Griffin says clarification needed on whether AMI days count towards required minimum school days

Arkansas Attorney General Tim Griffin addresses the media Feb. 17 during a press conference in Little Rock..(File Photo/Arkansas Democrat-Gazette/Stephen Swofford)
Arkansas Attorney General Tim Griffin addresses the media Feb. 17 during a press conference in Little Rock..(File Photo/Arkansas Democrat-Gazette/Stephen Swofford)

Public school districts "probably" can't count alternative methods of instruction days toward the minimum 178 school days the districts need to qualify for teacher salary funds, the Arkansas attorney general's office has opined.

In response to a legislator's questions about the alternative methods of instruction days, Attorney General Tim Griffin and his staff said clarification from the Legislature is needed.

Arkansas school districts aren't legally barred from allowing teachers and students to work from their homes when districts are closed because of emergencies, Griffin and his staff said.

But those work-at-home days "probably" can't be counted toward the minimum 178 school days a district must be open for on-campus instruction to qualify for state aid to meet the new $50,000 minimum teacher salary.

Rep. Julie Mayberry, R-Hensley, raised questions about the alternative methods of instruction days and the new minimum salary earlier this year.

Alternative methods of instruction days -- authorized by a 2017 state law and widely used in recent years -- permitted students and educators to work from their homes on days when inclement weather, contagious illness and utility outages caused a school campus or school district to be closed.

Prior to this school year, the alternative methods of instruction days counted toward the 178-day school year, meaning the off-campus days did not have to be made up by extending the school year.

In June, Mayberry questioned whether the off-campus instruction days could continue to count toward the minimum 178-day school year in light of the new Arkansas LEARNS Act.

The new law sets 178 on-site school days as a qualifier for a district to receive state money to raise beginning teacher salaries to $50,000.

The 145-page LEARNS Act, or Act 237 of 2023, an overhaul of the state's public education system advocated by Gov. Sarah Huckabee Sanders, calls for teacher minimum salaries to increase from what was $36,000 to $50,000 starting with this school year.

The LEARNS Act states: "To be eligible for funds to implement the salary increases ... a public school district shall be open for on-site, in-person instruction for at least: 1) 178 days or 2) 1,068 hours."

Mayberry questioned the attorney general's office about whether the AMI days and digital-instruction days can count toward the minimum 178-days -- even if that instruction is not on-campus or in-person.

"Probably not, but legislative clarification is warranted," Griffin and Senior Assistant Attorney General Kelly Summerside responded in the legal opinion.

Legal opinions from the attorney general's office are not binding.

"The plain language of Arkansas Code Annotated 6-17-2403(c) clearly states that public school districts and open-enrollment public charter schools must 'be open for on-site, in-person instruction' at least 178 days or 1,068 hours each school year to be eligible to receive state funds for teacher salary increases,'" the legal opinion states in reference to the LEARNS Act language.

"The statute does not mention any exceptions to this requirement, nor does it say, 'except as provided in A.C.A. § 6-10-127(b)(1).' Rather, its language suggests that any days or hours during which a school district is not open for "on-site, in-person instruction" would not count toward this requirement, regardless of whether alternative methods of instruction, including virtual instruction, occur on those days," the opinion states.

Arkansas Code Annotated 6-10-127 is the statute that permits alternative methods of instruction days.

The attorney general's opinion adds some caveats -- that the Arkansas LEARNS Act does not prohibit alternative method of instruction days but just sets 178 days as the floor for on-site instruction to qualify for the salary funding.

A district can establish a school year of more than 178 days and some of the extra days can be used for off-site and online instruction.

"But as a practical matter, most school districts probably will not use ... AMI days if those days cannot also count toward the funding requirements," the legal opinion states.

"Still, there may be some instances where a school district remains open for on-site, in-person instruction, thus meeting the requirement of [the LEARNS Act] but a school within the district closes and uses ... alternative methods of instruction (if, for example, that school experiences a utility outage)."

Mayberry also asked the attorney general whether a public school that offers a digital program as a primary method of instruction for some students in addition to traditional classroom instruction for other students complies with the 178-day, on-site, in-person provision of the LEARNS Act to receive teacher salary funds.

The attorney general's office said "yes" to that.

"There is no requirement that every course offered by the school be held "on-site" and 'in-person,'" the opinion states. "Nor does the statute suggest that offering a digital program as a primary method of instruction to some students, while offering traditional methods of instruction to others, would somehow cause a school to forfeit its eligibility for funding.

"[T]he General Assembly requires all public school districts and public charter schools to provide at least one digital learning course to their students, and it allows that course to be offered as either a primary or supplementary method of instruction.

"Thus, the answer to your ... question is 'yes,' provided that the school is open for at least 178 days or 1,068 hours of on-site, in-person instruction during the school year," the opinion concluded.

Act 862 of 2017 -- now Arkansas Code Annotated 6-10-127 -- authorizes public school districts and public open-enrollment charter schools to develop alternative methods of instruction plans for use on days when school is canceled because of emergency or exceptional circumstances. Those circumstances include snow, ice, high water, utility outages and contagious disease.

Students have used paper and/or electronic lessons -- along with email or phone access to their teachers -- to occupy a portion of their time at home on those days when their campuses were closed.

The law allows up to 10 days of alternative instruction per year -- although the Arkansas Department of Education initially capped the permissible days at five.

The number of allowable alternative instruction days was upped to 10 by state education leaders in early March 2020 in anticipation of the contagious covid-19 virus, which ultimately caused all school districts to close in the spring of 2020.

All schools in the state were ultimately closed to on-site instruction for the remainder of that 2019-2020 school year.

Arkansas' alternative methods of instruction statute was modeled after an initiative in Kentucky.

It was intended to minimize the number of missed school days that have to be made up at the end of the school year, potentially causing a required 178-day school year to go beyond the Memorial Day holiday in late May and into the month of June.

Makeup school days in June tend to conflict with summer school, summer camps, summer jobs and family vacations. The makeup days also occur after the students have already taken the annual state-mandated exams and so don't contribute to the students' preparations for the tests.

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