How Distance Learning Highlighted Ed Tech Inequities

Students arrive to school with different resources and levels of preparedness, thus, the systems put in place to ensure each student succeeds must be different and take into account this underlying inequity. To put effective systems in place requires understanding of the unique challenges and barriers faced by students in the school community, and providing additional supports to assist students in overcoming barriers.  While educational equity does not ensure equal outcomes, educational equity is designed to ensure each student has an equal opportunity to be successful in school through the provision of appropriate and necessary support.

California’s Free School Guarantee

Article IX, Section 5, of the California Constitution requires public schools of the State to be free. This is codified in Education Code section 49011, prohibiting schools from issuing fees for participation in an educational activity. In ensuring educational equity, it is vital for schools to understand the breadth of what is an “integral component of the education program.”  Additionally, Education Code section 60070, clarifies that “no school official shall require any pupil, except pupils in classes for adults to purchase any instructional material for the pupils’ use in the school.”

The California Supreme Court has interpreted these provisions to mean that a public school may not charge any fee for any activity that constitutes an integral component of the educational program. (Hartzell v. Connell (1984) 35 Cal.3d 899.) In Hartzell, the Court viewed “integral component of the educational program” in broad terms, finding that extracurricular activities, whether taken for credit or otherwise, fell within California’s free education guarantee so long as “the programs involved. . . are ‘educational’ in character.” (Id. at 911.) The Court indicated the right of free access to education prohibits any mandated purchases of materials, supplies, equipment, or uniforms associated with the extracurricular activity, in addition to any security deposit payments for access, participation, materials, or equipment related to the activity. Where an activity is considered “non-educational” in nature, the prohibitions do not apply. (Arcadia Unified School District v. State Department of Education (1992) 2 Cal.4th 251.) However, the definition of “educational in nature” is broad and can include technology (hardware and software) required for school participation. (See Driving School Association of California v. San Mateo Union High School District (1992) 11 Cal.App.4th 1513 [determining after-school driver training is an “integral component” of the public education offer to high school students because it supplemented a course for credit, drivers education].)

Integral Components of a Virtual Educational Program

Today, in a world of remote learning through virtual means, the totality of items that may be considered to constitute an integral component of the educational program is broad. Some districts with established 1:1 technology initiatives and students with high speed Wi-Fi at home transitioned into virtual learning quickly and with few roadblocks. Other districts found themselves unable to provide or purchase necessary technology, and unable to ensure internet –high speed or otherwise – was available in homes due to geographic or financial concerns.  For these students, instruction was less interactive and delayed.

After one year of distance learning, most districts have implemented systems that ensure all students have regular access to high speed internet and usable devices to access synchronous and asynchronous learning. Some districts took advantage of specifically designated funding to purchase Wi-Fi hotspots for families. Others used school buses as moveable Wi-Fi hotspots, driving them and parking them in areas where residents had limited internet service. Districts also provided computer hardware and software at no charge to students and considered students’ unique needs (e.g., providing car charges for computers for students who were homeless) in purchasing and distributing resources.

As students begin returning to campus, questions arise about how students’ technology needs will continue to be supported off-site. Will students continue to have personalized, no-cost devices to use at home for homework? Will high speed internet be available to all families to access tutoring, educational programs, and virtual learning? If so, how can districts bear these costs?

Financial Supports for Home Technology

Despite a prohibition against fees, districts can support at-home connectedness using a fee method. Specifically, Education Code section 17453.1 permits fees for sale or lease of Internet appliances or personal computers to parents for the purpose of providing access to the school district’s educational computer network, at no more than cost, so long as the district provides network access for families who cannot afford it. The Internet appliances and personal computers referred to in this section are deemed supplemental and not an essential part of the school district’s educational program. Thus, the district can continue to offer parent meetings (e.g., PTA meetings), and provide important updates through virtual means as a way to reach more parents, particularly if the district operates as a pass through for lower cost services.

While districts may continue to provide 1:1 technology for students, these are considered a “loan,” and the district may require a student to pay the replacement cost for District supplies loaned to the student that the student fails to return, or is otherwise injured, up to an amount not to exceed $10,000, adjusted annually for inflation. (Ed. Code, §§ 19910-19911 and 48904.)  Districts should analyze, on a case-by-case basis, whether property has been willfully damaged. A blanket policy that charges fees for any damage to property would appear to be inconsistent with the statute. To that end, some districts are offering insurance for devices, at cost and with reductions for families who qualify for free and low-cost meals, as a way to support all students in using technology at home.

Fee waivers do not make an otherwise impermissible fee lawful.  Additionally, opinions from the

California Attorney General indicate that charges may not be levied for a deposit in the nature of a guarantee that the district would be reimbursed for loss to the district on account of breakage, damage to, or loss of school property.  (See, e.g., Ops. Cal. Atty. Gen. No. NS 2469 (1940).)

Moving Forward

As districts begin planning for the 2021-2022 school year, they must continue to address the inequity in education that may have been exacerbated through distance/virtual learning. One way is to ensure that technology plans include ways to support students in the event of future school closures by considering learning hubs, monitoring and regularly replacing outdated equipment, clearly tracking device locations, and effectively instructing staff on how to accommodate various levels of technology proficiency and skill. While operating in a more virtual learning environment, districts must continue to be mindful of the various technology inequities and include these concepts in discussions of effective instruction and parental involvement.

This AALRR webinar is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR presentation does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process. 

© 2021 Atkinson, Andelson, Loya, Ruud & Romo

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