While we saw it coming, in many ways, it seemed to happen in the blink of an eye. Last March, within just a few days, kindergarten classrooms in Kenosha to the hallowed halls of Princeton University went silent. Thousands of schools all across America closed down and tens of millions of students were sent home. Teachers were suddenly forced to come up with new ways to educate, transforming their dining rooms into makeshift classrooms, and parents had to make difficult decisions immediately…including more than two million women who decided to leave the workforce in order to stay at home with their children.

Now more than one year into this pandemic, and two-thirds through another academic year, learning institutions of all kinds are deciding whether it’s finally safe to re-open, and “at what cost”…both literally and figuratively. And what should have only been a medical decision has unfortunately transformed into a political one. But this issue should never have divided our society in the first place. The path to re-opening America’s schools has always been there, but the will to move forward and provide the necessary rules, funds and guidance has not.

President Biden challenged all states to get teachers, school staff and workers in child care programs their first shot by the end of March. To help states do that, the Federal Pharmacy Program prioritized vaccinating all school staff and child care workers. Now in early April, more than 80% of all teachers and school personnel have been vaccinated.

In addition, Congress passed the 1.9 trillion dollar COVID Stimulus Package, with the administration putting a price tag of $130 billion on what K-12 schools still need to ensure buildings can safely re-open and for students to recover their academic momentum lost during the pandemic.

And while the Biden Administration has made it a priority to get children back in school, there is no national law, and until recently, we lacked a national consensus. It has been up to the states, counties and school districts to make their own decisions and those have varied widely…from Maine and Florida who ordered all schools to re-open to Pennsylvania where each district has been given discretion whether to re-open, only use remote learning or a combination of the two.

The first federal data on education during the pandemic became available on March 22^nd in a survey that was conducted by the National Center for Educational Statistics. It included 3,500 schools serving fourth-graders and 3,500 schools serving eighth-graders, and found that nearly half of public schools were open for full-time, face-to-face classes with White children far more likely than Black, Hispanic or Asian American students to be attending in person. Nearly half of all of the White students in this survey were attending school full time, while just 33% of Hispanic students and 28% of Black students were back full-time. The data also raised questions about the quality of education being delivered to those students learning from home, with some schools offering just two hours or less of live instruction per day.

This inequality in education has only widened during the pandemic and changes need to be made to make sure all children are given the same attention and resources. “The world has told Black and Brown people they were three times more likely to die from the coronavirus than other people” said Krystal Barnett, executive director of the St. Louis based Bridge 2 Hope, a non-profit parent advocacy group. Thus many Black and Hispanic parents are hesitant to send their children back to school. More needs to be done to give these parents peace of mind that their children will be safe when they return. To see that this happens, the Centers for Disease Control and Prevention (CDC) continues to revise their guidelines for schools so that school districts know how to best allocate their funds.

These guidelines include:

• Mandatory mask wearing.
• Enhanced ventilation in classrooms and common spaces.
• Daily health checks (e.g., temperature screening and/or symptom checking) of staff and students, as much as possible, and in accordance with any applicable privacy laws and regulations.
• Social distancing in classrooms, with the CDC stating on 3/19/21 that desks now must be at least three feet apart (rather than six feet) to allow more children in the classroom, with all desks facing in the same direction.
• Physical guides, such as tape on floors and signs on walls, to promote social distancing.
• Keeping students in the smallest groups possible (cohorting) and having those groups remain together during the school day while social distancing from other groups.
• A protocol to monitor and ensure adequate supplies to minimize sharing of objects, or limit use to one group of students at a time while cleaning and disinfecting between uses.
• Making sure education remains accessible to students with a 504 plan or I.E.P. (Individual Education Plan).
• Minimizing and monitoring all extracurricular activities, including sports and school events to lessen the risk of transmission in schools and protect in-person learning.

But it doesn’t end there…

Schools must also develop a plan for serving students individually plated, boxed, or wrapped meals in classrooms instead of in a cafeteria, or staggering mealtimes to reduce the number of students or small groups within a cafeteria.

There will need to be more buses, giving students the ability to sit in every other row and the implementation of new protocols at schools which stagger the times and limit the amount of parents and guardians allowed to pick up their children.

And once back at school, teachers must have the peace of mind that they have the support they need. All schools should designate a staff person responsible for responding to COVID-19 concerns and that staff, parents, and students know how to contact this person.

Options (e.g., telework or virtual learning opportunities) for staff and students at higher risk must still remain along with flexible sick leave policies and practices. Schools must educate their staff on these flexible work and leave policies which should encourage sick staff members to remain at home without the fear of job loss or other consequences. Plans to monitor absenteeism of students and staff, cross-train staff, and create a roster of trained back-up staff also need to be put in place.

Basically, the entire school day, and entire school year, needs to be re-thought all across America.

In another recent study conducted in Virginia, 45% of all students did not want to return to in class learning this academic year, with many stating that they didn’t want to be in an environment where they worried more about their safety than they did about their education, speaking to the heart of the issue…for teachers and students alike…that the decision to return to school remains a very personal one with unique individual concerns.

As an attorney with nearly forty years of experience in education law, many of them at Offit-Kurman, I am here to answer your questions about your options in these uncertain and changing times.

If you have a question about this or any education law matter, or if you need legal representation or services, please contact me at sstone@offitkurman.com or 703.745.1813.