September 4, 2020

Back to School Includes Some Fascinating Legal Questions

by Mark Weiker, Esq., Albeit Weiker, LLP

This school year is starting like almost none other. Lest we forget that over a century ago, during the 1918 Spanish influenza pandemic, the vast majority of urban school districts were temporarily closed.

So 2020 is not perfectly unique. Nonetheless, from a legal perspective, this year has raised some fascinating questions related to education. This article will attempt to address some of these questions and provide some back-to-school guidance for parents.

Is it legal for public schools to offer only online instruction?
Yes, at least for most students. Some people may be surprised to know that there is no fundamental right to education in the United States. In fact, education itself has no explicit or implicit protections contained in the U.S. Constitution. This is partially due to the localized system of education adopted early in the United States, which intentionally delegated control to the states--and later to county and local boards of education.

Even closer to home, the Ohio Constitution only requires a “thorough and efficient system of common schools throughout the state.” Ohio requires students to attend school and requires public school districts to enroll students residing within their district, but these schools maintain substantial discretion in how they deliver the education. Without a constitutional right to education, schools are within their discretion to alter the delivery method for rational reasons, such as during national emergencies, natural disasters, or to avoid the risk of viral infection to students and staff members.

How about for special education students?
The inquiry is slightly different for students with disabilities. While the state and federal constitutional protections are equally void, K-12 students with disabilities are protected by a federal law known as the Individuals with Disabilities Education Act (“IDEA”). This law contains substantial procedural protections to assure that students with disabilities are provided a “free and appropriate public education” in their “least restrictive environment.”

To satisfy their obligations under IDEA, schools need to make in-person services available to students who cannot effectively receive virtual instruction. The inability to receive virtual instruction can exist for various reasons, but one can imagine the challenges virtual instruction would raise for students with significant cognitive delays, autism, attention deficits, or serious health impairments, by way of example.

The good news is that IDEA affords students with disabilities and their parents powerful rights. First, parents must be invited to participate in selecting the appropriate “placement” for their children, which includes the manner in which instruction will be delivered. Next, a number of no-cost procedural protections exist if a parent disagrees with a placement decision, including access to facilitators and mediators, and the ability to file a complaint with the Department of Education, with options to request an administrative hearing and an expedited hearing. To exercise these rights appropriately, parents must exhaust these administrative avenues before filing a complaint in court.

So, parents of children with disabilities are well equipped under IDEA to challenge the appropriateness of virtual learning and related services, assuming they follow the appropriate procedures.

Can public schools require students to wear a mask?
Yes, for most students. Mask requirements fall under a public school’s discretion to implement student dress codes. Ohio law clearly indicates that public schools may adopt dress code policies in order to maintain a safe learning environment for students. Dress codes must be reasonable in scope, however, and courts will only consider dress code policies overbroad if the restrictions imposed on students are not necessary to prevent a substantial disruption, or if the restrictions are not related to the promotion of health and safety.

Additionally, an Order issued by the Ohio Director of Health on August 13, 2020 now requires masks for all K-12 students in Ohio, which all but cements a public school’s authority to require them for health and safety reasons. The August 13, 2020 Order contained several enumerated exceptions to the mask requirement, including exceptions for children with certain medical conditions, mental health conditions and disabilities.

Can public schools require students to sign waivers in order to return to classes?
No. Public schools cannot require waivers from students in order to receive any form of instruction, whether that instruction is delivered in-person or virtually. This is because students have a right to attend public school where they reside (and to receive instruction in whatever manner it is delivered), and that right cannot be conditioned on signing a waiver.

Parents of students with disabilities should also be wary of signing a waiver in order to secure an appropriate educational placement for their children. The signing of a waiver in exchange for receiving instruction begs for the defense of duress because parents would be forced to choose between signing a waiver and sending their children to school.

Can schools require students to sign waivers in order to play sports?
Yes. On the other hand, extracurriculars, including athletics, have long been considered a privilege in Ohio. Students elect to participate in extracurriculars, and there is no requirement that public schools offer extracurriculars in the first place. Therefore, schools may appropriately request waivers from parents and their children in order to participate in extracurriculars.

However, participation waivers for extracurriculars should not extend to waiving claims that could arise from classroom-related activities. Therefore, it is advisable for parents to be cautious about signing waivers for extracurriculars that release the school from liability for activities that occur in the school building and/or classroom. The claims waived should be limited those claims that arise from the increased risk of exposure from extracurriculars alone.

Is paid leave available if I need to stay home from work to be with my child?
Yes. The Families First Coronavirus Response Act (“FFCRA”) requires covered employers to provide employees with paid sick leave and expanded family and medical leave for specified reasons related to COVID-19. The requirement is effective from April 1, 2020 through December 31, 2020. FFCRA applies to private employers with fewer than 500 employees, and for certain public employers, including public schools.

Under FFCRA, paid leave is available for employees who are unavailable to work or tele-work because they must care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19. The Department of Labor has clarified that schools are considered closed under FFCRA when offering only online instruction.

With the combination of paid sick leave and expanded family medical leave, employees covered by FFCRA are entitled to a total of up to 12 weeks of paid leave. Employees taking leave for this reason must be paid at 2/3 their regular rate, up to $200 per day and $12,000 in the aggregate (over a 12-week period). Covered employers are entitled to dollar-for-dollar reimbursement through tax credits for all qualifying wages paid under the FFCRA.

These and other unique questions will continue to arise as parents and schools navigate the choppy waters of education in 2020.