Governor Kasich's ODE Is Making More Retroactive Rules

Court issued decision in ECOT case created precedent that is impacting new state policy

By Cyndy Rees


Ironic.  An unprecedented political attack on an online charter school, ECOT, is now having negative ramifications that could impact any entity doing business with the state.  And yes, ODE, the stooge behind the attack, is eagerly taking advantage by passing retroactive rules that impact every school district in Ohio. 


As a reminder, The Ohio Department of Education (ODE) implemented retroactive “rules” (ignoring the actual process to pass rules) regarding attendance in their quests to bring down ECOT. During the ongoing legal battle, Judge French noted in her September 2016 decision against ECOT, "As a matter of law, the Court finds that because ECOT is a public  school, it cannot assert retroactivity concerns." 


Bam! In that one decision, the door was opened for any state agency to apply rules retroactively against anyone doing business with state dollars and ODE is once again front and center. 


Recently, 3rd Rail received this anonymous tip:   


Anonymous shared the tip: “Chief Legal Counsel at Ohio Department of Education Diane Lease said on public record during May 15 state school board meeting discussion on chronic absenteeism that "retro-activity" depended on how you defined it. The end result was that the school board ignored the constitution's prohibition on retroactive laws and passed the chronic absenteeism indicator to apply to the previous school year - now that it is over of course!”


At issue is the passage of retroactive rules regarding the state’s Chronic Absenteeism Policy.  The new rules, which were just passed on May 15th and apply to all school districts in Ohio, date back to the beginning of the 2017/18 school year.  These rules apply to both chronically truant students as well as those who have an excused absence and will impact the schools grade card issued by ODE.


3rd Rail spoke with State School Board Member Sarah Fowler, who raised concerns at the school board meeting regarding the legality of the retroactive nature of the policy change.  ODE claimed the Chronic Absentee Policy was required as part of the Every Student Succeeds Act application submitted to the federal government by the State School Board and ODE.  


"My understanding when we were looking at ESSA (Every Student Succeeds Act) passage is that it was validating measures from the federal government and that we could make changes to these.  I recall that others (state school board members) didn't want to use chronic absenteeism as a measure and that other states were able to work around this concern. We were told it had to be applied for the 2017/18 school year.  We submitted the proposal in late 2017 and it wasn't implemented until this year.  No school district was prepared to have excused absences count against them." Fowler continued, "The major concern is it focuses on students who are excused and unexcused.  It doesn't look at students who are truant or who are missing a large amount of school because we currently have rules for schools to give excuses for medical, travel or other.  The chronic truant status will count against these excused absences suggesting they didn't learn anything when they were excused." 


Currently Ohio Revised Code  3301-69-02  states that the Superintendent of the students public school is responsible for making the determination if a student will receive an excused absence.  

The Chronic Absentee Indicator applies to both excused and non excused students and is being applied retroactively to the beginning of the 2017/18 school year.


Fowler suggested, "Taking out excused absence from the issue of chronic absence, impacts parents rights and local control."


A quick look at the ODE website provided the following audio file that confirms that yes ODE is once again applying rules retroactively and this time to every school district across the state.  You will hear State School Board Member Sarah Fowler raise concerns about the precedent of setting retroactive rules followed by ODE's Chief Legal Counsel, Diane Lease’s shocking response.


Listen:  School Board Member Fowler and ODE Legal Council Dian Lease exchange on legality of retroactive rules.




Sarah Fowler:  I just wanted to state that the reason I am bringing this forward is because I’m very concerned about the precedent we are setting with retroactively re-applying rules to previous school years…. And. This is following closely on the heels of the resolution last month. Item number 6 that we also applied retroactively. I don’t think it should be a valid consideration. Say well we talked about it at the beginning of the year so schools knew it was coming when we didn’t actually pass resolution saying this is what you're going to be graded on. And I feel like that would be like, the legislature, retroactively adopting every bill that was introduced in the last general assembly and saying that we talked about it, you knew that it was coming so why are you surprised? And in fact, the legislature has constitutional restrictions on applying laws retroactively, which regulations are a type of law and I believe that we should really seriously consider the fact that we’re retroactively applying them. If this was something that we needed to do to be in compliance with the ESSA plan, we should have done it when we submitted the ESSA plan. And not waited 9 months or 8 months or however long it has been since last fall. And so I just, I guess, I would defer to legal counsel if they believe that it doesn’t violate the U.S. and State constitutions. But I’m reading here that US constitution article 1 section 9 says “No ex ipso facto law shall be passed and in the Ohio constitution article 2 section 28 says that the general assembly shall have no power to pass retroactive laws and in…. As a board member I am concerned that we are passing a lot of retroactive things. Thank you, Madam President.


Diane Lease: So one could argue since it was directed to me that it is not retroactive because the report card has not yet been issued, so I think there are arguments on both sides of that coin.


Fowler explained her concern regarding ODE Chief Legal Counsel’s response regarding the legality of retroactive rule making. "It isn't retroactive because we haven't issued the report card yet.  But the report card is based on things that happened before the passage. It opens the door to a lot of things, for example, if people look at the consequence of things that happened and then change the rules after the fact to change the consequences.  It makes things unstable." 


"I am concerned with the fact that while the report card hasn't been issued, the report card will be reflective of the rule change.  If the rule is applied retroactively it can impact the report card. If however, the report card hasn’t been issued and they don't utilize that measure for the previous school year but only utilize it going forward then that is okay."  Representative Andrew Brenner, ex-officio member of the State School Board (R-Powell)


Now that retroactive rules are being applied to every school district and not just online schools such as ECOT, there may be an unexpected backlash and perhaps the legislature will finally address this issue.  If not, anyone doing business in Ohio should beware.