by Dr. Terry Stoops
Former Director of the Center for Effective Education, John Locke Foundation
On March 14, Governor Roy Cooper issued an executive order that directed all public schools to close to students for at least two weeks. He further directed the N.C. Department of Health and Human Services, the Department of Public Instruction, and the State Board of Education to “work together to implement measures to provide for the health, nutrition, educational needs and well-being of children during the school closure period.” Closing schools will slow the spread of COVID-19, potentially alleviating some of the pressure on health care providers and public health agencies.
The N.C. Department of Public Instruction received a waiver from the U.S. Department of Agriculture “to offer reimbursable meals to eligible children in households impacted by unanticipated school closures.” This includes meal pick up at schools and the distribution/delivery of meals via community groups, school district transportation services, law enforcement, and other organizations and government agencies that may be called upon to assist. While school districts do not have a legal obligation to provide meals during school closure, it’s the right thing to do. Both the state and the federal government have urged school districts to maintain food service to meet the needs of disadvantaged children who would otherwise have limited options.
Because it is an optional service, there are no rules that dictate how school districts distribute school meals. Rather, school districts are developing strategies that correspond to the needs of their local communities. The biggest challenge is communication. School districts should use telephone, email, and broadcast communications to disseminate information about the availability of meals over the school closure period. Human services organizations can assist these efforts by referring eligible families to meal distribution locations and other services provided by public, private, and nonprofit entities.
School districts and charter schools are required to adopt a school calendar that includes a minimum of 185 days or 1,025 hours of instruction covering at least nine calendar months. With some exceptions, the school year may not start earlier than the Monday closest to August 26 and may not end later than the Friday closest to June 11. For the 2019-20 school year, the statutory last day of school for traditional calendar students is June 12. State law permits school boards to “revise the scheduled closing date if necessary in order to comply with the minimum requirements for instructional days or instructional time.” But state law also requires school boards to “adopt a school calendar consisting of 215 days all of which shall fall within the fiscal year [and] it may not extend past the end of the fiscal year.” So, no revised closing date may extend beyond June 30.
If public schools are closed for only two weeks, districts should be able to make up the time using their existing flexibility to work within the constraints of the calendar law by adding time to the school day or converting previously scheduled workdays or vacation days to instructional days. If public schools remain closed for several weeks, districts may be unable to meet the minimum instructional time requirements before June 30.
North Carolina General Statutes grant emergency powers to the State Board of Education to “order general, and if necessary, extended recesses or adjournment of the public schools.” It is not clear from the law how such an order would be reconciled with instructional time requirements. As many pundits point out, we are in uncharted territory. That is why the N.C. General Assembly should provide school districts with a much-needed, uniform policy response to COVID-19 closures.
In the event of an extended cancellation of school days, lawmakers should consider at least two options. First, they could extend or waive the fiscal year requirement and allow schools to continue classes beyond June 30 until students meet the 185 day/1,025 hour requirement. Second, they could reduce or waive the 185 day/1,025 hour requirement, thereby allowing classes to conclude by June 30. Lawmakers should consult with the superintendent of public instruction, the State Board of Education, and other stakeholders to determine the best option for children, school personnel, and communities.
Of course, the ideal option is to dispense with the unnecessarily prescriptive start and end date requirements altogether and allow school districts to formulate calendars that better meet the needs of students, families, and communities.
State law requires all annual assessments of student achievement adopted by the State Board of Education and all final exams for courses to be administered within the last 10 instructional days of the school year for year-long courses and within the final five instructional days of the semester for semester courses. For districts that scheduled their school year to conclude on June 12, state assessments for year-long courses are scheduled to be administered between June 1 and June 12. State assessments for semester-long courses must be administered between June 8 and June 12.
If school closures continue through May, then lawmakers should consider waiving state testing requirements for the 2019-20 school year. But doing so also would require a waiver from the federal government. By accepting federal funds, North Carolina public schools have agreed to follow testing and reporting requirements outlined in two major federal laws. The Elementary and Secondary Education Act (currently known as Every Student Succeeds Act or ESSA) requires states to administer annual assessments in reading/language arts, mathematics, and science, as well as a test of English language proficiency for English language learners. The Individuals with Disabilities Education Act (IDEA) includes testing provisions related to special needs students.
In a March 12 fact sheet, the U.S. Department of Education officials state that they “would consider a targeted one-year waiver of the assessment requirements for those schools impacted by the extraordinary circumstances.” Clearly, federal officials would only agree to grant statewide testing and reporting waivers if school closures continue into April or later. Nevertheless, Superintendent of Public Instruction Mark Johnson, N.C. Department of Public Instruction staff and members of the State Board of Education should remain in contact with federal officials to determine if and when waivers will be issued. While states like Washington, Texas, and Georgia have announced the cancellation of state testing without the promise of a federal waiver, the General Assembly should act on legislation waiving North Carolina’s testing requirement only when the U.S. Department of Education has agreed to grant a waiver.
The cancellation of state testing would also require suspension of initiatives tied to test scores. Lawmakers would need to postpone summer reading camps and third-grade retention requirements under the Read to Achieve law. Teachers would not be awarded elementary and middle school reading and math bonuses based on test score growth. Similarly, the absence of growth scores means that districts would not be able to determine which principles qualify for bonuses. In this scenario, lawmakers should establish alternative criteria for awarding bonuses to principals and teachers, perhaps awarding recruitment and retention bonuses to instructional personnel in hard-to-staff schools or teachers in high-demand subject areas like math, science, and special education. Finally, the state would be unable to award school performance grades, which rely on pass rates and growth scores from annual state assessments.
At this point, I believe it is premature for state education agencies or school districts to declare that they will not administer state standardized tests. If the school year resumes in mid-April, there will be sufficient time for teachers to cover material missed during a three- or four-week closure.
While thousands of public school students throughout North Carolina take advantage of online education opportunities, there are four limitations to quickly extending these opportunities to all public school students in an emergency.
The first barrier is technological. The N.C. Department of Information Technology notes that every K – 12 school in the state has high-speed Internet access and 98% are served by dedicated fiber lines, allowing students to access to NCVPS courses and other online content easily. But some residences, particularly those in rural and low-income communities, do not have access to a reliable internet connection. Mostly private internet providers have made notable gains in boosting broadband availability and quality, and companies including Charter Communications and Comcast even have offered free broadband and Wi-Fi access to families with children in school. Still, the Inner Banks, Sandhills, and western regions of the state lack the infrastructure needed to support high-quality broadband. Moreover, low-income families are less likely to have a suitable internet-accessible device at home, making it more difficult for disadvantaged populations to access online content during school closure.
The second barrier is timing. Gov. Cooper issued his executive order on a Saturday, closing schools on the following Monday. Had he announced the closure sometime during the week before, teachers would have had time to print and distribute packets of assignments for students to complete over the period. This is not necessarily an issue for schools that already require students to use online tools regularly. Those teachers can send messages through apps like ClassDojo or Remind and distribute materials using Google Classroom, Edmodo, or Blackboard Learn. In cases where technological barriers hinder access to online tools, however, hard-copy packets may be the only way to ensure that some students obtain instructional materials from their teachers. Because of the timing of the decision, teachers would have to mail materials to families or coordinate pickup and delivery.
The third barrier is planning. Online educators understand how to use internet-based resources to deliver content effectively. It takes experience and talent to learn how to do it well. On the other hand, classroom teachers design lessons for classroom settings. This includes the presumption that students will be in class to receive face-to-face instruction from their teacher and will engage in meaningful interactions with both the teacher and classmates. Even the most skilled classroom teacher with meticulously planned lessons may find that activities that succeed in conventional classrooms may require extensive revision to work well in an online setting.
Author’s warning: Excessive acronyms follow.
The fourth barrier is special education law. The Individuals with Disabilities Education Act (IDEA), Rehabilitation Act of 1973 (Section 504), and the Americans with Disabilities Act (ADA) afford rights and legal protections to students who receive services for a documented disability. This includes instructional accommodations defined in Individualized Education Programs (IEPs) and modifications outlined in 504 plans. Students with disabilities are entitled to these services prescribed in IEPs and 504 plans, and no services provided under these laws can be waived by the U.S. Department of Education.
Violations of IEP requirements infringe on a child’s right to a free and appropriate public education (FAPE) and thus violate federal law. Districts are liable for such transgressions, and infractions may prompt formal legal action by the parent or guardian. Schools have more latitude with 504 plans. Disagreements about teachers’ fidelity to 504 plan modifications typically are resolved through meetings or correspondence with teachers, staff, and administrators.
Recent U.S. Department of Education guidance outlines when schools are required to provide special education services to students who have an IEP or 504 plan.
If an LEA continues to provide educational opportunities to the general student population during school closure, the school must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE. (34 CFR §§ 104.4, 104.33 (Section 504) and 28 CFR § 35.130 (Title II of the ADA)). SEAs, LEAs, and schools must ensure that, to the greatest extent possible, each student with a disability can be provided the special education and related services identified in the student’s IEP developed under IDEA, or a plan developed under Section 504. (34 CFR §§ 300.101 and 300.201 (IDEA), and 34 CFR § 104.33 (Section 504)).
Schools that close due to COVID-19 and do not provide educational opportunities to the general student population are not obligated to provide services to students with disabilities. Special education law introduces a significant disincentive for districts and schools to provide assignments and assessments (online or otherwise) to students affected by COVID-19 closures. The risk of running afoul of federal law outweighs the desire to maintain instruction throughout the closure.
Lawmakers should not mandate that districts employ online education during a school closure unless district leaders can satisfy all four concerns. Even substantial investment in North Carolina’s broadband infrastructure and extensive professional development opportunities for teachers may not be enough to overcome the constraints imposed by federal special education law. Rather, they should encourage parents to set aside time during the day for children to read fiction and nonfiction texts. Parents who do not have access to online texts may obtain books from libraries or request books from their child’s school.
While technology may limit instructional options, it clearly can be employed as a means to interview teachers in lieu of job fairs, recruitment events, and face-to-face interviews. If school closures extend to late spring, districts must begin preparations for using online tools to conduct job interviews for the 2020-21 school year. Unprecedented demand for free video conferencing systems has led to inconsistent service for organizations and companies requiring their employees to use remote working technologies. Lawmakers could provide grant funding to districts for the purchase of video conferencing tools such as Zoom or Webex Meetings.
For current employees, the most recent guidance from the State Board of Education stipulates that school boards are responsible for issuing work assignments for hourly employees, and all salaried staff will continue to receive regular pay during the required school closure. Moreover, school boards may designate workdays over the next two weeks as optional or mandatory. Most districts have adopted a schedule for teachers that combines optional and mandatory workdays with teachers required to take annual leave for absence on a mandatory workday.
According to state law, teachers earn personal leave at the rate of .20 days for each full month of employment and may not accumulate more than two days per year. Lawmakers should consider granting additional leave days to instructional staff by retroactively increasing the personal leave rate for the current school year only. Districts should not penalize teachers who were forced to use leave days to address a medical condition, care for school-age children, or any other activity necessary to preserve the welfare of their household.
If school districts decide to continue paying all current employees, there will be minimal short-term budgetary impacts for counties or the state. As my colleague Joe Coletti points out, “It costs no additional money to continue paying teachers and other state employees for work when school is closed. That money is built into the budget. If the school year runs long, payments will fall into the next fiscal year.” Many economists believe that the COVID-19 outbreak will lead to a recession, which would increase the likelihood that lawmakers would use the unreserved cash balance or Savings Reserve Fund as the source of supplemental funding to extend the school year into the summer months. I contend that summer instruction would be a poor use of these surplus funds. Those dollars would be better spent to ensure minimal loss of employment during the recession that likely will occur during the 2020-21 school year.
The necessity of granting school calendar and state testing waivers, in particular, will depend on whether Gov. Cooper extends school closures beyond the current two week period. If this occurs, then state health and education officials will need to offer additional guidance to North Carolina schools affected by COVID-19 closures. Moreover, legislative leadership should begin formulating a comprehensive strategy to address the need for statutory waivers and the possible need for additional funding for an extended school year.