Ohio Supreme Court Shoots Down School Board’s Policy on Arming Staff

On June 23, 2021, the Supreme Court of Ohio released its opinion in Gabbard v. Madison Local School Dist. Bd. of Edn., Slip Opinion No. 2021-Ohio-2067, which establishes training or experience requirements applicable to the arming of school staff members. The Case will have far-reaching consequences for school districts across the state, and may serve as a call to action for Ohio’s legislators to amend R.C. 109.78(D) and 2923.122.

In April 2018, the Madison Local School District Board of Education passed a resolution to authorize certain school-district employees to carry a deadly weapon or dangerous ordnance on school property. Pursuant to Madison’s Board Policy, any employee authorized to carry a weapon must maintain an Ohio concealed-handgun license, satisfactorily complete at least 24 hours of active shooter training, hold a handgun-qualification certificate, receive training regarding mental preparation to respond to active killers, and pass a criminal background check and mental-health exam.

In September 2018, parents of students enrolled in Madison filed a lawsuit to enjoin the Madison Board from permitting employees without peace officer training to carry a gun on school property, on the grounds that the arrangement violates R.C. 109.78(D), which provides:

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No public or private educational institution or superintendent of the state highway patrol shall employ a person as a special police officer, security guard, or other position in which such person goes armed while on duty, who has not received a certificate of having satisfactorily completed an approved basic peace officer training program, unless the person has completed twenty years of active duty as a peace officer.

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However, in authorizing certain staff members to be armed on school property, the Madison Board, like many boards of education across Ohio, relied upon R.C. 2923.122.  With certain exceptions, R.C. 2923.122 prohibits anyone from having a deadly weapon or dangerous ordnance in a school safety zone.  One of those exceptions allows a person to have a deadly weapon or dangerous ordnance on school grounds in accordance with written authorization from the board of education. The question the Ohio Supreme Court sought to address was whether teachers, administrators, and other school staff must satisfy the training-or-experience requirement in R.C. 109.78(D) in order to be authorized by a board of education under R.C. 2923.122 to carry a firearm in a school safety zone while on duty.

Madison’s Board argued that the training-or-experience requirement of R.C. 109.78 applies only to employees who serve in safety or security positions that inherently require the employee to be armed. However, the Court found that the express language of R.C. 109.78(D) does not tie application of the training-or-experience requirement to the nature or duties of the “other position.” Further, with respect to the board of education’s power to authorize employees to carry firearms, the Court found that R.C. 2923.122 “addresses only the effect of prior authorization on the armed person’s exposure to criminal liability, not the circumstances in which such authorization is appropriate to begin with.” Therefore, a board of education cannot give such authorization “without regard to other statutory provisions that might apply,” i.e., the training requirement of R.C. 109.78(D). The Court concluded:

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R.C. 109.78(D) prohibits a school from employing a person who goes armed while on duty in his or her job unless the employee has satisfactorily completed an approved basic peace-officer-training program or has 20 years of experience as a peace officer. And R.C. 2923.122(D)(1)(a) does not provide schools with a mechanism to circumvent that requirement.

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Likely anticipating that Ohio’s legislature may attempt to amend these statutes to override the effect of its opinion, the Court noted: “Had it perceived any conflict between the statutes, the General Assembly could have either amended R.C. 109.78 or included language in R.C. 2923.122 to the effect that the latter would control notwithstanding R.C. 109.78. But the General Assembly did neither.”

In February 2021, while the Ohio Supreme Court’s decision in Madison was still pending, members of the Ohio House of Representatives introduced House Bill 99 (“H.B. 99”). H.B. 99 would exempt a “person authorized to go armed within a school safety zone” from having to satisfactorily complete an approved basic peace officer training program. Rather, H.B. 99 would only require authorized employees to successfully complete firearms training that meets or exceeds the training requirements for a concealed handgun licensee. Presently, H.B. 99 remains in the House Criminal Justice Committee.

If your board has authorized individuals to carry firearms on school property who have not either completed peace officer training or been employed as peace officers for 20 years, your board should consider rescinding such authorization and notifying approved employees who lack the requisite peace officer training or 20 years of experience that such authorization has been rescinded, effective immediately. Of course, such a revision of board policy will not be necessary if the Ohio Legislature amends the statutes in question prior to the beginning of the 2021-2022 school year. Districts should also review their board policies to ensure that they do not permit such authorizations to occur, or otherwise conflict with the Supreme Court’s holding in Madison. Finally, many school districts have incorporated the written authorization to carry a firearm for certain staff members into their building-level Emergency Management Plans (“EMP”), required under R.C. 5502.262. An EMP is not a public record, which prevents the identities of the staff members who received the authorization from being disclosed. If the authorization for carrying a firearm is rescinded, the school district’s EMPs also will need to be updated to reflect that change. R.C. 5502.262 also states that schools shall review their EMPs and certify to the Ohio Department of Public Safety that they are current and accurate no later than July 1st of each year. Therefore, updated EMPs must be submitted to the Director of Public Safety on or before July 1, 2021.

If you should require any assistance in ensuring that your school district is in compliance with this new interpretation of the law, please do not hesitate to contact the attorneys at Pepple & Waggoner today.

Dan Lautar may be reached at dlautar@pepple-waggoner.com.

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