Q: After completion of our first semester grading period, several teachers have voiced concerns regarding students receiving remote instruction who are not completing assignments, causing failing grades, and accumulating several unexcused absences. Our district understands that the health and safety of our students and their families is important during this uncertain time, but we also want to make sure our students are given every opportunity to succeed academically. Does our district have the option to discontinue remote instruction for those underperforming students?
A: Yes. The district has the option to discontinue remote instruction for struggling students if certain criteria is satisfied, as outlined by the Texas Education Agency, and if proper notice is provided to the student’s parents with an opportunity for the parents to respond.
On November 5, 2020, the Texas Education Agency released updated guidance in its Attendance and Enrollment: FAQ document addressing the above fact pattern. https://tea.texas.gov/sites/default/files/covid/SY-2020-21-Attendance-and-nrollment.pdf. In a flip from prior guidance, the TEA opined that if a school district determines that a student’s attendance and/or academic performance in one or more classes puts the student at significant risk of severe learning loss, the district may discontinue remote learning as an option for a student, while continuing it for other students, if specific actions are taken, as outlined by the TEA.
A school district wishing to discontinue remote instruction for individual students must: (1) submit an Attestation to the TEA (Attestation Form may be found here); (2) identify students, in any class, having a class average of 70 or below (or the equivalent) and/or 3 or more unexcused absences in a grading period (note-school districts have the option to decide on criteria that include one or both of the attendance/grading guidance mentioned here, in number two, which may allow for more lenient thresholds (e.g., identifying students who have a class average of 65 or below or only those students having 4 or more unexcused absences), so long as the school district’s threshold criteria is applied consistently for all students in a particular grade); and (3) notify parents at least 2 weeks prior to requiring the student to come on campus, with language consistent with that provided by the TEA sample, found here.
Once the district has identified a student meeting the district’s established criteria and has provided proper notice to the parents, the student’s parents may then agree to either change their child’s learning environment to on-campus, or may appeal in one of two ways—(1) submitting a medical exemption request, or (2) requesting a transition meeting. If the parents decide to appeal by submitting a medical exemption request, the parents must email this exemption request to the district or campus, along with medical authorization, found here. If all required information for the medical exemption request is provided to the district in the form and format as set forth by the TEA, then our best recommendation is that the district should grant the appeal. If the parents decide to appeal by requesting a transition meeting, the district must schedule the meeting with no less than 3 days notice, and must allow the student to continue to learn remotely until the transition meeting has been held. If at the conclusion of the transition meeting, the district does not concur with the parent that the student can be successful learning remotely, or if the parent does not appeal the district’s decision at all (emphasis added), the district may require the student to transition to on-campus learning.
To date, the TEA has not issued any further guidance addressing internal evaluation processes for districts when handling a transition-meeting appeal. However, based on the substantive nature of the appeal and the existence of other similar instructional evaluation processes, we suggest that districts consider utilizing a committee structure in reviewing and evaluating a transition-meeting appeal. Best practice would be for the committee to be comprised of persons knowledgeable about the student and the instructional subject matter, persons that understand the information provided to be considered, and can make or present informed decisions regarding the student’s transition to on-campus learning. Absent compelling evidence by the parent that the student can be successful with continued remote learning, the district should feel comfortable in denying the appeal (with a well-documented record).
Communication by the district, primarily its teachers and principals, with the parents of students struggling academically in the remote setting is important and districts are encouraged to discuss options with the families prior to making any instructional environment setting change. While student and family health and safety should remain the primary consideration, the district should also consider the following when discussing with families the educational benefit of students returning to campus: (1) public school students who cannot attend at least 90% of the course, as required by Texas Education Code Section 25.902, subject to a few exceptions, may jeopardize the receipt of course credit and may be required to repeat the current grade and/or subject the following school year; (2) the applicability of truancy laws to students enrolled in public school but are not attending (either remotely or in person), although, school systems have flexibility in their approach to truancy enforcement; and (3) the possibility of a student being required to repeat the course, or grade level, if a student fails to earn a passing semester grade, if supported by the school district’s local grading policy.
For specific questions or additional information regarding circumstances of required transition from remote instruction to on-campus learning, please consult with your local school law attorney.