Kerr Report Q&A: School District Lawyers

Burning legal questions are answered on masking and vaccinations as schools move closer to re-opening

(Photo Credit: Sunday Guardian)

It’s been a predictably crazy week with school boards meetings and decisions on Covid mitigations.

When the CDC came down with its guidance July 9, it left room for districts to opt out of masking in schools.

Many Chicagoland schools have, including District 200 in Wheaton, one of the largest in DuPage County, and Loyola Academy, a 2,000 enrollment private school located in Northern Cook County.

More decisions are expected in the coming days and weeks.

Before school districts make choices on how to interpret federal and state guidance, they consult attorneys.

Earlier this week, The Kerr Report dropped in on a webinar hosted by Franzcek, P.C., an education, labor and employment law firm based in Chicago. On the webinar were five partners in the firm—Kendra Yoch, Nicki Bazer, Jennifer Smith, Dana Fattore Crumley and Shelli Anderson.

They answered questions and addressed topics on the legality of masking in schools, vaccination disclosure and role of school boards versus superintendents.

Here is an edited portion of the Q&A.

DO STUDENTS AND STAFF HAVE TO WEAR MASKS THIS YEAR?

Jennifer Smith: It’s up to the school district to provide the answer to that question. Based on the information we have today, our understand is the decision in local in that the local school districts can decide whether or not this will be one of the mitigation strategies. it should not be decided in isolation but you do have discretion to decide or not. Consequences are let’s say (a district) decided not to, and you have to quarantine more individuals if there’s those standards are met and there are potential liability implications that we can flesh out more but that gives us a baseline as to our interpretation as to the current state of the law.

Shelli Anderson: The most important thing is it cannot be made in isolation. A district should not just be indicating ‘well the CDC said it should so we will not be requiring mask anymore.’ It really should be looked at what other mitigation strategies do you have in place, what are your vaccination rates, what is the spread if any in your community and regardless of the decision that is made, based on all those taken together, be ready to pivot and make a change if you see something change in all of those factors and be in touch with your local health department as to where they are at and make a decision that moves your school forward. It was a surprise to some of us that it was not required either federally or by IDPH for unvaccinated individuals to wear masks at school.

Nicki Bazer: Looking at all of those layered mitigations and you ultimately make the decision that masking is not something you want to implement universally or its going to be recommended, we still see strong support for tort immunity defenses.  Because you are following guidance and doing it in a way that takes into consideration all of the health factors—your transmission rates, your community rates, what’s happening with your students and staff in terms of vaccination, etc. So I think if you just decide to jettison all of your mitigation measures tomorrow that may be a different conversation to have but this in itself you do have that flexibility.

IS IT POSSIBLE TO SEE DIFFERENT LAYERING OF MITIGATIONS BETWEEN SCHOOLS WITHIN ONE DISTRICT?

Jennifer Smith: Yes, with different schools within a district you may have the ability to do different mitigations, wether it be barriers or spacing or more outside instruction where you can spread kids out more, there’s a lot of different factors. If you are looking at what are all of the mitigation factors we can have, what is our spread, what is our risk here and is it managed by things other than masks? Then you could be making different decisions. Looking at the instructional impact. Previously, there had been some student with disabilities who already had exemptions from wearing masks so even within programs you had this to some degree where you had some students wearing masks and some not even previously. That will probably only increase now that it’s not a requirement from above, it can still be a district requirement. But because there is so much flexibility and since the factor are so varied, the decisions could vary within the district. 

Bazer: You may have an elementary district that requires masks for pre-K through sixth grade because those kids are now not eligible, and a different policy for 7th and 8th graders because you have 80 percent of 7th and 8th graders vaccinated. Districts have the flexibility and discretion to take a look and say that right where we are we can do recommended mask wearing or no mask wearing but if we start to see some spread or if we start to see the Delta variant is getting our numbers up then we pivot. Maybe you even pack that pivot into your guidance right now. 

Johnson: Despite the guidance that does say should and does not say must the district can require every one to wear a mask. That is something that if you are any district you can require masks the same as you can require how someone comes to school. The flexibility is going both ways here.  

IF A DISTRICT IS GOING TO DIFFERENTIATE BETWEEN WHO WEARS MASKS BASED ON VACCINATION, HOW WOULD A TEACHER BE ABLE TO IMPLEMENT THAT IN A CLASSROOM SETTING?

Johnson: They could put that in a record that goes to the classroom teacher the same way a teacher would need to know something else about a student, whether they have a 504 plan, they need more time, they have an IEP, anything like that the teacher would need to know to help modify that class. If you have a masking policy for unvaccinated kids, maybe something on the form that goes the teachers indicates not necessarily vaxed or unvaxed but masked or no masked. There might be kids who aren’t required to wear a mask for some other reason so that’s something a teacher can help to enforce that policy.

LET’S SAY A DISTRICT IS NOT GOING TO MANDATE MASKS BUT WANTS A ROBUST SCREENING (TESTING) SYSTEM IN PLACE TO BALANCE THAT OUT AND IDENTIFY INFECTIONS EARLY AND PREVENT TRANSMISSION. COULD THAT DISTRICT REQUIRE STUDENTS PARTICIPATE IN SCREENING (TESTING) PROGRAM?

Bazer: Our reading is yes. If you are saying to folks, ‘you are unvaccinated and don’t have to wear a mask but we are requiring you to get regular testing or as an alternative, you can wear a mask’ that is a viable option for a district to embark on. And some of our districts are doing that because their transmission rates are such that mask wearing does not seem to be the most effective mitigation strategy but they want to keep an eye on where or if their transmission rate is creeping up and testing is a good way to go. As for staff, we possibly get into labor issues and you’d want to talk to unions or negotiate that with unions.

HOW INVOLVED SHOULD BOARDS OF EDUCATION BE IN LAYING OUT THESE PLANS VS. THE ROLE OF THE SUPERINTENDENT?

Bazer: This is different from district to district and if you have already sorted out the process you are going through we recommend they are consistent and do what the board has set up and what the community is expecting. If you are going to have policies you are expected to enforce and you do have mixed feelings in the community then its a good idea to have board involvement. They are elected and working for the community to try and navigate through this process and certainly administrators play key role in recommending and providing the right information and thoughts in navigating through these situations. It will differ. There are some policy reasons to have the board involved in terms of enforcement, in terms of liability defense and because they are part of the fabric of this school district and part of the decision-making process.

Dana Fattore Crumley: They (the board) are the elected officials. If there is a lawsuit if there’s a challenge, it ultimately comes down to what polices and procedures they set. It’s really important for boards and superintendents to stay on the page and keep the lines of communication open.

Johnson: This is a really interesting point that districts need to think about, especially those thinking about going mask-optional for K through 7th grade (age 12). So a kindergartener comes in and two of them their parents want them to wear masks while the others are maskless. This could become an issue and I think as all of you are deciding which way to go and there are all of these nuances and how do we enforce it? For parents who don’t feel safe, how do we make sure the younger kids are wearing masks at school.

Bazer: Schools don’t have to pass board policy here. We recommended previously that districts adopt a resolution, essentially incorporating the recommendation of the administration but that they can be changed. With a conversation with the superintendent they can be changed or updated or approved by the board after the fact. We are talking about a lot of mitigation strategies that districts may shift on as they go forward. That’s still an option with board involvement but with flexibility to pivot when needed.

ARE WE HEARING FROM UNIONS THAT THEY ARE PUSHING THAT EVERYONE CONTINUES TO WEAR MASKS AND OTHER MITIGATIONS?

Bazer: I think we are seeing unions very interested in mandating mask-wearing. It takes different flavors depending on the district. Some are looking for universal mask wearing, some are looking for mandating for non-vaccinated. I think you will start to see some demands to bargain over these issues and hopefully can work through with unions in a positive and collaborative way. Clarity with unions ahead of time on what policy is even if there isn’t a demand to bargain but keeping unions in the loop and that policies are crystal clear and that you enforce them like you would with any employment-related policy.

CAN DISTRICTS ASK FOR VACCINATION STATUS OF FACULTY AND STUDENTS?

Johnson: Even before the guidance came out, we believe districts can and should ask for vaccination status of those students and staff members for a variety of reasons, some of which are still relevant some are not as relevant related to how you treat vaccinated individuals vs. unvaccinated. One piece that we did confirm is the school nurses will have access to the IDPH I-CARE system to enable them to determine which students have been vaccinated. The confidentiality provisions of the I-CARE system does not seem to apply necessarily to staff members. We’ll see if that’s something IDPH addresses. As far as students, they can ask the parents to identify if a student has been vaccinated or to have the school nurse go through the I-CARE system to determine if a student has been vaccinated.

SHOULD DISTRICTS COLLECT VACCINATION CARDS AS PROOF OF VACCINATION?

Bazer: We have told districts no. But its not necessarily required they get the card itself. Representation from the student or staff member are sufficient.

Johnson: I’d probably do something in writing whether its electronic or something you can confirm that a parent or staff member are testing and something you can rely on.

Fattore Crumley: I think it depends on what teachers are telling you and what negotiations you are having with your teacher groups. I know there are certain teachers that are not only in tune with are my students getting vaccinated but are my colleagues vaccinated? Some bargaining units are very trust worthy with one another, some bargaining units are trust yet verify with each other. They might be more comfortable collecting vaccination cards or keeping records of people who are vaccinated outside of your internal vaccination program. It’s within their discretion.

HOW MUCH INFORMATION SHOULD TEACHERS GET ABOUT STUDENTS IN THEIR CLASSROOM?

Smith: The person on the front lines implementing whatever mitigation strategies you have is your teacher. They likely need that information (vaccination status) to do things like seating charts or enforce masking requirements or put up other mitigations you decide to do. That is a valid reason for them to need that information. As long as a school employee has a valid school-based reason, that being administrative or test, they need that to do their job not just because they are gossiping about the student, then student privacy laws allow them to have that information. This pretty clearly fall under information that can be shared with staff who have some sort of responsibilities for implementing mitigations which teachers will.

WHAT ABOUT A PARENT WHO WANTS TO KNOW IF THEY ARE IN A CLASSROOM WITH A VACCINATED TEACHER?

Bazer: We do not recommend (districts) provide information on individual teachers. First of all, you shouldn’t be sharing that information and second, the logistical nightmare that would ensue as parents try and drop (their kid) around to different classrooms, it’s not workable. The response to parents is we can’t give our information on individual teachers. To re-assure parents you can say you are implementing your mitigation strategies and you can provide them information on what mitigations strategies you are employing. This will be more acute in elementary school districts where parents cannot have their children vaccinated.

HOW CAN A DISTRICT USE I-CARE? IS IT AN ALTERNATIVE TO ASKING PARENTS OR A DOUBLE CHECK?

Johnson: From the information we have now from IDPH, school nurses will have access to I-CARE to determine student vaccination status. That might be an easier way to determine vaccination status than asking parents. That might cause some issues in some places in respect to parents wanting to control the privacy on this issue but in the documents we’ve reviewed it looks its expressly provided that this can be used for that purpose.

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