What are the legal pitfalls of reopening schools?

NEW YORK STATE — Even after Governor Andrew Cuomo’s announcement that schools will be allowed to open this fall and school districts submitted their reopening plans to the state, students and their families have continued to raise concerns about whether it’s possible to safely return to in-school instruction during a pandemic. The New York State Bar Association (NYSBA) is so concerned, it held a webinar entitled, “Reopening Schools: Legal Issues and Concerns” to tackle those issues on Tuesday, Sept. 1.

Due to the COVID-19 pandemic, the program was held via Zoom. Calling the coming season “a fall like no other,” Jay Worona, deputy executive director and general counsel for the New York State School Boards Association, said, “There’s nothing more important, of course, in living through these hard times than focusing on the effect it has on our children, our students.”

Worona acknowledged how parents are living through the most difficult time in respect to making decisions about the safest way to educate their children, whether it means continuing their education from home or in school. Prepared to discuss reopening schools from a legal perspective as well as from a human perspective, he outlined the three distinct panels featured in the program, starting with a discussion of the legal issues and concerns for reopening schools, followed by a panel on special education and ending the webinar with a panel on the laws, regulations and court decisions that have surfaced this year in regard to public education.

Featuring Beth Bourassa, Esq., from Whiteman Osterman & Hanna LLP, and Lawrence Tenenbaum, Esq., from Jaspan Schlesinger, LLP, as the panel’s speakers and Donald Budmen, Esq., from Ferrara Fiorenza P.C. as the panel’s facilitator, the webinar’s first panel offered an exploration of the standards that apply to reopening during a pandemic. 

Following the guidance

Budmen explained that, from a legal perspective, their main concern is liability and making sure schools live up to reopening standards. As far as preventing the concerns that COVID-19 raises, Tenenbaum said the most straightforward way to go about this is to follow the guidance that has been issued. Seeing as there’s been no shortage of guidance, he said it boils down to a manageable number of general principles that need to be followed and that will go a long way toward minimizing risk, minimizing spread and transmission and maintaining a safe learning environment. As far as mitigating the risks for students and staff alike, Tenenbaum emphasized the need to practice social distancing and respiratory etiquette, maintaining proper hygiene, wearing face coverings and conducting temperature checks. 

Daily health checks

Regarding employee safety and prevention of injury, Bourassa said there will be a requirement for staff for both daily temperature checks and daily health screening questionnaires to be competed either on paper or electronically. With respect to record maintenance, the temperature recorded each day from staff should reflect a general statement along the lines of pass/fail or cleared/not cleared, and should be confidential. Tenenbaum added that daily temperature checks should be done for students, noting that if someone has a temperature of more than 100 degree Fahrenheit, they’re likely positive. Students should also be subject to daily temperature checks and periodic health screening questionnaires.

Wearing masks

Answering Budmen’s question about whether students can refuse to wear masks, Tenenbaum said no, noting that they are subject to student disciplinary procedure if they refuse. However, he said students who are unable to tolerate it, who have health issues, have difficulty breathing or have other medical issues, may be exempt. In such cases, Tenenbaum said they still need to be socially distanced and measures must be put in place to help prevent them from potentially spreading the virus. The same goes for staff.

When asked whether masks need to be worn in the classroom if desks are 6-feet apart and students are socially distanced, Tenenbaum replied that while it’s not mandated, it’s strongly recommended. Regarding students who receive services (such as speech and occupational therapy) that are difficult to carry out while social distancing, Bourassa said it will be addressed on a case-by-case basis. Additionally, she recommended a variety of additional personal protection equipment (PPE) options and precautions “to accommodate the effective and appropriate delivery of related services and/or instructional services.”

Visitors on campus

Regarding school visitors, Bourassa said visitors will have to wear masks and will be subject to daily or on-arrival temperature checks and health screening questionnaires. She added it’s critical for schools to minimize the number of visitors allowed — including parents — and that it’s important for visitors to contain their movements and for schools to know where they’ve been.

Contact tracing

Bourassa said that while much of the responsibility for contact tracing will be carried out by local health departments, it will be done in partnership and consultation with school districts and will be important, in respect to visitors, for school districts to know and notify health departments of where the visitor has been. 

As far as students taking ill with COVID-19 symptoms in school, Tenenbaum said schools would first need to separate the student from everyone else and contact the Department of Health. The student would need to be sent home and stay out of school until they’re cleared to return. Ideally, Tenenbaum said, school buildings will have two rooms for health-related issues: one would be used for issues such as getting medication or Band Aids, while the other would be used for when students are sick.

Local feedback

Harlem Valley administrators take these challenges and concerns seriously and have been working to address them. Pine Plains Superintendent of Schools Martin Handler reported that the his district answered emailed questions from parents during its three required meetings with parents and staff.

“As far as lingering concerns, I cannot generalize,” Handler said when asked what still has parents anxious. “Different people have different concerns. We remain available to answer questions.”

Webutuck Superintendent of Schools Raymond Castellani said he, too, has stayed in contact with his students and their parents — all of whom have expressed concern and a certain level of confusion.

“That’s one of the reasons why we decided to go remote,” Castellani said, “because the lack of guidance from the governor, the Department of Health and the CDC make it almost impossible for a school district to open up fully or even in a hybrid model, because of the exposure to those types of legalities. Those are things we have to make sure we protect against it.

Students return in person

Though most Harlem Valley schools have opted for remote instruction this fall, some districts are welcoming back students in person in a limited capacity. Webutuck, Pine Plains and Millbrook will instruct their special education students in person, if deemed necessary. And the Dover district is opting for a “Slow Start” model, a blend of in-person/hybrid/remote learning.