Legal Mailbag – 11-25-20

By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Mailbag Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors.

Please submit your questions to: legalmailbagatcasciacdotorg.

Dear Legal Mailbag:

As the COVID-19 pandemic continues, the temporary remote learning option that districts are required to provide families this year seems to be anything but temporary. As we work to keep children connected and on task during remote learning, it is hard to know what rules we can establish and what rules we can enforce.

In normal times, having clear attendance rules was a given, and no one would ever claim that a student has a right to drop by school or leave class if and when he or she feels like it. But one family at my elementary school appears to think that such a cavalier attitude toward attendance is just fine when children are learning remotely. This is not a family for which resources or connectivity is in issue, situations for which I have great sympathy. Rather, these parents simply want to call the shots.

To be more specific, though the parents have elected the remote learning option, they have hired a tutor who apparently is teaching the children, and it is the rare day when their two children actually participate fully in the scheduled online activities. Rather, they sign on and sign off sporadically during the day as they see fit, and on some days they don’t sign on at all. Moreover, they pick and choose what assignments to complete. As Legal Mailbag may well imagine, the two teachers dealing with this family are fit to be tied, wondering what they should do about attendance and grading.

It would be easier for all if I would just tell these teachers to let their expectations slide. However, pre-COVID we had rules about attendance and procedures to follow when students were truant. Can I make a stand and tell these parents to get with the program or make other arrangements for the education of their children?


Principled Principal


Dear Principled:

Yes. In the first instance, this is an attendance problem that you should address in accordance with established district procedures. Legal Mailbag advises that you should exhaust all reasonable options before you refer the matter to DCF as a matter of educational neglect or move to disenroll these students. This is a complicated issue, and Legal Mailbag regrets the need for the lengthy explanation that follows.

Presumably, you and your district have established basic expectations for remote learners, such as signing on at appointed times, activating their cameras during synchronous learning activities, and handing in their assignments in a timely manner. Your teachers may enforce these rules with these children, and they may refer non-compliant students to you as the building administrator, as was the case pre-COVID.

Notably, pandemic or not, parents still have a duty to assure that their children attend public school or elsewhere receive “equivalent instruction in the studies taught in the public schools.” Conn. Gen. Stat. § 10-184. See Addendum 1 to Adapt, Advance, Achieve: Connecticut’s Plan to Learn and Grow Together, “Temporarily Opting into Voluntary Remote Learning Due to COVID-19 (July 27, 2020)”:

…families continue to have a legal obligation to engage in public school education unless the children are receiving equivalent instruction elsewhere (such as through home-schooling or in non-public schools), as set forth in Connecticut General Statutes Section 10-184. Therefore, in collaboration with the school district, parents who decide to opt into voluntary remote learning will also be expected to supervise and engage their children to fully and effectively access the remote learning programming that is offered through the public school district. (Emphasis added)

For remote learners, such engagement in public school education involves parents assuring that their children comply with established expectations, such as signing on at the established time and participating in classroom activities. These expectations are similar to the duty that parents have in normal times to make sure that their children get to school.

From the inception of the temporary remote learning option, the State Department of Education has expected that teachers take attendance of children who are learning remotely. See Addendum 1. In Addendum 14, “Supporting Student Attendance and Engagement during Hybrid or Remote Learning” (September 21, 2020), the State Department of Education provided additional guidance on this requirement:

Student attendance in all learning models should be consistent with the State Board of Education’s definition for attendance that, “A student is considered to be ‘in attendance’ if present at their assigned school, or an activity sponsored by the school (e.g., field trip), for at least half of the regular school day.”

To assist teachers and others in taking attendance of remote learners, the State Department of Education has issued guidance, Tracking Daily Attendance on Remote Days in 2020-21 (Connecticut State Department of Education, October 29, 2020). There, we read that a remote learner should be considered in attendance “if the total time spent on one or more of the following activities equals at least half the school day: Synchronous virtual classes + Synchronous virtual meetings + Time logged in electronic systems + Assignment submission/completion = At least half of the school day.” Interestingly, that guidance further states that attendance at synchronous classes is not essential for a student to be considered in attendance, stating, “This flexibility is designed to allow students and families who may have difficulty attending synchronous virtual classes to demonstrate presence through other means.” Similarly, the guidance provides that school districts may not require attendance at synchronous virtual classes for a student to be considered in attendance: “While the district may adopt such a general expectation, the CSDE expects districts to allow for legitimate exceptions where a student may be unable to attend synchronous virtual classes (e.g., parent work-life responsibilities, power outage, Internet bandwidth, documented disability).”

This guidance reflects the need for flexibility in these matters as we all struggle with the unprecedented circumstances imposed by the pandemic. However, you may distinguish situations in which parents have legitimate difficulty in assuring that students log in at specified times from those in which parents and their children are simply not following the rules, as is apparently the case for you with this family.

Here, your teachers should consider the guidance referenced above, Tracking Daily Attendance on Remote Days in 2020-21, and they should mark these children absent when they do not demonstrate attendance as set forth in that guidance. Parents have the right under Connecticut law to excuse up to nine absences by simple note (but a note is required). See Guidelines for Implementation of the Definitions of Excused and Unexcused Absences and Best Practices for Absence Prevention and Intervention (State Department of Education, April 2013). However, thereafter absences are excused only as defined in the Guidelines and in Conn. Gen. Stat. § 10-198a(e), and any other absences are considered “unexcused.”

Connecticut law defines a “truant” as “a child age five to eighteen, inclusive, who is enrolled in a public or private school and has four unexcused absences from school in any one month or ten unexcused absences from school in any school year.” Conn. Gen. Stat. § 10-198a(a). Absence of a remote learner without excuse more than four times in a month or ten times in the year thus triggers the procedures of your district’s attendance policy as required by Conn. Gen. Stat. § 10-198a(b). Your district’s attendance policy will include provision for “(1) The holding of a meeting with the parent of each child who is a truant, or other person having control of such child, and appropriate school personnel to review and evaluate the reasons for the child being a truant, provided such meeting shall be held not later than ten school days after the child’s fourth unexcused absence in a month or tenth unexcused absence in a school year.”

Legal Mailbag advises that you should have that meeting as required and warn the parents of the need to assure that their remote-learner children “attend” school in accordance with the guidance set forth in Addendum 14. If the parents are uncooperative and unrepentant, in consultation with your superintendent, you may need to escalate. In the circumstances described in Addendum 14, options include referral of the matter to DCF for Educational Neglect, described therein as “’Educational neglect’ occurs when a school-aged child has excessive absences from school through the intent or neglect of the parent or caregiver. For children older than 12, excessive absenteeism through the child’s own intent, despite the caregiver’s efforts, is truancy, which is handled through the school district.” (Emphasis added)

Finally, taking action to disenroll these children may ultimately be an option. These parents may meet their responsibilities to provide for the education of their children through alternative arrangements (private school, homeschooling), and you and your school have rules that you may enforce. Your district may take any such action to disenroll the students for failing to participate in school as required, however, only after providing notice and an opportunity for a hearing pursuant to Conn. Gen. Stat. § 10-186. Moreover, you must continue to ask whether and how the parents will be assuring that their children are elsewhere receiving “equivalent instruction in the studies taught in the public schools,” and to make a DCF referral if the parents are not meeting this responsibility. It is not enough simply to disenroll students and call it a day.