by Meganne Trela (Winter 2019)

When the Illinois General Assembly replaced the general state aid (GSA) funding formula with evidence-based funding (EBF) in 2017, it offered school districts great flexibility in defining what constitutes an instructional day for students. Upon repealing Section 18-8.05 from the School Code (105 ILCS 5/18-8.05), the General Assembly struck from the statute the average daily attendance calculation upon which the GSA formula had been based. Gone is the typical instructional day of five hours of student attendance, along with the myriad exceptions for such events as parent-teacher conference days and in-service training days. Without any statutory definition, school districts are able to redefine the school day, calendar, and even the classroom. However, with that flexibility comes several new challenges and hurdles.

In November 2018, the Illinois State Board of Education (ISBE) issued guidance about what the lack of a statutory definition means for Illinois schools. The Guidance1 provides that school boards and collective bargaining units should work together to define the term “instructional day” with an eye towards improving outcomes for students. The memo also explains that instruction does not need to be limited to time in a physical classroom; thus, “seat time” is no longer a factor to consider in designing a school calendar.

Student learning can include online instruction, independent research projects, and work-based learning and internships. Essentially, students can be considered ‘in attendance’ anywhere and at any time, as long as they are “engaged in learning.” To determine when students are absent, the test will now be whether the student is engaged in learning rather than if the student is physically present. This change will give school districts more flexibility when considering services for students who are homebound or for dealing with the tricky and unpredictable Midwest weather.

The broad term “engaged in learning” opens a plethora of possibilities, but it also creates a conundrum for calendaring. While the instructional day itself is now more flexible, school districts are still required to have a minimum of 176 days of student attendance. All schools in the school district do not need to be on the same schedule, as long as all students attend for 176 days.

Prior to the elimination of Section 18-8.05, school districts were able to count days used for teacher in-service training or parent-teacher conferences toward the 176 required school days. Beginning with the 2019-2020 school year, school districts can no longer count those two days toward the 176-day requirement; students will need to actually be engaged in learning on those two days in order for them to count toward the 176 instructional day requirement. If students are not engaged in learning on those days, two additional days will need to be added to the school’s academic calendar. Thus, even school districts that make no other changes and retain the five hours’ seat time for each instructional day will likely need to add two additional student attendance days to their school calendar.

School districts that wish to make changes to where or when students learn will face many issues, including: will teachers now have to work two additional days? If school districts engage in remote learning via technology on the conference/in-service days, teachers may be engaged in additional work on top of their in-service or parent-teacher conference duties. Likewise, if additional school days are added to the calendar, teachers will need to be in attendance for additional time.

If students are expected to be engaged in learning remotely on the two additional days, how would special education students receive the services listed on their IEPs on those days? If students may work remotely on two or more days, does that reduce the need for bus drivers, cooks and support staff on those days? Such reductions in scheduling would implicate the collective bargaining process for unionized employees. Clearly, the potential changes necessary to allow school districts to meet the 176-day requirement will certainly become a challenging topic of collective negotiations in the upcoming year.

On a positive note, when school districts submit calendars to ISBE, the number of minutes in an instructional day do not need to be noted and half days do not need to be coded. Furthermore, a school district will not be required to make up interrupted instructional days, such as snow days, provided that student learning has occurred on that day. Thus, on snow days, if the necessary technology is available, school districts can opt to engage students in remote online learning opportunities. The logistics of such remote online activities may take some advance planning, but some schools in Illinois have already piloted such programs successfully.

For school districts with school issued technology, remote learning, or e-learning could be considered a solution. Students unable to attend classes due to a snow storm could participate in an online assignment rather than attending school. The same could be done on days students are off for holidays or parent-teacher conferences. Those solutions also come with their own set of consequences, including whether teachers would be required to participate, and what, if any, issues collective bargaining units may have with the non-traditional approach to learning. If teachers are required to check in on students, upload coursework, or participate in e-learning on holidays, weekends, or other time outside of the traditional school day, is the District obligated to pay additional money? Unions will likely argue that teachers should receive additional compensation for such work, but that is likely not practical for most school districts.

Given the flexibility presented by EBF, school districts need to start considering (1) the definition of an “instructional day;” (2) incorporating technology into the “instructional day;” (3) changing the obligations of teachers and staff, including any collective bargaining ramifications; (4) how special education services are affected by the changing landscape of the instructional day; and (5) how to make-up for conference/in-service days that were credited towards the calculation of instructional days.

Several bills have recently been introduced in Springfield to re-insert the Section 18-8.05 instructional definition back into the School Code. For questions regarding the redefined “instructional day” and the current status of the pending legislation, contact an attorney at Ottosen Britz.



1The Guidance can be found at the Illinois School Board of Education’s website: