School groups seek judge's leave to provide 'context' to Upper Arlington lawsuit

NATE ELLIS
nellis@thisweeknews.com
ThisWeek group

Three statewide school groups have asked a Franklin County judge to allow them to provide perspectives in a case involving a lawsuit that seeks to force Upper Arlington Schools to reopen buildings for classes five days a week.

The lawsuit first was filed against the district Aug. 6 by parents of a special-needs student.

The Ohio School Boards Association, Buckeye Association of School Administrators and the Ohio Association of School Business Officials said Aug. 18 they should be permitted to provide information as a “friend of the court” in the dispute over Upper Arlington Schools’ choice to start the 2020-21 school year by teaching all students remotely.

In doing so, the organizations said Franklin County Court of Common Pleas Judge Stephen McIntosh should hear how his ruling in the case could affect other districts.

“Given the statewide concern in the issues involved here, the Court should exercise its discretion to hear from groups whose members will be impacted by a potential injunction,” the three organizations said in a memorandum filed Aug. 18.

They already had filed a collective motion Aug. 14 asking McIntosh to grant a leave that would enable them to provide information and insights in the case. In legal terms, a leave is sought when a party wants to deviate from a rule or procedure of the court.

Sara Clark, chief legal counsel for the OSBA, said the associations wouldn’t be participants in the lawsuit and would not appear before the court or make arguments to McIntosh.

“The role of the associations would be to give the court information about the responsibilities of school boards as decision-makers for their districts, the guidance provided by state agencies to assist school boards as they make decisions about education in this very unusual situation and the potential effect of a decision in this case on other school districts in the state,” Clark said.

Clark said because of the potential implications of this decision on the 711 members of OSBA, and the many administrators and fiscal officers that serve school districts and educational service centers, the memorandum could provide both legal and public-policy implications of the court's decisions, as well as background information on the functions of school boards and administrators.

“This could help give the court context beyond the facts in this specific situation as it makes its decision,” Clark said.

Rex Elliott, founder and co-owner of Elliot Cooper, one of the law firms that filed the lawsuit, couldn’t be reached for comment Aug. 19.

However, in an Aug. 14 court filing, the law firms asked McIntosh to dismiss the statewide school groups’ request to take part in the matter.

“The third parties describe a proposed brief that will likely be entirely redundant to the Upper Arlington defendants’ forthcoming opposition,” the law firms said in a memorandum of opposition.

The lawsuit originally was filed against the Upper Arlington school board, its members, district Superintendent Paul Imhoff, Franklin County Public Health commissioner Joe Mazzola and assistant commissioner Alexandria Jones. However, Mazzola and Jones have been removed.

The suit seeks a temporary restraining order and preliminary injunction to prevent the district from providing online-only classes to start the school year.

On July 30, the school board approved a “Responsible Restart” plan, with guidance from the health department, to provide online-only classes from the Aug. 19 start of school through at least Sept. 18.

Imhoff, who recommended the plan, cited continued public health and safety concerns about COVID-19. Mazzola reported new daily COVID-19 coronavirus cases in Franklin County at that time were “well over” 300 per day.

On Aug. 18, the school board unanimously approved an updated plan to transition to a hybrid of online and in-person classes starting Sept. 14, with 25% of students in buildings. By Sept. 21, roughly 50% of students would attend in-person classes.

Additionally, students who receive special education services will be evaluated on a case-by-case basis to see if they qualify for in-person instruction five days a week, regardless of the district’s instructional format. Qualifying students typically would participate in a significantly modified curriculum and alternative assessments and spend the majority of their day in a self-contained classroom.

Qualifying students would transition to full-time instruction starting Aug. 31.

As of Aug. 19, Franklin County’s coronavirus risk level still was designated on the state’s Ohio Public Health Advisory System as a red Level 3, indicating “very high exposure and spread.”

However, Imhoff told board members Aug. 18 the county’s positive test rate is 5.3% and the number of cases appear to be declining.

The lawsuit first was filed on behalf of unnamed parents of a student with special needs; it alleges students will experience irreparable harm and be deprived of their right to an education if not offered an option for in-person learning.

However, prior to withdrawing as an attorney in the case, Brad Koffel, managing partner of Koffel Brininger Nesbitt, one of the law firms suing the district, said Aug. 7 the firms were filing the lawsuit “on behalf of all families in Upper Arlington that want to have an in-person classroom option for their children five days a week.”

The nonprofit OSBA provides resources to and represents the state’s public school board members through legislative advocacy.

The BASA is a private, nonprofit organization that serves school superintendents and other administrators throughout Ohio.

The nonprofit OASBO provides support and services to public school district treasurers, business managers, food-service and transportation supervisors and support staff statewide.

In seeking to provide information in the case, the OSBA said Upper Arlington Schools can only argue “from its own experiences.”

The associations’ motion said the three groups can “draw from the experiences of its members across the state” and their collective input would be “helpful” to McIntosh in deciding the case.

It also noted that Koffel said in an Aug. 17 “The Charlie Kirk Show” podcast called “In Defense of America” that even if the Upper Arlington Schools lawsuit is dismissed, “different” lawsuits would be brought against districts that don’t provide in-person teaching options.

“We’re gonna do it in Gahanna,” Koffel said, according to a transcript of the podcast filed as part of the three groups’ memorandum. “We’re gonna do it in Westerville. We’re gonna do it in Hilliard. We’re gonna do it in Worthington. It doesn’t matter.”

The three school groups’ memorandum said Koffel’s withdrawal from the case “does not change the likelihood that litigation may arise in other school districts within Franklin County or in other school districts around the state of Ohio. There are undoubtedly parents in other districts interested in bringing similar litigation, and nothing stops Attorney Koffel – or any other lawyer – from bringing such a case.”

The Columbus Dispatch reporter Alissa Widman Neese contributed to this story.

nellis@thisweeknews.com

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