Coronavirus and Schools: New Legislation Affects Reopening
Last week, the Pennsylvania House and Senate fast-tracked a flat-funded budget and, in an accompanying house bill, a series of school code revisions. The governor is expected to sign both the budget and the bill. Among the revisions in House Bill 1210 is the addition of new school code section 1501.9, which reads, “Beginning in the 2020-2021 school year, the minimum number of school days under Section 1501 shall apply notwithstanding any order issued under a declaration of disaster emergency under 35 PA.C.S. § 7301(c) (relating to general authority of Governor).” The effect of this provision is to end the temporary suspension of the 180-day school term requirement under Act 13 of 2020 and to deny to Governor Wolf the ability to use his emergency powers, as he did on March 13, to close schools again in 2020-2021 and effectively foreshorten the 180-day school term. The problem with this resuscitated 180-day mandate is that the general assembly has offered nothing that would afford schools the ability to implement a full 180-day school term for all students while also adhering to the distancing and low density transportation requirements to which schools, under the guidelines of the CDC, will inevitably be expected to adhere.
Many of you have begun the process of planning a “safe” opening for the 2020-2021 school term. Plans have included half days, alternate days, opening for certain grade levels only, and others. Inevitably, such planning involves the use of mandatory online instruction for which schools would have to count students in “daily membership.” That instruction, in conjunction with lower-density attendance in school buildings, requires schools to exercise authority they currently do not have under the existing school code. As we have advised previously, the only provision for mandating instruction that can be credited towards 180 days of attendance derives from the so-called “flexible instructional days” allowance, which allows approved schools to use up to five days of in-home instruction to complete a full school term when inclement weather and other causes prevent schools from opening. We will need new legislation to authorize schools to use in-school and virtual learning as flexibly as possible to meet the 180-day requirement, together with rules for (a) enforcing compulsory attendance of remote learners; and (b) counting virtual learners in membership and verifying that count for subsidy purposes.
Our planning for the opening of school should not be stalled while we wait for the Pennsylvania General Assembly to act. If past is prologue, the legislation we need will come at the 11th hour. Indeed, it already is the 11th hour. Schools need to let their legislators know—house members and senators alike—of the plans they are making for reopening, so that the legislation we eventually get allows schools the flexibility to move forward with their plans, rather than stymieing them.