California's Department of Education and Health & Human Services Agency Issue “New COVID-19 Guidance for K-12 Schools” Providing a Framework for Distance Learning - Encourage LEAs to Ensure Opportunities Are Available to Vulnerable Students

03.18.2020

On March 17, 2020, as directed by Executive Order (EO) N-26-20, the California Department of Education (CDE) and California Health & Human Services Agency (HHS) published online “New COVID-19 Guidance for K-12 Schools”  (https://www.cde.ca.gov/ls/he/hn/guidance.asp).  The Guidance supports the EO’s directives that local educational agencies (LEAs) “[c]ontinue delivering high-quality educational opportunities to students to the extent feasible through, among other options, distance learning and/or independent study”;”[p]rovide school meals in non-congregate settings through the Summer Food Service Program and Seamless Summer Option, consistent with the requirements of the California Department of Education and U.S. Department of Agriculture”; “[a]rrange for, to the extent practicable, supervision for students during ordinary school hours.”  The Guidance is a collection of links to a cover letter and advisory information about Distance Learning; School Meals; and Child Care and Student Supervision. 

Cover Letter

The Guidance includes a cover letter (on HHS letterhead, but jointly issued with CDE) which lauds the efforts of educators grappling with school closures and acknowledges this moment as one of uncertainty for LEAs. Notably, the letter addresses the impact of closures on students with significant behavioral needs, stating that CDE and HHS “will prioritize the mental and socioemotional health of students, and are examining all options for suspending state assessments.” It is unclear whether the letter is specifically contemplating students with disabilities and whether “state assessments” include special education assessments. The letter also states that CDE “will issue updates to this guidance and others every Friday, in addition to issuing new and updated guidance as the need arises.”

The Guidance is a “framework” for distance learning and encourages LEAs to ensure opportunities are available to vulnerable students — economically disadvantaged students, students with disabilities, and English learners — “to the greatest extent possible.”  The Guidance includes links to Appendices with exemplar resources.

Distance Learning

Considerations for Developing a Distance Learning Plan

The Guidance defines “distance learning” to mean “instruction in which the student and instructor are in different locations,” facilitated via different delivery methods, including online interaction, instructional television, check in with teachers, and print materials incorporating assignments that are the subject of written or oral feedback.

CDE recommends that LEAs develop a plan for distance learning and train teachers to implement adopted distance learning strategies.  Recommended contents of the plan include goals; assistance for teachers in sequencing instructional content and in teaching via distance learning; a continuum of delivery options (bearing in mind that not all students have access to online technology); and lesson planning among educators.

Considerations to Ensure Equity and Access for All Students

LEAs will need to resolve access challenges for students who do not own technology needed for online learning. The Guidance notes that, at the same time, the California Constitution’s free schools guarantee prohibits LEAs from shifting access costs to students. Additionally, California law requires that all students have access to appropriate instructional materials.

LEAs must ensure students’ equitable access to distance learning.  However, CDE notably observes that “equitable access does not require that LEAs offer the exact same content through the same channel for all students. Instead of abandoning a promising e-learning approach because not all students will have equal access to it from home, the plan should include an analysis of alternate deliveries of comparable educational content.”

The Guidance also implies it is understandable in the short term that LEAs’ instructional offerings will be realistic and limited, but it is expected that educational opportunities will grow increasingly sophisticated if there is a prolonged closure.

CDE advises that LEAs should assess e-learning accessibility by considering availability of the internet and technology to students, their need for support and assistance to navigate the internet, and teachers’ need for additional support.

Key Considerations and Continuum of Options

The Guidance encourages LEAs to coordinate distance learning efforts with local public health officials and labor partners.  In addition, the Guidance recommends that LEAs consider how to use existing resources (e.g., hardware, WiFi availability, etc.) to transition students to a distance learning environment.  Also, the Guidance encourages LEAs to develop processes for equitable access.  Based on these key considerations, school officials will need to assess the continuum of available strategies, with multiple options.

The Guidance provides a summary of the instructional delivery continuum, which spans from high tech to traditional:  Teacher interaction and assistance through online learning platforms to paper packets of instructional materials for students to work on at home. 

The availability of online technology and internet access among many families is recognized and should be harnessed.

School officials are encouraged to support teachers to effectively differentiate instruction, and meet the needs of students with disabilities and English Learner students.  Examples of model programs — Westlake Charter School, Miami Dade Public Schools, Los Angeles Unified School District — are provided.  The Guidance links to these model programs’ plans and instructional materials.

Considerations for Students with Disabilities

The Guidance acknowledges the challenge of supporting students with disabilities via distance learning, and encourages educators to tailor learning opportunities to provide educational benefits, “to the greatest extent practicable under the circumstances.”

Nevertheless, CDE points out that the federal government has not waived requirements under the Individuals with Disabilities Education Act (IDEA) and that its “requirements, including federally mandated timelines, continue to apply.”

CDE intends to convene “a workgroup of practitioners and experts in special education to assess various models for effectively serving students with disabilities in a distance learning environment” and “[a]dditional guidance will be forthcoming shortly.”

The Guidance offers the following “considerations and suggestions” for supporting the distance learning of students with disabilities:

• Individualized Instruction in Distance Learning Settings. The Guidance recommends that LEAs “generally assess the extent to which its students with disabilities will be able to attain educational benefit under” distance learning options.  It is unclear what “generally assess” means.  Significantly, the Guidance advises that LEAs may need to develop plans to provide some students additional services when regular school operations resume.
• Related Services should be provided “[t]o the greatest extent possible” and “consistent with the student’s IEP. This may involve providing services on one or more school-sites, consistent with social distancing guidelines and accounting for the health needs of students and staff.”
• Assistive Technology. LEAs must ensure students have access, consistent with law, to devices that they typically use at school.
• Nonpublic Schools and Agencies. The Guidance encourages LEAs to continue payment to NPSs and NPAs.  In addition, the Guidance recommends LEAs work with NPSs and NPAs that elect to continue to provide services during school closures.

Considerations for English Learners

The Guidance recommends that LEAs should have a plan for providing language development instruction and services for English learners, aligned to language acquisition programs.

Leveraging Transportation Resources to Support Distance Learning

The Guidance encourages LEAs to consider ways to repurpose and redirect resources to support distance learning activities.  For example, some public agencies are using buses to transport resources.

School Meals

Schools approved to operate the Summer Food Service Program (SFSP) or the National School Lunch Program Seamless Summer Option (SSO) can serve non-congregate meals at school sites that are dismissed or closed by submitting a request to SNPINFO@cde.ca.gov, in comportment with the Guidance’s instructions.

The Guidance recommends locating meal distribution sites in areas that are easily accessible to children eligible for free or reduced-price meals.  These distribution sites do not have to be school sites, but can be other sites convenient to the community such as libraries.

LEAs should communicate in multiple languages the availability of meals as widely as possible via a variety of media.

Child Care and Student Supervision

The HHS, Labor and Workforce Development Agency, and CDE issued Child Care and Supervision Guidance (Child Care Guidance) that recommends LEAs “continue to provide essential services for children and families in their communities” during the closure by collaborating with local partners and other entities.  The Child Care Guidance recommends that LEAs, among other things, develop a plan for ensuring that students are supervised during “ordinary school hours”; consider allowing their school sites for use as critical pop-up childcare programs for working families in need of care for their children; and inform parents of supervision resources. However, this particular guidance from CDE may  contradict decisions by an LEA to shut schools as well as shelter-in-place or similar orders that have been and will be issued by county health officials that notably prevent group gatherings.

CONCLUSION

We will continue to provide additional guidance as it is forthcoming from CDE, HHS, the U.S. Department of Education, the Governor’s Office, and other governmental agencies as we navigate these uncharted waters.  What is critical during this time of uncertainty is that LEAs must continue to thoughtfully consider ways to ensure and provide access and equity in developing and implementing any form of distance learning or alternative educational opportunities for all students.

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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