Legal Updates


Instructional Hour and Testing Waivers

March 23, 2020

Wisconsin’s schools continue to be under closure orders from the Governor and Department of Health Services due to COVID-19 concerns. It is increasingly likely that many, if not most, school districts will not be able to meet state law mandates for instructional hours and pupil assessments for the 2019-2020 school year.

Many school officials have inquired about the status of waivers for instructional hour and pupil assessment mandates. The following is an update on the status of such waivers, as well as discussion of steps that districts can take to apply for waivers.

Instructional Hours Waivers

In its March 16, 2020 update, DPI stated that it “will waive the hour requirement” for districts that request it, but also that districts “need to request this waiver per state law”. DPI explained that it had requested a suspension of portions of the administrative code pertaining to waiver requests. On March 22, 2020 the Governor issued Emergency Order #10 suspending application of portions of Wis. Admin. Code PI 8.

The suspension of administrative rules allows DPI to initiate a streamlined process for requesting a waiver; however, the Order does not suspend certain requirements of the waiver process that are a function state law, not administrative rule. For example:

1. The request must come from the Board. Wis. Stat. § 118.38(1)(a) states that “[a] school board may request” a waiver of statutory or regulatory requirements. This means that the school board must pass a motion at a properly noticed meeting to request such a waiver. Current regulations require that the request be made prior to the end of the school year to which the waiver request first applies. As we discussed in a previous legal update, and has since been confirmed by DPI, the Governor’s Orders to date do not prohibit holding school board meetings.

2. The request be preceded by a public hearing. Wis. Stat. § 118.38(1)(b) states that before a waiver is requested, “the school board shall hold a public hearing in the school district on the request”.

3. Waiver period is four years. Wis. Stat. § 118.38(3) states that a “waiver is effective for 4 years.” The lengthy duration is not likely necessary, nor appropriate, under the circumstances; however, the statute does not provide a mechanism for school districts to request, nor DPI to grant, a waiver of a shorter duration. It remains to be seen how this element of the waiver system will be administered.

As school districts prepare to request a waiver of instructional hours, it is important for school district officials to complete those aspects of the instructional hours waiver requirement that are not a function of administrative rule. While this need not be completed until sometime prior to the end of the school year, it may be wise to complete the process soon, before more significant restrictions on activity, if that occurs, make it more difficult to hold board meetings.

Assessment Waivers

School districts are required to conduct pupil assessments by state law. DPI’s March 19, 2020 update, asserted that DPI has authority to waive requirements of state law chapters 115 to 121; however, there are certain requirements that state law does not permit DPI to waive. One of those items that state law excludes from the waiver process is “the pupil assessment program under s. 118.30 and the standardized reading test…”. Wis. Stat. § 118.38(1)(a)3.

On March 20, 2020, the U.S. Department of Education announced a broad waiver process that will allow states to bypass all testing requirements and reporting included in the Every Student Succeeds Act (ESSA), for the 2019-2020 school year. DPI stated that it intends to aggressively pursue that federal test waiver request.

The assessment requirements that individual school districts must complete, including the civics test requirement for high school graduation, however, are a function of state law and therefore would not necessarily be covered by the federal ESSA waivers. DPI explained that efforts are underway to obtain relief from these requirements in concert with the Governor and the legislature. Meanwhile, DPI is also pursuing efforts to establish online protocols for the civics testing and pupil assessments.

Other Effects of the March 22, 2020 Order

The Governor’s order yesterday also suspended the following administrative rules:

PI 34.02(1)(d) – requirement that educator preparatory programs assess pedagogical knowledge using research-based assessments.

PI 35.07 (1)(b) – school choice submission deadlines.

PI 38.23(1)(a) – deadline for four-year old kindergarten grant applications.

The suspension of these rules, as with the other emergency orders, is set to remain in effect until such time as the underlying public health emergency order is lifted.

We continue, as do all of you, to monitor these developments closely and to interpret and evaluate their impact on school districts throughout the state.

For questions regarding this article, please contact the author, Attorney Geoffrey A. Lacy (email: glacy@strangpatteson.com; telephone: 844.833.0824), or your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney.

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