by James C. Sherlock
Democrats are attempting to rush through a bill to provide political cover from a backlash by parents against the continuing closure of Virginia schools.
Never ones to let a crisis go to waste, they have put union-written provisions in the bill that will permanently change the nature of the public schools for the worse.
So let’s look at Virginia SENATE BILL NO. 1303 AMENDMENT IN THE NATURE OF A SUBSTITUTE Local school divisions; availability of virtual and in-person learning to all students
There are four provisions in the bill that will change Virginia public schools, some forever.
First, it introduces for the first time the concept of keeping schools closed to full-time attendance in school year 2021 – 2022.
“Each school board shall offer, for the duration of the 2021–2022 school year, fully in-person instruction or a combination of in-person and remote virtual instruction to each student enrolled in the local school division in a public elementary and secondary school or a public school-based early childhood care and education program.”
So, what exactly is the positive effect of this law? Answer – nothing. It brings the 2021 – 2022 school year into play and doesn’t direct the reopening of schools to full-time instruction for any defined period. One day a month in school is “a combination of in-person and remote virtual instruction”.
Second, it does so even with language in the bill that:
“Prior to the start of the 2021–2022 school year, all teachers and school staff shall be offered access to receive an approved COVID-19 vaccination through their relevant local health district.”
Seriously? So, all of the teachers and staff are to be “offered access” to vaccination. Why are not they required to get vaccinated as a condition of employment? Why are we not “following the science? How is this “for the children”?
From Becky Pringle, NEA President:
Schools should be the safest place in any community. Now that we have clear CDC guidance, state and local decision makers need to be able to look educators, students, and parents in the eyes and ensure that they are safe with full confidence.
Which, of course, is hogwash If she meant it her union would not back optional vaccinations for its members. The unions don’t want school teachers or staff to be required to do anything. This one provision in SB 1303 puts the lie to everything the Democrats and unions are saying about school safety.
Third,
“Notwithstanding the provisions of § 1 of this act, any local school board may, for any period during which the Governor’s declaration of a state of emergency due to the COVID-19 pandemic is in effect, provide fully remote virtual instruction to (i) any such enrolled student upon the request of such student’s parent …”
So, parents can declare they are uncomfortable sending their kids to school and school districts have to educate them at home? When did that become a right? This changes current Virginia law that requires parents to send their children to school or provide approved home schooling. As a practical matter, how can any school system provide that service to an undefined number of students in addition to accommodating full time in-school education?
Fourth, and perhaps most disturbingly,
Nothing in this act shall be construed to prohibit any teacher or other school staff member who is permitted to perform any job function in a fully remote or virtual manner as a reasonable accommodation pursuant to Title I of the Americans with Disabilities Act (42 U.S.C. § 12111 et seq.) from continuing to perform any such job function in such a manner.
This language, rather than defining a teacher’s place as in the classroom, defines as a “reasonable accommodation” letting a teacher claim ADA protection in requiring public schools to let him or her teach from home.
Current Virginia law in employment of teachers does not offer an option of teaching from home and makes no mention of the ADA. ADA protections for public employees require accommodations for working at the place of employment, not from home.
Code of Virginia, § 22.1-295. Employment of teachers.
A. The teachers in the public schools of a school division shall be employed and placed in appropriate schools by the school board upon recommendation of the division superintendent.
Placed in appropriate schools.
So let’s look at the ADA provisions in 42 U.S.C. § 12111 – U.S. Code – Unannotated Title 42. The Public Health and Welfare § 12111. Definitions
(8) Qualified individual
The term “qualified individual” means an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this subchapter, consideration shall be given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.
10) Undue hardship
(A) In general
The term “undue hardship” means an action requiring significant difficulty or expense, when considered in light of the factors set forth in subparagraph (B).
(B) Factors to be considered
(iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity;
So, each school district must now rule that working in school is essential function of school employees and put it in the job description. But that will not be enough.
The proposed law also will require Virginia’s school districts to prove that providing accommodations for teachers and staff working from home constitute an undue hardship. School divisions are left to hope they win the inevitable lawsuits based on the “it was OK to teach from home during COVID” precedent. Otherwise, individuals in the school workforce can require ADA accommodations to work from home. Note from a doctor suffice?
So, why exactly does the Democratic substitute bill even bring up the ADA? There was no necessity to do so.
Because this particular piece of union rent seeking will not go away when the bill expires. And because it can now be cited in lawsuits asking for that accommodation.
Remember, Virginia school districts that are foolish enough to permit collective bargaining face it in May.
Anybody think that teaching and school administration from home won’t be part of the new collective bargaining “demands” and lawsuits?
Then there will be the lawsuits that challenge the “equity” of whatever the results are. Say, more work-from-home teachers in minority-majority schools? More unvaccinated teachers in economically disadvantaged schools?
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