As School Districts make progress in developing plans for re-opening their school buildings and delivering education services to students at the beginning of the new school term in late August, our firm continues to counsel our clients on legal issues related to the re-opening process.  In re-opening plans of numerous School Districts, we have noticed that several school districts intend to offer some sort of remote learning component whereby courses would be streamed live and students could participate in these classes remotely without having to set foot in the physical classroom.

As these plans have developed, questions were raised, including by the Department of Education, as to whether or not such remote instruction would count toward the 180 day, 900/990 hour educational requirement of the Public School Code.  Initially, the Department of Education took the position that the School Code only provides express authorization for cyber charter schools to deliver educational services remotely.  Conversely, the School Code does not expressly authorize school districts to deliver education by remote means and, therefore, the Department initially interpreted that such instruction would not count toward the day and hour requirement.

Subsequently, on July 6, 2020, PDE issued a guidance memorandum reversing its initial position and stating that remote education would count toward the 180 day, 900/990 hour educational requirement, subject to certain conditions.  PDE concluded that a School District may enact certain emergency provisions subject to the School Code but must submit the following to the Secretary of Education (Secretary) for approval:

  1. board meeting minutes demonstrating approval of the temporary provisions, and
  2. the temporary provisions adopted, including the school entity’s proposed calendar and academic schedule.

Further according to PDE, “such information shall be submitted with or as an amended component of the school entity’s Health and Safety Plan at [email protected].”  “Although instruction may be provided in synchronous or asynchronous formats, to count as instruction­—whether in the classroom or remotely—students’ instructional activities must be under the direction of a certified school employee, unless otherwise permitted.”  Although the term “certified school employee” is not defined, it is reasonable to interpret PDE’s guidance as requiring that classes be taught by certified professional employees in order for those instructional hours to be counted.  Finally, in order for remote instruction to count toward the applicable requirement, the school must implement a system to track student attendance “similar to attendance in the school building.”

In summation, a school district must prepare a plan outlining how it will provide remote instruction to students, ensure that all instruction is being provided by teachers who are properly certificated in their areas, establish an attendance tracking system, outline temporary provisions including the proposed school calendar and academic schedule, and have the school board approve these measures and submit same to PDE.

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