While safe, in-person education is the best option for Tennessee students, rising Covid cases across the state have made this scenario difficult to enact. During the 2020-2021 school year, most school districts recognized this reality and shifted to remote learning. The success of remote learning across the state varied from district to discrict, class to class and student to student, but one thing is certain: it protected students from contracting and spreading Covid-19. As we enter month two of the 2021-2022 school year, there continues to be vigorous and, at times, contentious debate in the state about how to best serve Tennessee students. This is even more complicated within the disability community, where it seems parents must choose the best option for their child from a narrow set of bad options. That is why we believe it is important to lay out what is happening in the state, and what it means for remote learning:
What’s happening:
- Governor Lee extended the state’s ongoing public health emergency declaration, which gave him the statutory authority to implement a school mask-mandate opt-out policy across the state.
- State law permits the governor to suspend the authority of local districts during state emergencies, such as the one he extended through October.
- The policy allows parents to, in writing, opt their child out of a mask mandate implemented by districts in the state.
- Several school districts have defied this order and continued to mandate masks in schools
- As of September 12th, at least 25 school systems have closed schools as a result of extensive Covid-19 spread among students
- Children now represent almost 40% of new Covid cases in the state
- Tennessee already reported over 40,000 pediatric cases in August alone
- As of now, school systems must use overflow days usually reserved for severe weather if they are to close.
- Districts have a pool of 10 overflow days they can use in the event of extreme weather, infrastructure issues, etc. throughout the year to avoid extending the school year into the summer
- State law requires schools provide 180 days of instruction within the school year
- It’s unclear how Covid-related closures affect the 180-day rule
- Districts have a pool of 10 overflow days they can use in the event of extreme weather, infrastructure issues, etc. throughout the year to avoid extending the school year into the summer
- There are currently numerous lawsuits against the state over Governor Lee’s mask-mandate opt-out policy
- A lawsuit filed by Shelby County asserts that the policy prevents them from providing healthy and safe public schools
- A class action lawsuit filed by two Shelby County parents of children with disabilities asserts that the policy violates the federal Individuals with Disabilities Education Act (IDEA)
- On Monday, September 6th, a judge temporarily enjoined the Lee administration from enforcing the opt-out policy in Shelby County Schools (through 9/17)
- Parents in Knox County also filed a class action lawsuit alleging IDEA violations
- The Federal Office of Civil Rights is investigating Governor Lee’s policy for potential civil rights violations
- There are lawsuits against mask mandate bans or opt-out policies in at least 7 states nationwide, and OCR investigations in at least 5
- Several districts in the state are defying Governor Lee’s policy and enforcing mask mandates
- In 2020, districts were permitted to establish Continuous Learning Plans (CLP’s), which outlined how schools would implement instruction virtually, which were evaluated and approved (or denied) by the state
- An April 2021 change to the State Board of Education (SBOE) rules limited the use of CLP’s during the 2021-’22 school year to instances when four criteria are met:
- A state of emergency issued by the Governor
- Issued August 6th, extending to October 5th, 2021
- The above emergency disrupts “traditional operations” of one or more schools in a district
- 25 districts have had to close schools within the first month of the school year
- Districts provide notice of intent to implement CLP, including justification for implementation
- There have been at least 14 waiver requests from Tennessee districts
- The TN Department of Education (TDOE) approves the CLP and grant’s permission to implement
- TDOE Commissioner Penny Schwinn has rejected 7 such requests thus far
- A state of emergency issued by the Governor
- Governor Lee and Commissioner Schwinn have both stated that schools should not be pivoting toward using virtual education, instead using overflow days (without instruction) to control Covid
- Both have since made contradictory and confusing statements about these permissions
- It is unclear what the specific criteria are for approving or denying a CLP
- An April 2021 change to the State Board of Education (SBOE) rules limited the use of CLP’s during the 2021-’22 school year to instances when four criteria are met:
- The Tennessee General Assembly passed the Virtual Public Schools Act (VPSA) in 2011 to lay out procedures and guidelines for LEA’s to establish and operate long-term virtual schools
- The legislation allows districts to establish a virtual public school operating under the supervision and responsibility of the district
- There are 57 total virtual schools operating in Tennessee, with 29 new schools approved over the summer of 2021
- Districts can enroll students in their virtual public school regardless of whether or not the student lives in the district that operates the virtual school
- The legislation allows districts to establish a virtual public school operating under the supervision and responsibility of the district
- In July 2021, the State Board of Education revised the rules governing the VPSA
- The primary change was the addition of a section outlining “virtual education programs”, which are different than a virtual public school
- Virtual education programs are singular or serial courses available for four specific purposes:
- Academic remediation or enrichment
- Education services for homebound students
- Education services for quarantined students
- Education services for students in alternative schools
- Participating students are not allowed to receive the majority of their education services in a given semester from the virtual education program
- Students do not have to be enrolled in a district’s virtual public school to participate in a virtual education program
- Virtual education programs are singular or serial courses available for four specific purposes:
- The primary change was the addition of a section outlining “virtual education programs”, which are different than a virtual public school
- On September 17th, the SBOE is holding a rulemaking hearing for two changes to SBOE rules related to schools and Covid
- School Health Policies – this change permits students who are required to quarantine as a result of possible exposure to Covid to temporarily participate in remote instruction during the quarantine period
- LEA’s may only permit Covid-quarantining students to participate
- Virtual Education Programs – the rule change describes the above additions to the Virtual Public Schools Act of 2011
- It’s likely that these two rules are paired for the purpose of allowing students who are required to quarantine access to temporary remote instruction
- School Health Policies – this change permits students who are required to quarantine as a result of possible exposure to Covid to temporarily participate in remote instruction during the quarantine period
What it means:
- It is clear that safe, in-person education is the best option for teaching and learning for all students.
- It is also clear that there are numerous scientifically proven mitigation measures that districts can take to help reduce the spread of Covid, including universal masking, social distancing and infrastructure modifications (air filtration, etc.)
- Some of these mitigation measures, when implemented at the community level, can also support the possibility of safe, in-person education
- Some of these mitigation measures may also have negative impacts for students with disabilities. For example, traditional masks may interfere with speech/language therapies, or masks may present sensory issues for some students.
- It is also clear that there are numerous scientifically proven mitigation measures that districts can take to help reduce the spread of Covid, including universal masking, social distancing and infrastructure modifications (air filtration, etc.)
- With high rates of Covid transmission across the state, which has led to significant school staff shortages and large numbers of students quarantining, it’s important to understand what options parents have for remote instruction. There are essentially three buckets of remote learning:
- 1) Students may enroll in virtual public schools on a full-time basis
- 2) In the event of a localized school outbreak, districts may construct Continuous Learning Plans (CLP’s), the state may approve them, and districts may temporarily move school operations to remote instruction.
- 3) Students may participate in temporary virtual education programs, given that they do not amount to the majority of instruction during a semester and that the student meets enrollment criteria outlined above