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Baker Kurrus: Let local districts, not the governor, decide the best way to reopen schools

BAKER KURRUS: Let school districts, who know their situations best, determine how they return to school. The governor is exceeding his power to dictate otherwise.

Just in time for concurrent discussion of a tax-increase put on the ballot by fiat of the Little Rock’s “school board,” the state Education Secretary Johnny Key:

It’s an op-ed by Little Rock businessman and lawyer Baker Kurrus. He’s a former Little Rock School Board member who served as district superintendent until Key fired him for opposing the state’s  push for more charter schools in Little Rock. 

Kurrus said local control should determine how schools teach in the pandemic and he questions the authority the governor has exerted over decisions. 

LISTEN TO THE FRONTLINE
By Baker Kurrus

During the current pandemic Governor Asa Hutchinson has invoked the statutory emergency powers of the office to “meet and mitigate dangers to the people.“ I believe he has worked hard, and generally done a good job. I served twelve years on a local school board. I was superintendent of the Little Rock School District during a particularly difficult period. Based on my legal training and my practical experience, however, I believe Governor Hutchinson is exceeding his authority, and making a
management mistake, to require all traditional public schools to reopen for in-person instruction. He should give local districts the option to go fully virtual, or use a blend of virtual and in-school instruction, if that is what the local boards, superintendents, teachers and other personnel believe will work best in their particular situations.

The governor and his education secretary seem to claim their executive authority from the constitution’s requirement that the state provide a general, suitable and efficient education for all children, but Arkansas law taken as a whole does not give them the powers they are currently exercising.

I believe Governor Hutchinson is exceeding his authority, and making a
management mistake, to require all traditional public schools to reopen for in-person instruction

Since March, Governor Hutchinson has used his emergency powers to step dramatically into the education realm. On March 6, 2020, he closed schools on a temporary basis. On April 6, 2020, the governor suspended in-school instruction for the balance of the 2019-2020 school year. All schools were required to hold classes virtually. These orders came from the governor, not local superintendents, but were not challenged because of the unique danger posed by COVID-19. That danger has not passed.

Absent a “disaster,” the basic power the governor has under state law with respect to schools is to appoint members to the State Board of Education and to nominate the state commissioner of education. Although the commissioner works at the pleasure of the governor, Arkansas law states that the commissioner is employed by, and the agent of, the state board. The Governor does not have the right to direct the Commissioner or the state board, nor does he have the right to manage the day-to-
day operations of a school district. That authority is vested in local superintendents, who are employed by elected local school boards. An example of the powers afforded to a superintendent is the specific authority to open or close schools under a number of circumstances, such as when “contagious diseases” or inclement weather are present.

In some areas of the state the pandemic danger seems to be moderating, while in other areas the danger is increasing. Local superintendents know the conditions on the ground in their schools, and they are empowered by law to manage their schools in ways that take local conditions into account. Those laws do not disappear when a pandemic hits.

Despite this ongoing clear and present danger, on June 1, 2020, Governor Hutchinson
announced that public schools would reopen in August, with a blend of online and regular classroom instruction. The governor said that parents and students would be given the choice to attend school in person, or to attend virtually. Two months later, on August 4, 2020, after many districts across the state had planned a hybrid program involving some virtual instructional days and some regular in-school days,
the state commissioner of education sent out a memorandum of “guidance” that requires all schools to be open for in-school instruction five days a week. That was a big mistake, both practically and legally. No statutory authority for this guidance was given, and no reference was made to the statutes that give operating authority to local boards and local superintendents. The governor did not issue an order under his emergency powers. He did not address the unique perspectives of local boards,
superintendents, teachers and other personnel to assess their specific circumstances, capabilities and strengths. It was a one-size fits all, top-down directive, given late in the game after a lot of local plans were made.

There is no logic to the state’s position. In April of this year, the state allowed nothing but virtual education. Arkansas allows virtual schools by statute, and many charter schools use the virtual option. The state now allows parents and students to choose a virtual option if they prefer it, so every public school must offer it. Officials from the State Department of Education said in June that they believed that all students could learn anytime, anywhere as long as the appropriate supports are provided.

The number of COVID-19 cases in the state has surpassed 50,000, yet the state now says that a local district superintendent and local board cannot elect virtual education to operate in a manner that is safer than intensive in-school instruction every day. Some districts believe that more virtual time will make their schools safer, and will give instructors time to be sure it is done correctly. More importantly, it is unlikely that teachers and other front-line school personnel will have much enthusiasm for a
dangerous task ordered to be done by someone who is not also taking the risk. This “top-down” management approach is demoralizing to the people who actually do the work, and is the hallmark of a mismanaged enterprise. The current “plan” is a top-down recipe for failure. On the other hand, if a plan is locally drawn and locally endorsed, it will have a real chance of being adopted enthusiastically by
those charged with carrying it out. A data-driven comparison of the outcomes in different locally-driven scenarios would be extremely valuable, as different districts execute their own plans, with their own personnel.

Teaching and learning must go on. Teachers are the ones who teach, of course, but we often do not seem to keep that in mind. Teachers are working twice as hard as they ever have, and taking great risks. They are professionals. Don’t just “listen to teachers.” Hear and heed what they are saying. If you expect local school boards, superintendents, administrators, teachers and other support personnel to be accountable, you have to give them the power and authority to do their jobs. The state cannot hold districts accountable if it throttles them with top-down directives that eliminate local management control. We have learned that lesson the hard way in a number of districts.


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