The state education board voted unanimously last week to extend an emergency rule that allows school districts flexibility in what they count as an hour of teaching. But a group of special education parents is challenging that rule in court, saying it is shortchanging students of their educations.

The Washington State Board of Education will vote in January whether to make the rule permanent.

Passed last spring alongside other measures such as more lenient attendance-taking policies, it was intended to reassure schools that they did not have to instruct students sitting inside a classroom in order to receive funding from the state, and give them permission to devise new ways of delivering education in the pandemic, state education officials said.

But as many schools around the state are entering the eighth month of teaching almost entirely remotely, three families are challenging the rule in court,arguing that it enables districts to provide fewer services to students, especially those with disabilities. Under the emergency rules, school districts would be able to count a wide array of activities as instructional hours, even if students aren’t actively engaging with a teacher.

“What’s happening with this rule is we’ve seen a dramatic reduction in both the quantity and quality of education,” said Kathy George, the attorney representing the families. “Kids got cheated out of a big chunk of their education.”

The state has received at least 45 special education-related complaints since schools closed last March. Special education staff had largely stopped evaluating children who might newly qualify for specialized services, creating a backlog of at least 1,308 students statewide, state officials said last month.


This flexibility — and the complicated debate around it — played out this fall at one Seattle elementary school with a high percentage of low-income students. Administrators there delayed the start of online classes for two weeks until they could provide all their students with the means to connect to the internet.

Because tech for all their students arrived late, instructors at Concord International Elementary School in South Park spent the first weeks of school helping their families — many of whom don’t speak English as their primary language — get connected to the district’s online learning platforms. The school gave out food and activity packets for kids to complete while they waited for tech, and sometimes also brought rent assistance and supplies. Last year, about 72% of Concord students were identified as low-income.

As a result, Concord students started classes weeks behind their peers across the city. But Seattle Public Schools doesn’t plan to seek a waiver from the state, or provide any makeup days for students. It’s unclear the state would require it for this circumstance, because the school provided activity packets and kept in touch with families. (State officials weren’t willing to answer questions about Concord specifically in interviews.)

“It was their choice. I think every school is different. There’s a lot of allowance with variability with COVID,” said JoLynn Berge, the district’s chief financial officer. “They feel like it was the right call for their families.”

District officials said they didn’t know about Concord’s struggles until Sept. 14, 10 days after the school year began. Berge described what happened at the school as a “communication breakdown.” The district set aside time at the beginning of the school year to iron out tech issues, and schools were supposed to use that time to report what students needed back to headquarters. The school was late to notify the district about the need for Wi-Fi hot spots and other devices, she said. But she also acknowledged the district was slow getting hot spots to the school, and needed to communicate better about the process for schools requesting equipment for students.

Some Concord educators and parents disputed Berge’s account, and argue these issues should have been known and prepared for well in advance. The district’s implementation of remote learning, they said, didn’t take into account students from low-income communities and multilingual families, they said. They say the district neglected the school, and getting families the tools they needed was impossible to do before classes officially began elsewhere in the district. They stand by the decision to open late, citing it as an equity issue. (The principal and vice principal did not respond to a request for comment.)


“It’s more than unfortunate,” said Robin Schwartz, a parent at the school and the president of the school’s parent-teacher-student association. From her Facebook page, she sounded the alarm about Concord families’ lack of internet access, estimated at one in five students in September.

The delayed start shows up in early numbers the district collected on engagement for online learning platforms: Only 31% of Concord students logged on between Sept. 21 and Sept. 25, while the average percentages for the rest of the district were in the high 80s and 90s.

The Concord dilemma, and the lawsuit on the emergency rule, gets at the heart of complicated questions about school accountability: How much flexibility under the law should schools have in an unpredictable time, when not all students can engage the same way? Does that freedom relieve school districts from taking action on inequities?

“I can imagine and understand the spirit of the emergency rule,” said Schwartz. But “flexibility alone is not gonna reach kids that need extra resources.”

By all accounts, teachers and staff at Concord were still working hard during the hiatus. Carly Groszhans, who teaches a second-grade dual-language Spanish class, said she spent 10 to 12 hours a day, sometimes in the dark, going out making home visits to all 40 of her students.

“It’s not like we were sitting back and eating bonbons, it just looked different because that’s what our students needed,” said Maggie Dunphy, another teacher at the school.


Randy Spaulding, who heads the State Board of Education, said creating an emergency rule that was more prescriptive — like requiring a certain number of hours be “live” interaction with a teacher — would have been problematic. For one, the underlying law doesn’t actually specify the delivery model for those instructional hours. The rule was intended as a clarification that remote learning would suffice, and not every hour of the school day is filled up with classroom time.

“Nothing in the emergency rule relieves [districts] of their requirements to provide an education,” said Spaulding.

So why, then, was the emergency rule necessary? The law defining an hour of instruction in the state is already vague, defined as the “opportunity to engage in educational activity planned by and under the direction of school district staff.”

Dierk Meierbachtol, chief legal officer for the state education department, said there was concern that schools would need to recreate the rigidity of an average school day, which they feared wouldn’t be realistic for students.

“Was the original, nonemergency rule for instructional hours adequate? Maybe,” said Meierbachtol. “But what everyone recognized back in the spring time is that the existing rules and statutes didn’t meet the moment. The state board wanted to revisit the instructional hours and rules to make sure there’s ongoing instruction for students if they can’t be opened.”

George, the attorney representing the families who sued over this rule and other emergency measures, said schools are now counting such activities as homework time as an instructional hour. The rule doesn’t acknowledge that online learning might not be an option for some students, especially those with disabilities, she said. In Seattle, for example, only two students are currently being served in person for special education services.


The state board will vote whether to make the rule permanent early next year. The board will also evaluate whether there were “unintended consequences” as a result of the measure last spring, said Spaulding.

At Concord, some parents said they don’t want the school to come under fire for what they perceived to be inequities outside the school’s control. But they wondered why the school’s struggles went undetected by the district for so long.

“Our frustration is really not with Concord,” said Jessica Gasperini, a parent. “It really is at the district level. Why didn’t they think about kids at Title I schools earlier?” Concord is classified as a federal Title I school, and receives additional federal funding because it serves a large number of low-income students.

“It wasn’t real school” during the hiatus, said Lupine Miller, another Concord parent. “But I would prefer that when we move forward, we think about all the kids” who can’t.

This story was updated to reflect that some educators and parents at Concord disputed Berge’s statements.