Education Law Notes  

Schools have already been closed for two months due to COVID-19 and shall remain so until the end of the school year.  The questions about when they will re-open keep coming with no definitive answer.  But, perhaps there is at least some light at the end of this tunnel.  This week the Governor’s office issued the final version of its “Rules for Operating Summer School During COVID-19.”  For districts intending to have summer school, what can they expect?

Superintendents may not open for in person summer school programs earlier than July 6, 2020.  Also, Superintendents must use the CDC Decision Tool when deciding whether to open.  Under this Tool, the district must confirm the following before opening:

• Opening will be consistent with local governmental orders;
• The district will have a plan to protect those at risk and be ready to screen employees and students upon arrival;
• The district will have a plan in place that encourages social distancing and cleaning and disinfecting of facilities; and
• Ongoing monitoring must take place, whereby students and employees are evaluated for exposures, they are encouraged to stay home when sick, their attendance is monitored and there is regular communication with local health officials about exposures and responses to same.

The Governor’s Rules resemble in many respects the elements of the CDC Decision Tool, but they also require school districts to have many detailed plans in place to conduct summer school.  First, there are several general requirements, that include the following:

•  Districts must post their summer school plans and safety protocols on their websites.
•  Districts must appoint a COVID 19 Health and Safety Compliance Liaison to ensure the implementation of all safety measures required by the Rules and implemented by the district.
• Districts must prioritize access to summer school to those who require the most learning recovery support, including students with special needs, English learners and those who had limited access to distance learning during the school year. This is interesting, in that it appears to address “recovery” services above and beyond typical Extended School Year (“ESY”) services.  Indeed, the Rules refer to “remediation and recovery” and the need for any instruction to identify academic gaps and growth (as opposed to simply maintaining already acquired skills).  
• Districts must ensure a medical professional or nurse is available at each school to manage positive and suspected cases.
•  Districts must post signs on how to “Stop the Spread.”
• Visitors will generally not be permitted in schools.
• Students will receive their meals, if any, as they leave the school.  They should not eat inside the facilities.

Finally, school districts must complete a summer school acknowledgment form that must be submitted electronically to the Department of Education by June 15, 2020. 

Assuming they intend to have summer school, school districts must have specific plans in place to address several categories of concern in stopping the spread of COVID-19.  While the following is not an exhaustive list of what the Rules require, it provides school districts with a framework of the multiple tasks they will have to complete before July 6 if they wish to have in-person programs.

Physical Space Setup

• Group size in each classroom should not exceed one teacher and ten additional individuals, with a recommended ratio of no more than 7:1 for students with specialized needs.
• School districts should require distancing of at least six feet per individual and they should reference the Interim Guidance for Administrators of US K-12 Schools and Childcare Programs to strategize how to make this work.
• Desks should be faced in the same direction to reduce transmission.
• Arrival times should be staggered.
• Ensure all facilities are working after what has been a prolonged shut down.
• Consistent teams of students should be scheduled to reduce potential transmission.
• The sharing of materials should be avoided.

Bus Transportation

• A bus monitor must be in place to ensure social distancing and that students wear protective masks.
• No more than one student per seat or row and students are seated in a diagonal formation.
• Bus drivers and monitors must wear masks when students are on the bus.

Personal Protection

• All students and staff must wear a mask while on school grounds, except 1) if wearing mask would be contrary to that person’s health or safety due to a medical condition, or 2) where the parent or guardian is unable to remove or place the face mask on a child’s face.
• Schools must provide a safety mask to students and/or employees who do not have one.
• Where there will be close contact, schools must provide a surgical mask and face shield.

Cleaning and Disinfecting

• Bathrooms should be sanitized (and logged) twice per day.
• Encourage and enforce personal hygiene (hand washing, covering one’s mouth when coughing, etc…).

Health Guidance

• The local health department must be notified of any confirmed diagnosis of a student or staff who has been present in school. We reported earlier about how districts may communicate confirmed or suspected cases of COVID-19 while complying with students’ rights under FERPA. https://schoollaw.pullcomblog.com/archives/complying-with-ferpa-during-covid-19/.
• All students and staff must be screened for any observable illness, including temperature testing; and no person having a temperature greater than 100 degrees should be permitted in the school. 
• If a summer school student or staff member contracts COVID-19, the school must notify the families and staff about the exposure (while protecting the privacy of the student).  Staff and students should be screened for any observable illness, including coughs or respiratory symptoms and to ensure they have temperatures below 100 degrees.  A touchless or disposable testing device should be used.
• School districts may implement a short term closing of the schools should there be a COVID-19 infection.  
• The attendance of staff and students must be monitored to identify any trends that could suggest a confirmed case of COVID-19.
• Bathrooms should permit 6 feet of social distancing.
• Specific bathrooms should be assigned to the same students and staff.
• Do not use bathroom hand dryers.

The Rules in no uncertain terms place a high level of responsibilities on school districts wishing to have a summer school.  In addition to the Rules, the CDC recently issued its own guidance on “Opening America Up Again.” In this guidance, the CDC devotes attention to what schools should do to re-open and advises them to take a gradual approach that implements many of the same things required of Connecticut’s Rules. 

WHAT THIS MEANS FOR THIS SUMMER (I.E., THIS MATTERS EVEN IF DISTRICTS JUST OFFER REMOTE PROGRAMMING)

Under these Rules, it may difficult for school districts to have in place the necessary physical and structural conditions for in-person learning.  However, the Rules include recommendations from the State Department of Education (on page 6) that address the type of instruction that would be provided, and which appear to apply regardless of whether the ESY program is provided in-person or remotely.  Indeed, page 6 of the Rules appear to step beyond what the State Department of Education had released in a “Topic Brief”, and which our colleague, Michael McKeon, aptly summarized (https://schoollaw.pullcomblog.com/archives/virtually-summer-extended-school-year-services-in-the-age-of-coronavirus/), and appear to expect ESY programs not to simply prevent regression of already acquired skills (as per the usual situation), but also address gaps so as to prepare the student for the next grade.  In some ways, page 6 of the Rules also appear to expect remote learning to be more rigorous than what might have been provided this spring, with a 50/50 mix of synchronous and non-synchronous learning.  School districts may have much homework to do even if they are envisioning a purely remote ESY program.                

SO, WHAT ABOUT THE FALL?

 We would anticipate that at some point, further rules or guidance will be issued when “normal” classes resume.  Whether that will take place in the fall as usual or at some other time remains to be seem.  However, both these Rules and the CDC’s Interim Guidance suggest that the schools will look much different if and when they open this fall, as many of these Rules might be a part of what is in place for classes for the 2020-21 school year.  Indeed, the recommendations on instruction that is contained in page 6 of the Rules might be a dry run for new approaches to remote learning.  Until then, stay tuned.