Education Law Notes  

The Governor has now issued Executive Orders closing down restaurants, gyms and theaters through April 30.  Gatherings are limited to those under 50 people, and President Trump suggested gatherings should be no greater than 10 people.  As a return to regular school seems less likely in the near future, schools need to devise creative ways to provide high quality education to their students.  Yesterday, the Connecticut Commissioner of Education issued two letters aimed at making this easier for schools to accomplish.

Last night the Commissioner issued a letter to all districts stating: “districts should engage immediately in providing continuity of educational opportunities for students and may end the school year at their regularly scheduled end date.”  This appears to mean that districts no longer need to request a waiver in order to use distance learning as days of instruction.  Earlier in the day, the Commissioner stated that districts should “[e]ngage students and families as soon as you can” and that districts should “not wait for a perfect plan to be developed to start your distance learning.” 

Districts, however, still need to comply with the myriad of special education, labor and employment and antidiscrimination laws as well as collective bargaining agreements. 

Special Education

The Office of Civil Rights (“OCR”) issued guidance today regarding nondiscrimination on the basis of disability (and other protected categories) in the age of distance learning.   First, OCR made it clear that during a time period when schools are closed, PPT meetings do not need to be in person.  OCR also stated that “If an evaluation of a student with a disability requires a face-to-face assessment or observation, the evaluation would need to be delayed until school reopens.”  Evaluations and reassessments that do not need face-to-face contact may continue while schools are closed as long as there is parental consent. 

As discussed in a more depth blog by my colleague Michael McKeon, once districts begin to provide distance learning, students with IEPs and Section 504 plans are entitled to continue their services.  OCR, however, has recognized that not all special education services will be able to be provided during a school shutdown with distance learning.  Thus, OCR clarifies that “If feasible, the student’s IEP team, or the personnel responsible for ensuring a free appropriate public education to a student for the purpose of Section 504, can be utilized to assist with the effort to determine if some, or all, of the identified services can be provided through alternative or additional methods.”  This could include the provision of assistive technology to disabled students to enable them to access distance learning as well as provision of services on-line or via telephone. 

The takeaway here is that there seems to be recognition that not all services, especially those that can only be provided by face-to-face interaction, will be able to be provided through distance learning.  Districts should make their best efforts to provide those services that can be provided and may need to determine how to provide compensatory education after the crisis is over.

Equal Access

Districts need to continue to address issues of equal access to technology as they develop plans for distance learning.  The use of internet-based instruction may not be the best model for all districts, and districts using internet-based programming will need to ensure that all students have access to the internet.  As most public places such as libraries that provide free internet access are currently closed, this may mean providing technology to students who would not otherwise have access.  Districts should also be thinking about what training may need to be provided to families and staff to successfully move to a distance learning model.  Districts might think about other community resources such as public access television and radio to provide instruction as well. 

Employees Providing Distance Learning

Few, if any collective bargaining agreements address the issue of what to do when schools are closed for a prolonged period of time.  My colleague Stephen Sedor recently discussed the myriad of labor and employment issues facing schools at this time. Districts should be actively discussing with their unions how to address these novel issues.  Attorneys in our School Law group can assist in drafting Memorandums of Understanding with your unions as needed. 

As the state and federal governments further remove barriers to allow districts to move to distance learning for what may be several weeks or even months, districts need to be moving forward with plans on how to best do this within their communities.  Feel free to contact any attorney within our School Law group to assist you with your questions about this evolving situation.