“Because R.C. 109.78(D) and R.C. 2923.122(D)(1)(a) are unambiguous and do not conflict with each other, we must apply both statues as written unless and until the General Assembly directs otherwise by legislative action.”

Chief Justice O’Connor, majority opinion

“To reach its conclusion, the majority finds it necessary to forsake a plain reading of [R.C. 109.78(D)]. Instead, it adopts a strained reading of the statute that is at odds with the way ordinary speakers of the English language read texts.”

Justice DeWine, dissenting opinion.

On June 23, 2021, the Court handed down a 50 page merit decision in Erin G. Gabbard, et. al v. Madison Local School District Board of Education, et al., 2021-Ohio-2067. In a 4-3 opinion written by Chief Justice O’Connor, the Court held that the training-or-experience requirement in R.C. 109.78(D) applies to Ohio school employees such as teachers, administrators, or other staff members if the employee goes armed while on duty. Justices Donnelly, Stewart, and Brunner joined the majority. Justices Kennedy, DeWine, and Fischer dissented, each writing separately. Justice Fischer also joined Justice DeWine’s dissent. The case was argued January 12, 2021.

Case Background

In response to a 2016 school shooting, the Madison Local School District Board of Education (“Madison Local”) passed a resolution which authorized certain employees, such as teachers and staff, to carry concealed weapons while working at the school. To implement its resolution, Madison Local enacted a firearms authorization policy.  The policy allowed the board to authorize up to ten school employees to carry concealed weapons in the school safety zone. These “approved volunteers” had to be licensed to carry a concealed weapon in Ohio, pass a criminal background check, receive mental preparation training, undergo a mental health examination, complete a 24-hour active shooter training course, and pass an annual drug test. In 2018, several Madison Local staff and teachers underwent the training and were authorized to carry handguns while at the school.

To enact this resolution, Madison Local purported to act within its authority under R.C. 2923.122, a statute making it a crime to carry a firearm in a school zone unless a statutory exception applies. Standard exemptions include security officers, federal agents, or law enforcement personnel who are independently authorized to carry deadly weapons. A broader exception, which Madison Local relied on to pass its resolution, states that “any other person who has written authorization from the board of education or governing body of a school” will not be subject to criminal liability for carrying a firearm at the school.

Concerned for the safety risks posed to their children, a group of parents (collectively, “Gabbard”) sued Madison Local to stop implementation of the resolution on the grounds that it violated the training requirements of R.C. 109.78(D) which states “no educational institution … shall employ a person as a special police officer, security guard, or other position in which such person goes armed while on duty.” There are exceptions for individuals who have either undergone the requisite peace officer training or have twenty years of active duty as a peace officer (“the training-or-experience requirement”). Gabbard argued that Madison Local’s mere 24 hours of active shooter training fell far short of the training-or-experience requirements that R.C. 109.78 requires of armed school employees.

In the trial court, Gabbard sought a permanent injunction to stop Madison Local from implementing the resolution unless the employees completed the requisite basic peace officer training in accordance with R.C. 109.78. The trial court granted summary judgment to Madison Local on the grounds that R.C. 109.78(D) and R.C. 2923.122 did not conflict, and Madison Local’s resolution was consistent with the school board’s broad authority under R.C. 2923.122. In a 2-1 decision, the Twelfth District reversed, finding that if Madison Local wanted to allow its teachers to be armed, R.C. 109.78, which the appeals court found to be unambiguous, requires that they possess the training-or-experience requirement of peace officers.

Read the oral argument preview here and an analysis of the argument here.

Key Statutes and Precedent

R.C. 109.78(D) (Certification Requirements)(“No public or private educational institution … 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.”)

R.C. 2929.122 (A)( “No person shall knowingly convey, or attempt to convey, a deadly weapon or dangerous ordnance into a school safety zone.”)

R.C. 2923.122(D)(1)(a) (those exempted from criminal prosecution for carrying a firearm in a school safety zone include: “An officer, agent, or employee of this or any other state or the United States who is authorized to carry deadly weapons or dangerous ordnance and is acting within the scope of the officer’s, agent’s, or employee’s duties, a law enforcement officer who is authorized to carry deadly weapons or dangerous ordnance, a security officer employed by a board of education or governing body of a school during the time that the security officer is on duty pursuant to that contract of employment, or any other person who has written authorization from the board of education or governing body of a school to convey deadly weapons or dangerous ordnance into a school safety zone or to possess a deadly weapon or dangerous ordnance in a school safety zone and who conveys or possesses the deadly weapon or dangerous ordnance in accordance with that authorization”)

State v. Aspell, 10 Ohio St.2d 1(1967) (“W]here in a statute terms are first used which are confined to a particular class of objects having well-known and definite features and characteristics, and then afterwards a term having perhaps a broader signification is conjoined, such latter term is, as indicative of legislative intent, to be considered as embracing only things of a similar character as those comprehended by the preceding limited and confined terms.”)

United States v. Powell, 423 U.S. 87 (1975) (Rules of statutory interpretation and ejusdem generis are only used to ascertain the correct meaning of words when there is uncertainty.)

United Tel. Co. of Ohio v. Limbach, 71 Ohio St.3d 369 (1994) (“This court in the interpretation of related and co-existing statutes must harmonize and give full application to all such statutes unless they are irreconcilable and in hopeless conflict.”)

Groch v. Gen. Motors Corp., 2008-Ohio-546 (Courts may neither establish policy nor second-guess the General Assembly’s policy choices.)

Cincinnati City School Dist. Bd. of Edn. v. State Bd. of Edn., 2009-Ohio-3628 (Words in a statute must be read in context and given their common, ordinary meaning.)

Hulsmeyer v. Hospice of Southwest Ohio, Inc., 2014-Ohio-5511 (“[I]f the General Assembly could have used a particular word in a statute but did not, [courts] will not add that word by judicial fiat.”)

Jacobson v. Kaforey, 2016-Ohio-8434 (Courts may not “dig deeper than the plain meaning of an unambiguous statute under the guise of statutory interpretation.”)

Electronic Classroom of Tomorrow v. Ohio Dept. of Edn., 2018-Ohio-3126 (Courts must read a statute as a whole and not dissociate words and phrases from that context.)

Madison Local’s Proposition of Law Accepted for Review

Ohio law does not require school administrators, teachers, and support staff to attend the police academy or have twenty years’ experience as a police officer in order to be authorized by a board of education to carry a firearm in a school safety zone.

Does the Court Adopt Madison Local’s Proposition of Law?

No. The Court concludes that school administrators, teachers, and support staff who carry firearms on school grounds are “other positions” that “go armed while on duty,” and are thus subject to the training-or-experience requirement under R.C. 109.78(D).

Merit Decision

Analysis by Student Contributor Brandon Bryer

First Things First: The Statutes

It is a well-understood principle that multiple statutes may apply to a single factual scenario. Indeed, both R.C. 2923.122 and R.C. 109.78(D) are implicated in this case. Madison Local frames the issue as whether R.C. 109.78(D) “guts” its school board’s authority under R.C. 2923.122. According to the majority, that framing is incorrect, however. The real question is whether R.C. 109.78(D) applies to the facts in this case, and more specifically, whether school staff and teachers who are authorized to carry firearms must meet the training-or-experience requirement of that statute.

R.C. 109.78(D) prevents educational institutions from employing any person as a “special police officer, security guard, or other position in which such person goes armed while on duty” unless that person has completed the training-or-experience requirement.

A separate and distinct statute is R.C. 2923.122, a criminal statute that implicitly permits a board of education to authorize persons other than law-enforcement or school security officers to possess a firearm in a school safety zone. R.C. 2923.122 does not, however, permit school boards to authorize employees to go armed with whatever training the board may deem appropriate. As Madison Local readily concedes, neither does R.C. 2923.122 permit school boards to ignore or circumvent other applicable statutory requirements. One such statute is R.C. 109.78(D).   

The Heart of this Case: Discerning the Meaning of R.C. 109.78(D)

Because R.C. 109.78(D) applies to this case, Madison Local must abide by its statutory requirements. One such requirement is that it cannot employ persons in “other positions” who go “armed while on duty” unless that person has completed the training-or-experience requirement. Madison Local and the dissenters believe this language applies only to employees who serve in safety or security positions that inherently require the employee to be armed. Gabbard offers a different interpretation—this phrase applies to every school employee who goes armed on the job, regardless of the employee’s duties.

The majority holds that Gabbard’s reading is the correct one. When given its plain and ordinary meaning within the context of R.C. 109.78(D), “position” means “job” and “other” plainly indicates a job that is not a special police officer or security guard—the two positions specifically mentioned in the statute. But R.C. 109.78(D) does not impose the training-or-experience requirement on all persons employed in “other positions;” it does so only to those who go “armed while on duty.” Those employees, who undertake an additional responsibility to protect students and staff from harm are subject to R.C. 109.78(D).

Although Madison Local would have the “armed while on duty” language mean only security related positions, that would require the Court to add words to the statute. The express language of R.C. 109.78(D) is clear: the training-or-experience requirement is not tied to the nature or duties of the “other position.” Rather, the applicability of the training-or-experience requirement is temporal. “While” expresses the timing of an action. Therefore, if during the time an employee is performing his or her job duties—whatever those duties might be—the training-or-experience mandate of R.C. 109.78(D) applies.  

Ohio Attorney General Strikes Out

To save Madison Local’s reading of the statute, the Ohio Attorney General makes a separate textual argument that only employment triggers R.C. 109.78(D) whereas the resolution here refers to teachers and staff as “approved volunteers.” This argument is unavailing because the statute does not tie application to the nature of an employee’s position, but simply on whether the employee “goes armed while on duty.”

In another attempt to limit the phrase “other position,” the Attorney General notes that the broader statutory context of Chapter 109 of the Revised Code concerns the training of special police officers, security guards, and other persons employed in a police capacity. The statutory context is not strong enough, however, to justify this limitation. The General Assembly could have limited application of R.C. 109.78(D) to school-employed security guards, but it did not. In fact, the legislature used the phrase “employed in a police capacity” in subsections (A) and (C), but in R.C. 109.78(D), it used broader language to encompass all “other positions” in which the employee “goes armed while on duty.”

No Ambiguity, No Need to Use Statutory Interpretation

Madison Local’s final attempt to save its argument is the ejusdem generis rule of statutory interpretation. This canon instructs that when a statute first uses a definite, well-known term confined to a particular class of objects or characteristics, a subsequent broader, more general term should be interpreted as having a similar character as those of the well-defined term. From that premise, Madison Local would have the broad phrase “other position” read in light of the narrower terms “special police officer” and “security guard” that precede it in R.C. 109.78(D). But canons of statutory construction need not be applied to unambiguous statutes. Therefore, Madison Local’s argument is misplaced.

No Conflict Here

Although an imperfect fit, the authority granted to school boards under R.C. 2923.122 and the training-or-experience requirements of R.C. 109.78(D) do not conflict with each other. The latter requirement only applies to the limited class of school employees who go armed while on duty. R.C. 109.78(D) has no effect on a school board’s ability to authorize a person, employee or non-employee, to carry a firearm in a school safety zone without penalty. When R.C. 2923.122 was enacted, the training-or-experience requirement had existed for more than twenty years. If the General Assembly had perceived any conflict between the two, it would have addressed it.  

Policy Decisions for the General Assembly, Not the Court

Both parties offer valid and persuasive arguments on how effective arming school staff and teachers is to deter gun violence in schools. Separation of powers principles, however, leave such policy-laden decisions in the hands of the legislature, not the judiciary. In fact, a bill is currently pending in the General Assembly to exclude the training-or-experience requirement for employees whose school boards authorize them to carry a firearm while on duty. That discussion is for Ohio’s legislative body to debate and discuss, not for this Court to consider when interpreting two unambiguous statutes as applied to the facts of this case.

Refuting Justice Kennedy’s Dissent

In dissent, Justice Kennedy asserts that because R.C. 2923.122 is unambiguous and grants Ohio’s school boards authority to permit certain people to carry a firearm on school grounds, the analysis should end there. But the question here concerns the applicability of R.C. 109.78(D) to the facts of this case, not the scope of R.C. 2923.122. This dissent even goes so far as to adopt the Ohio Attorney General’s categorization of R.C. 2923.122 as the “authorizing statute,” a significant leap the majority is not willing to make.

It is Justice Kennedy’s position that the majority incorrectly reads R.C. 2923.122 and R.C. 109.78(D) together. This contention is incorrect for a few reasons. First, neither party to this case raises or even references the canon of statutory construction that Justice Kennedy relies so heavily upon. Second, the majority reviews the statutory plain language independently—its understanding of one statute does not depend on an understanding of the other. Finally, Justice Kennedy overlooks the well-grounded notion that multiple statutes may apply to a single factual scenario. Courts cannot simply ignore applicable statutes such as R.C. 109.78(D).

Majority Opinion, Bottom Line

R.C. 2923.122 is not a mechanism by which Ohio school boards can circumvent other statutory requirements. One such requirement is the training-or-experience mandate of R.C. 109.78(D), which applies squarely to this case. Madison Local’s resolution permitting teachers and staff to carry firearms while on duty without first satisfying the training-or-experience requirement violates R.C. 109.78(D) and is contrary to law.

Justice Kennedy’s Dissent

R.C. 2923.122 (the “authorizing statute”) and R.C. 109.78(D) are not ambiguous, do not explicitly reference each other, and do not relate to the same subject matter. In reaching its conclusion, however, the majority incorrectly uses the in pari materia rule of statutory construction to read these two unrelated statutes in tandem. 

No Reference to Each Other

The authorizing statute makes no specific reference to R.C. 109.78(D), which is evidence that the statutes should not be read together. In fact, the General Assembly made a reference to Chapter 109 of the Revised Code in the authorizing statute, but it did so in the unrelated context of peace officer, sheriff, or police firearm requalification standards. Therefore, the General Assembly knew how to reference Chapter 109 in the authorizing statute but did not reference the training-or-experience requirements of R.C. 109.78(D). This indicates that the General Assembly chose not to impose that limitation on school board authority under the authorizing statute.

The Authorizing Statute is Unambiguous

R.C. 2923.122 is a criminal statute regulating the conduct of individuals who carry firearms, not the hiring decisions of a local school district. Whether a teacher, custodian, or member of the public, anyone with authorization from its school board cannot be prosecuted for carrying a firearm on school premises. That’s it. The authorizing statute is clear and places no further limitation on a school board’s authority. The analysis should end here. Yet the majority decides to read R.C. 109.78(D) as a limitation on school board authority conferred under a plain, unambiguous statute.

“Other Positions” Only Reference Security-Related Positions

The majority’s interpretation of R.C. 109.78(D) is incorrect. The phrase “in which such person goes armed while on duty” qualifies the phrase “other position.” The statutory context suggests that these “other positions” are those akin to special police officers or security guards, not teachers. One’s position is defined by job responsibilities and duties, not by whether they have been authorized by the school board. When a school board authorizes an employee to carry a firearm on school grounds, it does not alter the position for which the employee was hired. A janitor remains a janitor, a teacher remains a teacher. An employee’s position does not change to include service to the school in a police capacity.

Bottom Line, For Justice Kennedy

R.C. 109.78(D) does not prohibit a school board from granting written authorization to a person to carry a firearm on school grounds under the unambiguous authorizing statute.

Justice Fischer’s Dissent

The Court’s duty is not to weigh policy concerns or make legislative choices, but rather to interpret the law as written. Only one interpretative conclusion is possible here: R.C. 109.78(D) does not apply to this case. The General Assembly did not expressly include the term “teachers” in the list of employees subject to the training-or-experience requirement. This indicates a clear intention that R.C. 109.78(D) applies only to security-related personnel and does not include non-security school employees such as teachers or staff.  The General Assembly could have expressly imposed R.C. 109.78(D) on teachers, but it chose not to.

Justice DeWine’s Dissent

The Majority’s Strained Reading of R.C. 109.78(D)

The crux of this entire case is whether teachers are included as an “other position in which such person goes armed while on duty” under R.C. 109.78(D). The clear answer, as a matter of ordinary linguistics, is no. Going armed on duty is not part of the “position” of being a teacher.  The majority, however, believes that “position” simply refers to the fact that the person has a job at the school. It reaches this result by defining each word in R.C. 109.78(D) separately, stringing together each definition, and in the process, defying a common sense reading of the statute.

Context Matters

R.C. 109.78(D) applies only to persons employed in a security-related position. If the legislature thought otherwise, it would have said so.

When a parent tells a child, “don’t forget your bat, baseball glove, uniform, and other equipment” everyone understands that the parent isn’t asking the child to bring a football helmet. No doubt, when read in isolation, a football helmet is “other equipment.” But the context of the statement and common sense directs otherwise. Similarly, in R.C. 109.78(D), when someone reads “special police officer,” and then “security guard,” the phrase “other position” strikes a similar chord. The majority’s interpretation, to read “other position” in isolation and define it as any employee, swallows the entire statute. Why would the General Assembly have specifically enumerated two security-related positions just to add a general “other positions” catch all that, as the majority concludes, encompasses all school employees? Easy answer: it didn’t. The majority’s conclusion is not a natural reading of the statutory text and in effect, renders the statute’s reference to specific positions meaningless.

Moreover, the context of Chapter 109 of the Revised Code further highlights the majority’s misstep. The training-or-experience requirement of R.C. 109.78(D) is nestled in a statute that solely addresses training for people privately employed in security or police capacities, not teachers or other school staff.

The Majority’s Missing Link

The majority fails to identify correctly the thread linking “special police officer” and “security guard” with those “other position[s] in which [the employee] goes armed while on duty.” Although the majority believes that the link is any school employee authorized to carry a gun while they work, this entirely misses the import of R.C. 109.78(D). The correct link is the position—the clause only applies to a discrete category of security-related positions in which the employee goes armed while on duty. Contrary to the majority opinion, this conclusion does not render the clause meaningless. There are other security related positions—namely armed school resource officers—that would not be encompassed by the specifically enumerated “special police officer” or “security guard” that the General Assembly intended to subject to the training-or-experience requirement of R.C. 109.78(D). Teachers or school administrators aren’t among that class.

Ambiguity Not Required

The majority incorrectly argues that ambiguity is a prerequisite for courts to use canons of statutory construction. This view is narrow and incorrect. In reality, courts use canons of statutory construction to interpret the plain meaning of a text all the time, ambiguous or unambiguous. Ironically, the majority does precisely what it says is not allowed—it employs different canons to explain what it believes to be the clear and unambiguous meaning of the statutes in this case.

Bottom Line, for Justice DeWine

The phrase “other positions in which a person goes armed while on duty” in R.C. 109.78(D) refers only to security-related employees. Therefore, under an ordinary reading of the statute, Madison Local is not prohibited from authorizing school staff employed in non-security-related positions to carry firearms on school grounds without having satisfied the training-or-experience requirement.

Justice Fischer joined this dissent.

Case Disposition

The judgment of the Court of Appeals is affirmed.

Trial Court Judge (reversed)

Butler County Common Pleas Court Judge Charles Pater

Twelfth District Court of Appeals (affirmed)

Opinion written by Judge Robert Ringland, separate concurrence by Judge Robert Hendrickson

Dissent written by Judge Stephen Powell

Concluding Observations

Both student contributor Brandon Bryer and I correctly called this one for Gabbard. After argument, I wrote that it looked

“Like a 4-3 win for Gabbard, with the Chief and Justices Stewart, Donnelly, and Brunner in the majority and Justices DeWine, Kennedy and Fischer dissenting. Despite the length of this argument, if readers have lost the thread, the disagreement is whether teachers authorized by the school board to bring their weapons into school are required to take the peace officer training required in R.C. 109.78(D). In short, I think the majority bought the parents’ argument that the peace officer training or experience is required, while the dissenters, and Justices DeWine and Kennedy in particular, agree with Madison Local and the OAG that allowing a teacher to be armed while on duty does not transform that individual into some kind of police officer or security guard. The irony of trying to discern legislative intent here is undoubtedly this exact scenario was probably never in the legislative consciousness. 

“In the event of a win for Gabbard, I suspect a legislative fix is in order for this, making it clear that the peace officer training mandated in R.C. 109.78 is not applicable to volunteer teachers who are authorized to go armed while on duty, and school districts can determine the training required for those teachers. The legislature has come close to this several times, and this may send them over the top.”