As Coronavirus Spreads, Many Responses but Few Concrete Answers for Schools

(This alert updates our 2/27/2020 alert: “What Can Schools do to Address Concerns about Coronavirus?”)

The rapid spread of coronavirus disease 2019 or SARS-CoV-2, abbreviated COVID-19 (“coronavirus”) has lead to much fear and speculation as well as a fragmented response among federal, state and local authorities.

Since the publication of our last alert on this topic, we have seen a range of responses from schools and educational institutions nationwide.  While each of these responses is due to the fast pace of changing understanding susceptible to the benefits of 20/20 hindsight, one theme that has emerged is that the response of any given school will vary within a list of possible responses, depending on the community and factors unique to each school.

Here in Michigan, the Governor has announced a state of emergency regarding the coronavirus after two people have tested positive for the disease.  A future e-alert will notify you about the announcement, as well as any additional steps that may be recommended.

So, what is a school district to do?  Some lessons can be learned from schools in other areas where community spread has already been documented. 

New Rochelle, New York – “We’re open, now we’re closed!”

Initially, after a 50-year-old New Rochelle, New York man and his family, friends and a neighbor tested positive for coronavirus, the New Rochelle School District announced plans to stay open, but to sanitize buildings for a day if there were any cases confirmed within their school district.

The school district released a common-sense plan for coronavirus response that addressed communication, potential removal of students and staff, and closure.  That all changed, however, when the governor of New York State reported that New Rochelle is considered a “hotspot” for coronavirus.  Now, based on CDC recommendations on how to handle hotspots, the Governor announced that schools could be closed for “weeks.”  

An announcement on the New Rochelle Schools website states that, by order of the Governor, several New Rochelle schools will be closed for two weeks.

The initial plan released by New Rochelle schools relied on banked snow days to buffer a closure, and anticipated one-day building sanitizing in the event a confirmed case was verified to be in a building.  As the reader can see, changing events and circumstances voided those plans within a weekend.  In the case of New Rochelle schools, the Governor intervened.

California – Multiple “What if” Scenarios

California’s department of public health takes the position that school closure is a local matter.  There, the department of public health has released guidance with multiple scenarios related to school closing, depending on number of people and buildings exposed.  

The State of California policies carry four main recommendations:

• Schools and districts should remain in contact with health authorities for guidance;
• Sick leave policies should encourage teachers and staff to stay home if they subjectively experience symptoms of infectious disease (such as coronavirus or other respiratory illness);
• Schools and school districts should understand what, if any, continuity of education they can provide; and,
• Plan for and develop plans for closing and reopening schools and communicate those plans to the public.

The guidance from the State of California is a useful one to consult as a broad outline for the spectrum of impact coronavirus spread may have. California, just like Michigan, has been contemplating the best course of action, but many unanswered questions remain.

Seattle – Concise Guidance on School Closure and Equal Access

As many have heard, Washington State has also been hit hard with community spread of the coronavirus.  This experience has placed Washington very much in the forefront when it comes to planning. Like California, the State of Washington appears to be taking the position that school closure is a local matter.  The Washington State Office of the Superintendent of Public Instruction recently released a comprehensive letter on school closure and distance learning.  When read alongside the letter released in California, some best practices can be gleaned. 

For example, when it comes to distance learning and equal access, the Office of the State Superintendent in Washington State provides that schools that are closing for any period of time due to the widespread illness should not recommend that the closed school transition to an online learning experience unless each of the items below can be met:

• Ensuring all students in the school or district will have equal access to the learning and required materials, including technology;
• Ensuring the online learning system can effectively support the district’s different learning and teaching needs, including the ability to provide differentiated instruction as well as one-on-one support for students who need it. Regardless of where the learning is happening, supports identified on a student’s Individualized Education Program (IEP) must be provided if the district is operating;
• Ensuring the requirements of full-day kindergarten are met;
• Ensuring students can access the assessments associated with dual credit coursework;
• Providing training to staff, students, and parents and guardians on how the system works and what expectations the district has;
• The ability to track the attendance of both students and staff;
• Ensuring the systems in use are secure and will not allow for the release of protected student or staff information; and,
• The ability to provide school meals.

In addition, Washington State implemented a hard stop to the school year to occur on June 19, 2020.  All schools are required to make up any days missed up to and including June 19, after which they may apply for a waiver.  This process takes a middle road regarding days and hours of required instruction by setting a reasonable date to which schools must run to make up days if they experience closure, but allowing a “facts and circumstances” waiver to be granted so that the school year does not extend far into the summer and disrupt plans of parents and staff as well as the preparation of the school buildings and staff for the 2020-21 school year.

Here in Michigan, Questions Remain

Here in Michigan, there are some well-known and widely-understood considerations that schools must anticipate.

Some examples include:

Labor and Parent Relations

• How can we afford to create so-called non-punitive sick leave policies given both the realities of school funding and the school labor shortage in Michigan?
• If we need to close school, how will that impact our days and hours of instruction?
• Even if our days and hours of instruction are revised to hold us harmless from state aid, will we have to bargain an extension of the school year?
• Will parents stick with us for an extended school year, or will there be a time when attendance tapers off such that we won’t make our daily numbers for eligibility?

Educational Program

• If we need to close a school, must we and if so, in what form do we continue to implement our curriculum?
• How should we ensure we are meeting our obligations under IDEA?

While there are hypothetical responses that can be inferred from other, similar situations, at this time, there is no authoritative guidance on the responses to these questions. 

Here is what we know now.

Michigan’s Department of Health and Human Services (“MDHHS”) has not recommended compulsory removal or quarantine of infected or exposed individuals.  In a joint letter to school administrators from the Superintendent of Public Instruction and the chief administrator of MDHHS, schools are urged to:

• Review school curriculum and ensure plans are adaptable and flexible to ensure the required hours of instruction are completed;
• Examine existing contracts for any employee issues or stipulations if school is dismissed or if staff are asked to stay home if they are ill;
• Investigate how meal programs and after-school programs may be affected; and,
• Engage directly with local health departments to prepare parental communications.

As to exclusion from school, the letter states:

Decisions to exclude a student or staff member, or to close schools altogether, must be taken on a case-by-case basis, in coordination with local health departments. These decisions are local in nature and could vary from district to district or school to school.

This position is consistent with the federal government’s position on school closure, published here, which states: 

Any decision about school dismissal or cancellation of school events should be made in coordination with your local health officials. Schools are not expected to make decisions about dismissal and event cancellation independent of their local health officials. Dismissal and event cancellation decisions should be considered on a case-by-case basis using information from health officials about the local conditions.

The steps and resources, above, do not provide clear-cut, bright-line guidance for each and every contingency and the question that is raised by school districts dealing with the threats posed by widespread illness, such as coronavirus.  However, as the examples above illustrate, there is a wide variety of action that schools, as autonomous local units of government may take.  Indeed, under MCL 380.11a, general powers school districts are charged with and have the power to, among other things: “Providing for the safety and welfare of pupils while at school or a school sponsored activity or while en route to or from school or a school sponsored activity.” 

As the coronavirus storm continues, schools should keep in mind the broad powers that they enjoy to maintain the safety of students and work in conjunction with local health authorities to meet best practices and standards.  Likewise, maintaining an awareness of what other school districts around the State and Nation are doing to address this issue will help each school district better communicate to parents and anticipate questions that may arise from various stakeholders as the school crafts its response.

We can see from the foregoing that the response to coronavirus will be guided at the macro level by general policy pronouncements by health authorities, with the details left up to local school districts.  Here, in Michigan, school districts should begin by asking themselves what they may need to address or change to keep their students and stakeholders safe and informed.  They should expect changing guidance as more is known about coronavirus and, based on this expectation, work with their internal and external experts to anticipate areas where change may occur. 

To the extent that you have questions about the impact of health authorities’ guidance about the coronavirus at the local level, feel free to call your Clark Hill attorney.