The novel coronavirus pandemic has changed the ways we live and work. But perhaps no institution has been affected as permanently and indelibly as public schools. Questions abound. Chief among them are, “When will schools reopen?” and when they do, “Will they be safe?” State and local governments, organizations, individuals, consultants, and experts are offering answers to those questions through guidelines and plans. All offer advice about what to do when our communities and schools reopen and our lives return to “normal.”

The Centers for Disease Control and Prevention (CDC), the leading federal government agency on the pandemic, has indicated that community mitigation at some level is necessary until a reliable vaccine or therapeutic drug is widely available. Even in Steps 2 and 3 of the CDC’s 3-step process of scaling up school operating practices, it recommends limiting attendance to those children who live in the geographical area only (Step 2) or who come from limited transmission areas (Step 3).

Into this cluttered space of recommendations, phases, and “best practices,” NSBA’s new guide, Setting A New Course: A Legal Guide to Operating Schools in the Pandemic Era, offers a candid look at the reopening of schools by examining the legal needs school districts can anticipate. Any such needs will be guided by the new realities on the ground:

1. Classrooms and activities will be less crowded. Any in-person instruction likely will take place with active mitigation measures in place: social distancing of staff and students, reduced class sizes, elimination of events with large crowds like sports spectators, elimination of travel events like field trips, cohorts of students and staff, frequent handwashing and sanitizing, frequent facilities disinfecting, and personal protective equipment (PPE) for at least some staff and students.
2. Some will not return right away. Due to illness, high risk for infection, or changed personal circumstances, some students and staff will not be able to return to school buildings when they reopen.
3. Online programs will continue. Schools will continue to offer instruction, services, and certain administrative functions online as a way of accommodating staff and students, and to free up physical space in school buildings.
4. Schools will provide additional supports. Staff, students, and families will need additional supports and services as a result of pandemic-caused hardships, stress, illness, and learning losses.
5. Schools will have fewer resources. With the anticipated state-level cuts in school budgets caused by the economic downturn stemming from the pandemic, even with additional federal funding that may or may not come, most schools will have even fewer resources to devote to these significant efforts.

These new realities will cause fundamental shifts in traditional physical school operations in many school buildings. These shifts may increase schools’ risk of legal liability in certain areas. As school leaders, you will be developing policies to address these risks, in consultation with your state school boards association and school attorney. Looking Forward suggests issues for school leaders to consider as you develop policies, focusing on legal dynamics in specific areas:

Health and safety

Schools will play a crucial role in their local unified public health strategy to address COVID-19. This will require coordination, communication, some regulatory flexibility at the state level, and privacy protections. A simple first step in this strategy, of course, will be to modify operations based on guidance from national, state, and local health officials. This is likely to include physical distancing, temperature screenings, viral testing in the community, and frequent disinfecting of buildings.

Legal issues that may arise as you craft policy in this area include:

• Privacy concerns associated with temperature and other health checks.
• Potential liability for students and staff who contract an illness at school.
• Contractual obligations for services including transportation.
• Addressing mandatory vaccines and state-permitted exemptions.

Funding

The coronavirus pandemic has altered education in the U.S., prompting districts to address budget deficits for the next school year and beyond. They must determine what expenses are permissible under the federal stimulus grant packages and tackle the inevitable problem of reductions of staff. School districts rely on financial support from states, which are seeing declining income and sales tax revenues that create massive budget holes. Schools will be forced to make cuts. Not only will there be a reduction in money from states for the 2020-21 school year, but there also will be an increase in costs for schools to operate safely as the coronavirus continues to impact states.

In March, Congress passed the CARES Act, which includes over $13 billion of federal grants for K-12 schools for costs related to the pandemic. While this helps alleviate some of the budget shortfalls, it is not enough. And states are taking varying approaches to the distribution of CARES Act funds to private schools, with some following U.S. Department of Education guidance and others following statutory requirements.

Schools are still faced with difficult decisions about how to combat funding and budget issues. The severity of budget cuts will vary by state and district. However, most states will see a significant loss of school staff, which will add to existing staff shortages.

Employment and labor

Pandemic-related operational challenges have spawned significant questions on basic employment law issues. School officials will need to think about negotiating collective bargaining agreements in the age of distance learning; changes that may need to be made to policy and employment contracts to address the new way that schools will educate students; and what coaching and extra-duty contracts will look like when students are not necessarily in person for every activity.

In the CARES Act, Congress passed new sick leave provisions and changes to the Family and Medical Leave Act, which must be considered in addition to accommodations that may be necessary under the Americans with Disabilities Act. Schools also may face civil rights, tort, and workers compensation claims.

Operations and contracts

The old method of operating schools has been turned on its head by the pandemic. Many aspects of district operations will have to be retooled. New legal issues will arise, such as in transportation and food service during a period where many schools will continue to use distance learning, the feasibility of field trips and overnight stays, communication plans, and open records questions.

Equity and discrimination

Since coronavirus cases first surfaced, there has been an increase of news reports regarding the abuse, harassment, bullying, and stereotyping targeted at individuals of Asian descent. When schools reopen, they need to be on alert for these types of inappropriate behavior directed not only toward students, but also toward staff. Schools should become familiar with the U.S. Department of Education’s Office for Civil Rights guidelines and review current policies, procedures, and training on discrimination laws.

The coronavirus pandemic also exposed inequities within public education. Almost every district was forced to send its students home in March 2020 and to transition to distance learning for the remainder of the school year. Switching to virtual education creates many challenges for a significant number of students who are unable to participate in online classes for a variety of reasons. Those reasons include not having the appropriate technology or not having access to the internet.

While most schools are cognizant of the homework gap, they should identify additional sources of funding that will allow them to obtain technology for all students. This will prevent disparate educational outcomes now, and during closures that may result from future waves of infection.

Educating students with disabilities

School leaders have faced particularly challenging obstacles as they serve students with disabilities during school closures caused by the pandemic. Many school-based services require in-person, close contact between staff and students. These services include occupational and speech therapy, personal hygiene including handwashing and toileting, nursing services, and one-to-one support for academic tasks provided by individual aides. They do not translate well to online education.

When school buildings closed in early 2020, families and educators adapted students’ education plans as best they could under the circumstances, providing services like speech therapy through online platforms. But it is clear that many students with disabilities, like their nondisabled peers, are not able to receive the education they were getting prior to the pandemic when services move online.

It is unlikely that a court would hold school districts to a pre-pandemic standard for providing access and special education services during school closures under federal law. However, it is unclear what legal standard will apply if claims are filed against schools for failing to adequately serve students with disabilities during this extraordinary time. Recent guidance issued from the U.S. Department of Education urges schools not to forgo offering educational programs through distance instruction to all students for fear of providing inadequate services to students with disabilities. It also emphasizes that the Free Appropriate Public Education (FAPE) obligation remains, though “the determination of how FAPE is to be provided may need to be different in this time of unprecedented national emergency.”

Virtual learning

With the rapid deployment of online learning, schools encountered challenges in a few key areas that can be addressed through policy and practice going forward:

• Community frustration with online learning platforms, speed of deployment, connectivity, and range of services offered remotely.
• Online shenanigans of hackers infiltrating classrooms and meetings (“Zoom bombing”).
• Compliance with privacy laws as technology provides windows into student and staff home environments, and student information is potentially shared.

School districts can encourage trust in the online learning environments they create through transparent and direct communication with students’ families, staff, and the community. Approved online learning tools should be listed on the district’s website. When a school district deploys online learning consistently, with technology support to households that need it, and provides districtwide policies and training of staff, it is much more likely to be protected from liability. This is because the platform(s) in use will be preapproved, vetted, and “directly controlled” by the district. Challenges arise when staff members deploy applications outside of the district’s approved platforms.

The “new normal” for schools will require a shift towards new ways of operating. As school leaders make these shifts, they should keep in mind the legal frameworks that underpin much of their work. Consultation with school attorney members of NSBA’s Council of School Attorneys is essential for ensuring that school districts comply with legal frameworks that may themselves shift as a result of new or evolving federal, state, and local pandemic-related laws and regulations.

NSBA’s legal guide is a great place to start as you take on this crucial work for public schools. It is available, along with other NSBA legal guides on an array of topics, at www.nsba.org/Advocacy/Legal-Advocacy/Legal-Briefs-and-Guides.

Authors: Tom Burns, Tammy Carter, Jordan Cooper, Francisco Negrón, Jr., and Sonja Trainor are members of NSBA’s Legal Advocacy team.