LEGAL AND PRACTICAL IMPLICATIONS OF THE USE OF ONLINE/BLENDED LEARNING IN THE CLASSROOM

1. LEGAL AND PRACTICAL IMPLICATIONS OF THE USE OF ONLINE/BLENDED LEARNING IN THE CLASSROOM MANAGEMENT ADVOCATES FOR SCHOOL LABOR AFFAIRS (“MASLA”) ANNUAL SUMMER CONFERENCE JULY 15, 2013 LAKE PLACID, NEW YORK Ronald Mendrick, Esq., Harter, Secrest and Emery LLP Jim McNeil, Assistant Superintendent for Human Resources, Wayne-Finger Lakes BOCES and Melinda B. Bowe, Esq, Hancock Estabrook, LLP

2. ONLINE/BLENDED LEARNING IN THE CLASSROOM NYSED’s Professed Commitment to the Use of online/Blended Learning in Classroom SED’s Office of Curriculum, Assessment, and Educational Technology’s Educational Design and Technology program office SED’s website entitled Online and Blended Learning in New York State states that it “has launched a statewide virtual learning initiative to support the growth of effective online and blended instruction”

3. ONLINE/BLENDED LEARNING IN THE CLASSROOM • The Reality: For K-12 public school districts in New York State, key legal issues presently limit the use of online learning • Commissioner’s Regulations, Part 100.5(d) • Regulations on accreditation of transfer of courses • Regulations limiting how online coursework must be structured • Taylor Law- Mandatorily negotiable issues associated with the use of technology in classrooms • Education Law-Possible application of ”Takeover” rules

4. ONLINE/BLENDED LEARNING IN THE CLASSROOM Present restrictions on the use of online learning in New York’s public schools seem to hinge on an archaic definition of what instruction looks like • This is in polarity with what is happening in other regions of the county, and in higher education • See Attachment “1”, showcasing how other entities including NYSUT and SUNY utilize virtual/online learning every day • NYSUT’s own “Education and Learning Trust” is a partnership with Virtual Education Software, Inc. of Washington, providing continuing education for teachers via online or CD-Rom (“interactive courses provid[ing] expert instruction at a pace that fits your schedule and offered for Undergraduate or Graduate Credit”

5. ONLINE/BLENDED LEARNING IN THE CLASSROOM • Commissioner’s Regulations 100.5(d)(10), Attachment “2”, located at: http://www.p12.nysed.gov/part100/pages/1005.html#Credit • Adopted in June, 2011 and became effective July 15, 2011 • According to Commissioner’s regulation §100.5((d)(10)(ii)(b), all online courses must: • be aligned with the applicable New York State learning standards for the subject • provide for documentation of student mastery of learning outcomes including passing the applicable Regents Exam or other assessment IF required for a diploma • provide instruction by or under the direction and/or supervision of a certified teacher (see “Online Instructor/Teacher Requirements” below) • include regular substantive interaction between the student and the certified teacher providing the direction and/or supervision of the course • satisfy the unit of study and unit of credit requirements in Commissioner’s regulation §100.1(a) and (b).

6. ONLINE/BLENDED LEARNING IN THE CLASSROOM • Teachers of online coursework must be: • A certified teacher who holds a New York State teaching certificate in the subject area in which instruction is provided and who is employed by the school district in which the student is enrolled; or • A certified teacher who holds a New York State teaching certificate in the subject area in which instruction is provided and who is employed by the BOCES that contracts with the school district to provide instruction in the subject matter area pursuant to Education Law §1950; or • A certified teacher who holds a New York State teaching certificate in the subject area in which instruction is provided and who is employed under a shared service agreement; or • In the case of a registered non public school or charter school, a teacher of the subject matter area from a registered nonpublic school or charter school.

7. ONLINE/BLENDED LEARNING IN THE CLASSROOM • SED’s Complete Online Learning Q&A can be found at: http://www.p12.nysed.gov/technology/Online/qa.html • Defines Online Instruction as: Instruction in a specific subject consisting of teacher-to-student, student-to-student and/or student-to-content interactions that occur solely through digital and/or Internet-connected media (§100.5[d][10][i][a]). • Defines Blended Instruction as: Instruction in a specific subject consisting of teacher-to-student, student-to-student and/or student-to-content interactions that occur through a combination of classroom-based digital and/or internet-connected media (§100.5[d][10][i][b]).

8. ONLINE/BLENDED LEARNING IN THE CLASSROOM • “Under the direction or supervision” of the teacher • Subsection 4 of the regulations states expressly that the instruction must include “regular and substantial interaction between the student” and the certified teacher from his or her school or BOCES, or via shared services • In other words, a certified teacher may not “front” a course offered online

9. ONLINE/BLENDED LEARNING IN THE CLASSROOM Note: SED’s Q&A states that school districts may contract with non-profit or other entities to provide digital content, distance or online learning opportunities to students, provided that such programs are used as supplementary or additional resources to assist a district’s certified teachers in delivering instruction. The Q&A then refers to another NYSED guidance document, “Contracts for Instruction”, found at: http://www.p12.nysed.gov/resources/contractsforinstruction/qa.html

10. ONLINE/BLENDED LEARNING IN THE CLASSROOM • Taylor Law Limitations (Article 14, New York State Civil Service Law) • Legal ramifications of an arrangement by a school district to offer programs and services by personnel other than its own unit employees • Case law generally prohibits subcontracting of work exclusively performed by unit members for sufficient uninterrupted period of time to create reasonable expectation that practice would continue

11. ONLINE/BLENDED LEARNING IN THE CLASSROOM However, Exceptions to General Bar Against Subcontracting Include: Change in Qualifications Needed to Perform the Work-triggers Niagara Frontier’s balancing test Exception to duty to negotiate decision to transfer academic programs to BOCES pursuant to Education Law Section 1950(4)(bb) established in Webster CSD

12. ONLINE/BLENDED LEARNING IN THE CLASSROOM • Parties may also negotiate waiver of subcontracting claims by Union • Recently, some Unions have been willing to look at expanding scope of subcontracting waiver to include AP programming, credit recovery programs • Some recognition in smaller rural and suburban districts that student numbers do not support hiring individual district staff to cover these course • However, although this removes any Taylor Law obligation to negotiate on the decision to use non-unit personnel to deliver this instruction, the limits of the Commissioner’s Regulations will still apply

13. ONLINE/BLENDED LEARNING IN THE CLASSROOM • Other Questions and Considerations • Option for students to take online courses on their own and obtain transfer credits: • Option for districts to offer make-up/credit recovery possible for students via online programming? • Virtual Advanced Placement (“VAP”) Program announced • Federal Race to the Top Dollars • Designed to increase successful participation of low-income students in virtual learning AP courses • AccelerateU and VAP Program: the Wayne-Finger Lakes BOCES’ experience

14. ONLINE/BLENDED LEARNING IN THE CLASSROOM • Potential Application of the Takeover Statutes—Education Law Sections 3014-a and 3014-b QUESTIONS AND OBSERVATIONS? THANK YOU!