Since the appearance of Coronavirus-19 (COVID-19), CSDC has fielded many questions. We’ve prepared a FAQ list that we will continue to update as the situation regarding COVID-19 progresses. These are the questions and answers we hear most commonly, and when possible, we have linked to source material to provide further depth. We are not attorneys at CSDC and cannot provide legal counsel, but our lay understanding is as follows.
Technically, no. Governor Newsom issued a “shelter in place” order on March 19, 2020 after declaring a State of Emergency on March 4. He then offered full funding to those schools that did close. It’s a bit confusing because none of his executive orders actually closed schools. In fact, he listed “(W)orkers supporting public and private childcare establishments, pre-K establishments, K-12 schools, colleges, and universities for purposes of distance learning, provision of school meals, or care and supervision of minors to support essential workforce across all sectors” as among those who are considered essential.
Ultimately the decision to close schools is in the hands of the local boards that govern them.
We’re not aware of a clear answer to this question. The governor’s executive order regarding school closure does not proffer a specific definition of the term “close” or “closure,” thereby presumably leaving it to local education agencies (LEAs) to navigate for themselves.
Few, if any schools that we know of have actually implemented what we call a “hard close,” entirely ceasing operations and shuttering facilities. Every CSDC member school/organization with which we have communicated is “open” to some degree and many, especially those that operated using independent study and distance learning methods are close to “business as usual.” Even more traditional charter schools that are accustomed to “seat-based” instruction are quickly shifting to distance learning and other modes of instruction and have shifted their governance, administrative, and back-office operations to virtual, remote, and home-based locations.
Unless and until the term “close” and its derivatives are defined, we presume LEAs will enjoy some reasonable degree of flexibility to define what constitutes “closing” their school for purposes of availing themselves of the flexibility granted by the executive order.
During a press conference on April 1, Governor Newsom confirmed that California schools will remain closed through the end of the school year. SPI Tony Thurmond also spoke on that same day, confirming that schools will not reopen this school year.
In reality, none of the governor’s executive orders actually compel schools to entirely cease operations, and he’s left the decision up to the local governing boards that run them.
CSDC presumes it is possible that if COVID-19 infection rates plateau and schools do reopen, it may be necessary to “close” them again if infection rates surge again. Experience in countries such as South Korea and China may soon give us a clearer picture of this matter. As such, we urge schools to plan for potential disruptions for the next year or so.
No one knows for certain. This article in the New York Times echoes the thinking among some scientists – that closing schools is not an effective prophylactic measure to prevent the spread of COVID 19. The reasoning is that while children are important carriers and drivers of influenza, COVID-19 is not influenza, and “…there is no clear evidence that such measures [closing schools] will slow this outbreak.” This article in the New York Times summarizes the reasons in favor of closing and describes the growing consensus “that the benefits of closing outweigh the harms, especially since many of the harms can be mitigated.”
Legally, CSDC presumes the answer is “no” in most cases. For further information, see the U.S. Department of Education and CDE’s guidance pages. In practice, most schools are moving as quickly as possible to simultaneously provide services while also amending IEPs to accommodate closures and shifts to distance learning and independent study. In many cases, this presumably is done with accepting the risk of non-compliance and balancing it against the costs of providing zero supports to students.
Under both California and Federal Law the parties can utilize email to transmit documents and an electronic signature (using something such as DocuSign), which if fully enforceable so long as the signature:
1) is unique to the person using it;
2) is capable of verification;
3) is under the sole control of the person using it;
4) is linked to data in such a manner that if the data are changed, the digital signature is invalidated; and
5) conforms to regulations adopted by the Secretary of State. (Gov’t Code sect. 16.5)
However, a school cannot require a parent to use a digital signature. (Gov’t Code sect. 16.5)
Here’s the link to Government Code 16.5.
Many schools are successfully shifting many special education supports and related services to distance and online modes of delivery. CSDC has provided more detailed information on our website in our Charter Currents article on the subject.
CSDC is not aware of any waivers of the IDEA nor section 540 of the Rehabilitation Act (the primary federal special education laws). Governor Newsom’s executive order N-26-20 does partially waive some state laws regarding timelines and deadlines as CSDC outlines in this Charter Currents article, but these do not waive the many stringent federal laws.
Schools are not required by the governor’s executive order, to provide meals. The order does protect closed schools against a loss of average daily attendance to help ensure continued funding. The executive order declares that one purpose of this funding is to allow schools to:
Provide school meals in non-congregate settings through the Summer Food Service Program and Seamless Summer Option, consistent with the requirements of the California Department of Education and U.S. Department of Agriculture.
According to the California Department of Education, “although LEAs are being held harmless to a loss in K-12 ADA based school funding so as to not disrupt the school system and as such are expected, to the extent possible based on local circumstances, to provide services to students in the three areas [e.g., continue to offer high-quality educational opportunities, provide school meals, arrange for supervision of students] highlighted in paragraph 2 of the Executive Order and to continue paying staff as reasonably anticipated if the school had not closed.”
Updated guidance from the Federal Government now states that children do not need to be present to accept the free lunch. This is expected to increase the number of lunches distributed.
Many charter schools have decided to partner with their authorizing district to ensure that all children in their communities are fed during these difficult times and CSDC urges charter schools to take all feasible steps to ensure provision of meals to needy families during the crisis.
No, though the Governor’s Executive Order strongly encourages it, as does CSDC. According to the California Department of Education, “although LEAs are being held harmless to a loss in K-12 ADA based school funding as to not disrupt the school system and as such are expected to the extent possible based on local circumstances, to provide services to students in the three areas [e.g., continue to offer high-quality educational opportunities, provide school meals, arrange for supervision of students] highlighted in paragraph 2 of the Executive Order and to continue paying staff as reasonably anticipated if the school had not closed.”
The CDE has issued COVID-19 Guidance for K-12 Schools on its website and has a section devoted to distance learning.
When Governor Newsom issued his executive order regarding the physical closure of schools, he addressed this issue, mostly. He noted that one purpose of continued state funding is to allow schools to do these things:
Later, the CDE went on to add more guidance in documents on this page that address distance learning and designing a high-quality online course. Given the potential for long closures of physical school facilities and the potential for needing to close again until effective vaccines are developed, CSDC urges charter schools to offer the most substantive, standards-aligned instructional programs that are feasible.
Before they closed down to honor California’s shelter in place requirements, the Legislature passed SB 117 which changed how average daily attendance (ADA, the key metric for allocating school funding in California) is calculated for the second principal and annual apportionment periods.
According to CDE, “(F)or the purpose of preventing losses of attendance based funding as a result of reductions in ADA due to COVID-19, SB 117 provides that the ADA used for both the second period and the annual period apportionment includes all full school months from July 1, 2019 to February 29, 2020.” Thus, it is not necessary for a closed school to take attendance for apportionment purposes, though it may want to do so for purposes of tracking academic progress and engagement.
In effect, SB 117 mitigates the effect of lost attendance due to COVID-19 that occurred after February 29, 2020. This bill is a companion to Governor Newsom’s Executive Order N-26-20.
Given the potential for lengthy “closures” of schools and the potential need to close them again, CSDC believes it is a good idea for schools to continue to track engagement and attendance.
A small subset of schools whose attendance typically grows late in the school year may find that the “protection” offered by the governor’s executive order actually reduced their apportionable attendance and may find it beneficial to continue to track attendance for both apportionment and engagement purposes.
According to the Public Policy Institute of California, while most families in California have internet access, many, especially low-income and rural ones, do not. In 2019 59.4% of California students were eligible for Free and Reduced Price Lunches. It’s hard to imagine that families who struggle to pay for food all have internet access. This presents a challenge to online learning, especially when traditionally free options like libraries and retail food establishments that offer free internet are closed during the shelter in place.
CDE has compiled a list of some available plans from telecom and data companies that are extending services during this time. Los Angeles Unified School District has announced that it is partnering with internet providers and will provide connectivity to as many as 100,000 students who don’t have access. Smaller schools are considering opening lunchrooms for wi-fi access while observing social distancing or dropping a powerful wi-fi hotspot in the school and allowing students and parents to access wi-fi from their cars in the parking lot.
Google has also stepped up and is donating both Chromebooks and wi-fi hotspots for LEAs to apply for. There is an online application that must be submitted to get in line for these items.
We have gotten many questions about graduation and promotion requirements. First, as a threshold matter, we do not believe charter schools are subject to the course-based high school graduation requirements in the Education Code. Some charter schools do, however, follow them either as a matter of habit, voluntarily, or because they have pledged to do so in their charter petitions.
State officials and post-secondary institution leaders have issued partial guidance on graduation, promotion, and college admissions matters, including an FAQ issued by the California Department of Education speaking partially to credit and graduation matters. We recommend that school leaders engage their board in a discussion about authorizing school leaders to flexibility to respond to the emergency conditions for students, including, but not limited to, waiving instructional minutes, setting an end date for classes and grading periods, providing distance learning and credit recovery, and otherwise modifying graduation and promotional requirements. One example of such a resolution is posted online.
As CSDC noted in our first COVID-19 post, many school leaders are concerned about the potential financial impact of COVID-19, especially as it relates to attendance-driven funding formulas and avoiding financial penalties usually associated with reducing instructional days or minutes. The good news here is that state funding laws generally protect schools from loss of funding due to specified emergencies in cases of either (1) school closure or (2) a material decline in average daily attendance (ADA) and recent changes to law have loosened requirements to “make up” lost time in some circumstances.
As noted in our eighth COVID-19 post, the Legislature enacted SB 117 to streamline the process to protect schools that close from a loss of average daily attendance and related funding.
The longer-term financial impact of COVID-19 on the economy, the state budget, and school funding in California is unclear and subject to potentially large impacts.
It is very likely that the economic fallout from the coronavirus will be substantial and will negatively impact funding. At the time this was drafted, it was too early to gauge the specific impact and state budget officials are beginning to monitor the issue.
Click here to view a brief webinar outlining CSDC’s early thinking on the matter.
According to the CDE “(I)f your school is closed due to the unprecedented circumstances surrounding coronavirus disease 2019 (COVID-19), you should not worry about any statewide testing this school year. The California Department of Education (CDE) is doing the following:
As noted in our Update #12, the LCAP deadline has been deferred to December. Instead, schools are required to complete an Operations Written Report by June 30th. This report must respond to several questions regarding the school's current operations per these instructions. An optional template is posted here.
The governor's executive order to stay at home exempts specified "critical infrastructure" positions, which includes "workers supporting public and private childcare establishments, pre-K establishments, K-12 schools, colleges, and universities for purposes of distance learning, provision of school meals, or care and supervision of minors to support essential workforce across all sectors." CSDC presumes that providing instructional materials constitutes support of distance learning and thus is an exception to the general "stay at home" rule. These executive order and list of critical infrastructure workers are posted online here.
If a school chooses to hand out materials or computers to students, one presumably should take necessary precautions, including distancing at least 6 feet, frequent handwashing, cleaning/disinfection of frequently-touched surfaces, avoiding touching one's face, etc. See here for more.
If you or your employees have concerns regarding these issues, CSDC suggests consulting qualified legal counsel.
CSDC recommends that charter school boards consider adopting new policies regarding Emergency Leave and Emergency Sick Leave during these times to accommodate new federal laws on point. CSDC is preparing new policies for your school to modify to your circumstances, and these will be posted on our website very soon.
If you or your employees have concerns regarding these issues, CSDC suggests consulting qualified legal counsel.
While the executive order states that the purpose of the continued funding is to support continued instruction, school meals, child care and for a school “to continue to pay its employees,” I don’t read this as a mandate to continue to employ everyone.
CDE’s Q&A also reflects this more flexible interpretation:
Many charter schools, like other nonprofit organizations, applied for loans from the popular Paycheck Protection Program (PPP), a federal COVID-19 relief program that provides forgivable loans to small employers who retain their staff and meet other evolving requirements. Of late, public opinion has generated a bit of a backlash as large organizations (e.g., the Los Angeles Lakers basketball franchise and other publicly-traded corporations) who had received loans are now returning them. Federal officials are revising the program’s fuzzy requirements.
Anti-charter organizations, including the Network for Public Education, also have criticized charter schools for applying for PPP loans. None of the critics note the fact that charter schools lack access to local property tax bases, borrowing tools, and low-cost facilities that traditional school districts enjoy.
Elite private schools are also debating the issues. Some private schools, including ones that have very large (if restricted) endowments, are continuing to pursue the funds while others have opted to decline them. This heightened scrutiny, combined with shifting federal guidelines is leading some charter school leaders to question whether they should apply for PPP loans and/or decline funding if they have already received approval.
As explained in more detail below, it does appear that the federal government’s guidance has shifted due to outrage over large businesses gobbling-up the loans. Originally, it seemed that federal officials were explaining this program as an effort to provide incentives to small employers to maintain their payrolls without layoffs. They noted that, in lieu of boosting funding to state unemployment funds, the PPP would provide near-instant funding through forgivable loans with a minimum of red tape and hassle. The loan applications do contain several certifications, one of which calls for the applicant to certify that “current economic uncertainty makes the loan request necessary to support the ongoing operations of the Applicant.” There was no guidance as to what this meant in practice.
Given the larger context of simply maintaining payroll in lieu of unemployment, and the lack of emphasis on applicants’ larger financial situation, the articulated standard to qualify originally seemed rather low. Thus, it is no surprise that there was a rush among a broad range of organizations, including fiscally strong ones, to apply.
More recently, the Treasury Department is requiring recipients to additionally attest that they made the original certification in light of “their current business activity and their ability to access other sources of liquidity sufficient to support their ongoing operations in a manner that is not significantly detrimental to the business.” Effectively, they are now asking whether applicants have considered other potential sources, an arguably higher bar than in the past, but offering no specific definitions for the key terms.
Given this shift, and the fact that the key terms and standards remain undefined, CSDC offers the following factors to consider as charter school leaders consider whether to apply for and/or receive PPP funds. These suggested factors simply reflect the opinions of CSDC staff; schools may need to consult with their lender and legal counsel and consider the optics of accepting these loan funds.
Examples of considerations that lean in favor of applying for/receiving PPP funds include, but are not necessarily limited to the following:
Examples of considerations that lean against applying for/receiving PPP funds might include the following:
Schools that do opt to take the PPP loan funding should carefully monitor compliance with the evolving terms of the loans, being especially careful to spend the funds on allowable items (e.g., payroll, health benefits, rent, utilities) and maintaining required documentation to prove it.
If the school’s current contracts or policies do not address this matter clearly, CSDC suggests that governing boards either need to pass a resolution providing the director with the temporary authority to act on behalf of the board in this circumstance (in between regular governing board meetings, and while providing regular board updates), and/or establish procedures to rapidly respond to circumstances as needed (e.g., establish protocols to rapidly call emergency board meetings as needed).
Either way, the school director presumably should provide regular updates to the board and the board should continue to meet regularly, albeit virtually, and have special or emergency meetings when necessary to ensure continued functioning of the school.
Generally, “yes.” The governor has issued two executive orders to provide additional flexibility to accommodate virtual meetings during the crisis. On March 12, 2020, the governor issued this executive order which authorizes charter schools and other bodies subject to the Brown Act to make public meetings accessible by phone or “otherwise electronically” to members of the public. This order also allows members, the clerk, and other personnel to be physically absent and yet still calls for a quorum. It holds, however, the notice requirements and the requirement that there does need to be a location that members of the public can gather to watch the meeting and offer public comment.
Then, on March 21, the governor issued another executive order which decreed that members of a governing body may receive simultaneous updates relevant to the emergency, and may ask questions as it relates to those updates. Members are still not allowed to take action without a posted meeting.
CSDC presumes that “yes” schools must continue to respond to public records requests. Law calls for responding within 10 days as to whether you have any documents that are responsive to the request and whether any may be withheld due to legal exceptions or privilege. After this response, you must “promptly” provide any records that are subject to disclosure. The law does not define “promptly,” but the expectation of promptness arguably is more flexible during a time of crisis. CSDC recommends consulting with legal counsel when responding to a request, especially if it relates to sensitive, confidential, and/or personally-identifiable information.
Many charter schools are using Zoom and similar online platforms to conduct public meetings and other communications. Zoom has extended free, unlimited accounts to all those individuals in education to use during this time. Many have taken advantage of this service. Below is a link from Zoom that offers some guidance on how to use their event to hold public and not-public forums. In some cases, public meetings have been “Zoombombed” by individuals who seize control of the online meeting and display offensive materials. There are times when you do not want to make your “event” public, such as when your teachers are meeting with a class. Please make sure that your staff is well versed in virtual communication protocol. All issues surrounding student privacy still must be honored. Some recommendations can be found here.
The COVID-19 crisis struck just as many charter schools were preparing for enrollment lotteries. Several schools have found creative ways to hold public admissions lotteries by using Facebook Live, Zoom, and other group conferencing platforms. CSDC presumes that doing so is the most reasonable method to ensure the lottery meets the legal requirement to conduct a “public” lottery. It’s important to ensure that all applicants are notified of the ability and manner in which to participate and that there be an ability for participants to communicate or provide feedback during the process. This feedback should be monitored but doesn’t have to be verbal.
Keep in mind that the more transparency a school can provide during this time, the better.
No. According to the California Department of Education, “although LEAs are being held harmless to a loss in K-12 ADA based school funding as to not disrupt the school system and as such are expected to the extent possible based on local circumstances, to provide services to students in the three areas [e.g., continue to offer high-quality educational opportunities, provide school meals, arrange for supervision of students/child care] highlighted in paragraph 2 of the Executive Order and to continue paying staff as reasonably anticipated if the school had not closed.”
On March 18, the CDE and the California Health and Human Services Agency issued guidance to assist in the provision of childcare and preschool for families. The guidance speaks specifically to Local Education Agencies (LEAs) and it’s unclear under law when charter schools are defined as LEAs and when they are not. The direction for LEAs, however, is as follows:
“LEAs that have physically closed should continue to provide essential services for children and families in their communities. LEAs should collaborate with local partners and other entities to ensure students are supervised during school hours. The CDE is providing the following guidance to all LEAs that have closed:
LEAs that are considering physically closing should follow this guidance, as well as consult with the local public health department and state guidance prior to physically closing.”
CSDC recommends that charter schools be as helpful as possible in assisting families in finding childcare by providing the hotline and website information on your own website, and by making your facility available for popup childcare if applicable.
Original post: 03/30/2020