On April 20, 2020, Ohio Governor, Mike DeWine announced that the March 14, 2020 statewide order directing all of Ohio’s public, community, and private K-12 school buildings to be closed to students due to the ongoing coronavirus health crisis would remain in effect for the remainder of the academic year. In the press conference announcing the fate of the school term, Governor DeWine urged teachers for grades kindergarten through 12 to continue providing at-home lessons remotely if feasible. The school building closing mandate, codified in House Bill 197 (HB 197), and signed into law by DeWine on March 27, contains many important provisions for schools. HB 197: 

1. Requires that boards of education declare evaluations for teachers and administrators that cannot be completed by the academic year’s end “impracticable” or “impossible”;
2. Waives school testing requirements for the 2019-2020 academic year; 
3. Allows for flexibility regarding high school graduation requirements for the 2019-2020 academic year; and
4. Requires boards of education to extend or create policy permitting the district to make up any amount of missed instruction time through distance learning.

I. Teacher and Administrator Evaluations
HB 197 requires boards of education to create a resolution declaring evaluations for teachers, administrators and superintendents “impracticable” or “impossible” if they cannot be completed by the end of the 2019-2020 school year. The bill permits a board of education to elect to not conduct an evaluation of a teacher, administrator or superintendent if the evaluation was not completed prior to March 14, 2020, the day the director of health issued the order closing all K-12 schools in Ohio. According to HB 197, if the election to forgo evaluations is made, the “employee shall be considered not to have had evaluation procedures complied with” pursuant to Ohio Revised Code 3319.11. If a board declines to conduct evaluations, the district should be wary of the implications and hurdles this may create in regards to its ability to nonrenew unevaluated employees.¹ Any resolution that waives evaluations should be worded with nonrenewals in mind. Districts must also review any applicable Collective Bargaining Agreement’s evaluations procedures and consider whether a Memorandum of Understanding is needed for implementation.

II. Testing and Graduation Requirements
HB 197 waives the required 2019-2020 administration of state achievement and alternative assessments for all public and chartered nonpublic schools and allows students to graduate if they are on track to meet minimum state curriculum requirements. Further, it provides that superintendents of schools and districts who have adopted a curriculum more rigorous than the state minimum may elect to require only the state minimum curriculum for 2020 graduation candidates. Action by the local board or governing authority is not required, but superintendents may seek a resolution as a matter of record. On April 27, 2020, Superintendent DeMaria extended the deadline for schools and districts to adopt a policy regarding students who are at risk of not qualifying for a high school diploma pursuant to Ohio Revised Code 3313.617 from June 30 to Sept. 30, 2020.

For those students in K-11, the Ohio Department of Education advises that teachers and principals should make decisions to promote or retain students based on their assessment of the student’s preparedness, given the student’s demonstration of knowledge and skills to participate successfully in the next higher grade, in the particular context of the ordered school-facility closure. The department further advises that the general standards for promotion decisions should be discussed jointly between a school’s teachers, counselors, principal and parents.

III. Extension of “blizzard bag” Policy
HB 197 requires boards of education to act on a resolution either extending an existing “blizzard bag” policy or, in the absences of such policy, creating policy to permit the district to make up through distance learning any number of days or hours necessary to meet the state-required minimums due to the mandated closure of school buildings. Boards should note that regulation regarding the original “blizzard bag” law is still in effect, meaning: the resolution must have the support of the teachers’ union; and any distance learning must allow students two weeks to submit work.²

IV. Conclusion
For the 2020-21 academic year, DeWine said a decision has yet to be made on how lessons will proceed. The governor mentioned that schools are already preparing for remote learning next year if needed and suggested a combination of in-person and distance learning could be utilized. With the possibility of school building closures continuing in the Fall, districts should prioritize reviewing and implementing the HB 197 measures.

As the nation continues to respond to the rapidly evolving COVID-19 pandemic, Taft strives to provide regular updates regarding legal developments impacting our clients. Please reach out to us with questions or if we can be of assistance in these unprecedented times.

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¹ H.B. 197 does not change the prerequisites for the nonrenewal of a teacher pursuant to R.C. 3319.11(E), nor does it relieve school districts from following the non-renewal procedures set forth in current collective bargaining agreements.
² http://codes.ohio.gov/orc/3313.482