Coronavirus and Schools: To 180 or Not to 180
As we await further guidance from the Department of Education, we need to begin planning for the very real possibility that schools will remain closed for the remainder of the 2019-2020 school term.
Most schools appear to resolved to providing some form of “continuity of education” consisting of everything from links to web-based resources to planned on-line instruction. Contributing to the confusion is the term itself—introduced by PDE on its website but not explained or defined: “continuity of instruction.” To understand the term more fully, we need to understand exactly what the secretary of education can and cannot do without action by the Pennsylvania General Assembly.
With the authorization of the governor, the secretary can suspend enforcement of laws for which the secretary and PDE are responsible. Thus, the secretary has lawfully suspended enforcement of the 180-day and 990/900-hour requirements. That does not mean the secretary has the authority to write those requirements out of existence. The Pennsylvania School Code continues to require that all schools operate a school term consisting of 180 days of instruction or, with PDE approval, 990 or 900 hours of instruction. The school code also allows one mechanism by which schools can be credited with days of instruction (toward the 180 total) exclusively by offering on-line instruction: flexible instructional days (FIDs). As we have pointed out in previous opinions, FIDs do not offer a solution to the current dilemma because (a) most schools did not seek or obtain approval for their use; and (b) even those few districts that are approved for the use of FIDs can only use them to account for up to five of the 180 required days. The conclusion is therefore inescapable that, absent corrective legislation from the general assembly, schools will not likely be able to meet the either the 180-day or the 900/990-hour requirement by June 30. We set aside the problem of counting students in “average daily membership” in PIMs and enforcing truancy (by recording log-in time, by assignment completion?), since the 180-day ship has sailed. “Continuity of instruction” does not, and cannot mean, complying with the 180-day requirement.
But, we might ask, so what? Using his governor-granted authority, the secretary has lawfully suspended enforcement of the 180-day requirement. So why not forgo instruction for the remainder of the year? The answers come easily: Because our communities are demanding it. Because we are in the business of educating kids. Because we have to pay our teachers anyway. Because … “continuity of instruction.” Knowing, then, that “continuity of instruction” does not mean “meeting the 180-day requirement,” what does it mean? We have, in our opinions to date, distinguished between actual mandatory instruction and voluntary enriching activities. The distinction is really more a matter of logic than it is a matter of legal essence. The range of services that could constitute “continuity of instruction” necessary spans from simple links to on-line resources and activities that parents can opt to use to keep their children engaged all the way to planned course of instruction, fully-aligned with state standards, participation in which is mandatory. Where your district’s offerings fall on this spectrum could affect the degree to which you will need to offer adaptations, modifications, and replacement instruction to students with disabilities and ELLs, and the consequences for failing to do so. To assess where you are on the “continuity of instruction” spectrum, ask yourself these questions:
1. Is the on-line learning we are offering mandatory or optional?
2. Are we offering planned courses of instruction, or ideas and activities?
3. Are we going to grade or otherwise monitor completion of this learning or these activities?
4. At the high school level, will the completion of this learning or these activities earn high school credit?
Your answers to these questions could determine the degree to which you engage the requirements of federal civil rights laws, and the consequences you could face for non-compliance, which is, frankly, virtually inevitable. The more your activities fall on the required instruction end of the continuum, the more likely you will be required to comply in full with the “free appropriate public education” mandates of the IDEA and Section 504, necessitating IEP revisions, prior written notice, and more expansive real-time instruction and supports—possibly including the delivery of related services by tele-practice. The closer your activities fall on optional activities end of the continuum, the more likely you will need to comply only with the less-stringent “accessibility” requirements of Section 504 and the ADA or the extracurricular activity requirements of the IDEA. The same is true for ELLs. On the more formal end, ELLS might be entitled to EL instruction; on the less formal end, provision of native language materials will likely suffice.
We have heard some concern that we are discouraging more direct instructional forms of instructional “continuity” solely as a means of avoiding compliance with civil rights mandates, that we are, in effect, scape-goating the disabled and ELL populations by holding them up as barriers to doing the right thing. Quite the opposite is true. We view this issue as a matter of equity. Yes, better educated and more wealthy parents are more likely to press legal claims if their children with disabilities or ELLs are left behind in our efforts to ensure “educational continuity” and they might very well exact from us costly compensatory remedies. The IDEA and other federal civil rights laws that depend on individual enforcement are and have always been “rich get richer, poor get poorer” schemes. Our concern is not with the inevitable five or ten percent who will file due process claims or law suits. They will do so whether school’s in or school’s out. We suggest only that you be mindful of the need to comply as best you can with the FAPE and accessibility mandates. It will be hard, and you will not succeed entirely in an online format. Accept that you are unlikely to receive good advice or mandate relief from either the state or federal government, but recognize that the closer you come to differentiating learning meaningfully for these students, the better the outcome will be—for you and for them.