Guidance for schools on potential teacher work stoppage


Dear Administrator,

The Oklahoma State Department of Education has provided additions to its earlier guidance regarding the potential upcoming teacher work stoppage. Please refer to items 10 and 11 for new information.

 

1.      Can teachers legally participate in a work stoppage?

Generally, yes, as long as the work stoppage is not utilized as a means to resolve differences with the local school district board of education. See 70 O.S. § 509.8

 

2.      What are the consequences, if any, of a school district not meeting the requirement in state law for 180 days/1,080 hours in the calendar year?

Oklahoma law provides that school shall be in session and classroom instruction offered for not less than one hundred eighty (180) days or not less than one thousand eighty (1,080) hours. See 70 O.S. §1-109. Further, state law requires that any school district that does not maintain school for a full term (i.e., 180 days/1,080 hours) shall have its State Aid reduced proportionately. See 70 O.S. § 18-110

 

3.      Is there an exception to the requirement of reducing state aid of a school district not meeting the requirement in state law for 180 days/1080 hours in the calendar year?

The State Board of Education may waive the mandatory reduction of state aid of a school district not meeting the requirements for the calendar year only when conditions beyond the control of school authorities make the maintenance of the calendar-year term impossible. A voluntary work stoppage does not meet the requirements to qualify for the waiver. 

Importantly, if schools choose to change their calendar in order to make up days, they will need to ensure they have local school board approval and update those changes in the WAVE. 

 

4.      What potential impacts are there if a work stoppage prevents the state from administering statewide assessments?

The Every Student Succeeds Act (“ESSA”), at 20 USC § 6311, requires each state to annually administer certain academic assessments to all public elementary school and secondary school students in the State. If Oklahoma fails to annually administer the required assessments, the United States Secretary of Education (the “Secretary”) may withhold federal funding until the State becomes compliant with the requirements of ESSA. While the Secretary has the authority to waive testing requirements, it is not assured and may be unlikely in these circumstances.  

Furthermore, ESSA requires that each state annually measure the achievement of not less than ninety-five percent (95%) of all students in who are enrolled in public schools on the federally mandated assessments (i.e., the statewide system of student assessments). For purposes of measuring, calculating and reporting, Oklahoma must factor the greater of 95% of full academic year (“FAY”) students enrolled or the number of students participating in the assessments. See 20 USC § 6311(c)(4)(E). Stated otherwise, if a school only tests 75% of FAY students, this would be equivalent to 20% of students receiving a zero on the statewide system of student assessments. In addition, for purposes of the State’s accountability system, anything below 95% of all students participating in the statewide system of student assessments will result in a minus on the school’s overall letter grade.

Finally, if the State is not able to administer the state assessments, this may potentially impact other accountability requirements, including but not limited to identifying schools in need of improvement. Failure to comply with these additional requirements could further jeopardize Oklahoma’s receipt of federal education funds. In the event of noncompliance, the Secretary could attach specific conditions to Oklahoma’s federal grant, or withhold administrative or programmatic funds in the event of noncompliance with testing or other provisions of federal law. 

If a work stoppage occurs, we will be in conversations with the Secretary to best ensure there is a limited impact on the federal funds Oklahoma schools receive. 

 

5.      Is the State working to modify the date(s) for administering of statewide assessments?

No, it is not anticipated that the State can modify and/or change the date(s) for administering state assessments. Rather, State-level assessments will proceed based on this schedule. The testing dates for ACT and SAT were set in the state vendor contracts. In addition, Oklahoma law requires the State Board of Education to provide preliminary results for all statewide assessments to school district no later than June 1 of each year. See 70 O.S. § 1210.508(H)(2).

Furthermore, the 2018 AP Exams are set by College Board and will be administered over two weeks in May: May 7-11 and May 14-18.

 

6.      In addition to state assessments, what federal laws are potentially implicated due to a work stoppage?

ESSA and the Individuals with Disabilities Education Act (“IDEA”), as well as other federal programs, flow to states and then school districts under formulas that are, in the immediate term, unaffected by work stoppages. The funds will continue to be available to Oklahoma.

 

7.      What, if any, potential implications are there specifically relating to the provision of instructional and related services to students with disabilities pursuant to the IDEA?

District Reporting and Submission Requirements for Special Education
District reporting and submission requirements for Special Education will not be adjusted. However, training dates affected by a teacher walkout may be rescheduled and additional opportunities for training on reporting and submission requirements will be offered.

FAPE
It is imperative that students with disabilities receive a Free and Appropriate Public Education (FAPE) according to their Individualized Education Program (IEP) and that compliance with IDEA be maintained. If a district does not make any changes to their calendar and does not provide the required 1,080 hours or 180 days, said district may need to provide compensatory services to students on an IEP in order to ensure FAPE. 

Students who receive services at a private school through an Individualized Services Plan (ISP) must still be provided services as outlined in the ISP or offered compensatory services. 

IEP and Evaluation Timelines
IEP annual due dates may not be adjusted. IEPs are required to be reviewed at least annually. A change in the school calendar will not affect or extend the due date of an IEP. This does not prevent an IEP from being conducted prior to the annual due date and therefore adjusting the next annual due date. 

Initial Evaluations must be completed within 45 school days of receiving an initial parent consent for evaluation. If the school calendar is changed, the due date for the completion of Initial Evaluations will change. 

Reevaluations must be conducted every three years. A change in the school calendar will not affect or extend the due date of a reevaluation. This does not prevent a reevaluation from being conducted prior to the three-year due date and therefore adjusting the next due date. 

For children with disabilities transitioning from SoonerStart and determined eligible for services under the IDEA Part B, IEPs must still be in place on or before their third birthday.

Alternate Assessment
The Dynamic Learning Maps Alternate Assessment window is March 12 - May 4. This window will not be adjusted.

 

8.      What options exist relating to existing school meal programs?

School Food Authorities (“SFA”) may utilize the following options with respect to their United States Department of Agriculture programs:

  • Seamless Summer Option (SSO): Should the SFA choose to use the SSO, permission is also granted to allow service of meals at either school sites or non-school sites. SFAs must apply for the option by contacting Child Nutrition Programs at (405) 521-3327.
  • Child and Adult Care Food Program (“CACFP”) At Risk Program:  SFAs currently operating the At Risk program may serve and claim a meal and/or snack under this program. This choice could require updating the application as to a meal change.  

Participation in any of these options requires that sites be located in the attendance area of a school with a population of 50% or more students qualifying for free or reduced lunch.

 

9.      If there is a work stoppage and school districts make up school days after the currently scheduled school year, what are the impacts of student absences (i.e., will an absence be excused or unexcused if a student is absent due to previously scheduled family plans)?  

This is a matter of local determination, to be determined on a district-by-district basis.

 

10.      Will teachers continue to be paid during any work stoppage?

Oklahoma law provides teachers with a minimum of three (3) days for personal business leave, upon the request of the teacher. See 70 O.S. §6-104. Stated otherwise, a teacher is guaranteed a minimum of three (3) days of personal leave for each school year, but a teacher’s contract and/or local bargaining agreement may provide in excess of this minimum. A teacher who elects to participate in a work stoppage but who has previously exhausted his or her personal leave days, regardless of the total number provided, will have salary reduced for the entire daily amount for each day absent. 

Additionally, if a school district continues operations but some or all staff engage in a work stoppage, Oklahoma law requires that if a teacher is absent for a reason of personal business, the school district shall deduct from the salary of the teacher only the amount necessary to pay a substitute. See 70 O.S. § 6-105

Unless the school days are made up this school year subsequent to any work stoppage, school employees would not be able to receive new compensation while there is a work stoppage. See Okla. Const. Art. X, §15.

 

11.      Are school district employees who are paid with federal funds prohibited from engaging in a work stoppage and/or related activities?

Federal regulations at 2 CFR 200.450 provide certain restrictions relating to lobbying activities, including but not limited to rallies and mass demonstrations. Importantly, however, these regulations are not applicable to public school staff engaging in a work stoppage. Instead, the regulations are limited to application in the following general situations:

  1. attempts to obtain a grant, contract, agreement or loan and how those are not allowable reimbursement costs
  2. lobbying the executive branch, employee or officer thereof, of the federal government
  3. lobbying by nonprofits and institutions of higher education

See 2 CFR 200.450(a-c).

Additionally, even if it is assumed that the above guidance was applicable, the reimbursement for teacher salaries paid for the days the district voluntarily elects to suspend operations represents time that, per state statute, will ultimately need to be “made-up” prior to the end of the academic year. See Question 10, above. As this is the case, the reimbursement of a teacher salary from Title funds is seen only to be satisfying existing contracted educational duties, not those activities a teacher may or may not choose to engage in when the district voluntarily elects to suspend operations. 

 

12.      Questions?

Patrons with questions specific to a program should contact that program office within the Department. Patrons with questions relating to a legal matter should contact Brad Clark, General Counsel, at (405) 521-4906, and those with other questions are requested to contact Annette Price, Constituent Services Specialist, at (405) 521-6647.

Last updated on March 29, 2018