The Wisconsin Department of Health Services (DHS) initially ordered all public and private schools closed from March 18, 2020, through April 6, 2020, due to the health emergency caused by COVID-19. DHS extended the school closures on March 17, 2020, for the “duration of the health emergency or until a subsequent order lifts this specific restriction.” The most recent DHS “safer-at-home” order, issued on March 24, 2020, removed any doubt that the current public health emergency and school closures will last for several more weeks in Wisconsin.
In response, many school districts are exploring alternative methods to educate school-aged children, such as virtual instruction or remote learning. The Department of Public Instruction (DPI) has collected many resources for school districts on virtual or remote learning that can be accessed on the District Planning and Implementation Resources for Continuity of Learning webpage. School districts, however, should carefully consider virtual instruction or remote learning programs prior to implementation to ensure compliance with all applicable laws.
Alternative Instructional Programs Generally
For circumstances like the current public health emergency, DPI allows school districts flexibility to implement “innovative instructional design,” which is defined as “an instructional program aligned to school district standards and used to improve student academic achievement through instruction offered outside of the normal school day, virtually, or in an alternative setting.” Wis. Admin. Code PI § 8.001(6g). Some school districts have already created virtual and remote learning programs for use temporary school closures such as prolonged inclement weather or extended student absences due to illness or other emergencies. Unlike formal “alternative education programs” under Wis. Stat. § 115.28(7)(e), which require specific school board approval and other procedural steps before implementation, innovative instructional programming can be implemented by the school district administration, as needed, during short or long term interruptions in school operations. Student hours spent in instructional programming “offered through innovative instructional designs that apply to the entire school or grade level” may also count toward the state’s statutory hour requirements. Wis. Admin. Code PI § 8.01(2)(f).
Virtual Charter Schools During the School Closure Period
Many school districts now operate virtual charter schools. The DHS orders closing all public and private schools expressly allow virtual instruction to continue during the school closure period. DPI has advised that virtual charter schools may remain open during the mandated school closure period if there is no physical attendance requirement. Thus, virtual charter schools that have a physical attendance requirement must either close or excuse all students from the physical attendance requirement.
School districts operating one or more virtual charter schools should consider facilitating communication between their traditional- and virtual-based staff to share resources, curriculum, and teaching methodologies to make virtual education effective and accessible to all students during the school closures.
Alternative Open Enrollment Applications
Between the January school board meeting and the third (3rd) Friday in September, school districts cannot approve alternative open enrollment applications to grades in which the school board established space limitations for the following year. For example, a school district may not approve a fifth (5th) grade student’s alternative open enrollment application in March 2020, if the school board established space limitations in sixth (6th) grade for the 2020-2021 school year. Similarly, school districts cannot accept alternative open enrollment applications if a student’s includes special education or related services in which the School board established space limitations.
The current school closure orders do not prevent school districts from approving alternative open enrollment applications as they would if schools were operating normally. DPI has advised that open enrolled students will be considered enrolled even though they are participating in a nonresident school district’s virtual instruction or remote learning program during a school closure period. DPI is also compiling a frequently asked questions guidance document related to regular and alternative open enrollment applications during the school closure period. DPI will add the open enrollment guidance its COVID-19 Updates webpage once it is issued. https://dpi.wi.gov/sspw/2019-novel-coronavirus
Access to Technology
Student access to technology and the internet may be a large obstacle for school districts, particularly those located in rural areas, that plan to offer virtual instruction or remote learning to students during the school closure period. Additionally, the DHS orders closing public spaces where free internet access is typically available, such as public libraries, may also hinder student access to virtual instruction and remote learning programs. School districts that implement virtual instruction and remote learning must address technology access issues.
The Federal Communications Commission (FCC) is trying to assist with student internet access issues by asking internet providers to take the “Keep Americans Connected Pledge.” More than four hundred (400) companies have signed on and made the following three (3) pledges during the next sixty (60) days of the COVID-19 pandemic:
1. No termination of service to any residential or small business customers because of their inability to pay bills due to disruptions caused by the COVID-19 pandemic;
2. Waive any late fees for residential or small business customers incurred due to the economic circumstances related to the COVID-19 pandemic; and
3. Open Wi-Fi hotspots to any American who needs them.
The access to Wi-Fi hotspots could be a particularly powerful tool for students who have limited or no internet access at home. A list of participating companies can be found on the FCC’s website: https://www.fcc.gov/keep-americans-connected.
Where open Wi-Fi hotspots are not available, school districts may need to supply students with password-protected personal Wi-Fi or similar devices to access virtual instruction or remote learning at home. Other alternatives for virtual or remote learning, such as providing paper materials with instruction offered through teleconferencing, should be considered as a final resort when accessing technology in the student’s home is not possible. However, school districts should make every effort to provide equal access to the virtual environment for all students by proactively addressing technology issues and document its efforts if technology issues are insurmountable during the school closure. Additional considerations regarding access and accommodations apply for students with disabilities, which are discussed more completely in a previous legal update.
Virtual Learning and Homeless Students
The McKinney-Vento Homeless Assistance Act, as amended by the Every Student Succeeds Act (ESSA), ensures that students experiencing homelessness are provided equal access to the same education provided to other students. During the current school closure period, this means that any school district providing virtual instruction or remote learning to students must take additional steps toward ensuring that homeless students have equal access to virtual instruction or remote learning programs.
If a school district provides internet-based learning programs, some of the biggest challenges will be providing internet access and laptops/tablets/iPads/Chromebooks to homeless students. Again, internet providers that are participating in the FCC’s Keep Americans Connected Pledge may be helpful in addressing internet access through open Wi-Fi hotspots. School districts may also consider contacting area shelters and other temporary living arrangements where students experiencing homelessness are located as a means of arranging internet access or storing District provided technology. Additionally, school districts may need to address computer-literacy issues that may make accessing virtual instruction or remote learning difficult. School districts should take steps to ensure all students and parents have sufficient resources and training to access any virtual instruction and remote learning programs being offered.
Compulsory School Attendance
The most recent guidance from DPI states that school districts can, but are not required to, monitor and enforce compulsory school attendance during the school closure period if instruction is offered. School districts may use nontraditional data, such as course progress, instructional participation, system activity, or student logs, to measure student attendance. School districts that choose to track student attendance during the school closures are not required to report such attendance to DPI.
Conversely, DPI has advised that students enrolled in virtual charter schools that remain open are subject to participation requirements even if the authorizing school district’s brick and mortar schools are closed. During the school closures, school districts may remove students from a virtual charter school for failure to participate if they provide the statutorily required notices. Wis. Stat. § 118.40(8)(g). School districts may remove students by transferring them to their resident school district or another school within the virtual charter school’s authorizing school district. After removal, transferred students would receive the same program of innovative instructional design provided to other students enrolled in the same school.
Pupil Records and Confidentiality
School districts should carefully consider privacy issues that may arise when utilizing virtual or remote learning programs. The Family Educational Rights and Privacy Act (FERPA) and Wisconsin law protect the confidentiality of school district records relating to individual students. 20 U.S.C. 1232g; 34 C.F.R. Part 99; Wis. Stat. § 118.125.
There are a growing number of options for video conferencing that school districts could use to provide online instruction. Some of these services advertise different versions that comply with various federal privacy laws, including FERPA or the Health Insurance Portability and Accountability Act (HIPAA). School districts should research video conferencing programs and only utilize programs that protect students’ personally identifiable information. Minimally, a video conferencing service should use encryption to protect all transmissions. School districts should also review the program’s terms of service. Terms of Service agreements should, at a minimum, broadly define protected data, prohibit or strongly restrict the mining or sharing of data, and only allow modification of the terms of service upon notice and consent of the school district.
Promotion/Retention and Graduation Requirements
School districts providing virtual instruction or remote learning should consider how it will monitor student progress for making grade promotion and retention decisions. A school district’s virtual charter school may have valuable insights on making grade promotion and retention decisions in a virtual or remote learning environment. DPI’s website has also collected resources related to monitoring student progress.
School districts will also need to consider graduation requirements for high school seniors if the school closure orders extend through June 2020. DPI has indicated that it does not anticipate waiving the fifteen (15) credit graduation requirement found in Wis. Stat. § 118.33(1)(a). DPI advises, however, that school districts determine locally what constitutes a credit for graduation purposes and encourages school districts to be flexible in determining what constitutes a credit given the extraordinary circumstances. School districts may also want to modify local graduation requirements that exceed the statutory minimum for current high school students. School districts should review Board Policy to determine how local graduation requirements may be modified and whether Board action is required.
In addition to high school credit requirements, Wis. Stat. § 118.33(1m) requires graduating seniors to pass the civics exam during high school. DPI has advised that school districts should make every effort to administer the civics exam using internet-based solutions or other resources for graduating seniors who have not already passed the exam. If, because of extenuating circumstances, the civics exam would be a barrier to graduation, a waiver may be requested from DPI.
There remains a lot of uncertainty about the impact the COVID-19 pandemic will have on Wisconsin schools. The increasingly restrictive orders from the DHS suggest that school closures will continue for several weeks, perhaps through the scheduled end of the school year. Consequently, there is an increasing need for virtual and remote learning options for students. While these programs can be an attractive option due to the current public health crisis, school districts should carefully consider the issues and challenges that accompany any virtual instruction or remote learning program and prepare to address them proactively.
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or your Renning, Lewis & Lacy attorney.
Chad P. Wade
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