School Districts in the “Virtual” Age of COVID-19

School Districts in the “Virtual” Age of COVID-19 ??How Your District Can Prepare

Jennifer Hall, Associate Attorney San Antonio Office

When I hear the word “virtual” I always think about the 1980 song by The Buggles entitled “Video Killed the Radio Star.” And while video, and MTV specifically, dramatically changed how we listen to music and what is important for musicians to do to be successful, the jury is still out regarding whether the changes school districts have implemented for this new virtual life are permanent or temporary. Since March 2020, all employers, including and especially school districts, have had to revamp everything from the most basic to the most complicated. In certain situations some of the changes have been easier than others but, districts have had to make these changes overnight with little to no guidance and the results, all things considered, have been pretty amazing. This article will discuss how “virtual” has impacted schools through the lenses of Employment and Teaching and give some practical tips and pointers to think about as districts continue moving forward down this “virtual” path. EMPLOYMENT

COVID-19 has required that districts change the method, but not the substance, of many of their processes including the hiring, interviewing and evaluation processes.

ADVERTISING AND APPLICATION No more can there be in person job fairs at colleges to hire newly or about to graduate teachers; however, districts have come up with creative methods by which to market, advertise and interview thanks to the advent of tools like Zoom and Google Meet. Even though the hiring process has moved to a virtual platform, the rules of engagement are still the same. All candidates should complete an application and provide references. Statutes that govern discrimination are still in effect and must be complied with. Applications and the information contained in them should be reviewed and verified, including references. Criminal back ground checks, mandatory in Texas, are problematic as districts are facing a long delay when candidates schedule the fingerprinting session often necessary to initiate the criminal history process and, due to COVID, there is a huge wait. In this instance, the problem of issuing teaching contracts without knowing whether the candidate has a problematic background has become a legitimate concern. At a minimum, ensure there is language in the contract that would allow for separation of the candidate if the criminal background check turns out to be problematic. Several districts have placed these candidates on temporary binding hiring notices and are waiting to issue contracts. Whatever course your district has decided on, double check the provisions of the Texas Education Code, your policy and the language of the contracts to make sure that the District has as many options as possible to extricate itself from the employment agreement.

INTERVIEWS Similar to advertising and application processes, discrimination laws are applicable during the interview process and throughout the entirety of the hiring process. Platforms like Zoom and Google Meet are useful tools in the interview process because they allow for the closest thing to a face to face interview scenario and allow for multiple people, i.e. interview teams or panels, to participate at once. As with any online platform make sure that you are using meeting identifiers and passwords and reinforce with both candidates and the interview panel that the meeting identifiers and passwords are not to be shared. Another option that can be utilized during this “virtual” time is to have the candidates provide a videotaped lesson of themselves teaching. This allows you, as the hiring district, to actually see the candidate in action before extending the candidate an offer.

PERFORMANCE EVALUATIONS With the advent of COVID, and with the use of a virtual teaching platform, performance evaluations of teachers and

staff may have fallen by the wayside; however, they are more crucial than ever. If your district has teachers working in person, whether teaching to a classroom of in person students or teaching from school remotely to students at home, you still have the opportunity to use the traditional walk through/ observation appraisal system; however, take the opportunity to accelerate your evaluation calendar and begin performing the evaluations for those staff members now instead of waiting for the potential unknown that may be created by the winter months: a bird in the hand is worth two in the bush. If your teachers are at home teaching virtually to their students you are still able, and should be, logging in to observe their teaching methods and to make sure that they are complying with the rules established for remote instruction that will be discussed later in the paper. The final suggestion with regard to evaluations is that the evaluation should have a metric to address the teachers’ ability to utilize technology. This has not normally been an item on which teachers have been evaluated; however, not all teachers are equal in their ability to successfully move to online instruction. While many districts worked intensely with their teachers in the spring and summer to prepare for online instruction in the fall, the results were not the same. Online instruction and the ability to utilize technology and technological tools is not something that is going away even after COVID does. A teacher’s ability, or lack thereof, with regard to technology is extremely impactful on the success of student learning and therefore should be measured and evaluated annually.

LEAVE AND ACCOMMODATIONS In addition to the leave provided under the Families First Coronavirus Response Act, which is only effective through December 31, 2020, employees also have traditional leave such as the FMLA available to them. In school districts that have moved to in person instruction, after having been conducting remote instruction since March, there has been an enormous increase in the number of requests to teach from home that have come as leave requests under the FMLA or as accommodation requests under the ADA. While this topic alone could be a whole article in itself, it is important to note that the leave and accommodation processes and statutes surrounding leave have not changed and you should continue to evaluate each leave and/or accomadation request in accordance with your district’s policies and procedures and in accordance with state and federal law. That said, the main request being made of districts is under the ADA and is that teachers and staff be allowed to work from home. Remember not all conditions are disabilities and not all qualify for consideration under the ADA. When the district receives a request for an accommodation, first determine if the individual has a qualifying disability. The second prong of the analysis is to determine whether the individual can perform the essential functions of their job with or without an accommodation. And finally, the employer must engage in an interactive process with the employee to determine what a reasonable accommodation would be. The interactive process is interactive: it is not solely limited to the employee’s desires, but should be a back and forth between the employer and the employee. If the employee’s requested accommodation would be an undue hardship on the employer the employer may reject it. However, it is imperative that this interactive process be reduced to writing and maintained by the district. There are many districts that have accommodated requests under the ADA to work from home. There are just as many that have not. Consult your general counsel as you make determinations regarding accommodation requests to ensure that the district is compliant with all policies and laws.

TEACHING (VIRTUAL TEACHERS AND/OR STUDENTS) Having teachers and students operating virtually in the spring and again this fall required everyone to adapt. Parents were working at home and helping their students online; teachers were teaching from home and often had their own children also learning online or were using technology platforms they had very little previous experience with; and schools had to address everything from having enough technology for their students and staff to use, to remote user agreements, to how grades would be calculated so as to ensure honesty and integrity, to discipline in the online setting.

ACCESS TO TECHNOLOGY For many school districts the main concern initially was ensuring that students had access to both technology and Wi-Fi. In an effort to ensure this connectivity, districts found themselves providing technology to students on loan, got creative about providing broadband services through buses or by entering into partnerships with municipalities, and when all else failed sent paper packets home to students. Even TEA’s Operation Connectivity was utilized and has been of great help to districts in their attempts to help students. In expediting their access to technology, districts need to remember that they cannot charge a student for damage to or loss of technological equipment purchased with the district’s technology and instructional materials allotment. Districts also need to ensure that in their attempt to provide technological equipment in the most expeditious way possible they are complying with all procurement laws. And finally, districts need to ensure that if the technology was purchased with specific money, say for example special education funds, that only special education students are using that technology. Always ensure that the funds used to purchase the technology do not place limits on who can utilize the technology and if they do ensure your district is compliant with those requirements.

REMOTE USER AGREEMENTS Remote user agreements were created by districts for staff and students alike, each addressing specific aspects of the relationship that needed guidance. For teachers and staff it is important that the agreements specify that the employee log in at certain times and in the case of non-exempt employees log out at certain times so that they will not accrue overtime. Additionally, the agreements should address guidelines and standards for teaching remotely, like parameters around what regular communication with students should look like, and requiring compliance with district policies addressing appropriate methods and times for communicating with

students. With issues like the 2020 election and Black Lives Matter it is also important that the remote user agreement address the environment the teacher is teaching from, both their in person classroom and their virtual classroom page. Specifically, issues represented by visible posters, slogans and flags should be addressed in the remote agreement. Remember to have your local attorney provide input and guidance as these issues usually encompass first amendment issues. For students, the remote agreements should address very basic items such as requiring that the student be dressed; that the student not be in bed but must be at a table or desk; and that the student not eat during the lesson to more complicated topics like how a student will be disciplined for disruptive online behavior and the ability to participate in athletics if attending school remotely instead of in person. For student agreements it is important to also have the parent or guardian sign off so that everyone knows the expectations from the beginning.

SCHOOL ISSUES Finally, there are several areas that Districts must address for the benefit of their students and teachers. Districts must assist their teachers with adapting the curriculum to the virtual setting. In so doing, they need to ensure that all agreements with online 3rd party providers comply with FERPA and privacy/confidentiality rights. Whether it is a Google Classroom agreement or another provider agreement the contract must address the 3rd party’s access to personally identifiable student information and the 3rd party’s ability to maintain such information in accordance with confidentiality standards and/or possible public information requests. Districts should have their attorneys review their existing agreements and any new agreements for this specific type of issue. Districts also must work with their teachers to remind them of the Family Rights and Privacy Act and Copyright law as both are implicated in the virtual setting. For students, Districts must review their grading policies and make any necessary changes based on the fact that students are now learning from home and it is more difficult to gauge the student’s actual work product. This is especially true in high school, more so when some students are learning in person and others are learning virtually, and grades can be weighted and affect things like Valedictorian, Salutatorian and local honors. Clarity around the grading process in a virtual learning system is imperative. However remember that any changes made to the grading policy must apply to in person students as well as remote learners equally. Similarly, Districts are always encouraged to review their Student Code of Conduct so that students studying virtually have guidelines for behavior that may be different than when they are in the classroom. In all, while COVID was the catalyst for moving to a virtual learning system, there are aspects of virtual learning and working that will remain long after COVID is gone. The tools and innovations that Districts have adopted over these last 8 months have been hard fought and successful and will only continue to be refined and perfected. Unlike video, that killed the radio star, it seems like virtual has only refined what schools were doing and has, in fact, given schools yet another way to meet the needs of their employees and students.

Jennifer Hall is an Associate Attorney with Walsh Gallegos Treviño & Kyle , P.C. She can be reached at jhall@wabsa.com.