Guidelines adopted for reopening schools in New York state.

The New York State Department of Education [NYSED] has posted a summary of its guidelines for reopening schools in New York state on the Internet. NYSED's summary is set out below:

Health and Safety

Focused on preventive actions, schools and districts will be required to perform health checks and screenings, per DOH guidance, and recognize signs and symptoms of  illness in students and staff; develop plans to maximize social distancing; develop plans to manage and isolate ill persons until they can be sent home; instruct students and staff in proper hand and respiratory hygiene; require wearing appropriate face coverings; and develop cleaning and disinfection procedures for the school in accordance with CDC and DOH guidance.

Facilities

Schools and school districts should promote social distancing while maintaining existing safety requirements designed to protect students. To accomplish this, schools may expand their physical footprint or change the way they utilize space. Schools should also continue to meet or exceed ventilation requirements and may wish to consult with design professionals to increase ventilation and filtration.

Schools must continue to conduct mandatory fire and lockdown drills according to the existing stat­utory schedule. School leaders will need to plan for these drills to be conducted in a manner that maintains social distancing at exits and gathering points outside the building, while still preparing students to respond in emergencies.

Nutrition

Schools and school districts should include food service directors in reopening plan discussions so they are able to meet their requirements to provide all enrolled students with access to school meals each school day whether school is in-person or remote; address all applicable health and safety guidelines; ensure compliance with Child Nutrition Program requirements; and communicate with families through multiple means, in the languages spoken by those families.

Transportation

The school bus is an extension of the classroom and services should be provided to all students with consistency and equity. Each district will be required to: perform regular school bus disinfec­tion measures; train students and school bus staff regarding social distancing on the bus, at stops, and at unloading times; and train students and staff regarding the wearing of masks. Both students and drivers will wear masks and social distance on the bus. Districts will continue to provide trans­portation to homeless students, students in foster care, those who attend religious, independent or charter schools – and those with disabilities – just as they always have.

Social-Emotional Well-Being

As school and district personnel adapt to environments that result in substantially less time spent interacting in-person, ensuring intentional and meaningful inclusion of social emotional learning (SEL) across all aspects of operating strategies is critical to support the well-being and success of students, staff, and families. Along with physical health and well-being, schools and districts must also prioritize social emotional well-being – not at the expense of academics, but in order to create the mental, social, and emotional space for academic learning to occur.

School Schedules

Schools must create a comprehensive plan for a schedule that includes in-person instruction, re­mote instruction or a hybrid of both in-person and remote. All plans should be clearly communicat­ed, with as much advance notice as practicable, to students, families and staff.

To adhere to state and local health and safety guidelines and ensure social distancing practices, schools may consider various reopening plans and schedules that stagger or alternate their stu­dents’ return to campus. Schools should collaborate with district stakeholders when considering alternate schedules.

Budget and Fiscal

All schools and school districts must continue to meet existing state aid reporting requirements. Additionally, the content of data submissions, such as attendance data, will remain consistent with past practice, except where modified by law, regulation or executive order.

Attendance and Chronic Absenteeism

Schools must develop a mechanism to collect and report daily teacher student engagement or at­tendance. While this requirement is straightforward in an in-person setting, a procedure should be developed to make daily contact with students in remote or hybrid settings. Schools may consider for instance, assigning the homeroom teacher or advisory teacher to be the point of contact to touch base with a specific group of students daily.

Attendance data must be reported in the student infor­mation reporting system or SIRS. School policies and procedures must focus on the academic con­sequences of lost instructional time and address absences before students fall behind in school. It is critical for schools to use a variety of creative methods to reach out to students and their families who have not engaged in distance learning.

Technology and Connectivity

Adequate access to a computing device and high-speed broadband is essential for educational eq­uity. Schools and districts must determine the level of access all students and teachers have in their places of residence; to the extent practicable, address the need to provide devices and internet access to students and teachers who currently do not have sufficient access; and provide multiple ways for students to participate in learning and demonstrate their mastery of the learning standards in remote and hybrid instructional models.

Schools and districts should provide instruction on using technology and IT support for students, teachers and families and provide professional development for teachers and leaders on designing effective online/remote learning experiences.

Teaching and Learning

Mandatory teaching and learning requirements include providing clear opportunities for equitable instruction for all students; ensuring continuity of learning regardless of the instructional model used; providing standards-based instruction; ensuring substantive daily interaction between teach­ers and students; and clearly communicating information about instructional plans with parents and guardians.

To allow for schools and districts to adapt to complications caused by the pandemic, certain flexi­bilities will be authorized, including: flexible student/staff ratio in prekindergarten; extended time for prekindergarten and kindergarten screening to be completed; a waiver allowing districts to convert UPK seats from full-day to half-day (not applicable to Statewide Universal Full Day Pre-K pro­grams); flexibility with the 180 minutes per week Unit of Study requirement; flexibility in the delivery of physical education; allowance for a blend of hands-on and virtual science laboratory experienc­es; and when appropriate, districts and charters may utilize remote or virtual work-based learning experiences for CTE and CDOS programs.

Special Education

Schools and school districts are required to provide: a Free Appropriate Public Education consis­tent with the need to protect the health and safety of students with disabilities and those providing special education and services; meaningful parental engagement regarding the provision of ser­vices to their child; collaboration between the Committee on Preschool Special Education/Commit­tee on Special Education (CPSE/CSE) and program providers representing the variety of settings where students are served; access to the necessary instructional and technological supports to meet the unique needs of students; and documentation of programs, services and communications with parents.

Schools and school districts should consider in-person services a priority for high-needs students and preschool students with disabilities whenever possible and consider contingency plans devel­oped by the CPSE/CSE to address remote learning needs in the event of intermittent or extended school closures.

Bilingual Education and World Languages

Reopening plans must address the learning loss experienced by many English language learners (ELLs), in both their English language development and their mastery of content area knowledge. The Department has identified the following requirements and considerations that will allow schools to provide ELL services that address the impact of last year’s school closures and prepare them for potential challenges in the coming year. Schools and districts must:

• provide all communications to parents/guardians of ELLs in their preferred language and mode of communication to ensure that they have equitable access to critical information about their children’s education;
• ensure that all ELLs receive appropriate instruction that supports their college, career, and civic readiness, by providing them the required instructional Units of Study in their English as a New Language or Bilingual Education program based on their most recently measured English language proficiency level;
• conduct ELL identification for all students who enrolled during COVID-related school closures in 2019-20, during the summer of 2020, and during the first 20 days of the 2020-21 school year within 30 days of the start of the school year; and
• recognizing that all teachers are teachers of ELLs, provide professional learning opportunities related to the instruction and support of ELLs to all educators, as required by Part 154 of the Commissioner’s regulations.

Schools and districts should align their policies to the Blueprint for English language learner/Mul­tilingual learner (ELL/MLL) Success; adopt progress monitoring tools to measure ELL proficiency; provide social-emotional learning supports to ELLs in their home language; continue utilizing tech­nology in ELL instruction; support Students with Interrupted/Inconsistent Formal Education (SIFE) and other vulnerable populations; ensure the Emergent Multilingual Learners (EMLL) Profile sup­ports early learning; and support completion of the NYS Seal of Biliteracy.

Staffing and Human Resources

As schools and school districts create their plans for the 2020-21 school year, they must ensure that all teachers, school and district leaders and pupil personnel service professionals hold a valid and appro­priate certificate for their assignment; can continue to utilize incidental teaching when determining how to staff their classrooms; can employ substitute teachers to address staffing needs for the allowable amount of days given their qualifications and teaching assignment; should work with educator prepara­tion programs to identify appropriate ways in which student teachers can support classroom instruction; and should consider whether their currently approved APPR plans may need to be revised in order to be consistent with their plans for re-opening under an in-person, remote or hybrid instructional model.

The full text of the Education Department's guidelines for reopening schools in New York State is posted on the Internet at:

http://www.nysed.gov/common/nysed/files/programs/reopening-schools/nys-p12-school-reopening-guidance.pdf.

An individual's claim of unlawful retaliation by the appointing authority in violation of civil rights laws must allege temporal proximity

Petitioner's [Plaintiff] appealed Supreme Court's granting the appointing authority's motion to dismiss Plaintiff's retaliation claim which she had filed pursuant to New York City's Human Rights Law.

The Appellate Division affirmed the Supreme Court's ruling, explaining that Plaintiff failed to allege a causal connection, based on temporal proximity* between her complaints about a supervisor's alleged discriminatory conduct and four alleged disadvantageous employment actions she claimed had to have suffered in 2017.

Noting that Plaintiff's earlier federal litigation was too remote in time and the instant complaint did not allege any "other facts supporting causation," the Appellate Division held that Plaintiff cannot show a causal connection between complaints she made "in March, May, and June 2017, which were resolved in July 2017" and the appointing authority's September 2017 decision to transfer Plaintiff after two short-term assignments to another field office.

Likewise, opined the Appellate Division citing Sims v Trustees of Columbia Univ. in the City of N.Y., 168 AD3d 622, Plaintiff cannot show a causal connection between her complaints and the three suspensions that Plaintiff served in 2017 arising from conduct pre-dating her complaints as those penalties were a "continuation of a course of conduct that had begun before [she] complained."

* The term temporal proximity in law refers to how close in time different things occurred. 

** See Brown v City of New York, 622 F Appx 19, [2d Cir 2015].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_03721.htm

Appointing authorities generally have broad discretion in determining the fitness of candidates appointed to positions in the classified civil service during the probationary period

Article V, §6 of New York State's Constitution Civil provides that appointments and promotions in the Civil Service "shall be made according to merit and fitness." Satisfactory completion of a probationary period of service is typically required where the employee has been "appointed on a permanent basis"* and is provided to give the appointing authority an opportunity to determine the fitness of the probationer for the position and to give the probationer a reasonable opportunity to demonstrate his ability to satisfactorily perform the duties of the position.**

The Petitioner [Officer] was employed as a police officer in a police department [Department] and passed the examination for promotion to Sergeant. He was subsequently promoted to Sergeant, subject to Officer's  satisfactory completion of a six-month probationary period. Prior to the end of his probationary period Officer received written notice that he was to be reinstated to his former rank of police officer because he had failed to satisfactorily complete his probationary period.

Officer brought a CPLR Article 78 challenging the Department's decision to reinstate him to his former rank alleging that the Department's action [1] was arbitrary and capricious, [2] made in bad faith and [3] made without the Department complying with its own procedures in evaluating him during the probationary period. Supreme Court, following a hearing, denied the Officer's petition and dismissed the proceeding. Officer appealed.

The Appellate Division, citing Matter of Messenger v State of New York Dept. of Corr. & Community Supervision, 151 AD3d 1433, affirmed the Supreme Court's ruling, explaining that "An employee's probationary appointment may be terminated . . . for any reason, or no reason at all, so long as the termination was not in bad faith or for an improper or impermissible reason." Further, said the court, Officer bears a heavy burden of proof in demonstrating that challenged administrative action was made in bad faith, or for an improper or impermissible reason, "for which conclusory allegations and speculative assertions will not suffice." Further, noted the court, "[Appointing] authorities generally have wide discretion in determining the fitness of candidates for the appointment to a civil service title, and this discretion is particularly broad in appointment of law enforcement officers, to whom high standards may be applied."

The Appellate Division opined that Officer's submissions and the testimony at the hearing failed to demonstrate that the Department's decision with respect to his failure to satisfactorily complete his probationary period upon his promotion to Sergeant was made in bad faith, or that it was based on an improper or impermissible motive as the evidence and testimony adduced by the Department established that its decision to terminate the Officer's probationary appointment to the rank of sergeant was made in good faith. Further, said the court, Officer failed to demonstrate that the factors relied upon by the Department in reaching its determination were merely pretextual.

Addressing Officer's contention that the Department acted in bad faith for allegedly failing to adhere to its own procedures concerning probationary evaluations, the Appellate Divisions said that the Department complied with its practice that a probationer shall receive an "interim" and "final" performance evaluation. In addition the court noted that assuming that the Department was obligated to evaluate probationary employees "every two months," as asserted by the Officer, the record shows that precinct supervisors met with the Officer on multiple occasions during his probationary period to discuss behavior and incidents that were later determined by the appointing authority to reflect poorly on the Officer's judgment and performance, or which violated the Department's rules.

The Appellate Division concluded that the Department's efforts to alert the Officer to behavior and performance issues it deemed unsatisfactory demonstrated substantial compliance with its own internal procedures, and moreover, complied with its general obligation to adequately advise the [Officer] of his status and progress during the probationary term.

Finding that the Officer failed to demonstrate that the Department's decision to reinstate him to his former rank was made in bad faith, or was based on an improper or impermissible motive, the Appellate Division said it agreed with the Supreme Court's determination to deny the petition and dismiss the proceeding.

* There are certain exceptions to this requirement. For example, an individual reinstated to a vacancy from a preferred list is not required to serve a probationary period upon such appointment unless the individual's name was placed on the preferred list prior to the completion of his then probationary term whereupon the  probationer is required to satisfactorily complete his probationary term upon reinstatement.

** In York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees as follows: “After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.” Should an appointing authority wish to terminate a probationer prior to the end of the probationer's minimum probationary period, the probationer must be accorded administrative due process, which typically requires "notice and hearing."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_03789.htm