post-hearing briefs on S.B. 321 (a bill
designed, in part, to mitigate the losses that school districts in
territory transfers would suffer as a result of H.B. 66), the
referee again denied the transfer. The State Board adopted the
referee's findings.
The residents of Walton Hills appealed the State Board's
decision to the Franklin County Court of Common Pleas, which
affirmed the State Board's decision. On appeal, the Franklin
County Court of Appeals also affirmed the trial court. The Ohio
Supreme Court accepted the residents' further appeal.
The Ohio Supreme Court held that the State Board may consider a
loss of revenue to be a sufficient demonstration of a financial or
educational detriment to the transferring school district to
prevent a territory transfer to another school district. However,
the Court held that the question of whether, or how much, it should
weigh against the transfer is dependent upon the facts and evidence
in each case. The Court referenced the testimony of Bedford's
treasurer, who explained the District's financial reports and
discussed the impact that a loss of revenue would have on programs
such as summer school, extracurricular activities, transportation,
special education, and teacher retention. The Court found this to
be persuasive evidence of the significant revenue loss and
corresponding detrimental effects to the programs and activities of
Bedford, sufficient to support the State Board's denial of the
proposed transfer.
Lessons Learned
The Court in this case sought to create a balance between giving deference to the State Board and giving territory transfer petitions fair consideration upon appeal. The Court emphasized that a loss of revenue is merely one factor among many to be considered in a territory transfer. However, it appears that a substantial loss in revenue, combined with a corresponding loss of curricular and extracurricular programming, will be considered persuasive evidence against a potential transfer of school territory.
OHSAA Issues Guidance on Transfer Bylaws
OHSAA recently issued a guidance publication for high school
principals and athletic administrators on its transfer bylaws for
the 2010-2011 school year. OHSAA Bylaw 4-7-2 generally provides
that a student who transfers high schools at any time after
establishing eligibility as a ninth grader (either by attending
school for five days or playing in a fall sport prior to the
beginning of school) is ineligible to participate in athletics at
the new high school for one year from the date of enrollment.
However, OHSAA has adopted 12 exceptions to this Bylaw.
This article focuses on exception #2 to Bylaw 4-7-2, which allows a
student to regain eligibility if there has been a change of legal
custody. OHSAA interprets this Bylaw to apply when a court of
proper jurisdiction or a government agency such as Children's
Services places a student into the care of an individual or agency
that shall have the care and custody of that child. If such a
change in custody results in the student's change of school
districts, the student may be ruled eligible at the school located
in the district of residence of the new custodian.
School administrators are required to submit a copy of the court
order changing custodianship signed by either a judge or
magistrate, and a cover letter verifying: (1) the parents of the
student live in Ohio; (2) the person named in the custody document
is a bona fide resident of the new public school district in which
the student has transferred; and (3) the student will live with the
custodian full-time for a minimum of one calendar year.
OHSAA will not accept a Grandparent Power of Attorney as an
exception to Bylaw 4-7-2. Per R.C. 3313.64, a child who is in the
legal custody of his/her parent, but who resides with a grandparent
pursuant to the Grandparent Caretaker Laws, is entitled to attend
the schools of the district where the child's grandparent
resides. A Grandparent Power of Attorney is executed because of
certain hardship circumstances, including but not limited to a
parent becoming seriously ill, homeless, incarcerated, or otherwise
unable to care for his/her child because of a physical or mental
condition. These are also many of the same reasons why a child may
be considered homeless under the McKinney-Vento Homeless Assistance
Act, 42 U.S.C. 11431-11435 ("McKinney-Vento").
If a student shares the housing of a relative (i.e. a grandparent)
due to a loss of housing or other hardship circumstance, such child
may be considered homeless and eligible for protections under
McKinney-Vento. The Act requires the state and its school districts
to eliminate barriers to school enrollment and retention for
children and youth experiencing homelessness.
"Enrollment" is defined under McKinney-Vento as attending
school and participating fully in school activities. 42 U.S.C.
11434(A)(1). Sports and other extra-curricular activities are
school activities.
In order for McKinney-Vento to have bearing on OHSAA, it would
likely need to be deemed a state actor. Judicial decisions on
whether OHSAA is a state actor in other types of actions have
varied. Nonetheless, if a child moves in with a grandparent under
circumstances that qualify the child as homeless under
McKinney-Vento, then OHSAA's denial of athletic eligibility to
students who transfer via a Grandparent Power of Attorney may be
subject to legal challenge. However, this issue has yet to be
decided by a state or federal court having jurisdiction over Ohio.
Therefore, building administrators and athletic directors should be
advised that a high school student who transfers from another high
school via a Grandparent Power of Attorney may likely be ruled
ineligible to participate in athletics by OHSAA.
Please consult an attorney in Dinsmore & Shohl's education
law practice group should you have any questions on OHSAA Bylaws or
student attendance.
***LAST CHANCE TO REGISTER***
Please don't miss your opportunity to attend Dinsmore &
Shohl's HR & Employment Law Workshop for School
Administrators to be held as follows:
August 5, 2010
Great Oaks Career Campuses
Scarlet Oaks East Wing - Room 200, Entry Door #3
3254 East Kemper Road
Cincinnati, Ohio 45241-1548
August 9, 2010
ESC of Central Ohio
2080 Citygate Drive
Columbus, Ohio 43219
August 11, 2010
Montgomery County Educational Service Center
200 South Keowee Street
Dayton, Ohio 45402-2242
-AGENDA FOR ALL LOCATIONS-
8:00 a.m. Registration and
continental breakfast
8:30 a.m. Managing medical leaves
and disability accommodation requests
This presentation will focus on the latest developments in the
Family & Medical Leave Act (FMLA), the Americans with
Disabilities Act (ADA) and Workers' Compensation leave. Sample
scenarios involving medical leave and disability accommodation
requests that schools frequently encounter will be presented and
proposed responses will be discussed.
9:15 a.m. Workers'
compensation
The first part of this presentation will focus on winning
strategies a school district should follow to maximize its chance
of success in hearings held before the Industrial Commission. The
second part will shift focus on managing the impact and controlling
the costs of temporary total disability and other lost time
claims.
10:00 a.m. Break
10:15 a.m. Employee evaluation and
discipline
Steps to improve the performance of marginal employees and
procedures to non-renew or discharge chronically under-performing
employees is the focus of this presentation. Learn the latest
developments in the law governing the employment, evaluation and
discipline of certificated and classified employees.
11:00 a.m. Harassment and misconduct
investigations
Complaints of sexual harassment, retaliation, discrimination and
employee misconduct have the potential to damage a school
district's finances and reputation. Learn the best practices to
investigate and resolve such complaints and to avoid future
liability.
11:45 a.m. Adjourn
The cost for this Workshop is $40 per person. Written materials
will be provided and Local Professional Development Committee
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.