Legal Mailbag – 9-21-23

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 we are settling in to the new school year, we are starting to get accommodation requests. A fourth grader in my school is immunocompromised, and his mother has asked that he be permitted on occasion to participate in class remotely by means of a classroom robot that conveys images and sounds from the classroom to the student learning remotely. I referred her request to our Section 504 team, and today I heard back.

The Section 504 team has notified me that it has come up with an accommodation plan. The plan is that the student may participate in classroom activities remotely whenever the parent, in consultation with the family’s pediatrician, determines that there is a significant risk for the student to contract an illness from fellow students. The Section 504 team even sent me a purchase order for the classroom robot necessary to implement this plan.

It seems to me that the Section 504 team has come up with a good plan, though we will have to see how it works in the real world. However, the teacher union steward for my building came to see me to tell me that the plan is against the law because, he claims, the General Assembly has passed legislation prohibiting such dual instruction.

I would hate to tell the parent that the plan to permit her son to participate remotely cannot be implemented. Is the union steward correct?

Between a Rock and a Hard Place


Dear Rock:

The union steward is incorrect, but there is more to the story.

Conn. Gen. Stat. § 10-4w defines “remote learning” as “ instruction by means of one or more Internet-based software platforms as part of a remote learning model,” and it authorizes “remote learning” for grades nine through twelve provided certain conditions are met. This statute was amended last year to extend the right to implement remote learning to grades kindergarten through twelve on the same terms, effective July 1, 2024.

The amendments to Section 10-4w last year also categorically prohibited “dual instruction,” which the statute defines as the “simultaneous instruction by a teacher to students in-person in the classroom and students engaged in remote learning.” It was quickly apparent, however, that the prohibition swept too broadly because the accommodation of providing dual instruction may be necessary and appropriate in certain cases under either the Individuals with Disabilities Education Act or Section 504. Therefore, last year the State Department of Education issued guidance to explain that dual instruction is still permissible in certain circumstances. Guidance on Remote Learning and Dual Instruction (Connecticut State Department of Education, September 27, 2022).

This year, the General Assembly amended Section 10-4w further to codify the exceptions to the prohibition that the State Department of Education had identified, and the statute now reads in relevant part that:

dual instruction [is prohibited] as part of remote learning, except such dual instruction may be provided in cases when such dual instruction is (A) required in, or necessary to implement, the individualized education program of a student who requires special education and related services or a plan pursuant to Section 504 of the Rehabilitation Act of 1973, as amended from time to time . . . .

As you will note, dual instruction is permitted in cases such as you describe because your Section 504 team found occasional dual instruction to be a necessary accommodation for the student’s health concerns.

Interestingly, the State Department of Education Guidance referenced above also identified making low-enrollment courses available to students through cooperative programs as another exception to the prohibition against dual instruction. In 2023, the General Assembly amended Section 10-4w accordingly. Dual instruction may now also be

. . . provided as part of an intradistrict or interdistrict cooperative learning program that provides remote learning opportunities to students who are present in a classroom on school grounds during the regular school day and in which a certified educator is present in each such classroom providing such dual instruction or supervising the students receiving such dual instruction, provided such program is implemented in accordance with an agreement between each local or regional board of education and the representatives of each exclusive bargaining unit for certified employees chosen pursuant to section 10-153b participating in such intradistrict or interdistrict cooperative learning program.

Such programs can give students opportunities to participate in courses in which low enrollment would otherwise make the course cost-prohibitive. A course in Mandarin, for example, may now be provided to students in different locations (either in-district or across school districts) through dual instruction. However, the statute goes on to provide that a certified educator must be present in each classroom and that the program must be implemented in accordance with a memorandum of agreement between the school district and the teachers’ union.