Do Arkansas alternative-instruction (virtual learning) days count toward the 178-day in-person threshold the LEARNS Act requires for the $50,000 minimum teacher salary?
Apply this to your situation
This page answers the general question as of 2023. Ezel answers yours: what it means for your facts, under current Arkansas law, with citations.
Plain-English summary
Representative Julie Mayberry asked the AG how the LEARNS Act (Act 237 of 2023) interacts with Arkansas's existing rules for alternative methods of instruction (AMI) days and digital learning. Three questions, three different answers.
Question 1: Can schools still use AMI days? Yes. The General Assembly authorized public school districts with an approved alternative instruction plan to use up to 10 Commissioner-approved student-attendance days for AMI (including virtual learning) when school is closed due to exceptional circumstances like contagious disease, inclement weather, acts of God, or utility outage. The LEARNS Act did not repeal that authority. The amended A.C.A. § 6-17-2403 just sets a minimum on-site, in-person threshold for districts that want to receive certain funding; it does not eliminate AMI authority.
Question 2: Do AMI days count toward the 178-day on-site, in-person threshold for LEARNS Act funding? Probably not, but the AG flags this as a place where legislative clarification is needed. The LEARNS Act provides funding to support a $50,000 minimum base salary for classroom teachers, but only for schools that offer "on-site, in-person instruction" for at least 178 days or 1,068 hours per year. A.C.A. § 6-17-2403(c) does not list any exceptions and does not cross-reference the AMI statute. Following the cardinal rule of statutory construction (read the statute "just as it reads"), the AG concludes that AMI days, by definition, are not on-site, in-person instruction and therefore probably do not count.
There is a real-world tension here. Schools are still legally allowed to use AMI days. But if those days do not count toward the 178-day funding floor, most districts will be reluctant to use them because doing so risks losing minimum-salary funding. The AG notes one place where AMI use might still make sense: a district where a single school within the district experiences a localized closure (utility outage, for instance) while the district as a whole remains open for in-person instruction. That single-school situation could allow AMI use without dropping the district below the funding threshold.
Question 3: Can a school that offers a digital program as a primary method of instruction for some students still qualify for LEARNS funding? Yes. The on-site, in-person requirement applies to the school being open at least 178 days or 1,068 hours. There is no requirement that every course be on-site or that every student attend in person. The legislature itself requires districts to provide at least one digital learning course (A.C.A. § 6-16-1406(a)) and allows it as either primary or supplementary. So a school can run a digital-primary program for some students and still qualify for LEARNS minimum-salary funding, as long as the school is open for the required 178 in-person days.
What this means for you
School district administrators and superintendents
Plan AMI day usage carefully. Under this opinion, every AMI day a district takes is probably a day that does not count toward the LEARNS funding threshold. If your district is on the edge of the 178-day floor, an AMI day for inclement weather may be the difference between full funding and reduced funding. Two practical implications: (a) build extra in-person days into the calendar as a buffer; (b) for localized closures (single school down for a utility outage while other district schools remain open), AMI use is lower-risk because the district as a whole still meets the threshold.
If your district runs a digital-primary program for some students alongside on-site instruction for others, this opinion confirms that pattern remains eligible for LEARNS minimum-salary funding. Document that the school is open for at least 178 days of in-person instruction; that is the operative test. The fact that some students attend digitally does not disqualify the school.
School board members
When you set the academic calendar, consider the AG's analysis as a planning input. The legislature did not (in the version that became LEARNS) cross-reference AMI days as counting toward the 178-day threshold. HB 1781 of 2023, which would have done so, failed on the House floor. So the policy choice on the legislative record was to keep AMI authority and the funding threshold separate. Your district's calendar should reflect that.
Public school teachers
The LEARNS Act minimum-salary funding depends on your district hitting the 178-day threshold. Days where you are teaching virtually under an AMI day probably do not count. If your district leans heavily on AMI days, ask your administration whether the calendar still hits 178 in-person days. The funding flows to your district based on threshold compliance, and reduced funding can affect future contracts.
State legislators
The AG explicitly says legislative clarification is warranted. If you intend AMI days to count toward the 178-day on-site threshold, you need to amend either A.C.A. § 6-17-2403(c) (the funding-eligibility provision) or A.C.A. § 6-10-127(b)(1) (the AMI-authorization provision) to make the equivalence explicit. The 2023 attempt to do that (HB 1781) failed. Consider whether the policy goal is to preserve AMI flexibility or to constrain it; the current statutory framework reads as constraining.
Education policy advocates
The opinion creates a useful soft-pressure point for advocacy. Districts that want to use AMI days for legitimate emergencies (pandemics, weather, infrastructure) face a financial penalty under the current reading of LEARNS. If the policy goal is robust district-level discretion in emergencies, the legislature needs to align the two statutes.
Parents of school-age children
The opinion does not directly affect day-to-day attendance rules for your child. It is about how the state funds teacher salaries when schools use virtual learning days. Practically: expect districts to be more conservative about calling AMI days, since each one may have a funding implication.
Common questions
My district announced a virtual learning day for snow. Does that count as a school day for my child's attendance?
Yes, for student-attendance purposes. AMI days are authorized under A.C.A. § 6-10-127(b)(1) and your child can attend virtually without being marked absent. The opinion is about a different question: whether that day counts for the LEARNS Act teacher-salary funding threshold.
The LEARNS Act guarantees a $50,000 minimum teacher salary, right?
The LEARNS Act provides funding to support a $50,000 minimum base salary, but eligibility for that funding depends on the school meeting requirements including the 178-day or 1,068-hour on-site, in-person threshold under A.C.A. § 6-17-2403(c). The opinion confirms that schools still receive funding when they meet the threshold.
Can my district just stop using AMI days entirely?
Yes. AMI days are an option, not a requirement. Districts can choose to be in-person every scheduled day. The trade-off is that without AMI flexibility, a true emergency closure becomes harder to manage (no instruction at all that day, plus a make-up day later in the calendar).
What if a single school in my district is closed but the rest of the district is open?
The AG flags this as a less risky use of AMI days. A district as a whole can hit the 178-day threshold even if one school within it uses AMI for a localized closure. The funding eligibility under § 6-17-2403(c) is at the district level, so a single-school AMI day may not pull the district below the threshold.
Does this affect open-enrollment public charter schools the same way?
Yes. The 178-day or 1,068-hour requirement applies to both public school districts and open-enrollment public charter schools under § 6-17-2403(c).
My district is running a digital-primary program for high school students. Are those teachers covered by the LEARNS minimum salary funding?
Yes, as long as the school itself is open for at least 178 days of on-site, in-person instruction. The school's funding eligibility does not turn on whether each individual student attends in person. So a digital-primary teacher employed by a school that meets the threshold still works at a school eligible for the funding.
Background and statutory framework
A.C.A. § 6-10-127(b)(1) authorizes the Commissioner of Elementary and Secondary Education to approve up to 10 student-attendance days each year for AMI use, including virtual learning. The trigger is a closure due to "exceptional or emergency circumstances": contagious disease, inclement weather, acts of God, utility outages, etc.
A.C.A. § 6-17-2403, as amended by the LEARNS Act (Act 237 of 2023), conditions certain state funding for the new minimum teacher base salary on schools being "open for on-site, in-person instruction" at least 178 days or 1,068 hours per year. The statute does not list exceptions or cross-reference the AMI statute.
The Arkansas Division of Elementary and Secondary Education's accreditation rules (Standard 1-A.4.1) require 178 days of student-teacher interaction. The AG reads that as implicitly requiring in-person interaction; otherwise, the Commissioner-approved AMI day "equivalence" provision in § 6-10-127(b)(1) would have nothing to operate on.
The AG applies the cardinal rule of statutory construction from Tollett v. Wilson, 2020 Ark. 326, 608 S.W.3d 602: a statute is read just as it reads, giving words their ordinary and usually accepted meaning in common language. Tollett is an Arkansas Supreme Court decision (the 2020 Ark. citation form, with S.W.3d in the parallel reporter, signals state court). Applied here, "on-site, in-person instruction" means just that: students and teachers physically present at the school. AMI days, by definition, do not satisfy that.
The opinion notes that HB 1781 of 2023 would have explicitly counted AMI days toward the on-site, in-person requirement, but the bill failed on the House floor. The AG treats that legislative history as relevant: the General Assembly considered exactly this clarification and chose not to enact it.
A.C.A. § 6-16-1406(a) requires every public school district and public charter school to provide at least one digital learning course to students, allowed as either a primary or supplementary instructional method. The AG uses this provision to reject any reading of § 6-17-2403(c) that would penalize digital-primary instruction at otherwise-compliant schools.
Citations
- A.C.A. § 6-10-127(b)(1) (10 Commissioner-approved AMI days for emergencies)
- A.C.A. § 6-17-2403 (LEARNS Act minimum-salary funding eligibility)
- A.C.A. § 6-17-2403(c) (178 days or 1,068 hours on-site, in-person instruction)
- A.C.A. § 6-16-1406(a) (mandatory digital learning course offering)
- Tollett v. Wilson, 2020 Ark. 326, at 5, 608 S.W.3d 602, 606 (cardinal rule of statutory construction)
- HB 1781 of 2023 (failed bill that would have aligned AMI days with on-site requirement)
- ADE Rules Governing Standards for Accreditation, Standard 1-A.4.1 (178 days of student-teacher interaction)
Source
Original opinion text
Opinion No. 2023-053
October 26, 2023
The Honorable Julie Mayberry
State Representative
1222 Orchard Lake Lane
Hensley, Arkansas 72065
Dear Representative Mayberry:
I am writing in response to your request for my opinion on how the LEARNS Act (Act 237
of 2023) affects alternative instruction plans and digital learning options offered by public
schools. Both before and after LEARNS, public schools and open-enrollment charter
schools must offer instruction for at least 178 days or 1,068 hours each school year. But
under certain exceptional circumstances discussed below, some of those days may be
through alternative learning plans that are not in person ("AMI days").
The in-person instruction time requirements are also relevant for the funding the LEARNS
Act makes available to support increasing the minimum base salary for classroom teachers
to $50,000. Certain schools receive these funds only if, among other things, they offer "on-
site, in-person instruction" for at least 178 days or 1,068 hours each school year. Yet the
law does not seem to provide any exceptions to these in-person instruction requirements
that a school must fulfill to be eligible for the salary funding.
Against this background, you ask the following questions, which I have renumbered for
clarity:
- Do public school districts have the statutory authority to use Commissioner-
approved days for alternative methods of instruction, including without limitation
virtual learning, on days when the public school district is closed due to exceptional
or emergency circumstances?
Brief answer: Yes. - Do the student attendance days that are approved for use by public school districts
as alternative methods of instruction under A.C.A. § 6-10-127, including those days
used exclusively as virtual-learning days, count toward the 178 days or 1,068 hours
that public school districts shall be open for "on-site, in-person instruction" for
purposes of receiving funds to implement the new minimum base salary under the
LEARNS Act?
Brief answer: Probably not, but legislative clarification is warranted. - Is a public school that offers a digital program as a primary method of instruction
for some enrolled students, in addition to a traditional method of instruction
for other enrolled students, in compliance with the requirement that public schools be
open for "on-site, in-person instruction for at least" 178 days or 1,068 hours during
each school year in order to be eligible to receive funds to implement the new
minimum base salary under the LEARNS Act?
Brief answer: Yes, if it is open for at least 178 days or 1,068 hours of on-site, in-
person instruction during the school year.
DISCUSSION
Question 1: Do public school districts have the statutory authority to use Commissioner-
approved days for alternative methods of instruction, including without limitation virtual
learning, on days when the public school district is closed due to exceptional or
emergency circumstances?
The General Assembly has authorized public school districts with an approved "alternative
instruction plan" to use up to ten Commissioner-approved student attendance days for
"alternative methods of instruction, including without limitation virtual learning," when
the district is closed due to exceptional or emergency circumstances, such as a contagious
disease outbreak, inclement weather, other acts of God, or a utility outage. The LEARNS
Act did not repeal this authorization. Rather, the amended statute you ask about, A.C.A.
§ 6-17-2403, sets a minimum number of days or hours that a district must be open for on-
site, in-person instruction if the district wishes to be eligible for certain funding. Therefore,
the answer to your first question is "yes." Public school districts may use Commissioner-
approved days for approved alternative methods of instruction when the district is closed
due to exceptional or emergency circumstances.
Question 2: Do the student attendance days that are approved for use by public school
districts as alternative methods of instruction under A.C.A. § 6-10-127, including those
days used exclusively as virtual-learning days, count toward the 178 days or 1,068 hours
that public school districts shall be open for "on-site, in-person instruction" for purposes
of receiving funds to implement the new minimum base salary under the LEARNS Act?
The answer to your second question is less clear. Although A.C.A. § 6-10-127(b)(1)
authorizes the Commissioner to allow up to the "equivalent" of ten "student attendance
days" for the use of alternative methods of instruction, the statute does not elaborate on the
effects of this "equivalence." Adding to this lack of clarity is the fact that the term "student
attendance day" is never defined or used elsewhere in statute or rule. Nevertheless, the term
"student attendance days" appears to refer to substantially the same thing as the rule that
requires 178 days of student-teacher interaction and § 6-17-2403(c): in-person instruction
and interaction between a student and teacher. So if a Commissioner-approved AMI day
can count toward the 178 days of in-person student-teacher interaction required for
accreditation, one might argue that it would also count toward the 178 days of in-person,
on-site instruction required for a public school district to receive funding for teacher salary
increases.
While this argument has some weight, I am unpersuaded because I believe a different
interpretation is required by the rules that govern statutory interpretation. Specifically, I
believe the best reading of the foregoing statutes and rules is that AMI days do not count
toward the 178 days or 1,068 hours of "on-site, in-person instruction" required for a school
district to be eligible to receive LEARNS funds for teacher salary increases. This reading
is supported by the cardinal rule of statutory construction: one must construe a statute "just
as it reads, giving the words their ordinary and usually accepted meaning in common
language." The plain language of § 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 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.
Note that, as explained in response to your first question, § 6-17-2403(c) does not prohibit a school district
from using Commissioner-approved AMI days. Both Standard 1-A.4.1 and A.C.A. § 6-17-2403(c) set the
178 days of instruction as a floor, not a ceiling. But as a practical matter, most school districts probably will
not use Commissioner-approved AMI days if those days cannot also count toward the funding requirements.
Still, there may be some instances where a school district remains open for on-site, in-person instruction, thus
meeting the requirement of § 6-17-2403(c), but a school within the district closes and uses Commissioner-
approved alternative methods of instruction (if, for example, that school experiences a utility outage).
Because the first interpretation discussed above would require inferences about the
meaning of a "student attendance day" and the extent of A.C.A. § 6-10-127(b)(1)'s
applicability, and it would construe A.C.A. § 6-17-2403(c) to include an exception not
mentioned in the statute itself, I think the second interpretation is more plausible.
Therefore, in my opinion, the answer to your second question is "probably not," but
legislative clarification is certainly warranted.
Question 3: Is a public school that offers a digital program as a primary method of
instruction for some enrolled students, in addition to a traditional method of instruction
for other enrolled students, in compliance with the requirement that public schools be
open for "on-site, in-person instruction for at least" 178 days or 1,068 hours during each
school year in order to be eligible to receive funds to implement the new minimum base
salary under the LEARNS Act?
Under A.C.A. § 6-17-2403(c), a public school is required to "be open" for on-site, in-
person instruction for at least 178 days or 1,068 hours. There is no requirement that every
course offered by the school be held "on-site" and "in-person." 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. Indeed, as your correspondence points out, the 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 third
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.
Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I
hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General
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