Education Law Notes  

As our regular Education Law Notes’ readers know, we have provided cascades’ worth of updates on federal and state COVID-19 guidance during this year long pandemic.  There are many signs of optimism, as infection rates drop, vaccinations of adults increase, and state restrictions ease. However, there is still much to discuss (and remain attentive to). 

MASKS STILL MANDATED, BUT:  We had written last fall about legal challenges to the school mask mandate by an advocacy group entitled the “CT Freedom Alliance” and a group of parents. After having ruled on various procedural matters and having denied motions to enjoin the mandate, Connecticut State Superior Court Judge Moukawsher recently issued a ruling denying claims by the CT Freedom Alliance and parents that the mask mandate was adopted pursuant to unconstitutional procedures and unconstitutionally interfered with the students’ “fundamental right to an education” under the Connecticut Constitution. Judge Moukawsher further denied the Alliance and parents’ claims that the school mask mandate and will cause “physical harm” and “emotional distress” to the students. 

In issuing his ruling, which was in response to a motion for summary judgment brought by the Alliance and the parents, Judge Moukawsher largely rejected the merits of their substantive claims, noting that “no reasonable fact finder ... could see the mask wearing mandate as irrational,” and further writing that the Alliance and parents were relying upon a “false consensus that masks are useless against COVID-19 and actually spread disease.”  Judge Moukawsher noted that one does not need a “Ph.D. in infectious diseases” to find that as COVID-19 is mostly spread by respiratory droplets, having a barrier such as a mask that stops the spraying of these droplets would be helpful in fighting the spread of the virus.  However, Moukawsher did raise serious questions about the ability of Governor Lamont (and the Executive Branch as a whole) to continue to rely upon emergency powers in imposing mandates such as mask requirements without having any approval or oversight by the Connecticut General Assembly (our legislative branch). While writing that he “believes the governor likely cannot continue to carry out his emergency orders without some form of ratification and control from the General Assembly," Judge Moukawsher essentially punted on that issue in light of a pending case before the Connecticut Supreme Court that addresses the Governor’s overall use of emergency powers and “Executive Orders” during this pandemic. Stay tuned, but in the meantime, continue to follow the Executive Orders and mask up (especially in the schools).     

THE CDC SPEAKS ON (RE)OPENING SCHOOLS:  On March 19, 2021, the Centers for Disease Control and Prevention (“CDC”) updated its K-12 guidance to reflect more recent science on physical distancing between students in the schools.  In a nutshell, the CDC now recommends that, with universal mask wearing, students need only maintain a distance of at least three feet (as opposed to six feet) in most classroom settings.  Specifically, in elementary schools, the CDC recommends all students remain at least three feet apart in classrooms where mask use is universal - regardless of whether community transmission is low, moderate, substantial, or (even) high.  In middle and high schools, the CDC recommends students should be at least three feet apart in classrooms where mask use is universal and in communities where transmission is low, moderate, or substantial.  However the CDC’s new guidance still provides that middle and high school students should be at least six feet apart in communities where transmission is high if “cohorting” is not possible. Likewise the CDC continues to recommend at least six feet of distance:

-Between adults in a school building and between adults and students.
-In common areas, such as school lobbies and auditoriums.
-When masks cannot be worn, such as when eating.
-During activities when increased exhalation occurs, such as singing, shouting, band practice, sports, or exercise. The CDC notes that these activities should be moved outdoors or to large, well-ventilated spaces whenever possible.
-In community settings outside of the classroom.

Among other things, the CDC removed its prior recommendation that physical barriers, such as portable desk shields, be placed between students (although maintaining the prior recommendation that desks be facing the same direction).

What does this mean in Connecticut (besides hurting the business of those selling portable desk barriers)?  Compared to others, our state has been relatively advanced in terms of its aptly named “Advance, Adapt, Achieve” guidance regarding the reopening of schools.  As we have discussed previously, Connecticut had previously noted its preference that schools remain open, even during momentary upticks of infection rates in the community.  While the Connecticut State Department of Education’s “Advance, Adapt and Achieve” guidance remains in effect, the CDC guidance may push schools still in a hybrid model towards full in-person reopening (since the reduction to a three-feet spacing makes maintaining full in-person learning more doable), and the CDC guidance does lean toward maintaining full in-person learning even if there may be increased spread in the greater, as community spread is not synonymous with spread in the schools. Please note: If a school has been operating with a reopening plan providing for six feet of separation wherever possible, there is no need to modify what has been working (and extra precaution is never a bad thing).             

ONE FINAL BONUS ITEM-TRAVEL AND QUARANTINES: As we have noted in our sister blog (“Working Together”), on March 19, 2021 Governor Lamont issued Executive Order 10D which repealed Connecticut’s “Mandatory Travel Advisory and Self-Quarantine Requirements” as part of the Governor’s general easing of COVID-19 restrictions.  However, while the travel advisories (which imposed required quarantining for individuals who traveled out of state) have ceased to be a requirement, they remain “recommended guidance.”  Accordingly, schools may weigh if they wish to modify their travel protocols/policies or keep them in place as is.  To this end, schools may wish to consider keeping some restrictions in effect based upon the latest CDC guidance and the location/situs of one’s travel (i.e., travel to a state with higher rates of infection or where there may have been an improvident/overly ambitious easing of restrictions leading to a resurgence).  Please note: If schools decide to maintain some sort of quarantining requirement, they should be aware that the length of recommended quarantine periods was recently modified.

Pullman & Comley has policy templates, forms and other useful resources available to assist Connecticut schools and employers in considering and implementing their options as they navigate the web of executive orders, laws, regulations, and other state and federal guidance related to COVID-19.  Please contact our attorneys for assistance.