Education Law Notes  

On May 6, 2020, Connecticut’s Higher Education Subcommittee -- which is an arm of the task force that has been charged with recommending appropriate procedures for “reopening” Connecticut in the wake of the COVID-19 pandemic – issued guidelines for the resumption of college and university campus-based activities.  https://portal.ct.gov/-/media/Office-of-the-Governor/News/20200506-Recommendations-to-Governor-Lamont-for-a-phased-reopening-of-colleges-and-universities.pdf?la=en  Although the Subcommittee noted the risks associated with non-residential institutions like community colleges, it primarily focused on the more complex challenges presented by those colleges and universities – as well as boarding schools -- whose students overwhelmingly reside on campus.  In doing so, the Subcommittee grouped its guidelines into three primary sections:  prerequisites for reopening, which the Subcommittee termed “gating conditions”; safeguards upon reopening; and responses to outbreaks of COVID-19. 

Gating Conditions

As noted, the Subcommittee enumerated certain preconditions to reopening campuses, the most fundamental of which was an infection rate that was sufficiently low as to suggest it could be done safely.  Nonresidential campuses, as well as science labs, libraries, and many graduate programs would be governed by the same criteria as the commercial sector, whereas the resumption of campus-based residential undergraduate programs would be predicated upon a sustained low level of new hospitalizations, both in the state and in surrounding communities. 

All colleges and universities would need to have adequate diagnostic tests and the ability to administer them to all incoming students, faculty, and staff – for such mass testing is deemed a requisite component of any campus reopening.  Similarly, colleges and universities would need to have a sufficient supply of PPE, including face masks, as well as the ability of nearby hospitals to handle any surges in infections, a condition over which most colleges and universities would have no control.  They would also need to have in place appropriate protocols for conducting contact tracing should students or employees contract the virus. 

Perhaps the most interesting gating condition is the Subcommittee’s proposed Executive Order, immunizing – an appropriate word given the circumstances -- not-for-profit educational institutions against claims that an individual contracted COVID-19 “during the one-year period immediately following the issuance of” the Executive Order.  While the question as to whether such a proclamation would – when applied to non-public schools – withstand judicial scrutiny in the absence of legislative ratification is unsettled, the rationale is that given the inevitability of someone contracting the virus, not shielding schools would expose them to potentially ruinous financial repercussions.

Safeguards

Noting the significant variations among colleges, universities, and boarding schools, the Subcommittee cautioned against the State imposing a one-size-fits-all mandate for how schools must operate, instead recommending that they be permitted to individualize their respective plans.  At the same time, schools must have a plan, one that provides for the “repopulation” of the campus, for the ongoing monitoring of student and employee health, for the containment of those who test positive for the virus, and – unfortunately – the reclosure of the campus should the virus prove impossible to contain.  Although it is not possible to replicate in full the proposed elements of such a plan, some of the more significant ones include:

1. Staggering the repopulation of campuses, beginning with graduate students and those in professional schools such as medical or law, followed by undergraduates who live off campus, followed by residential upperclassmen, eventually followed by those in lower grades, such as sophomores and freshmen, the Subcommittee’s reasoning being that younger students may not be as inclined to resist the siren song of college social life. 
2. Testing all students, faculty and “student-facing” staff upon arrival, with a subsequent testing within the next one-to-two weeks to insure against false negatives, and with subsequent testing possible during the year, although these recommendations do not apply to non-residential campuses. 
3. Either reserving dormitories or renting nearby hotel space in which to isolate and/or quarantine students as necessary, with a process for feeding them.
4. Determining how to maintain social distancing in classrooms, such as by scheduling additional, but less-populated, classes – which would necessarily increase the faculty work day – or expand class days to the weekend, although the Subcommittee noted that travel restrictions could significantly reduce the international student population, at least in the Fall, which would ease physical crowding.
5. Offering the option of online instruction to international students as well as domestic students who are wary of returning to campus, who have compromised immune systems, or who are over the age of 65.
6. Providing older faculty members, or those with immune deficiencies, with the option of teaching remotely.
7. Implementing enhanced cleaning regimens, which may require renegotiating the terms and conditions of custodial positions.
8. If reliable serology tests become available and it is determined that those who have had COVID-19 are immune, administering such tests in order to determine which students are no longer vulnerable.
9. Appointing a COVID-19 Coordinator who would regularly consult with his or her counterparts across the State.
10. Isolating infected students for fourteen days, concurrently quarantining all roommates and suitemates and initiating contact tracing.
11. Medically monitoring infected students by videoconferencing.
12. Issuing campus-wide alerts should there be outbreaks, which might be accompanied by limitations on groups or, in more extreme cases, confinement to rooms except to obtain “grab-and-go” meals.
13. Establishing protocols for shutting down the campus, either pursuant to a Statewide order or due to a major outbreak on campus.  Of course, at that juncture, schools would have to consider whether releasing students to travel to their homes, including those from other states and other countries might prove a greater public health threat.

Other Considerations – The Fall Academic Calendar

The Subcommittee also noted various scenarios for the Fall 2020 academic calendar, including the continuance of online instruction throughout the first semester, a variation of which is allowing only graduate and professional school students to return to campus during the first semester, with all undergraduate classes being taught online.  Another possibility is starting the school year in October.  Other options for shortening the semester include adding ten minutes to each class, holding classes on the weekend, and concluding the first term at Thanksgiving – giving students a two-month hiatus between semesters and eliminating the need for students to travel twice within the span of a few weeks.  One of the more significant possibilities for graduate students would be eliminating their summer recess in order to shorten the degree track.  Finally, some consideration is being given to splitting the semester into two, half-credit terms – much like high school – so that if a student were to become ill, he or she might be able to salvage at least some credit.

Other Considerations – Practicums

The Subcommittee urged Connecticut to join with neighboring states to petition the State Commission on Collegiate Nursing Education and other relevant certifying bodies to allow schools of nursing to substitute up to 1/3 of the traditional face-to-face clinical hours with simulations in the APRN curriculum.  Finally, it recommends that the State Department of Education make the necessary accommodations in order to ensure that education students are not prevented from obtaining teaching licensure due to the inability to do student teaching.

In short, even upon the hopeful presumption that campuses can safely reopen in the Fall, new and returning students – as well as faculty and staff -- will be encountering a new and uncertain environment far removed from that which was taken for granted just a few, short months ago.