Last spring, the COVID-19 pandemic resulted in the unprecedented closure of school buildings and the transition to remote instruction for students statewide. On Aug. 7, Gov. Andrew Cuomo announced school districts and BOCES would be permitted to reopen school buildings for instruction this fall.
On July 13, the Department of Health (DOH) released interim guidance on health and safety measures, and this was followed by further guidance on July 16 from the State Education Department (SED) regarding the structure and implementation of school reopening plans. Federal authorities also issued relevant guidance documents. These challenging requirements had districts scrambling to implement new protocols and procedures in a short period of time to ensure the safe return of students and staff.
Due to many unknown factors related to COVID19, changes in guidance and directives will likely continue. It will remain essential for district staff to follow district protocols developed in cooperation with local Departments of Health. This may require school boards to adopt resolutions to temporarily suspend policies that conflict with executive orders issued by the governor or pass a resolution giving the superintendent of schools the authority to effectuate changes as required by law.
As the school year progresses, school board members will play an essential role as policymakers and as representatives of the district in the community. When parents and other community members reach out with questions or opinions, it is important to listen and refer district residents to the appropriate staff member that may be able to assist with any questions. Keep in mind your district’s “chain of command.”
School attorneys anticipate boards will confront multiple challenges. Here are five:
1. Accommodations for employees
Despite the steps districts are taking to provide staff and students with a safe environment, some staff and students may be reluctant to return to school buildings. This year may be unprecedented in the need to accommodate the unique needs of district staff in accordance with various laws.
For instance, schools and BOCES have received various types of accommodation requests from employees including working remotely, leaves of absence or additional forms of personal protective equipment.
The Americans with Disabilities Act (ADA) and New York State Human Rights Law (NYHRL) require employers to provide qualified, disabled employees with reasonable accommodations, unless doing so would cause undue hardship. Failure to provide such reasonable accommodations could expose employers, and even individual employees/board members, to liability.
Special legal considerations: Employers may also be liable under the ADA and NYHRL for retaliation against those seeking an accommodation. In court, such allegations can be proven by circumstantial evidence such as communication between supervisors and/or board members. Therefore, administrators and school board members should choose their words carefully when communicating orally or in writing about requests for accommodations. It is appropriate to use language and tone that conveys respect for employees’ rights and awareness of the laws that pertain to such requests.
2. Special education
Due to the complications of an unplanned school closure, the instruction provided in the spring may not have mirrored what was on a student’s IEP/504 plan. Now that students are returning to school in one form or another, school districts in the fall will be assessing the need for compensatory services and measuring student regression. As with everything else, there is a cost associated with compensatory services. School districts and BOCES will need to strategize how to implement such services with reduced staff, significant fiscal limitations, and/or limited access to the student while ensuring staff and students are safe.
Special legal considerations: Special education is one of the most litigious areas of school law. Maintaining good communication with parents is time well-spent.
3. Student conduct
Masks are the primary defense against virus transmission at this time. As a result, districts have been advised students should wear masks throughout the school day except for brief mask breaks.
Educating students regarding the benefits of wearing a mask should be the initial step to address any student non-compliance. At the same time, parents should be informed of the expectations and consequences for student refusal to wear a mask.
If a student refuses to wear a mask, he or she should be provided the opportunity to transition to remote instruction if it is available. Another option is to take appropriate steps under the code of conduct. School boards may want to review their codes of conduct to ensure it covers insubordination or conduct that endangers the health and safety of others.
Because so many students will be attending school remotely this year, the district’s acceptable use policy will be even more important. The policy sets rules on how school-provided internet and devices can and should be used. For instance, it is improper for a student to access pornographic sites or use a school-issued device for anything other than educational purposes.
Special legal considerations: The Dignity for All Students Act applies when students are home for instruction, so students and teachers should be reminded that cyberbullying is prohibited and subject to discipline under the district’s code of conduct.
On Aug. 24, Governor Cuomo announced that lower- and moderate-risk, school-sponsored sports (girls’ tennis, cross country, girls’ swimming/diving, boys’ soccer, girls’ soccer and field hockey) in all regions may begin to practice and begin play on Sept. 21, although some local athletic sections have suspended all fall sports and some districts are opting out. When assessing whether to participate in fall interscholastic sports, boards should take into consideration the infection rates in the local region, the guidance from the local health department and the recommendations of the administration. Community input is important to consider, however boards are cautioned to ensure safety is not compromised. Also, districts should follow DOH guidance released on Aug 15, 2020 and as well as guidance from the New York State Public High School Athletic Association.
Special legal considerations: Following all guidelines and advisories is a school district’s best defense if it becomes subject to a legal claim in association with an incidence of COVID-19 transmission in an athletic context.
In April, Gov. Cuomo announced the possibility of mid-year state aid cuts of up to 20% if the federal government did not provide financial assistance, which has not been allocated as of this writing. The state Division of Budget has already reduced aid payments to districts by 20% and it is unclear at this time whether the money is just delayed or will never be paid. The immediate reduction in state aid has resulted in significant strains on district budgets, leading to layoffs in some districts.
The state has provided some relief with respect to how districts may use reserve funds to temporarily relieve the financial burden. With certain limitations, boards, by resolution may authorize the temporary transfer of reserve funds to pay for operating costs or other costs attributable to the COVID-19 pandemic.
The reserve funds which are transferred must be reimbursed from the fund to which the transfer was made within five years with at least 20% of the initial withdrawal returned per year, plus reasonably expected interest. Capital reserve funds can be used for capital costs attributable to COVID-19-related expenses.
In addition to expanding the use of reserve funds, the state has extended the rollover period from five to seven years for bond anticipation notes issued in calendar years 2015 through 2021. During the additional two years school districts and BOCES will be able to reallocate funds initially budgeted for debt services to pay for the additional costs associated with COVID-19.
Special legal considerations: It is worth noting that financial distress does not exempt districts from any legal obligations.
Making decisions during a pandemic will tax school governance teams. Change will be the only constant; therefore, communication with the entire school community and flexibility to adapt to the rapid changes ahead are essential for a successful school year. Stay informed by asking administrators questions and take advantage of external resources such as your district counsel, regional associations and NYSSBA.
Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written Colleen W. Heinrich and Allison Marley of Heinrich 0DUOH\ Ferrara Fiorenza PC.