Pomp Amid Interesting Circumstances

By John M. Sedor, Sedor, Wendlandt, Evans & Filippi, LLC

John M. Sedor

Congratulations Class of 2020!

I think this year all of us – not just students – have gone through a unique “curriculum” and learning situation. We are all grads of these “interesting times” and deserve recognition as this school year comes to an end and we look forward to the beginning (commencement) of the opportunities and challenges that lie before us.

Of course, how we recognize this graduation underscores the very pandemic we are living through. DEED issued guidance last week on graduation ceremonies consistent with Phase 1 of Governor Dunleavy’s Reopen Alaskan Responsibly Plan. That guidance can be found HERE.

The guidance, in general, allows for groups of less than 20 people provided there is appropriate social distancing (6 feet unless a person is speaking or singing – then it is 10 feet), masks, and no physical interaction. Clearly, the 2020 graduation photos will be … unique!

Districts are approaching graduation issues differently in light of their local communities’ situation and needs. Some are providing the small group opportunities consistent with DEED’s guidance and some are taking a more cautious approach with no scheduled gatherings. At both ends of the spectrum, an issue that has come up frequently is the role of staff in or at graduation events. A school is made up of its people and these people (both teachers and classified employees) can find themselves somewhat “stuck in the middle” between District/State guidelines and student/family interests regarding graduation.

Can or must staff participate in graduation ceremonies? In figuring this out, we first need to determine whether (pre-COVID 19) participation by staff in graduation ceremonies was a required job responsibility. This often depends on when the ceremony takes place (during work time?), whether the employee is certified or classified, and the rules of employment (found in the Collective Bargaining Agreement, employment contract, and/or Board policies). If participation is a job responsibility and if the ceremony meets DEED guidance, the employee can be required to participate … unless the employee is excused. An employee can be excused for any reason by the district (if the district consents). Absent district consent, an employee can be excused if the employee takes eligible accrued available district provided leave (e.g. sick, ADA, FMLA), is currently experiencing COVID 19 symptoms, or is eligible for and takes FFCRA (Family First Coronavirus Response Act) sick leave or emergency family medical leave. Notes on FFCRA leave eligibility can be found HERE and HERE. In other words, an employee cannot unilaterally refuse to work (including work related to graduation) because of nervousness or anxiety related to COVID 19 that does not meet leave eligibility requirements.

There is another side of the coin. The limited nature of the allowable graduation options has some families organizing their own ceremonies. In general, a district cannot prohibit such private ceremonies. The issue for staff is more particular: can a district prohibit staff from participating in parent organized private ceremonies? Unless the ceremony is during the employee’s work time, generally a district cannot restrict an employee’s right to assemble and participate in a privately organized celebration. (That sometimes “pesky” constitution – 😊 – protects the right to assemble and, in addition, free speech.) Districts should make clear to staff and the public that any participation in non-sanctioned events is not authorized by the district.

While graduation brings an end to the 2019-20 school year, it does not bring an end to COVID 19. The opportunities and challenges that next year’s class will face are just around the corner. Will schools open for students in the fall? And, if so, what will it look like? Already, the two largest teacher unions in the nation have sounded a possible alarm. The head of the National Education Association said this week in reference to the start up of school in the fall: “There’s not one teacher who’s ever gone through rainy day recess that wouldn’t say, ‘you cannot socially distance these kids in a classroom.’’’ The American Federation of Teachers NYC affiliate is calling for protective gear, temperature checks and extensive tracing before schools reopen to students and declared: “In places where there’s a strong commitment to worker voice, we’re going to get that and in places where there isn’t, we’re going to have to use all sorts of other vehicles, or what’s going to happen is the virus will reemerge.” Pandemic Picketing may, like the virus, flare up in places around the nation.

In addition, there may be increasing issues related to the inevitable collision between health recommendations, constitutional rights, and economic pressures. There are many interests at stake, and each constituency has its own “risk tolerance.” We will likely have potentially more variation in health mandates and, thus, more opening/closing decisions related to “spikes” and “hot spots,” and the resulting lack of uniformity in the decision-making may make the decisions increasingly controversial – whichever way they go.

As we leave the Class of 2020 at the door of their future and head toward the FY21 …., our challenges will be many, but we have already proven ourselves resilient, resourceful and up to the challenge.

Congratulations to all who have participated in making this – the Class of 2020 – so special!

More from Sedor, Wendlandt, Evans & Filippi, LLC:

Six-part series: Technology and the law

Eight-part series: Interacting with the world outside of the school

Five-part series: Union Issues in Schools

Four-part series: Freedom of Expression in Schools

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The views expressed here are the writer’s and are not necessarily endorsed by the Association of Alaska School Boards. AASB welcomes diverse perspectives and civil discourse. To submit a Guest Column for consideration, see our Guest Column Guidelines and email your 400-1000 word submission HERE.