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Distance education, also referred to as distance learning, allows students to use the Internet or other technology to take courses and receive instruction from remote locations. The State Education Department has encouraged school districts to use distance learning to offer more advanced placement courses and has made $20 million of federal Race to the Top funds available for this purpose.

For instance, a coalition of 34 school districts led by Jefferson-Lewis BOCES is using a state grant to build a distance education program with The College Board and Syracuse University. Other school districts are using distance learning to offer make-up course credit, home-bound instruction, tutoring services, and other programs – at relatively low cost.

Creating a successful distance learning program requires more than a strong academic vision, adequate infrastructure and a crack IT team. Sound legal advice is also essential for both inhouse and BOCES-provided distance learning programs. There are a number of collective bargaining and other labor-related issues that should be considered and addressed, if necessary.

Subcontracting considerations
The state’s Taylor Law protects union members from losing their jobs when a public employer, such as a school district, decides to subcontract work. The law seeks to prevent public employers from outsourcing work that is substantially the same as a service formerly performed by union members, when the outsourced work was exclusively performed by union members in the past.

If a school district elects to subcontract for distance learning services with an entity other than a BOCES, subcontracting without negotiations could be unlawful under the Taylor Law. Generally, a school district can insulate itself from an illegal subcontracting claim by contracting with the BOCES for the provision of special services, such as online coursework, consistent with Education Law section 1950. A school district’s decision to contract with BOCES for academic and other programs and services is not a mandatory subject of collective bargaining.

However, it is possible for a school district to voluntarily waive its right to contract for services from the BOCES in the context of collective bargaining negotiations. For example, if your collective bargaining agreement contains a provision that prohibits the school district from subcontracting for credit-bearing courses, an arbitrator could fi nd that negotiations are required prior to contracting with any entity for such services, including the BOCES. For this reason, before making any decision to contract with a BOCES for distance education services, the school attorney should review the applicable collective bargaining agreements.

School districts should also be aware that if teachers, teaching assistants and/or teacher aides are excessed as a result of the district’s decision to subcontract with the BOCES for a distance education service, the employees may have recall rights under the so-called BOCES takeover provisions of the Education Law. Sections 3014-a and 3014-b of the Education Law state that certain staff members are entitled to job protection in the event of a BOCES takeover of a program formerly operated by the school district. Should a school district subcontract with the BOCES for distance education services and excess staff as a result, the BOCES may have an obligation to employ the affected staff.

For example, suppose a district contracts with a BOCES to offer several AP language classes including AP French via distance learning and that nothing in the collective bargaining agreement prevents this. If the district simultaneously decides to layoff or reduce the hours of a teacher who had been teaching an AP French class, the teacher could have job protection rights under the Education Law.

Job protections also may apply if a school district ceases use of a BOCES service and takes over a program formerly operated by the BOCES. The school district may be required to reappoint staff members who are excessed by the BOCES to vacant positions or add them to their preferred eligible lists.

Distance education programs operated “in-house”
Where a school district opts to offer a distance education program “in-house” and use union members in the provision of such services, there are a number of contractual provisions that could create impediments. They may not necessarily prevent use of distance learning, but they could prevent the school district from achieving any true cost savings.

For example, suppose district A has a French teacher, district B has a Spanish teacher and district C has a Latin teacher. Suppose further the districts want each teacher to lead a distance learning course for students in all three districts. While this sounds like a way to pool resources to increase course offerings, it could run afoul of provisions in collective bargaining agreements.

Labor contracts between school districts and teacher unions commonly contain clauses that restrict the number of students that can be enrolled in a particular class or the number of students for whom a teacher may be responsible during the work day, work week, or work year. While online course offerings and academic services may be an effective means through which one teacher can deliver instruction to a greater number of students during a given semester, a labor union is likely to invoke these types of clauses to enjoin the district from doing so, or to allege a contract violation through the contractual grievance procedure.

Also, some contracts contain language that governs the terms and conditions under which distance education programs may be offered. Collective bargaining agreements may also contain contract provisions governing job security, or clauses that set forth mandatory staffing requirements. Job security clauses restrict a school district’s ability to excess staff. Similarly, staff size provisions may require a school district to maintain a minimum number of faculty members in a ratio to student enrollment. These types of clauses can be invoked to prevent school districts from acting to reduce staff, notwithstanding a school district’s reduced need for instructional personnel as a result of the transition to distance education programs.

Before a school district moves in the direction of distance learning, all potential contractual limitations and restrictions should be analyzed because violations of these clauses may subject a school district to grievances, arbitration and/or litigation.

Practical considerations
Understandably, unionized employees may perceive distance learning as a threat to their job security. Generally speaking, unions are not receptive to any programmatic changes that could result in layoffs, a diminished need for instructional staff, or the reassignment of work to persons or entities outside of the bargaining unit. However, the idea of using distance learning to expand, not replace, academic offerings could appeal to faculty who see the importance of ensuring all students graduate college- and career-ready.

Conversations and possibly negotiations with teachers will be essential in order for a successful distance learning initiative to take root in your school.

Even if your district has no immediate plans to implement distance education, it may want to do so in the future. For that reason, your board should ask your legal counsel to analyze relevant provisions of existing collective bargaining agreements prior to entering the next round of negotiations. This will enable you to create an informed bargaining strategy.

If your attorney foresees contractual or subcontracting concerns with the introduction of a distance learning initiative, these issues should be confronted head-on in negotiations. As a result of the Taylor Law, unions are a necessary partner in ensuring a smooth, effective, and effi cient roll-out. Their cooperation may be critical in order to realize programmatic benefi ts and potential cost-savings associated with distance education. If the contract is not up for negotiations, the district may seek to bring the union to the table for a side agreement to enable distance learning now.

Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Regina M. Cafarella of Ingerman Smith, L.L.P.