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Our nation’s public schools have spent the past 12 months reacting to a seemingly never-ending flurry of panic, uncertainty, and unrest. Out of necessity, school boards and administrators have spent their time reacting. Adjusting, innovating, changing, and adapting, too, for sure, but in all cases, reacting to the onslaught of events that began to make up a “new normal.”
This summer will be a great time for school boards and administrators to take time for a methodical review to ensure that the district’s policies, practices, and procedures, including those developed reactively over the past year, are legally defensible and in line with federal and state law.
Planning for this work must begin now. Boards need to consult with their district leadership team, legal counsel, and the community to identify policies that must be reviewed. To that end, here are a few areas where boards can take the lessons learned over the past 12 months and make proactive changes that will benefit their schools, students, and communities in the long term.
Districts work with hundreds of third-party providers. Since the pandemic, many have learned the importance of having force majeure provisions in their contracts where services were not required or work could not be performed due to school closures or other pandemic-related reasons. Have your legal counsel make a list of the types of third-party contracts to review and update to protect the district’s interests in the event of a no-fault disruption in services.
Insurance policies and coverage
Most of the critical insurance issues likely have already arisen and been considered during the height of the pandemic. However, it would be wise for districts to review all insurance policies and coverage agreements to determine whether closures and other pandemic-related incidents would be covered.
Experts agree that, even as schools return to some semblance of pre-COVID normalcy, distance learning is here to stay. During school closures, however, many of the legal and regulatory requirements applicable to distance learning were temporarily waived to allow schools to turn to online learning more quickly.
This includes a relaxation of HIPPA’s technical requirements for online provision of physical and mental health-related services, temporary waivers by many copyright holders of restrictions on reading books aloud to groups online, state school attendance monitoring and reporting procedures and requirements, and the online curriculum approval processes. Long-term review of distance learning protocols is necessary to ensure that programs are legally compliant once these waivers have expired.
Issues related to the storage, access, and dissemination of student records arose with the implementation of distance-learning models. Students and parents were providing information to teachers and schools at a dizzying pace with little knowledge of or information related to storage, access, and dissemination. Legally defensible electronic data procedures should be implemented to ensure practices that are consistent with state and federal laws.
Weather-related school closure protocols
One of the few advantages to schools during the pandemic was the fact that the widespread availability of online instruction has resulted in the minimization and, in some cases, elimination of school closure for weather-related and other emergency reasons. In states that experienced winter weather, many schools simply moved to a virtual learning platform on days when snow and ice made travel to and from school dangerous. Extending this practice beyond the pandemic may be beneficial for ensuring that statutory minimum school days are met, but it depends on the general availability of technology and internet access which, in non-COVID times, was not widely available. Districts need to check with their legal counsel and their state department of education to ensure that this practice meets their state’s attendance requirements, and, if so, advanced planning and clear communication with teachers, students, and parents will be essential.
There have been concerns that, in their rushed, large-scale issuance of technology to students, many schools did not fully implement all necessary safety and security measures, such as carefully crafted parent and child acknowledgments and user agreements, proper installation of security software, etc. In addition, some did not ensure that their acceptable use policies and other technology policies were up-to-date or fully addressed take-home technology or virtual learning prior to starting their distance learning programs. Take time this summer to review and revise current policies, procedures, and forms.
Racial and socioeconomic equity related to virtual education is an issue that districts should investigate and then continue to monitor closely. Each school should review its data, including attendance data, virtual sign-in data, documented instances of internet accessibility issues, and other key data points. The equity issue does not stop with virtual instruction, however. The racial justice movements that were prevalent in 2020 bring to light other aspects that should be scrutinized for evidence of racial inequality or disparate impact.
These are a few of the many areas where proactive governance can serve to transform the lessons learned over the past 12 months into legally defensible policies, practices, and procedures.
Erin D. Gilsbach (firstname.lastname@example.org) is a school law attorney with Steckel & Stopp, P.C., Slatington, Pennsylvania.
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