Hoping to expedite the widespread return of in-person instruction, California legislators introduced Senate Bill 86 on Feb. 18, 2021. The $6.5 billion proposal, titled the “Safe and Open Schools Act,” is designed to get large numbers of students back in the classroom this spring. The bill, which is expected to come up for a vote as soon as next week, expands on the $2 billion “Safe Schools for All Plan” introduced by Gov. Gavin Newsom in December 2020.
CSBA appreciates the Legislature’s focus on in-person instruction and its introduction of a school reopening plan that expands on the Governor’s proposal. This is an important step. To build on this progress, we urge the Legislature and the Governor to strike any measures that would stymie the progress local educational agencies have made to provide in-person instruction at already open schools and resume on-campus instruction for those in full distance learning. It’s crucial that any legislation avoid language that would infringe on the ability of schools that are currently open to continue in-person instruction or prevent schools that are close to opening from doing so.
Philosophically, both proposals share CSBA’s goal of resuming in-person instruction statewide as soon as it is safe to do so, but they differ in key ways related to implementation. There are areas in SB 86 where the intent needs to be clarified and ambiguity should be removed from the language. SB 86 also includes some provisions that will hamper the ability of LEAs to resume in-person instruction and saddle LEAs with long-term costs that undermine the goal of the legislation and the ability of schools to provide the resources needed for student success.
Yet, on balance, the legislative proposal — while imperfect — attempts to improve on the Governor’s plan by offering a more realistic path to school reopening. The Legislature’s response diverges from the Administration’s plan by offering greater funding to implement safety measures, setting a more reasonable timeline to resume on-campus instruction, and placing a higher priority on vaccinating teachers while not requiring vaccination of staff as a precondition to offering in-person education. SB 86 — if some critical modifications are made — presents a real opportunity to direct resources to already open schools and return students to the classroom quickly and safely. As a result, it compares favorably to plans that are more ambitious on paper but lack the proper supports and are less actionable in practice.
The Legislature’s proposal would require that schools located in red tier or better counties (fewer than eight cases per 100,000) provide in-person instruction to all students in grades K-6 as well as to “at-risk” students in every grade by April 15. The Legislature’s definition of at-risk students includes not only high-need students as defined by the Local Control Funding Formula, but also “disengaged students” who have not been active in distance learning and students who lack access to broadband or devices. The bill also contains an additional $4.6 billion that Gov. Newsom proposed in his January budget for learning loss recovery and $6 billion in federal coronavirus aid for schools.
Unfortunately, there are some implementation barriers contained in SB 86 that will inhibit the ability of schools to reopen. Specifically, these barriers include:
- Mandated expenditures for paraprofessionals: The bill contains a 10 percent set aside of funding for paraprofessionals for individualized instruction, which hamstrings LEAs in terms of hiring and prevents them from allocating funds in the way that best addresses learning loss and supports student achievement for their specific situation. Further, this requirement greatly expands certain areas of existing law related to paraprofessionals that will inadvertently lead to additional and unnecessary long-term costs for LEAS. This, in turn, will reduce the level of funding available to reopen their schools and the resources to educate students according to actual need.
- Expenditure prior to reopening: The proposal includes a prohibition against expending funds prior to reopening, which will inhibit a district’s ability to use funds in a proactive manner to hire and plan for additional supports that are needed to prepare for a safe and effective return to school.
- Small school districts: The bill proposes no guaranteed level of funding for necessary small schools or for small school districts.
Request for clarifications
Several areas in SB 86 require clarification to remove ambiguity around the language, intent or goals:
- Vaccinations: CSBA appreciates the attempt to prioritize vaccinations for school employees; however, the language seems to prioritize only those employees who are working at a school site where pupils are attending in person. This leaves out those employees who are critical to in-person instruction but who may not be on a school site such as bus drivers or those stationed at central food preparation and distribution centers. The language also does not prioritize those staff who work in schools that are planning to reopen or for substitute teachers.
- Reporting requirements: The proposed language requires that administrators report the identification and personal information of both staff and students who have tested positive to their local health officers within 24 hours of receiving the information. Due to health information privacy requirements of the Health Insurance Portability and Accountability Act (HIPAA), districts open and performing testing only receive information from labs that disclose which classroom the positive test came from. This allows districts to close the appropriate classroom while also ensuring the lab does not violate HIPAA. Districts do not receive identifiable information about the staff or student, which is required in the current version of the bill.
- Continuous in-person learning: While CSBA recognizes the importance of continuity in providing in-person instruction, the bill requires provision of continuous instruction unless ordered to shut down by a local health officer or the state; this is unrealistic. Many schools have reopened throughout the state, but when required, implemented quarantines to ensure safety. These measures, in combination with the severe shortage in substitute teachers, have forced some school sites to return to distance learning. The bill should include flexibility that recognizes the limitations that many schools are operating under when forced to quarantine to prevent transmission and uphold public health.
CSBA also remains concerned that SB 86 offers no limited liability for LEAs. California’s K-12 schools are currently analyzing and identifying all potential avenues to safely return to in-person instruction and on-campus services. The overriding concern for all institutions is the safety of their students, faculty, staff and their local communities. Extensive risks and uncertainties accompany the COVID-19 global pandemic and have compounded the significant budgetary constraints currently impacting California’s public school system.
In light of this, California’s K-12 schools need immediate, reasonable and targeted protection from liability. Yet, LEAs across California have been informed by insurers that they are not covered for COVID-19 liability issues. In addition to limited liability, special education lawsuits are also mounting due to the limitations distance learning places on the ability to provide assessments and supports in the traditional manner. This development should be recognized by the state as an additional cost pressure related to liability. Providing temporary limits to liability for LEAs that have followed health guidance will reduce uncertainty and protect already stretched local budgets, as general liability and special education settlements will be paid from local general funds.
Furthermore, education funding must be committed to educational services and must mitigate inequities heightened by the pandemic. COVID-19 testing and other health-related expenses are inappropriate uses of the Proposition 98 General Fund. CSBA acknowledges and appreciates the broader educational investments proposed in SB 86; however, we do not believe education dollars should be spent for community health needs. Every dollar of Proposition 98 spent on public health is a dollar that is no longer available to benefit students for instructional support, social-emotional services, or learning loss mitigation.
For this reason, it is concerning that at least a portion of the Prop 98 funding proposed here is available only as a result of the June apportionment deferral not being repaid. In fact, the January budget proposal actually grows the June deferral to $3.7 billion. By not repaying all current year deferrals, the Legislature and the Governor are proposing to borrow apportionment funding and use it for these new programs. Our concern has always been that deferrals must be repaid when the funds are available as they are in the current year; otherwise, future year growth in the Prop 98 guarantee could be too slow to cover the base and retire the remaining deferral.
SB 86 has several critical flaws that must be addressed to encourage the safe, effective and equitable return to schools statewide — and ensure schools that are open or close to opening do not have in-person instruction jeopardized. At the same time, it provides a helpful framework that substantially advances the conversation around school reopening and improves upon the Governor’s proposal by providing additional funding to implement safety measures, setting a more reasonable timeline to resume on-campus instruction and placing a higher priority on vaccinating teachers.
Breakdown of Legislature’s Safe and Open Schools Act (SB 86)
$12.6 billion in total state and federal funds
- Provides a total of $12.6 billion, which is allocated in the following increments:
- $2 billion in reopening funds to assist with opening schools for in-person instruction beginning this spring (April 15)
- $4.6 billion in learning recovery funds
- $6 billion in federal reopening aid (not appropriated in this bill)
- Opt-out program, rather than competitive grant proposed by the Administration. LEAs must notify CDE to opt out of the $2 billion funding if it will not comply with the conditions of funding.
- No minimum funding levels for very small districts as proposed in the Administration’s proposal.
- Cannot spend any of the $4.6 billion for extended learning until the school is open for in-person.
- This is problematic to the extent schools are using these funds for start-up costs for some of programs/materials.
- All schools required to offer in-person instruction in stable cohorts, including prioritizing in-person instruction for students who are:
- Chronically absent
- Without access to distance learning (digital divide)
- At-risk of abuse or neglect
- Foster youth
- English Language Learners
- Otherwise identified as needing targeted support
- There is a lack of consistency throughout the document on who gets services or priority. In some places, special education is mentioned but not in others. Same issue with use of free and reduced-price or low income.
- Schools in counties in the red tier or better (less than eight cases per 100k people) must offer in-person K-6 instruction
- All schools must provide a distance learning option
- There is no mention of personal protective equipment usage in any of the plans until you get to the very end of section 43525. It is not mentioned in any of the expenditure plans to be filed.
- Provides $4.6 billion through September 2022 for in-person learning.
- Requires 10 percent be used for paraprofessionals to help with learning recovery. This is problematic because it is one-time funding.
- Local Control and Accountability Plan addendum will now require parent information to be provided to parents in their primary language.
- LCAP will also require description of expenditures, both planned and actuals, in coordination of federal funds. The reasoning is unclear, as there is no appropriation of federal funds in this bill.
Schools that are already open
- Schools already offering or that have adopted plans to offer in-class instruction may continue to do so, but must maintain strict adherence to existing COVID testing requirements, physical distancing and wearing masks. They must also update their safety plans with the additional environmental safety requirements (presumably those outlined in SB 86).
- Schools open on or before March 15, 2021 with a completed school safety plan in place and Collective Bargaining Agreements (CBAs) or memoranda of understanding are not required to abide by the new COVID testing cadence in order to receive their portion of the $2 billion.
- LEAs with CBAs on or before April 1, 2021 that supports a school safety plan (aligned with previous guidance) will not have to renegotiate those CBAs or MOUs. See Section 43523(a)(1) and (2).
Schools that opt out
- May expend up to 10 percent of funding for school reopening for instructional services related to learning loss.
- Prioritizes teachers and staff who are providing in-person instruction.
- Concern is that language makes it sound like they have to be already working on the school site.
- Does not require vaccination of teachers and staff as a condition of reopening.
Reporting and contact tracing
- Requires school administrators to report within 24 hours by phone a positive COVID-19 case to its local health officer.
- The information provided to the local health officer includes: full name, address, phone number, date of birth, date of positive test, school sites that the person was present, regardless of if the positive person provides consent to do so.
The LEA has to report to the CDPH every 2nd and 4th Monday its enrollment, students in person, students in hybrid, students in distance learning, number of employees, number of students in cohorts, the supports they receive and any additional info requested by CDPH.