Gov. Gavin Newsom on Friday, July 17, unveiled new guidelines mandating that all California schools in counties on the state’s COVID-19 monitoring list begin the school year solely with distance learning and must meet strict criteria in order to open campuses. It’s important to note that districts located in counties that are not currently on the watch list, but are subsequently added to the list, are not required to close their schools when their county’s status changes. They should, however, begin or increase the frequency of staff testing for coronavirus once their county is placed on the watch list.

The California Department of Public Health’s new In-Person Learning Framework and updated Industry Guidance: Schools and School-Based Programs offer significant new direction for schools that are eligible and choose to reopen classrooms, including requirements for face coverings to be worn by children in grades 3-12 and reopening criteria, but consistent testing protocols for testing staff and students is not clearly addressed. Face coverings are required for all teachers and other staff on campuses.

To assist districts in planning for the reopening of campuses, CSBA issued new sample Board Policy 0470 – COVID-19 Mitigation Plan in a special release on June 5, 2020. The policy covers a broad range of topics that should be considered by districts, including student support, instructional approaches, scheduling, evaluation and remediation of academic loss, health screening of students, student absences, social distancing, personal protective equipment, hygiene practices, sanitization of facilities and equipment, food services, staff assignments, staff leave provisions, contact tracing, nondiscrimination based on medical condition, and community relations. Because many of these issues are not directly reflected in current law, this policy presents options and best practices, which boards are encouraged to revise based on local needs.

Distance learning requirements for the 2020–21 school year under Senate Bill 98, the education trailer bill:

• Daily live interaction with certificated employees and peers as part of regular instruction when feasible
• Daily tracking and weekly monitoring to verify participation and progress
• Access to connectivity and devices
• Content at a level substantially equivalent to in-person instruction
• Academic and other supports to students not performing at grade level

For schools that will open the year with in-person instruction, or for those that will eventually migrate to the setting once local conditions allow, the guidance details when classrooms should be sent home and when schools and districts should close their doors:

• A classroom cohort should stop in-person instruction if there is a confirmed case within the cohort.
• Schools should close when there are “multiple cases in multiple cohorts” or when the school has experienced a 5-percent positive testing rate of students and staff in a 14-day period, depending on a facility’s size and layout. The local health officer may also determine a school closure is warranted for reasons such as results from a public health investigation or local epidemiological data. Schools may reopen after 14 days and following cleaning and disinfection, a public health investigation and consultation with the local public health department.
• A superintendent should close an entire district if one in four schools have closed due to COVID-19 within 14 days, and in consultation with the local public health department; they may typically reopen after 14 days.

To comply with public health orders and social distancing guidelines, local governing boards are authorized to hold public meetings via teleconference that are accessible by telephone or otherwise electronically to all members of the public seeking to observe and address the board.

Gov. Gavin Newsom’s Executive Order N-29-20 dated March 17 further provides that boards no longer need to make space available for the public to appear at any physical location. The order helps ensure public safety and continued public participation in board meetings while the state’s stay-at-home policy remains in effect.

Under the order, the public must be able to observe and address the meeting by telephone or other electronic means. Governing boards must implement a procedure for receiving and resolving requests for reasonable accommodations from individuals with disabilities. The meeting agenda and notice must include the procedure by which the public may observe the meeting and offer public comment.

Click here for detailed information on virtual board meetings.

CSBA has produced a sample resolution for certifying school closures through the remainder of the 2019–20 school year, in the case the board wants to voluntarily adopt a resolution.

The CSBA legal team finds that such a resolution is not required. The requirement for the board to pass a resolution to certify the closure of schools pursuant to Cal. Ed. Code § 41422 was suspended by Gov. Gavin Newsom’s Executive Order N-26-20 dated March 13. While suspending the need for a board resolution, the Executive Order states that in order to receive average daily attendance funding, superintendents are required to submit a certification to the State Superintendent of Public Instruction (SPI) indicating the number of days closed in response to COVID-19 and to attest that the closure occurred to address COVID-19.

Typically, the board would be involved in the decision of the superintendent to provide such certification to the SPI. If, during the initial school closure, the board granted additional emergency powers to the superintendent, the board would not need to adopt an additional resolution to effectuate the extension of the closure.

Depending on the information provided to the SPI relating to the initial school closure, the superintendent may need to update the certification to account for the extension of the closure. Further information is available on the CDE’s COVID-19 Frequently Asked Questions page.

Responding to strong advocacy from CSBA and other education management organizations, the University of California and the California State University announced on April 1 that they would ease graduation requirements for high school students impacted by the COVID-19 pandemic. Although the details differ, both systems agreed to a series of accommodations designed to address the disruption caused by school closures and distance learning as well as public anxiety about grading, testing and college matriculation.

While both UC and CSU posted separate guidance on their decisions, the announcement came in a joint statement from those two systems and the California State Board of Education, CDE California Community Colleges and the Association of Independent California Colleges and Universities.

No. State Superintendent of Public Instruction Tony Thurmond announced on March 27 that California received preliminary federal approval to waive assessment and accountability requirements for the 2019–2020 school year. The CDE and State Board of Education requested approval for these waivers from the U.S. Department of Education in a letter sent on March 26. Formal approval is expected in the coming weeks.

California Education Code Section 5091 requires a governing board to make a provisional appointment or order an election to fill a vacancy on the board within 60 days of the vacancy and to order an election to fill the vacancy if the board does not take action within the 60 days. Our legal team could find no precedent for the county superintendent to extend the 60-day timeframe. Barring an executive order from the Governor (which has not been issued in this instance), the law is clear that the board must make an appointment or call for an election within 60 days of the vacancy. If the board fails to act within the 60-day timeline, the county superintendent is then required to call for an election to fill the seat on the next election date. Please reference CSBA’s sample BB 9223 – Filling Vacancies for details on the process.

However, we are aware of at least one situation when the State Board of Education has granted a waiver of the 60-day timeline (and, thus, the requirement that the Santa Clara County Superintendent order an election).

Under California’s stay-at-home orders, LEAs may continue construction projects. In Gov. Gavin Newsom’s first executive order on March 19, he directed “all individuals living in the State of California to stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors.” The list of essential critical infrastructure workers includes “construction workers who support the construction, operation, inspection and maintenance of construction sites and construction projects (including housing construction).”

However, local rules may place additional restrictions on construction during this time, and LEAs should keep in mind that this is an ever-evolving situation as related to the COVID-19 pandemic. For instance, a local public health order may revoke construction as an essential activity unless the public works project is designated as essential by the lead governmental agency. In this instance, a governing board could adopt a resolution identifying a construction project as an essential public works project.

Lastly, LEAs that may have delays or disruption in their construction projects should engage their attorneys to review existing contracts and ensure the proper steps are taken to abide by the language of the contract and protect the interests of the district, if necessary.

The exact details for distribution and timeline are yet to be announced. The following is a breakdown of the key aspects of the $2 trillion federal stimulus package signed into law on March 27, related to education and childcare:

• $13.5 billion in formula grants for K-12 education: State education departments will distribute 90 percent of funds to LEAs for COVID-19 response activities, including planning for and coordinating long-term school closures; and purchasing educational technology to support online learning for all students.
• $3 billion pot from which each governor will receive a share to allocate emergency support grants: These grants will go to LEAs deemed by the state to have been most significantly impacted by the pandemic, which will support the ability of LEAs to continue providing educational services to students and support their ongoing operations. Institutions of higher education are also eligible for the funds.
• $8.8 billion in additional funding for Child Nutrition Programs
• $3.5 billion for the Child Care Development Block Grant program: This funding will allow programs to maintain critical operations and meet emergency staffing needs. The bill also provides $750 million to help Head Start meet staffing needs.

During the COVID-19 school closures and the implementation of distance learning, continuing to use existing policy and administrative regulation on grades (BP/AR 5121 – Grading/Evaluation of Student Achievement) is not practical for many districts. Although the district could revise its policy and regulation, any such action may need to be revisited once schools reopen. Alternatively, districts can employ the use of a board resolution and the authority of the superintendent (see Board Policy 2210 – Administrative Discretion Regarding Board Policy) to take necessary action and implement temporary solutions during this time of crisis, as it may do in other areas of district operations.

To that end, CSBA has developed a sample board resolution on grading that incorporates grading alternatives as options for districts to use during the school closures. These grading options are consistent with the recent guidance issued by the CDE.

The California Department of Education and the California Department of Social Services have issued new guidance that will facilitate child care for children of essential critical infrastructure workers, children at risk of abuse or neglect, and children with disabilities or special health care needs. The guidance was a requirement of Gov. Gavin Newsom’s Executive Order N-45-20, issued on April 4, 2020. The guidance directs operating child care programs to notify current families that they are to shelter in place unless they are classified as an essential worker.

It also allows child care providers to enroll new families that meet the following qualifications, in the following order of priority: children who are receiving child protective services or who have been deemed at risk of abuse, neglect or exploitation; children experiencing homelessness; children of domestic violence survivors; children of essential workers; and children with disabilities or special health care needs.

Under Government Code section 54954.2, the agenda for a regular school board meeting must be posted at least 72 hours prior to the meeting in a location that is freely accessible to the public and on the district’s website, if the district has a website. The agenda must contain a brief general description of each item of business to be transacted or discussed at the meeting. The description must be sufficient to give the public notice of the items to be discussed or acted upon, but generally does not need to exceed 20 words. These requirements help to ensure the public’s business is conducted openly.

As a general rule, under Government Code section 54954.2, a governing board may not discuss any item that does not appear on the agenda posted for a regular meeting. However, the following exceptions allow the board to discuss and take actions on items that are not on the regular agenda (see Board Bylaw 9323.3, Actions By the Board):

1. A two-thirds vote:
   An action may be taken on an item that does not appear on the posted agenda if two-thirds of the members of the governing board vote that there is a need to take immediate action and that the need for action came to the attention of the board subsequent to the agenda being posted. This means that a five-member board would need at least four affirmative votes to discuss or take action on an item. If less than two-thirds of members of a board are present, then the vote must be unanimous.
2. An emergency situation:
   Boards may discuss and take action on a non-agenda item upon a determination by a majority vote of the board that an emergency situation exists, as defined in Government Code section 54956.5. An emergency situation is defined in part as a work stoppage, crippling activity or other activity that severely impairs public health, safety, or both, as determined by a majority of the members of the board.

Boards may also hold a special meeting on an item of business when necessary. Special meetings may be called at any time by the board president or by a majority of the members of a governing board. Boards must give 24-hours’ notice for a special meeting and post the agenda for the special meeting on the district’s website. The board may only discuss the business on the special meeting notice at the special meeting.

The general rule is a public entity (which includes school districts and county offices of education) is not liable except where a statute imposes liability. The statute that imposes the most “general liability” is negligence. Government Code § 815.2 imposes liability on public entities for negligent acts — for an injury proximately caused by an act or omission of an employee of the public entity within the scope of his or her employment if the act or omission would have given rise to a cause of action against that employee. Said another way, a public entity, as the employer, is generally liable for the torts (injuries) of an employee committed within the scope of employment if the employee is liable. In an action for tort (injury), to hold a school district employee liable (and by extension, the school district), a plaintiff would need to allege that a school district employee had a duty and they breached that duty by acting negligently. Because school attendance is mandatory (at least in grades 1 through 12, ages 6-18), the law deems that a “special relationship” exists between school personnel and students, such that school personnel have a duty to protect students while they are attending school or on school campuses. School personnel can breach their duty to students for foreseeable acts — acts that are foreseeable from the activity undertaken. For example, school personnel can breach their duty by failing to adequately supervise a child on a playground, resulting in the student being injured, or by failing to properly supervise teachers who abuse students, or by failing to dismiss employees who pose a risk to students.

The question asks, in general, whether liability can attach to a school district from the actions of a school district employee who has contracted COVID-19 providing food to a student/family, resulting in the student/family contracting COVID-19. There is no case holding a school district liable for injuries resulting from the provision of food thus far. Schools were deemed essential employers, and in addition, were required to provide food to students during the pandemic, due to the Governor’s executive order — and thus, there was a “duty” to provide food to students. In providing the food, did the employee (or the school district) act negligently? When a school district provides food to students, are the employees properly supervised such that anyone showing signs symptoms of COVID-19 was sent home, and cleaning was undertaken, or were directed to stay home if they needed to self-quarantine? Were the employees provided “adequate” personal protective equipment (PPE) (based upon the current county health officer’s recommendations at the time of the act) to deliver food to students?

If employees were properly supervised and were provided adequate PPE, we believe it would be difficult for a plaintiff to prove negligence, and thus, difficult to hold a school district liable for contracting COVID-19. There are two assumptions here that are important to defend the school district — that employees were properly supervised and directed to stay home if they had COVID-19 or had to self-quarantine; and that employees were provided adequate PPE (depending on the county health officer recommendations at the time the food was provided). If the employees were not adequately supervised, were directed to report to work in unhealthy or unsafe conditions, or were refused adequate PPE, liability could result. Unless the district failed to provide what was, at the time, deemed adequate PPE, or the district knew or should have known the employee was sick and failed to send them home, they should not have liability. Because school districts and county offices of education were deemed essential employers and were directed to continue to provide meals to students, those facts will work in the district’s favor when continuing to allow healthy or asymptomatic employees serve meals.
*Note: The information provided here by CSBA is for informational purposes and is not legal advice. Please contact your legal counsel for questions related to this information.