When Decisions Matter.

School Choice in Year Two of COVID-19

A year ago, in October 2020, I authored an article entitled, The Students Most Affected by the New Era of School Choice. This Legal Intelligencer article outlined how the novel coronavirus (“COVID-19” or “the pandemic”) impacted the educational placements of students, especially students with disabilities, given the expansion of learning options due to the pandemic.  A year ago such educational options included: in-person instruction for a full five days a week; in-person instruction on an alternating schedule, remote instruction for those days when students were not in physical attendance; staggered in-person instruction between morning and afternoon sessions; or fully remote.  As I wrote, “The landscape of education did not escape [the impact of COVID-19] and its profile is also impacted by these COVID-19 dynamics – on the one hand forcing parents and students out of their comfort zones, routines, and preferences, and on the other, ushering in a new genre of school choice.”

What does the landscape look like a year later? Modes of educational delivery are prisoner to the political rifts reflected in the blue and red pattern that reflects the state of our country. The stakes have seemingly risen: who and how many involved in education will be affected by the pandemic-focused health and safety responses of local and state government this year? The answers to this question, if posed last year, would have focused primarily on the pandemic’s impact on students: learning loss; lack of engagement; isolation; loss of social and ceremonial opportunities (such as graduation ceremonies and proms) and social, emotional, and mental health deficits. Coming in second would have been parents and teachers, followed closely by school administrators – all of whom were charged with building an airplane while it was flying; that is, revamping the landscape of education while delivering and/or coordinating instruction (yes, parents too). Though last school year’s abrupt shift from the classroom to the living room was uncomfortable, there was a general air of understanding of the difficulty among those affected. We were, of course, in the midst of a pandemic.

As the COVID-19 Delta variant dashed hopes of seeing the pandemic’s end, masks entered a “zone of conflict,” especially in schools.  Last school year it was generally understood by all stakeholders in education that masks were part and parcel with in-person instruction in public schools. This year the cloth covering has created political and social turmoil. Some states issued mask mandates during the summer of 2021; other states did not weigh in until well-into the 2021-2022 school year. In response, further still, many states either defensively or offensively, passed legislation to ban mask mandates.

As state legislative and judicial challenges increased, either opposing or supporting masks in schools, so did parents’ passion, much of which now focuses on “school choice.” Schools subject to mask mandates have a limited ability to allow students (as well as teachers, administrators, and visitors) into school buildings without masks. The ability to exempt a student varies by state, but in many states, the mask mandates allow for an exception based upon the impact of a mental or medical condition or disability.  If a child, or a parent on their child’s behalf, refuses to wear a mask in school, parent choice is limited to a few options: determine if their child qualifies for an exemption or find an educational setting that does not require masks, such as cyber school or virtual learning.  The third option exercised by many parents is to send their child to school without a mask as a “civil rights” style challenge to the school’s requirement to enforce the mandate, therefore subjecting their child to the school district’s chosen method of enforcement.

All responses have fueled parents’ incense and led to a credibility crisis – a constant barrage of questions and doubts strewn upon various professionals in the community, upon whom educators and school board members rely to make decisions.  For instance, commenters at public school board meetings question scientific fact versus fiction; cast doubt on the determinations of medical professionals; and issue challenges to educators. As a result, educators are no longer focused on the delivery of instruction but responding to ongoing public inquiries. Members of school communities are scrutinizing curriculum and school board policy, espousing their personal beliefs as grounds for exceptions to the mask mandates, and asserting unlimited rights usually by quoting portions of the United States and/or state constitutions.

Lest we be left out, school community members contest the accuracy of (and motives behind) school solicitors’ legal advice.  Judgment of lawyers is nothing new. And certainly, disagreeing with one attorney’s opinion is not only a right, but is remedied through the filing of suit. i.e., “I disagree with the school district’s legal position and will therefore sue it.”  In fact, without disputes there might not be a role for attorneys at all. In a normal school year, such disputes occur relative to student matters, personnel issues, collective bargaining, real estate, construction, copyright, technology, to name a few.

What surfaces as unique among these mask mandate conflicts is that school districts, managed by governing boards of directors, are microcosmic governmental units. While local control is the bedrock of many of states’ delegation of power to school districts, such local control cannot override the mandates issued from state and federal legislative, executive, and judicial branches.  In fact, the word “mandate” has surfaced as having a “quasi-optional undertone” which many suggest requires public deliberation on whether to even comply with a “mandate.” Yet for those commissioned to comply with state education agency regulations (i.e., Superintendents), and others beholden to the oath they made when sworn in (school board members, attorneys, judges, and medical professionals) there is no option in a mandate. Compliance with an order is mandatory, until overturned by an authoritative court or the legislature. Indeed, it is a strange reality for a school solicitor to be challenged by members of the public as to why school districts must comply with a state government mandate.

So, to ask again: who and how many involved in education will be affected this year? Students remain of primary concern. Depending on the varying instructional settings there can still be learning loss; lack of engagement; isolation; and social, emotional, and mental health deficits. Yet, concern arises for teachers, administrators, and school board members as school districts’ efforts, energies, and resources are less available to invest towards student education in order to manage increasingly tense public school board meetings, respond to public requests for information, defend attorney-client privileged legal advice, and enforce mask mandates in schools.

There is, however, one generally accepted premise upon which school board members, parents, students, teachers, and administrators agree: in-person learning is the best educational environment for most students. Who has the right to in-person instruction, however, is where the conversation breaks down – students who wear masks or students who do not? This ongoing debate and challenge places immense pressures on school boards and administrators. Administrators are pulled in opposite directions: on the one hand obligated to enforce orders requiring masks in schools; on the other, investing all of their time and resources into what is needed to meet the educational priorities of students. There is no debate, however, that mask mandates have pressured parents into making difficult and uncomfortable choices as to their child’s educational setting.

 

Reprinted with permission from the October 8, 2021, edition of the THE LEGAL INTELLIGENCER© 2021 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.

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