Education Law Notes  

Connecticut’s schools have the unenviable task of having to plan for the “reopening” of schools while dealing with ever-shifting (and apparently end-result driven) federal and state guidance.  Just as schools in Connecticut (whether traditional public schools, charter schools, or approved private providers of special education) were submitting their reopening plans to the Connecticut State Department of Education (CSDE) on July 24, 2020, the federal Centers for Disease Control and Disease Prevention (CDC) issued updated guidance on reopening schools.  Some of this “guidance” was essentially a rhetorical call to arms to reopen schools that made great material for media reports but frankly does not merit any further serious discussion.  However, this rhetoric was accompanied by updated guidance that may have consequences. 

What is the same?  Some of the CDC’s guidance remains (perhaps overly) stringent. The CDC continues to recommend the “cohort” or “pod" model of keeping students together in groups and limiting interactions during the day, although such a model might seem impractical in a high school setting.  Interestingly, the CDC continues to recommend a distancing model on buses (one student per row and skipping rows) that implicitly has been rejected by the CSDE as being too onerous during times of a “low risk” of transmission.  The CDC also continues to preach the benefit of maintaining social distancing (namely, via the much vaunted six feet apart standard) as much as possible, when our state has pretty much thrown in the towel on that model in the classrooms in favor of sole reliance upon mask wearing, as a full-time, in-person return to school model generally does not allow for reduced class sizes and physical/social distancing between students based upon the six feet minimum standard.  The CDC continues to recommend that schools should serve individually plated or pre-packaged meals, which the CSDE’s guidance does not require.  The CDC also suggests that schools “implement flexible sick leave policies and practices that enable staff to stay home when they are sick, have been exposed, or are caring for someone who is sick."  The CDC appears to be disregarding the fact that issues of such leave are already addressed by federal law and (in the unionized setting) collective bargaining agreements, and the federal government is currently NOT providing any financial assistance that would help school districts pay for the additional expenses occasioned by more generous employee leave practices.                  

What is new?  Conversely, the July 24, 2020 CDC FAQ does hint at some relaxation of its former guidance.  For example, the CDC previously recommended closing a school for 2-5 days due to a student or staff member having COVID-19.  Now, the CDC pronounces that “in most instances, a single case of COVID-19 in school would not warrant closing the entire school” and notes that a system of cohorting “would allow for the quarantining of affected cohorts rather than full school closure.”  The new guidance hints that closing a school would only take place based upon the level of contact the person with COVID-19 had with others, along with whether the school’s spread of COVID-19 is higher than the community, or if the school is a source of an outbreak.   This relaxed guidance may not give much comfort to parents, and also puts much more pressure on school administrators in making (possibly life or death) decisions to close a school.  

Furthermore, the CDC’s new guidance pooh-poohs the utilization of symptom screening by the schools, but rather passes the buck to parents to self-screen their own children. Indeed, in separately issued guidance on this specific issue,  the CDC appears to state that universal screening by the schools would be harmful, as “many symptoms of COVID-19 are also present in common illnesses,”  and excluding such students from school would deprive them of “essential instructional and critical development experiences.”  The CDC states:                    

Students who are sick with contagious illnesses should not attend school, but most illnesses do not require the same level or length of isolation that COVID-19 does. Excluding students from school for longer than what is called for in existing school policies (e.g., fever free without medication for 24-hours) based on COVID-19 symptoms alone risks repeated, long-term unnecessary student absence.

The CDC now opines that 1) in schools where “there is minimal COVID-19 transmission in the community, symptom screenings will be more likely to identify people with symptoms who have something other than COVID-19” and is not necessary, but 2) “when there is more community transmission, the likelihood that individuals with symptoms actually have COVID-19 is higher” and “[t]herefore, symptom screenings may be more helpful when COVID-19 transmission in the community is high.”  Finally, the CDC does not recommend universal COVID-19 testing in the schools, since 1) testing “only provides COVID-19 status for individuals at the time of testing” and could miss cases in the early stages of infection or exposure that happens after testing, and 2) implementing testing could “pose challenges” and “potential disruption in the educational environment”  to schools.  The former would be an excuse for not having any type of testing (since testing in any realm-medical or academic- measures what is occurring at that moment), and the latter just appears to be an empty excuse.       

So, what now for Connecticut schools?  The July 24, 2020 deadline for submission of reopening plans to the CSDE is a first step, but schools should now act on their own timelines in making sure they get things right. Any decisions that schools make should be made in consultation with local health officials (and not bureaucratic expectations).  In that note, it would be very helpful for Connecticut schools to have the Department of Public Health’s promised guidance on “specific community school and community indicators” for determining what level of risk (“low,” “moderate” or “high”) exists and whether the prevalent risk level favors a full time in-person return to school, a hybrid of partial return and remote learning, or a fully remote/distance learning model. Pullman & Comley has policy templates and other useful resources available to assist Connecticut schools in considering and implementing their options and navigating the web of executive orders, laws, regulations, and other state and federal guidance related to COVID-19.  Please contact any of our School Law attorneys for assistance.