Coronavirus and Schools: Flexible Instructional Days
CORONAVIRUS UPDATE
So the proverbial bridge we had hoped not to have to cross appears to be right before us. As you all will have heard by now, Governor Wolf has ordered all Montgomery County schools to close for two weeks. Multiple other districts have announced their own closings of various lengths. Absent from the governor’s press conference was any reference to remote instruction or any information about the length of the school year. Both those issue can’t be addressed by the governor – they require legislative action in the Pennsylvania General Assembly.
We remain convinced that the passage of 24 P.S. § 15-1506 means that school districts that did NOT apply and receive approval for a “flexible instructional day” program are simply NOT permitted to substitute remote learning for instructional days. The deadline for submitting such a plan was September 1, 2019. In other words, while a district might decide to close and offer cyber school, absent action by the legislature, that district will still have to meet 180 days of instruction without counting the days it was closed. Even for those few districts that do have an approved “flexible instructional day” program, this will only permit five days to count against the 180. This restriction has huge implications for districts. If a district chooses to proceed with remote instruction without approval, and the 180 day requirement is not amended by the legislature, then districts will be paying additional salary as they will have paid teachers for the remote instruction, and then will be required to pay them for the extended days at the end of the year to make up for the closings.
Many districts have existing cyber programs. Assuming districts are following their normal procedures, students may voluntarily elect to enroll in those programs, understanding that cyber programming alone might not be a complete solution for students with disabilities who require direct instruction and accommodations. Districts may not, however, require students to enroll in a cyber program. As a result, the existence of a cyber program will not excuse a district from offering 180 days of instruction in the brick and mortar setting for any student who doesn’t voluntarily elect to enroll in cyber instruction.
It is possible that the legislature will decide to amend § 1506 to allow districts to submit a plan now for remote instruction and to allow it to cover more than five days. For reasons we will address shortly, we think it very unlikely that the legislature will simply waive the requirement for any plan and allow remote instruction days to count against the 180 day requirement. In addition, if districts are not specifically meeting their special education obligations under their student’s IEPs, and yet purporting to provide a full year’s instruction, many of those special education students are likely to have good claims that they did not achieve meaningful educational progress.
It is also possible that the legislature will amend 24 P.S. § 15-1504 to shorten the 180 day requirement. Indeed, we think this may be more likely than amending § 1506. If the legislature does this, then the use of remote instruction would not be necessary. The entire purpose of such an amendment would be to identify a number of days that districts can realistically be open under these unique circumstances. If this happens, districts should know that 24 P.S. § 11 -1153 appears to require that teachers be paid their full salary. There is no similar statutory language regarding other employees, so those employees would be governed by their respective contracts or collective bargaining agreements. Similarly, districts with third party contracts for transportation and food service should look at those contracts to see what payment obligations may exist. Some of them, but probably not all, will have force majeure clauses that might be relevant and might excuse payments for a shortened school year.
Some districts may be thinking of offering remote instruction just to maintain some continuity for their students; a laudable goal. However, two significant concerns should be kept in mind. First, as noted above, districts that do so may find themselves paying their staff for work beyond the school year down the road. Second, if the provision of remote instruction is not accompanied by some mechanism to include special education students, the district may have inadvertently engaged in Section 504 discrimination. Districts can, of course, provide information about and links to resources and material that students could voluntarily access during a closure. So long as teachers are not supervising or providing feedback, we see no problem with that approach.
The premise behind the requirements of § 1506 is a sound one. Remote instruction presents numerous hurdles. Not all children have internet access. Many children are eligible for free or reduced breakfast and/or lunch. Young children will need supervision, forcing a caretaker to be present who will therefore not be able to work. And, of course, remote instruction does not magically relieve a district from delivering a free, appropriate public education to its students with IEPs. Many of the services in those IEPs will simply not be capable of delivery through remote instruction. The legislature is also aware of these issues, which is why we think a waiver is unlikely. If school districts proceed with remote instruction for an extended period of time without addressing these concerns, they will likely be facing legal challenges for many months to come.
The upshot of these concerns is that, pending action by the legislature, the use of remote instruction does not satisfy school districts’ obligations under the school code. In fact, it may raise additional problems. At this point, if schools are required to close, we recommend that they simply close. This will allow more flexibility to determine your obligations to students, teachers, staff and contractors once the probable length of the closure becomes more clear. It will also allow time for the legislature to take some action, which should greatly clarify how school districts can meet those obligations.