To say that this school year has presented educators with unique and complex challenges may be the understatement of the century. Governor Evers’ revised Safer at Home Order, including the school closure component, made official what most have expected would be the case – school is closed for the “remainder of the 2019-2020 school year”. As school districts make decisions about how to handle the final term of the 2019-2020 school year, we thought it appropriate to review some of the topics associated with these decisions.

Since the initial order closing schools became effective March 18, 2020, the Wisconsin Department of Public Instruction (DPI) has stated that it intended to approve school district requests for waivers of instructional hours requirements of state law (Wis. Stat. § 121.02(1)(f)). Such waivers are available and many school districts have already or will be requesting them. Likewise, the federal government has waived reporting requirements pertaining to state accountability standards and educational institution report cards. Finally, on April 15, 2020, the Governor signed legislation into law, which, among other things, waives the state law student assessment requirements (Wis. Stat. § 118.30).

Despite state and federal relief from student instruction and assessment requirements, individual school districts have been developing and implementing a broad range of learning opportunities for their students, including online platforms, work packets, virtual lectures, and numerous other medium to deliver continuing learning opportunities for students outside of the school buildings. Frankly, the efforts and adjustments made by educators, administrators, and school boards throughout the state have been nothing short of remarkable.

Delivery of student instruction and ongoing educational opportunities in a time of extended school closures raises significant questions about how to grade and credit student’s efforts. Student coursework assessment is critical for grade advancement, future placement, and, at the high school level, credit acquisition towards graduation – not to mention intellectual growth. The challenges associated with this truncated year’s instruction require adjustments now and well into next school year.

Considerations when Determining Grading Structure

When schools were initially order closed by Governor Evers beginning March 18, 2020, school districts scrambled to move all curriculum and learning to online platforms and/or to provide other forms of enrichment that students could complete remotely. Moving to online instruction poses a series of complications, many of which were analyzed in our previous Legal Update discussing virtual or online instruction.

Early on in this crisis, the U.S. Department of Education issued guidance stating, essentially, if a school district opts to provide pupil instruction remotely to its regular education population, it must likewise consider its obligations to provide equal access to those opportunities to students with individualized education plans (IEPs), including the provision of FAPE. In some cases, fully implementing a child’s IEP is a practical impossibility. We reviewed this issue in greater detail in a prior Legal Update regarding delivery of special education services.

In addition to concerns about the ability to meet IEP requirements in an unplanned purely online or virtual learning environment, school districts have had to give consideration to concerns regarding different levels of students’ access to the technology necessary to participate in online educational opportunities, and other more difficult to quantify barriers associated with a student’s home environment and/or support system. These equity concerns led to the conclusion, in many locations, that while the school district may provide virtual or online learning opportunities, it would be problematic to consider such opportunities as innovative instructional programs for which participation is required and instructional hours credited.

However, providing optional or voluntary educational enrichment opportunities, or the like, poses its own set of challenges. Many school districts have reported a lack of participation at levels that cannot be explained purely by virtue of the type of equity concerns described above. However, it is often difficult to determine whether the students’ lack of participation is a result of some factor beyond a particular student’s control (i.e., lack of technology, homelessness, lack of family support structure, new household stressors due to COVID-19 related job losses, etc.) or something else entirely.

Emerging Strategies and Approaches

Against the backdrop described above, school districts throughout the state have adopted different approaches to instruction and related assessments. No one approach is inherently better than another; each school district has to make a determination of what is best for its students. No matter what approach is taken; however, there are considerations, discussed below, that will need to be addressed in the context of the chosen approach for the remainder of the 2019-2020 school year.

A few of the primary approaches to the current school year term are as follows:

1.  Provide No Assessment

With school having been closed by order of the Governor, and with DPI’s early position that it would grant instructional hour waivers, schools have no further instructional obligation for the 2019-2020 school year. Some school districts have opted not to provide instruction at all or to do so on a purely voluntary, self-initiated basis, with no grading provided. In this model, students are offered access to educational resources and the ability to, on a self-directed (or parent/guardian directed) basis, continue to further their learning. Teachers may continue to provide instruction and to provide materials aligned with the school district’s curriculum, but no grades are issued to students for work performed.

2.  Pass/Fail or Credit/No Credit (or Some Version Thereof)

Many school districts have adopted a pass/fail option to allow students the opportunity to continue to receive educational enrichment, instruction, and assessment at some level, but at the same time realizing that the ability to assess student work, and/or of students to achieve to their fullest potential, are affected by the circumstances of the school closure and other issues surrounding the COVID-19 pandemic. In these situations, students are still able to receive some level of assessment and to obtain credit (in high school) for classes in which the student was enrolled and that the student was on-track to successfully complete before the school closure occurred.

In some iterations of this approach, students can only improve their grade at the time when the schools were initially closed. Thus, the student would not be penalized for any decline in their academic performance.

Within this model is one permutation providing students with an “incomplete” grade option. School districts that opt for this approach will have to determine what happens to an incomplete in future school years. The designation of incomplete typically involves a determination that the student has not completed sufficient coursework to receive a grade (or put another way, if a grade were assigned, it would be a failing grade), but that the student is provided an opportunity to complete additional coursework such that sufficient work will have been done to earn a grade, or to make a final pass/fail assessment. Using the pass/incomplete approach is de facto pass/fail with a delayed resolution and an implied expectation that additional resources or coursework will be provided for the incomplete to achieve a pass. Any district opting for this approach should be prepared to determine – for each affected student – exactly what an incomplete means and how and when that temporary designation is converted to a final designation. Note that incompletes are historically student/class specific, such that an individualized set of expectations is agreed to relative to the student ultimately completing and receiving a final grade (or not doing so and earning a failing grade). Consideration should be given to how this creates additional obligations and stress on an already stretched educational staff, as well as the students.

3.  Continue Grading Using the School Districts’ Traditional Grading System with Educator Flexibility

Many school districts are continuing to provide regular assessment and grading through a variety of instructional methods, including virtual, online, and enrichment packets. This requires continual interaction with students, contacting parents/guardians, and discretion on the part of the educator to determine the most appropriate approach for each student so as to assess each student’s content mastery. This approach allows for the continuing fulfillment of the school board’s approved curriculum and progression of student learning. The complication with this approach is that it may not adequately account for differing student experiences in the home environment, in terms of access to technology, dependable internet connection, supportive parents/guardians particularly in light of current stressors (i.e., parent(s)/guardian(s)’ loss of employment, illness, etc.). Some school districts have incorporated exceptions for students with these difficulties (such as offering a pass/fail or incomplete option on a case-by-case) or allowed for a compromise grading structure that assures a student’s grade cannot be reduced below where it was when school closed.

The approaches being taken are as varied as the demographics, geography, and local communities that comprise the more than 420 school districts in Wisconsin. Likewise, any approach will require some amount of flexibility as unanticipated individual circumstances arise throughout the remainder of the school year.

No matter what design a school district chooses, it is important to contemplate and formulate plans for dealing with related issues, some of which are discussed below.

Considering Impact on Graduation Requirements

State law establishes minimum criteria for high school graduation requirements. Those requirements, found in Wis. Stat. § 118.33, require that each student attain a minimum of 15 credits (4 credits in English; 3 credits in each of math, science, and social studies; 1.5 credits in physical education and 0.5 credits in heath). State law encourages school districts to require an additional 8.5 credits of electives for a total of 21.5 credits, however, school districts are not obligated to require more than the 15 minimum credits, nor are they limited to only the 21.5 credit requirement. DPI has stated that it does not anticipate that it will waive – at least not automatically – these minimum graduation requirements.

State law requires that high school students also pass a civics examination, based on the U.S. citizenship test, in order to graduate. This is one requirement that DPI has stated it will waive for those districts who request the waiver. In fact, the waiver application is provided on the DPI website’s “Waiver and Alternative Compliance Information” page.

Local school boards have discretion to determine their own school district’s graduation requirements, to establish how credit is earned for coursework, and to formulate the grading mechanisms that are used to evaluate student performance. With this in mind, school districts have several options available for high school students.

A school board may opt to modify its graduation requirements, if its current requirements exceed the state minimum (which most, if not all, do). This may also include modifying community service requirements, if such requirement has been adopted pursuant to Wis. Stat. § 118.33(1)(c) and cannot be fulfilled due to COVID-19 restrictions. Alternatively, school districts may opt to evaluate the outcome of the school year had it not been interrupted and ultimately cancelled. In other words, school districts may grant credit to those students who were on track to complete the necessary coursework or other activities to obtain credits in the specific requirements so that they can meet the graduation requirements. For students enrolled in but not necessarily poised to successfully complete necessary credits at the time of school closure, school districts may choose to implement a set of criteria which, if performed, will enable that student to be granted credit for such coursework.

Every school board has taken action and adopted policies establishing graduation requirements, developing alternative diploma programs, and creating programs for students at risk of not graduating. These decisions will need to be reviewed and taken into account for affected high school students contemporaneously with decisions regarding grading and credit determinations for the current term. While immediate focus is on those seniors whose intended date of graduation is fast approaching, these decisions also impact other current high school students as they (and the school district) plan the remainder of their high school careers.

Considering Impact on Grade Point Average Calculation

For high school students not graduating at the end of this year, a decision will have to be made regarding the affect this term may have on students’ grade point averages. Grade point averages play a significant role in a number of tangible ways for students. Aside from competition for the high honor of recognition for achievement in relation to one’s peers, a student’s grade point average also plays a role in many other facets of student life.

Scholarship programs consider grade point average as part of the selection process. For example, the Wisconsin Higher Educational Aids Board, which administers a number of scholarship and grant programs, including the technical excellence scholarship and the academic excellence scholarship includes grade point average as part of the selection criteria. This requirement is part of state law as well. See Wis. Stat. § 39.41(1m) for academic excellence scholarships; and § 39.415 discussing comparative achievement in technical education coursework for the technical excellence scholarship programs.

Grade point average is also a factor in post-secondary application and acceptance processes. Students who intend to pursue post-secondary education have a significant interest in attaining the highest grade point average they can earn to improve their chances for admission.

Finally, there are other, less obvious benefits that rely upon a student’s grade point average, such as automobile insurance companies who typically provide “good student driver discounts”, many of which require that a student maintain a B grade point average.

For graduating high school seniors, this is less of a concern. However, for the rest of the high schools’ student body, school districts will have to determine how to account for the current term in each students’ cumulative grade point average.


School district personnel have been handed an extremely difficult set of circumstances this year. There is little doubt that the 2019-2020 school year presented circumstances that have never previously been contemplated. There is no clear playbook for the myriad of decisions and adaptations implicated by the pandemic and its profound effect on schools. Educators have put forward tremendous effort in providing ongoing educational opportunities for students while simultaneously, in many instances, learning themselves how to teach in a purely virtual or online learning environment.

These efforts are to be applauded. However, there remains considerable work yet to be done both in completing the current year in the best possible posture as well as preparing to get all students back on track in the new school year.

For questions regarding this article, please contact the author,

or your Renning, Lewis & Lacy attorney.

Geoffrey A. Lacy

Geoffrey A. Lacy | 920.283.0704

Our legal updates provide general information only and are not intended to provide legal advice or create an attorney-client relationship.