Law & Courts

COVID-19 School Reopening Battle Moves to the Courts

By Mark Walsh — August 22, 2020 8 min read
As states and communities wrestle with the question of whether to reopen school buildings in the face of the coronavirus pandemic, some of those arguments are leading to lawsuits.

As schools and the public argue about whether to reopen K-12 amid the coronavirus pandemic, there is one group largely not heard from yet—judges. That is about to change.

Several lawsuits are percolating nationwide regarding the reopening of schools. In some, teachers and other plaintiffs are seeking to keep campuses closed amid orders from state officials to open them. Other cases present the flip side, with parents suing to open public or private schools in states where the governor has ordered school buildings to remain closed.

The legal clash is perhaps sharpest and most urgent in Florida, where a state judge recently heard three days of testimony and arguments in a suit brought by the state’s largest teachers’ union and other plaintiffs. They’re seeking to block an emergency order by Republican Gov. Ron DeSantis that requires most school districts to open “brick and mortar” schools five days a week by the end of August or else face a reduction of state funding.

The order amounts to “financial bullying that has been untethered to any legitimate safety criteria,” Kendall B. Coffey, a lawyer representing the Florida Education Association, said in court on the last day of arguments.

See Also: Map: Where Has COVID-19 Closed Schools? Where Are They Open?

David M. Wells, a private lawyer defending DeSantis as well as Florida Education Commissioner Richard Corcoran, said the teachers’ union and other plaintiffs “are doing anything they can to stop the opening of schools.”

Elsewhere around the country, state or federal judges are being asked to get involved in thorny questions surrounding the reopening of school that policymakers, administrators, and medical experts have been haggling over for weeks.

In Iowa, the Iowa State Education Association and the Iowa City Community School District sued Republican Gov. Kim Reynolds and the state education department in state court on Aug. 19, arguing that state officials have exceeded their authority by requiring school districts to conduct in-person learning at least 50 percent of the time during any two-week period.

“Late-in-the-game proclamations and guidance like we have seen from the state of Iowa have the effect of imposing a one-size-fits-all approach at the very moments when local decision-making should be protected and prioritized,” Brady Shutt, the president of the Iowa City Education Association, an affiliate of the ISEA and the National Education Association, said at a news conference when the suit was filed.

The Iowa City district had voted in July to have 100 percent remote learning to start the school year after convening a local task force.

Reynolds did not specifically address the lawsuit in an Aug. 20 news conference, but said, “At this time next week, most Iowa schools will be back.”

A ‘Ham-Handed’ Policy

Meanwhile, in California, the battle is flipped as a group of parents sued Democratic Gov. Gavin Newsom in July over the governor’s public health orders that bar in-school instruction in at least 30 of the state’s 58 counties, covering some 80 percent of the state’s schoolchildren.

“The effects of this ham-handed policy are as predictable as they are tragic,” says the lawsuit backed by the Center for American Liberty, based in Leesburg, Va. “Hundreds of thousands of students will essentially drop out of school, whether because they lack the technological resources to engage with ‘online learning’ or because their parents cannot assist them.”

The lawsuit was filed in U.S. district court in Los Angeles and is based on the 14th Amendment’s due process and equal protection clauses as well as federal laws including the Civil Rights Act of 1964 and the Individuals with Disabilities Education Act.

“If the governor’s orders are not enjoined, millions of California children will be deprived of an adequate education,” the plaintiffs say in court papers.

The state, in a court filing in the case this month, urged a judge not to grant the plaintiffs’ request for a temporary restraining order that would permit schools in the affected counties to open.

“In contending that the order and guidance are not based on scientific data, plaintiffs rely on their inaccurate and outdated beliefs that school-age children do not spread COVID-19, and that opening schools for in-person instruction in counties with high COVID-19 rates poses a negligible health risk,” the state said. “Yet COVID-19 knows no age boundaries.”

The California suit includes special education students and their parents among the plaintiffs. Other special education students and their parents have sued school districts or states, arguing that children with disabilities are particularly poorly served by remote learning.

The California suit also has several private school families as plaintiffs, and there are suits elsewhere being pressed to allow private schools to reopen in the face of closure orders.

In Massachusetts, the state’s highest court, the Supreme Judicial Court, will hear arguments Sept. 11 in a challenge to Republican Gov. Charlie Baker’s emergency order declaring various businesses essential, which left out churches and schools until recently. The Trinity Christian Academy of Cape Cod is among the plaintiffs in a lawsuit that challenges the validity of the governor’s order.

In Maryland, several parents of private school students sued in federal court after the health officer of suburban Montgomery County barred students from returning to campuses. The clash appeared to be resolved after Republican Gov. Larry Hogan stepped in, favoring letting private schools make the decision for themselves. The county health officer backed down.

And in Oregon, a federal district judge on Aug. 20 denied an emergency order sought by three Christian schools to reopen in the face of orders by Democratic Gov. Kate Brown that have kept public and private K-12 schools closed.

The judge said it was “surely frustrating to see marijuana dispensaries and taverns granted the right to open and church schools told there’s serious limitations before opening,” but he couldn’t compare the Christian K-8 schools to the governor’s orders that affect other facilities, such as laundromats, bars, or universities, the Oregonian reported.

“In my view the religious institutions here in K-through-12 aren’t being treated in any way differently than public K-through-12 institutions,” U.S. District Judge Michael W. Mosman said after a two-hour court hearing, according to The Oregonian.

“As a general proposition, one could see courts not wanting to decide for the whole world whether schools should open or close,” said Thomas Hutton, the interim executive director of the Education Law Association, a group for professors who teach school law and others interested in the field. “But on the other hand, there are some questions that are the province of the courts, such as in Florida where the issue is whether the governor has the authority to order schools to open.”

Court in Session on Zoom

The Florida governor’s July 6 order relies on a state constitutional obligation to provide a “safe, efficient, secure, and high-quality system of free public schools,” and the state argues that there are huge societal costs to keeping school buildings closed because of the challenges of virtual learning.

State education officials have allowed just three school districts—Miami-Dade County, Broward County, and Palm Beach County—to remain online-only after Aug. 31. Those districts are in the heart of the area where COVID-19 is raging the strongest in the state.

The state rejected a bid by the Hillsborough County district surrounding Tampa to delay in-school learning for four weeks by threatening to withhold $200 million in state aid. (The district was approved for one week of remote learning.)

These and other issues were aired during court hearings Aug. 19-21 before Judge Charles W. Dodson of Leon County Circuit Court, where separate lawsuits from Miami-Dade and Orange County were consolidated.

In hours of virtual court proceedings over Zoom, the judge heard testimony from teachers, parents, medical experts, and public officials.

Osceola County teacher Andre Escobar, who is a quadriplegic, testified that he has issues with his respiratory system that would likely make contracting COVID-19 lethal for him. He said he was unable to get an online teaching position and was thus being required to return to work and given a “box of Kleenex” to try to sanitize student desks during five-minute breaks between school periods.

Thomas Burke, a Harvard School of Public Health professor, testified for the plaintiffs that Florida could see an “explosion” of more cases if schools returned as planned.

Hillsborough County school board member Tamara Shamburger testified that schools were “stuck between a rock and a hard place, being forced to choose between the life of a student and funding from the state.”

But during the state’s defense, Hillsborough County special education teacher Lindsey Arthur said that remote learning was not working out for her students.

“They are wonderful, but they need that support with their teacher, paraprofessionals and with their friends to grow and learn, and it just was not possible during our e-learning experience at all,” Arthur said.

The state called a Stanford University professor of medicine and health economist, Jay Bhattacharya, who said there is little evidence that reopening schools would accelerate the spread of the coronavirus.

“With the exception of one study, the literature said that schools opening and school closing have very little community effect on the spread of disease,” he said.

Jacob Oliva, the state’s K-12 schools chancellor, testified that children in poverty were most in need of returning to brick-and-mortar schools.

“Those students stand the most to lose as far as exacerbating achievement gaps. We need to do everything we can as soon as we can,” Oliva said.

The judge asked questions of both sides during two hours of closing arguments, sometimes cutting off meandering statements with practical questions such as, “What exactly are you asking me to do?” Earlier, he had rebuffed a request to make a decision by the end of the week, saying he would need to review testimony and the many exhibits introduced by both sides.

“I don’t think I can just make an off-the-cuff decision of this magnitude without going over all the evidence,” the judge said.

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