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When the Russians launched Sputnik in 1957, the United States was up in arms. The quality of public education soon became a major national focus, and President Eisenhower signed the National Defense Education Act in 1958. Several years later, President Kennedy assembled a Task Force on Education to develop a rigorous program to lift schools to a new level of excellence, which was followed by President Reagan’s education commission to address “A Nation at Risk.” President George W. Bush’s approach was called No Child Left Behind, and President Obama launched the Race to the Top.

The need to adjust to shifting federal priorities has turned the nation’s school systems into one of the more nimble forms of local government. When the COVID-19 pandemic hit, schools in New York State demonstrated this, rapidly fulfilling state mandates to provide remote instruction, food service and childcare for essential workers. Public schools did what they have done so many times before: they figured it out and made it work.

Behind the scenes, school attorneys have played a critical role in helping school districts navigate through the COVID-19 crisis. In addition to answering questions for individual school boards and school districts, attorneys from many firms participated in online meetings organized by NYSSBA to discuss both legal and practical issues raised by executive orders as well as state and federal guidance documents. Both NYSSBA and NYSASA interacted with state officials to identify common issues and address them.

At NYSSBA’s 24th Annual Pre-Convention School Law Seminar, I will be part of an opening panel discussing “COVID-19 – An Overview of Lessons Learned.” In many cases, the crisis taught us that contracts, laws and regulations need to be examined and possibly changed for schools to be appropriately responsive to the next crisis – or the next phase of the current crisis. Here are a few issues that my colleagues and I plan to cover:

Elections/budget votes.
The 2020 voting process was implemented on a compressed timeline with absentee ballots issued to all qualified voters. How to determine who was a qualified voter was an enormous challenge. County registration lists were used in school districts that have personal registration and poll lists were used in those that do not. In many cases the county lists were outdated and incorrect, however, and there was no mechanism within the existing voting requirements to rectify that. This was one of many flaws that were exposed in 2020.

Transportation contracts.
Districts grappled with whether to pay transportation vendors after schools closed and buses were not needed. Bus contractors claimed they were losing revenue needed to keep drivers employed and buses ready to roll. Moving forward, schools need to examine transportation contracts to ensure there is language  to reduce payments to vendors when services are not needed and ensure that transportation needs can be met when a closed school is reopened.

Transportation mileage limits.
Some school boards were frustrated to learn that they lacked independent authority to reduce bus service. A district may require children grades K-8 to walk up to two miles, and children in grades 9-12 to walk up to three miles. Any child residing a greater distance than that is entitled to transportation up to 15 miles. Many districts transport from a shorter distance because the voters have approved it. Any such district that wants to reduce transportation costs by increasing the mileage limits for eligibility must put the question to the voters by proposition.

Snow days and vacation periods.
After schools were directed by an executive order to put distance learning plans in place, they were instructed to use snow days and vacation periods in order to avoid the loss of state aid in connection with school closures. The directive left schools vulnerable to claims for extra pay, as most school districts are party to collective bargaining agreements that specifically define the work year for teachers and other employees. In lieu of extra pay, some districts were able to negotiate additional days off to be used in the future. Those districts may have to incur the cost of additional substitute employees. In order to avoid this problem in the future, districts should not be subjected to a loss in state aid if 180 days of instruction are provided (in person and remote, combined) should schools be required toclose due to the pandemic.

With the possibility of a second COVID-19 wave threatening to send students home, we need to reflect upon our recent past and determine what we did well and what needs improvement. With the right adjustments, we can be even better than we were before.

Members of the New York State Association of School Attorneys represent school boards and school districts. Volz is the managing partner of The Law Offices of Thomas M. Volz, PLLC.


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