Governor Orders Certain Funding and Services to Be Maintained During Coronavirus (COVID-19) School Closures

03.15.2020

In response to the changing landscape presented by the COVID-19 outbreak, Governor Newsom – acting on an emergency basis pursuant to Government Code §§ 8567 and 8571 – issued another Executive Order, N-26-20 (“Order”), late Friday, March 13, 2020, addressing impacts of school closures.

The Order recognizes that schools are critical to daily life and that collaboration between local public health and education officials is the best means of determining and balancing competing concerns surrounding school closure decisions.  These concerns include public health, access to food and child care, and the availability of resources.  While there had been rumors earlier in the day on Friday that Governor Newsom might order all California schools closed, that did not occur.  Instead, closure decisions have been left to school districts, county offices of education, charter schools (local educational agencies or “LEAs”), and public health authorities. 

Significantly, the Order provides that normal school funding will continue even if LEAs are not able to maintain a normal school year.  Specifically, the Order streamlines Education Code § 41422, and provides that, upon certification by the county or district superintendent or charter school leader to the SSPI that the closure occurred in order to address COVID-19, the LEA will be entitled to “the same apportionment from the State School Fund as it would have received” had it been able to maintain at least 175 days of school (see Ed. Code § 41422), along with any longer day or year incentive funding the LEA would have normally received. (See Ed. Code §§ 41422(b), 46200 et seq.)

The Order states that continued state funding is intended to support four specific items:

1. Developing and providing high quality education “to the extent feasible” through distance learning, independent study, and/or other options.

• The Order waives any state or local law that might have been interpreted as prohibiting LEAs from offering distance learning or independent study during a school closure. This is important, for example, because information previously provided by the State Superintendent of Public Instruction (SSPI) in response to COVID-19 specified that students could not generate apportionment based on independent study offered during a school closure.
• Offering online, independent study, or other distance learning services, presents potentially significant issues of equity and access, including, but not necessarily limited to, concerns for students with special needs and students who may not have access to the Internet or technology devices at home.
• The California Department of Education (CDE) and the Health and Human Services Agency (HHSA) must issue guidance by March 17, 2020, on implementing distance learning and addressing equity and access issues that may be implicated by differential access to Internet connectivity and technology.
• Also by March 17, CDE and HHSA must issue guidance “[e]nsuring students with disabilities receive a free and appropriate public education consistent with their individualized education program and meeting other procedural requirements” pursuant to special education laws. We are mindful that, during the period of closure, LEAs may be unable to serve many students in literal compliance with IEPs and 504 plans that presumably did not contemplate the current extraordinary public health circumstances.  Accordingly, LEAs will need to determine service delivery systems for these students, taking into consideration the challenges of closure.  AALRR will provide a further Alert updating guidance regarding the provision of services to students with special needs in light of school closures.
• Many LEAs that have closed or are considering closing schools in response to COVID-19 are also considering options to offer educational services via distance learning, independent study, or similar methodologies and strategies, and planning accordingly. However, given the potential equity issues, and potential for related liability claims, LEAs should consider delaying implementation at least until Tuesday March 17, when CDE and HHSA are expected to issue their guidance.  Individual LEAs will each have to make their own assessments of the relative risks and benefits, and of the practical and equity implications, of implementing these alternative means of providing educational services. 

2. Providing school meals in “noncongregate settings” (meaning students take the provided meals off-site) using the Summer Food Service Program and Seamless Summer Option.

• The Summer Food Service Program provides reimbursement to LEAs for providing meals to students under the age of 18 during periods when they are out of school for 15 or more consecutive school days. The Seamless Summer Option encourages LEAs to provide meals in certain low income areas during the summer and certain other school periods through reimbursements.  Both programs are administered by the CDE and sponsored through the United States Department of Agriculture (USDA).
• The Order specifies that the State will provide funding for these programs during COVID-19 related school closures. The Order comes approximately one week after the USDA announced that it will generally be waiving all of its food program requirements in California until June 30, 2020, in order to assist California LEAs to provide crucial meal service options to students in need.
• CDE and HHSA are to issue guidance by March 17 on providing meals in school and non-school settings in a way that protects both students and school personnel, specifically including classified personnel.

3. To the extent practicable, arranging for supervision of students during normal school hours.

• The phrase “to the extent practicable” leaves a lot of room for interpretation. In assessing the provision of child care, LEAs will have to consider and respond to many of the same concerns that led to the decision to close schools, including child and employee health.  Addressing those concerns in the child care setting will present significant practical and legal challenges.  Some school districts, such as LAUSD, have already made plans for daycare centers.  LEAs are encouraged to consult legal counsel in developing and providing any such programs.
• By March 17, 2020, the Labor and Workforce Development Agency and HHSA will develop and issue guidance on how to support parents in caring for their children during usual school hours when schools are closed. The Governor’s Office of Business and Economic Development will also be working with the business community to encourage flexibility by employers to enable parents to care for their children in the event of school closures.

4. Continuing to pay the LEA’s employees.

• The implication of the Order is that LEAs are expected to continue paying all employees. LEAs may opt to have some employees stay home with pay, but the Order does not prevent LEAs from applying usual leave provisions (including leaves without pay, where applicable), or from proceeding with layoffs or employee discipline.  Nor does the Order bar LEAs from requiring employees to perform work in exchange for that pay, and implementation of the other programs and services as specified in the Order will necessarily require employees to perform services. 
• LEAs should work with their legal counsel to address collective bargaining and other legal issues related to alterations in duties, time and location of work, and/or changes to the work year that may be necessary in order to effectively implement services during and after closure of physical schools. LEAs that have not adopted emergency resolutions (or otherwise granted emergency powers to their chief executive officers) are advised to consider doing so in order to preserve flexibility to act quickly on an as-needed basis.  Timely and effective communication with employee organizations is also critical. 

The Order addresses legal concerns pursuant to California law, but it must be noted that the Governor does not have the authority to waive or alter federal law.  As such, LEAs’ implementation of these programs and services must necessarily take into account applicable federal requirements.  Federal government agencies have waived some pertinent provisions – such as those related to the specified meal programs, noted above – and changes to both state and federal requirements may continue in response to developing conditions and the U.S. and California declarations of a State of Emergency in response to COVID-19.

COVID-19 is subjecting LEAs to unprecedented challenges in protecting student, employee, and community health and safety, while continuing to provide quality educational opportunities and address the need for students to receive healthy meals and supervision during ordinary school hours.  This Executive Order endeavors to assist in that process, including by protecting LEA funding.  However, decisions on precisely how to implement these services and programs will need to be made on an individual LEA basis, taking account of the guidance that will be issued by the State this week, and in consultation with the LEA’s internal experts and legal counsel.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR presentation/publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

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