Originally appeared in the CAS Weekly Newsletter

Dear Legal Mailbag:

The other day, I attended a planning and placement team (PPT) meeting as the administration representative, and we discussed how best to educate a student who is undergoing chemotherapy. Right now, the student is severely immunocompromised, and his parents presented a note from his treating physician to the PPT asking that he participate remotely in his fourth-grade classes for the next twelve weeks. All members of the PPT were supportive of the family’s request. To be sure, the classroom teacher expressed reservations over whether she could appropriately include the student in classroom activities through remote means, but without much debate we all agreed to make provision for the student’s participation in the class through a neat little “robot” that has a video camera, a microphone and a speaker, which we will place in the classroom.

We wrapped up the meeting, and we thought we are all set for the new school year. But, yesterday, the building steward for the teachers’ union stopped by my office. He told me that the teacher had reached out to him to complain about the PPT’s decision. The teacher expressed frustration to her building steward that her concerns were glossed over, and now she is worried that I will make her life difficult for what she said at the PPT meeting. As to the decision to permit the student to attend remotely, the building steward told me that the PPT violated the law because “dual instruction” is now forbidden.

Do I really have to reconvene the PPT to tell this family that their child is not able to participate in class remotely?

Signed,
Say It Ain’t So

 

Dear Say:

No. The PPT decision was an appropriate exercise of its responsibilities under state and federal law to make accommodations for this student. To be sure, recent legislation complicates this situation, but it is appropriate to read the legislation as prohibiting dual instruction in general, but not to prohibit accommodations that have historically been made to permit students with disabilities to participate in the educational program.

Public Act 22-80 amends Conn. Gen. Stat. § 10-4w, the new law that authorizes remote learning for grades 9-12 starting with the current school year and now authorizes remote learning for grades K-12 starting with the 2024-2025 school year. This amendment requires local and regional boards of education that wish to offer “remote learning” to prohibit “dual instruction.” But a careful reading of the definitions in the amended statute shows that educating children by remote means as an individual accommodation is still permitted.

Conn. Gen. Stat. § 10-4w now defines both “remote learning” and “dual instruction” as follows:

(1) “Remote learning” means instruction by means of one or more Internet-based software platforms as part of a remote learning model, and

(2) “Dual instruction” means the simultaneous instruction by a teacher to students in-person in the classroom and students engaged in remote learning.

During the pandemic, many school districts had teachers providing instruction simultaneously both to students present in the classroom and to students participating in the class by remote means. Teachers and their unions complained about the challenges of this practice, and it seems clear that the new statutory prohibition against dual instruction was intended to address those concerns. However, the new statutory definitions support the conclusion that dual instruction as an accommodation to individual student needs remains an option.

We see that “remote learning” contemplates instruction by electronic means “as part of a remote learning model” (emphasis added), which Legal Mailbag understands to be a formal system of instruction by electronic means. “Remote learning,” then, would not involve an individual accommodation, but rather a new approach to instruction more generally. While it is clear that a remote learning model cannot include dual instruction, that prohibition does not extend to accommodations to individual students. The prohibition is triggered when students are “engaged in remote learning.” Since an individual accommodation is not “part of a remote learning model,” Legal Mailbag concludes that such accommodations are permitted by Conn. Gen. Stat. § 10-4w. Moreover, Section 504 and the ADA may require that such accommodations be made.

Finally, Legal Mailbag notes the teacher’s concern that her words at the PPT not come back to bite her. Legal Mailbag has no reason to be concerned that you would hold her statements at the PPT against her, and that is good because her comments are expressly protected by statute. In 2019, the General Assembly amended Conn. Gen. Stat. § 10-76d to add new subsection (i), which provides as follows:

(i) No local or regional board of education shall discipline, suspend, terminate or otherwise punish any member of a planning and placement team employed by such board who discusses or makes recommendations concerning the provision of special education and related services for a child during a planning and placement team meeting for such child.

If a teacher expresses an opinion as to programming at a PPT meeting that you find problematic, it may be best to bite your tongue. While you may not have any intention of taking action against such a teacher, your raising a concern with the teacher could give rise to the inference that any adverse action later was retaliation for the teacher’s comments at the PPT meeting.