 LEGAL UPDATES LUSH XXXIV II. Discipline and Drug Testing of Student Athletes A. A well-drawn Athletic Code of Conduct is essential. The legal foundation for the Code today is O.R.C. 3313.664: “The board of education of a city, exempted village, local, joint vocational, or cooperative education school district may adopt a policy authorizing the district superintendent, other district administrative personnel, or personnel employed by the district to direct, supervise, or coach a pupil activity program as provided in the policy to prohibit a student from participation in any particular or all extracurricular activities of the district or a school of the district for a period of time as provided in the policy. If a board of education adopts a policy under this section, the board shall post the policy in a central location in each school building of the district and make it available to students upon request.” This may overlap the general code of student conduct and its disciplinary consequences. 1. Code should be specific and clear on acceptable and unacceptable behavior, and procedures for denial of participation. 2. Be sure to address whether the Code applies year-round. 3. Generally, courts have held that removal of a student from athletics does not trigger constitutional due process protections. Glenn v. Harper, 620 F2d. 302 (6th Cir. 1980) B. Boards of Education may establish local policy on minimum grades for participation in athletics, pursuant to O.R.C. 3313.535: * * * (C) Not later than July 1, 1998, the board of education shall adopt a policy either prohibiting any student from participation in any interscholastic extracurricular activity, or allowing any student to so participate, if the student has received a failing grade for any class or course in the school districts graded course of study for the previous grading period. (D) A board also may adopt rules that include
additional standards for determining the eligibility of students
to participate in interscholastic extracurricular activities,
requirements for attaining reeligibility in interscholastic extracurricular
activities, and an exemption for any student whose individualized
education program prepared pursuant to section 3323.08 of the
Revised Code indicates an exemption would be advisable.” C. Hazing as defined by the Ohio Revised Code is both a crime and may result in civil liability. 1. Criminal hazing under O.R.C. 2903.31: “(A) As used in this section, hazing means doing any act or coercing another, including the victim, to do any act of initiation into any student or other organization that causes or creates a substantial risk of causing mental or physical harm to any person. (B)(1) No person shall recklessly participate in the hazing of another. (2) No administrator, employee, or faculty member of any primary, secondary, or post-secondary school or of any other educational institution, public or private, shall recklessly permit the hazing of any person. (C) Whoever violates this section is guilty of hazing, a misdemeanor of the fourth degree.” 2. Civil liability under O.R.C. 2307.44: “Any person who is subject to hazing, as defined in division (A) of section 2903.31 of the Revised Code, may commence a civil action for injury or damages, including mental and physical pain and suffering, that result from the hazing. The action may be brought against any participants in the hazing, any organization whose local or national directors, trustees, or officers authorized, requested, commanded, or tolerated the hazing, and any local or national director, trustee, or officer of the organization who authorized, requested, commanded, or tolerated the hazing. If the hazing involves students in a primary, secondary, or post-secondary school, university, college, or any other educational institution, an action may also be brought against any administrator, employee, or faculty member of the school, university, college, or other educational institution who knew or reasonably should have known of the hazing and who did not make reasonable attempts to prevent it and against the school, university, college, or other educational institution. If an administrator, employee, or faculty member is found liable in a civil action for hazing, then notwithstanding Chapter 2743. of the Revised Code, the school, university, college, or other educational institution that employed the administrator, employee, or faculty member may also be held liable. The negligence or consent of the plaintiff or any assumption of the risk by the plaintiff is not a defense to an action brought pursuant to this section. In an action against a school, university, college, or other educational institution, it is an affirmative defense that the school, university, college, or other institution was actively enforcing a policy against hazing at the time the cause of action arose.” D. Student Drug/Alcohol Testing 1. Competitive extracurricular activities. a. Board of Education of Independent School District No. 92 of Pottawatomie v. Earls, 536 U.S. 822 (2002). A school district in Oklahoma adopted a policy requiring all middle and high school students to consent to drug testing for illegal drugs in order to participate in any extracurricular activity. However, the district only applied the policy to competitive extracurricular activities sanctioned by the Oklahoma Secondary Schools Activities Association (“OSSAA”). The list of these activities included Academic Team, Future Farmers of America, Future Homemakers of America, band, choir, cheerleading and athletics. The policy required students to take a drug test before participating in an extracurricular activity. The students have to submit to random drug tests while participating in the activity. The students must also agree to be tested at any time based on reasonable suspicion. If a student tests positive their parents are contacted for a meeting. The student can continue to participate in the activity, if within five days of the meeting the student shows proof of receiving drug counseling and submits to a second drug test in two weeks. For the second positive drug test, the student is suspended from extracurricular activities for 14 days, must complete four hours of counseling, and submit to monthly drug tests. After the third positive test the student will be suspended from participating in extracurricular activities for up to 88 days. The U.S. Supreme Court upheld the policy because: (1) It is a reasonable means of furthering the school district’s important interest in preventing and deterring drug use among schoolchildren. (2) Some of the clubs and activities require occasional off-campus travel and communal undress, and all of them have their own rules and requirements that do not apply to the student body as a whole. (3) Each of them must abide by OSSAA rules, and a faculty sponsor monitors students for compliance with the various rules dictated by the clubs and activities. Such regulation further diminishes the schoolchildren’s expectation of privacy. (4) School presented specific evidence of drug use at Tecumseh schools. Teachers testified that they saw students who appeared to be under the influence of drugs and heard students speaking openly about drugs. (5) A demonstrated drug abuse problem is not always necessary to ensure the validity of a drug testing program, even though some showing of a problem is helpful to show a special need for a suspicionless general search program. According to the Court, it would make little sense to require a school district to wait for a substantial portion of its students to begin using drugs before it was allowed to institute a drug testing program designed to deter drug use. (6) The U.S. Supreme Court has not required a particularized or pervasive drug problem before allowing the government to conduct suspicionless drug testing. (7) A faculty monitor waits outside the closed restroom stall and listens for normal sounds of urination, which is a minimal intrusion. (8) Policy clearly requires test results be kept in confidential files separate from a student’s other records and released to school personnel only on a “need to know” basis. (9) Test results do not lead to imposition of discipline nor do they have any academic consequences. The only consequence of a failed drug test is to limit the student’s privilege of participating in extracurricular activities. (10) Test results are not turned over to any law enforcement authority. 2. Testing Student Drivers – (Policy also applies to extracurriculars) a. Joy v. Penn-Harris-Madison School Corporation, 212 F.3d 1052 (7th Cir. 2000). An Indiana school had a policy of random, suspicionless, drug testing of students involved in all extracurricular activities and of students that drive to school. The students are required to sign a consent form for the testing. If one is not signed, then they cannot participate in the activity and cannot drive to school. The students who drove to school were subject to random testing for alcohol, drugs and nicotine. Testing was also required of students who are suspended from school for three (3) consecutive days for student misconduct or substantial disobedience. The students must submit to the test before being allowed to return to school. Several students subject to the policy sued, claiming a violation of their Fourth Amendment right to be protected from unreasonable searches and seizures. The Court upheld the random testing for drugs and alcohol of students involved in extracurricular activities and for students who drive to school. However, the Court struck down the portion of the policy requiring testing students who drove to school for nicotine because there was no proven nexus that smoking while driving posed a safety hazard to the students or others. b. Todd v. Rush County Schools, 133 F.3d 984 (7th Cir. 1998). A school board approved a program prohibiting a student from participating in any extracurricular activity, or driving to and from school, unless the student and his or her parents consent to random drug testing. The test was designed to detect alcohol, unlawful drug, and cigarette usage. Certain students brought suit against the school district, alleging violations of their Fourth Amendment rights protecting them against unreasonable searches and seizures. The Seventh Circuit Court of Appeals upheld the constitutionality of the testing. The Court recognized that the school board had a compelling interest in protecting the students’ health by deterring drug use, and that the drug testing program was designed to meet this purpose, and not to punish users. The Court also found that the reasoning of the U.S. Supreme Court in Vernonia, as it related to student-athletes, was equally valid for students participating in other extracurricular activities. Like athletics, participation in extracurricular activities is a privilege, and it is not unreasonable to combine those benefits with an obligation to undergo drug testing. (1) Positive test results were not used for school discipline proceedings except for the fact that they are barred from extracurricular activities and driving. (2) Students who tested positive were given the names of agencies that might assist the student’s recovery. (3) Under the policy, if a student tests positive twice, the district is deemed to have a reasonable suspicion justifying further re-tests even though the student is not permitted to engage in extracurricular activities due to the prior positive results. (4) A 1994 survey showed cigarette use for 10th graders in the district was higher than the state average, and alcohol use for 11th and 12th graders was also higher. Marijuana use was lower. 3. Athletes only. Vernonia School District 47J v. Acton, 515 U.S. 646 (1995). School officials were concerned that drug use among athletes would increase the likelihood of serious injury since it fostered poor judgment and decreased reaction times and coordination. The school district ultimately chose to institute a mandatory drug testing program for athletes in extracurricular activities, with nearly unanimous support from parents. A seventh grader challenged the policy, alleging that the random drug test was an illegal search and seizure prohibited by the Fourth and Fourteenth Amendments to the U.S. Constitution. In finding that the Vernonia School District’s drug testing policy satisfied an analysis of the foregoing factors, the Court made the following observations: a. Student athletes’ privacy expectations are low based upon “locker room” requirements of playing sports including communal undressing and showering as well as pre-participation physicals. b. Privacy infringed upon by the collection of a urine sample was negligible as athletes remained clothed. c. A compelling government interest was established that outweighed the privacy interest of the students. Deterring drug use among student athletes is important because there exists a greater potential for harm to the athletes and the athletes from other school districts than to the general population of students. d. The specific drug record and presence of a “rebellion” among student athletes at the district created an immediacy for the board’s concerns and the need for action. e. As to efficacy, the Court stated that it was “self-evident that a drug problem largely fueled by the ‘role model’ effect of athletes’ drug use, and of particular danger to athletes, is effectively addressed by making sure that athletes do not use drugs.” 4. Issues to consider before devising a random drug testing policy. a. What is the purpose of the drug testing program? b. What is the magnitude of the drug problem in school and has the problem been addressed in some manner? c. Who are student populations to be tested and what is the connection between drug use and the populations to be tested? d. What will be done with the results of a positive test? (1) What punishment may student receive? (2) Will results of test be given to law enforcement or impact the student’s curricular activities? (3) Are results confidential? e. Will prior written permission be required? f. How will the testing procedures be structured, including the substances tested for, and the protection of student privacy? g. Will there be an appeals process if a test is positive? E. Ohio High School Athletic Association, not mentioned in the Ohio Revised Code, sits atop the interscholastic sports structure as the governing body. 1. OHSAA is an unincorporated, nonprofit association of member schools. 2. OHSAA writes the sports rulebook, a power which was upheld by the Ohio Supreme Court in 1962. OHSAA v. Stark County Common Pleas Judges, 173 Ohio St. 239 (1962). (OHSAA suspended football team for season based on recruiting violation). 3. Recent court authority suggests that entities like OHSAA are
quasi-public entities, acting in place of the State, and therefore
may have liability exposure for constitutional violations. Brentwood
Academy v. Tennessee Secondary Sch. Athletic Assn., 531 U.S. 288
(2001). III. Gender Equity A. Title IX, enacted in 1972, states in pertinent part: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. B. Question: Has gender equity been established in Ohios public school districts? C. Gender rules of Ohio High School Athletic Association (Bylaw 1, Section 7 and 8): * * * 1-7-2 A girl that is a member of a boys team shall follow all contests rules and regulations regarding the sport as specified for the boys. 1-7-3 Boys may not play on girls team unless the overall opportunities for interscholastic competition for boys are less than for girls and the competing schools mutually agree. Section 8. Team Competition Between Sexes 1-8-1 Teams of the opposite sex shall not compete against each
other in any interscholastic athletic contests. IV. Students with Disabilities (34 C.F.R. §104.37) A. Non-academic and extracurricular services and activities shall be provided in such a manner as is necessary to afford handicapped students an equal opportunity for participation in such services and activities. B. In providing physical education courses, athletics, and similar programs and activities, a school district may not discriminate on the basis of handicap. A school district that provides physical education courses or that operates or sponsors interscholastic, club, or intramural athletics shall provide to qualified handicapped students an equal opportunity for participation in these activities. C. A school district may offer to handicapped students physical education and athletic activities that are separate or different from those offered non-handicapped students only if separation or differentiation is consistent with the educational setting requirements and only if no qualified handicapped student is denied the opportunity to compete for teams or to participate in courses that are not separate or different. D. O.R.C. §3313.535(D). Boards of education may adopt rules which allow for a student’s IEP to exempt him/her from academic eligibility requirements for participation in interscholastic extracurricular activities. E. Ohio High School Athletic Association (OHSAA) By-Laws F. Relevant Case Law 1. Sandison v. Michigan High School Athletic Association, 64 F.3d 1036 (6th Cir. 1995). Michigan High School Athletic Association rule forbidding students over the age of 19 from participating in interscholastic athletics did not violate §504, the ADA, the U.S. Constitution, or other state anti-discrimination laws. 2. Dixon v. Hamilton City Schools, 31 IDELR ¶159 (U.S. Dist. Ct., S.D. Ohio 1999). The eight semester rule of the OHSAA is neutral and nondiscriminatory and did not violate the student’s rights under the IDEA. 3. Rhodes v. Ohio High School Athletic Association, 939 F. Supp. 684 (N.D. Ohio 1996). The decision to prohibit a student’s participation on the football team due to the OHSAA eight semester eligibility requirement was not based solely on his disability. 4. Doe v. Woodford County Board of Education, 213 F.3d 921 (6th Cir. 2000). Placing a student diagnosed with Hemophilia and Hepatitis B on hold status rather than allowing him to participate on the junior varsity basketball team without clearance from his doctor did not violate his rights under §504. The court recognized that, under both §504 and the ADA, a disabled person may be excluded from participation in a program if his participation poses a direct threat to the health and safety of others. 5. Northern (OH) Local School District, 17 EHLR 54 (OCR 1990) OCR found no evidence that school district had not properly implemented student’s IEP when student was not permitted to participate on golf team during his senior year, because he did not pass at least four one-credit courses during the preceding semester as required by the district’s athletic eligibility policy. 6. Kling v. Mentor Public School District Board of Education, 34 IDELR 148 (U.S. Dist. Ct., N.D. Ohio 2001). Participation on the cross-country team was a necessary component of the student’s IEP, and application of the OHSAA age-eligibility rule violated his rights under the IDEA. The Hearing Officer ruled that, under applicable federal law, the IEP team and not the OHSAA is charged with the responsibility to determine the need for a disabled student to participate in interscholastic athletics, and where the OHSAA rules conflict with or are more restrictive than the IDEA, such conflicts will be resolved in favor of the IDEA. 7. Smelko v. Revere Local School District, Case No. CV 00 08 3627 (Summit Cty. CP 2000). Court found that the student’s IEP did
not mandate his participation in football, wrestling, and track
as part of his transition plan, and his participation was subject
to his maintaining academic eligibility pursuant to the policy
of the board. V. Prayer at Athletic Events A. Student-led prayer over public address system at high school football game violated the Establishment Clause, although the student body voted to have prayer and elected the student who gave the prayer. Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000) B. Coach-led Lords Prayer before basketball practices and games was unconstitutional. Doe v. Duncanville Ind. Sch. Dist., 994 F.2d 160 (5th Cir. 1993) C. Prayer that works! The clock has run down. The game is over.
The coach is either ecstatic or has stomped his headset into the
sideline mud. The tired team (just the team, mind you!) drops to
one knee at the fifty yard line with heads bowed, and a short prayer
is offered. Student initiated, student led and students only no
problem! VI. Coaching and Supplemental Contracts A. O.R.C. §3319.08 - “The board of each such school district or service center that authorizes compensation in addition to the base salary stated in the teachers’ salary schedule for the performance of duties by a teacher that are in addition to the teacher’s regular teaching duties, shall enter into a supplemental written contract with each teacher who is to perform additional duties.” 1. Such contracts shall be limited contracts, and the evaluation and nonrenewal procedures set forth in O.R.C. §§3319.11 and 3319.111 are not applicable to supplemental contracts. Hara v. Montgomery County Joint Vocational School District, 75 Ohio St.3d 60 (1996). 2. A school board does not have the general statutory authority to award a supplemental contract to a nonteaching employee. Hall v. Lakeview Local School District Board of Education, 63 Ohio St.3d 380 (1992). 3. Such supplemental contracts shall contain: a. The teacher’s duties. b. The salary to be paid for the performance of the supplemental duties. B. Generally, the school board has discretion to determine whether, and to whom, a supplemental contract will be issued. Ballard v. Goshen Local School District, 13 Ohio App.3d 439 (1984). C. However, if a school board authorizes compensation for additional duties in a collective bargaining agreement, O.R.C. 3319.08 requires it to issue supplemental contracts to all teachers performing additional duties. It is an abuse of discretion for the board to award supplemental contracts to some teachers performing additional duties, but not to others performing similar duties. Wolf v. Cuyahoga Falls City School District Board of Education, 52 Ohio St.3d 222 (1990). D. Requirements for pupil-activity contracts. 1. O.R.C. §3319.303 - Pupil-activity program permit. 2. O.R.C. §3319.39 – Criminal records
background check. VII. Employing Nonlicensed Individuals as Coaches A. O.R.C. §3313.53 (D) states, in pertinent part: * * * 1. So, any coaching positions must first be offered to licensed staff of a school district. 2. Only if no licensed candidate applies who meets the minimum qualifications for the coaching position can a board of education hire a nonlicensed coach. 3. Courts generally have recognized that it is within the discretion of the school board to determine whether an individual is qualified to direct, coach, or supervise a pupil-activity program and usually will not interfere with its discretion, absent an abuse of discretion. Katterhenrich v. Federal Hocking Local School District Board of Education, 121 Ohio App.3d 579 (1997); State ex rel. Stuckey v. Clearfork Local Board of Education, 1988 WL 94035 (1988); Gardner v. Liberty Center Board of Education, Henry App. No. 7-81-14 (1982); Harrah v. Harrison Hills City Board of Education, 1981 WL 4753 (1981). 4. A nonlicensed employee hired to coach is a nonteaching employee of the school district, and one court has held that such employee will be automatically reemployed if the board fails to provide written notice of nonrenewal on or before June 1 as required by O.R.C. §3319.083. Pistone v. Canfield Local Board of Education, 1987 WL 13256 (1987). B. Requirements for nonlicensed individual to be employed in a pupil activity: 1. The board has offered the position to a district employee who is licensed. 2. The district’s licensed employees either did not apply, or those who applied were not qualified. The Board must adopt a resolution declaring that no qualified licensed employee applied. 3. The board advertised the vacancy to licensed individuals who are not employed by the district. 4. No licensed non-employee applied, or those that did were not qualified. The Board must adopt a resolution declaring that no qualified licensed employee applied. 5. Qualified nonlicensed employee applies. 6. Nonlicensed individual must also successfully complete a criminal background check pursuant to O.R.C. §3319.39. C. Requirements for employment established by Department of Education (O.A.C. 3301-27-01): 1. The individual is competent to direct, supervise, or coach a pupil activity program as evidenced by: a. Evidence of successful experience that the individual has demonstrated the ability to work effectively with pupils. b. Evidence of substantive knowledge of the pupil activity program such as: (1) Successful completion of a college or university course on such activity program; or (2) Successful experience, as determined by the board of education in such activity program. c. Knowledge of applicable rules and regulations established by the board of education. d. The individual has obtained a pupil activity permit issued by the State Board of Education under O.R.C. §3319.303(A). 2. If the pupil activity program involves athletics, routine/regular physical activity, or health and safety considerations as determined by the board of education, the individual shall: a. Hold and maintain a currently valid cardiopulmonary resuscitation training course certificate; and b. Hold a pupil activity validation issued by the Ohio Department of Education under O.R.C. §3319.303; and c. Successfully complete a nationally recognized first-aid training program as designated on the approved list provided by the Ohio Department of Education; or d. A first-aid training course as approved by the Ohio Department of Education and conducted pursuant to State Board adopted guidelines; or e. A college or university course on the health and safety of participants in a pupil activity program as approved by the Ohio Department of Education. D. A nonlicensed individual must hold a valid pupil activity program permit issued by State Board of Education. 1. O.R.C. §3319.303 requires the State Board of Education to adopt rules establishing standards and requirements for obtaining a pupil activity permit for any individual who does not hold a valid educator license, certificate, or permit issued by the State Board. The permit shall be valid for coaching, supervising, or directing a pupil activity program. 2. Pupil Activity Permit a. The permit shall be valid for coaching, supervising, or directing a pupil activity program. b. Valid for three years. c. Renewable. E. Qualifications beyond those set forth in state rules and regulations. 1. In the absence of a contrary requirement contained in a negotiated agreement, the board’s discretion to determine qualifications will not be invaded where the board has apparently followed the statutory procedure. State ex rel. Stuckey v. Clearcreek Local School Dist., 1988 WL 94035 (1988). 2. The determination of whether a licensed individual is qualified to serve as a coach is within the discretion of the Board of Education and will not be reversed by a court without a showing that the board abused its discretion. Harrah v. Harrison Hills City School Dist., 1981 WL 4753 (1981). 3. Determining qualifications: a. Win/loss record b. Prior conduct during games or practice c. Imparting of knowledge to students d. Knowledge of the activity e. Treatment of students/parents 4. Document qualifications or the lack of qualifications. F. The nonlicensed individual is to receive the same amount as would have been paid to the district’s licensed individuals. G. The nonlicensed individual’s pupil activity/program contract cannot exceed one year. A supplemental contract under which a licensed individual is employed may have a duration of up to five years. H. Always consult posting and bid requirements of a negotiated agreement governing teachers before hiring a nonlicensed individual. I. Terminating or nonrenewing a nonlicensed employee’s pupil activity contract: 1. Termination/Suspension a. Pursuant to O.R.C. §3313.53, pupil activity contracts of nonlicensed employees in city, local and exempted village school districts are to be terminated or suspended pursuant to O.R.C. §3319.081(C). b. Such contracts may be terminated or suspended for a definite period of time only for violation of written rules and regulations as set forth by the board of education or for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, or any other acts of misfeasance, malfeasance, or nonfeasance. 2. Nonrenewal a. Nonlicensed coach is automatically re-employed if notice of nonrenewal is not given as required by O.R.C. §3319.083 for noncertified employees. However, such coaches cannot attain continuing contract status. Pistone v. Canfield Local Bd. of Educ., 1987 WL 13256 (1987). b. O.R.C. §3319.083: “In all school
districts wherein the provisions of Chapter 124. of the Ohio
Revised Code do not apply, the board of education shall cause
notice to be given of its intention not to re-employ said nonteaching
employee, at the expiration of his contract. If such notice is
not given the nonteaching employee on or before the first day
of June, said employee shall be deemed re-employed.” VIII. Overtime Concerns for Individuals Employed in a Pupil Activity A. Exempt Employees Teachers are exempt from minimum wage and overtime provisions if teaching is their “primary duty.” Individual teachers, however, can be covered by the FLSA’s minimum wage and overtime provisions if their job duties involve sufficient nonprofessional activities outside the instruction of students. Nonessential tasks such as bus driving or custodial work should be kept to a minimum to qualify for the exemption. Involvement with extracurricular student activities and athletics, however, would appear to be a necessary accompaniment to teaching and would not jeopardize the exemption. (29 C.F.R. §541.301(g)(2).) B. Non-Exempt Employees As always, specific duties and criteria must be evaluated; however, the following is a list of those employees who are generally treated under the FLSA as non-exempt: • Bus Drivers C. Overtime Pay Generally (Non-Exempt) No employer shall employ any of his employees . . . for a work week longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed. (29 U.S.C. §207(a).) D. Non-Exempt Employee Already Employed in District 1. Where a non-exempt employee performs two different jobs for the same employer, such jobs generally must be combined to determine what overtime over 40 hours is due. For example: Custodian and basketball coach. 2. A board of education does not have to combine the hours an employee works in two different jobs for purposes of overtime compensation if the employee is working the second job (pupil activity): a) on an occasional or sporadic basis, and b) in a capacity different from his regular employment. 3. Although a classified position and a coaching position are often in different job categories, if the employee’s employment as a pupil activity advisor is not on an occasional or sporadic basis, the time spent performing as classified employee and pupil activity advisors must be combined to determine what overtime is due. a. “Occasional or sporadic” - means infrequent, irregular, or occurring in scattered instances . . . [In] order to prevent overtime abuse, such hours worked are to be excluded from computing overtime compensation due only where the occasional or sporadic assignments are not within the same general occupational category as the employee’s regular work. b. Any activity traditionally associated with teaching (e.g., coaching, career counseling, etc.) will not be considered as employment in a different capacity. However, where personnel other than teachers engage in such teaching-related activities, the work will be viewed as employment in a different capacity, provided that these activities are performed on an occasional or sporadic basis and all other requirements for this provision are met. For example, a school secretary could substitute as a coach for a basketball team or a maintenance engineer could provide instruction on auto repair on an occasional or sporadic basis. E. Non-Exempt Employee Not Already Employed in District The employee will still be subject to overtime provisions only if the employee works more than 40 hours as a coach or pupil activity advisor. F. Determining Hours Worked in Pupil Activity 1. Difficult to determine number of hours worked. 2. District may have to wait until the end of the pupil activity to calculate number of hours worked and overtime. 3. The FLSA explicitly permits rounding off an employee’s starting and stopping times as long as such working time is rounded up and down. G. Calculating overtime for employees employed at different rates by the same school district. 1. Where an employee in a single work week works two or more different types of work for which different non-overtime rates of pay have been established, his/her regular pay for that week is the weighted average of such rates. That is, the total earnings (except statutory exclusions), are computed to include his/her compensation during the work week from all such rates, and are then divided by the total number of hours worked at all jobs. (29 C.F.R. §778.115.) 2. The employer or employee can agree in advance that the worker will be paid time and one half on the basis of the rate for the work performed during the overtime hours. (29 C.F.R. §778 419.) H. Penalties for Violating Overtime Regulations 1. Complaint must be filed within two years of the violation occurring or three years if employer has willfully broken the law. An employer willfully breaks the law if employer knew or showed a reckless disregard as to whether its conduct was prohibited. 2. Employee could recover back pay and overtime. 3. Employee can also recover liquidated damages in the amount equal to the wages improperly withheld. 4. Reasonable attorney’s fees. IX. Pay to Play A. The Basics 1. Free Public Education Students generally are entitled to attend public school tuition free in their parents’ district of residence (O.R.C. §3313.64). School boards may adopt a schedule of reasonable fees for instructional materials other than textbooks (O.R.C. §3313.642). Students also may be fined for damage to, or the destruction of, school property. School districts that receive DPIA aid are required to waive fees for students who receive Aid to Dependent Children (O.R.C. Chapter 5107) or Ohio Disability Assistance (O.R.C. Chapter 5115). This mandatory waiver specifically does not apply to extra-curricular activity fees. School boards have the authority to waive instructional fees for students with serious financial need. This waiver may be subsidized from the district’s general fund. 2. Extra-curricular activities in general School boards may establish extra-curricular activities and employ persons to serve as athletic directors, coaches and advisors (O.R.C. §3313.53). Boards have control over these programs pursuant to their general authority to manage public schools and make rules necessary for the governance of their students (O.R.C. §§3313.20 and 3313.47). Districts also may construct and maintain gymnasiums, stadiums, fields and other athletic facilities. Extra-curricular activities are not mandated by law and are not part of the free public education that students are entitled to receive. As a result, school boards may charge students to participate in these activities. (1982 Ohio Atty. Gen. Op. No. 014) School buses and other authorized transportation may be used for extra-curricular activities, but school boards are obligated to recover the costs of this “nonroutine” use of school vehicles (O.R.C. §3327.08; O.A.C. 3301-83-16). 3. Finances In addition to expenses for coaches and advisors, school boards may spend general fund money to operate student activity programs approved by the Ohio State Board of Education. A board may spend up to five-tenths of one percent of its annual operating budget for this purpose (O.R.C. §3315.062). If a student activity program receives more than $50 per year, it must pay that revenue into an activity fund established and regulated by the school board, and the board must approve expenditures from the fund. School boards also are expressly authorized to purchase accident insurance for student athletes (O.R.C. §3315.062). Reasonable fees may be charged to persons attending school athletic events. These fees may be restricted to non-residents of the district (1984 Ohio Atty. Gen. Op. No. 083). A school board may make a profit on these fees, provided it goes back to the district. B. Pay to Play 1. A Last Resort? School boards typically implement extra-curricular fees as a last resort. Usually, other revenue options, such as budget cuts, beverage contracts, cellular towers, advertising, fund-raisers and assistance from boosters, have been exhausted before a board considers approving fees. About 26% of Ohio public school districts have extra-curricular fees. 2. Policy Considerations Before a school board adopts a pay to play policy, it should analyze these and other considerations: • When may a policy be implemented? A board generally has broad discretion in addressing these issues, but input from key staff and the public are essential to making sound policy decisions and controlling the controversy that almost is inevitably part of these fees. 3. Title IX School boards should exercise caution to ensure that a fee schedule does not in any respect discriminate against, or have a disparate impact upon, female student athletes. For example, a school district may not have a fee schedule that is disproportionately higher for female athletes. A district that implements an extra-curricular fee schedule probably also should monitor whether it has any affect on the participation rate of girls in athletics. 4. Academic Credit As noted above, students generally are entitled
to a free public education in their parents’ school district of residence.
Consequently, a school board may not charge students to receive
academic credit. If any of a district’s extra- or co-curricular
programs, such as marching band, award credit to students, the
district may not charge participation fees for those programs. X. Conclusion |
