Battle over COVID-19 school openings goes to the courts

Teachers unions are waging court fights across the country aimed at unwinding what they say are unsafe and politically motivated timetables for reopening schools that risk exposing personnel to the coronavirus pandemic.

State officials eager to ramp up brick-and-mortar operations are facing lawsuits from Florida to Texas to Iowa over reopening plans as well as access to the COVID-19 infection data needed to monitor the rate of spread within school communities. 

At the same time, lawsuits are flying from the opposition direction: Parents in several states, including New York, Massachusetts and Oregon, dissatisfied with web-based teaching alternatives, are suing to force state officials to reopen physical schools sooner as courts are increasingly called upon to referee the fight over education in the age of coronavirus. 

“A legal storm is brewing as safety and social distancing requirements for a physical return to school begin to take shape around the country,” Maria Ferguson, executive director of the Center on Education Policy at George Washington University, wrote on the education website The 74.

As millions of students prepare for the first day of school — whether in-person, remote or a hybrid of the two — the fight over the reopening physical school buildings is likely to intensify.

The debate over in-person K-12 instruction planning is inseparably tied to the issues of child care needs and parents’ ability to return to the workforce to help revive the struggling economy, all of which is playing out against the backdrop of a fast-approaching November election in a country that has seen nearly 6 million cases and more than 181,000 deaths from COVID-19.

Perhaps the highest-profile legal battle is taking place in the courts of Florida, where Republican Gov. Ron DeSantis signed off last month on an emergency order over school reopenings.

Under the order, most Florida school districts would be required to hold in-person classes five days a week by the end of August or risk losing funding. President Trump, who counts DeSantis as a close ally, has also threatened to cut off federal funding for schools if they do not resume in-person learning this fall.

The Florida policy prompted a lawsuit from the Florida Education Association (FEA), a statewide teachers union, and several other plaintiffs in favor of a more cautious return to in-person teaching.

“Public schools are not designed for COVID safety, and indeed, the government has recognized that they are high-contact environments,” said Kendall Coffey, the lead plaintiff’s attorney in the Florida case, who likened prematurely opened schools to “disease factories” and called the Florida policy “financial bullying.”

“There are any number of issues, in terms of hallway sizes, the flow of students in and out of classrooms, ventilation, even how many students go into the bathroom,” he told The Hill. “There are many elements that are virtually impossible to guarantee when you’re dealing with children in large amounts.”

On Aug. 24, a Florida judge ruled in favor of the union and temporarily halted the statewide order. In his decision, Judge Charles Dodson struck down the order’s unconstitutional provisions and blasted DeSantis for having “essentially ignored” the state’s constitutional requirement that schools be operated safely.

“The districts have no meaningful alternative,” wrote Dodson, of Leon County. “If an individual school district chooses safety, that is, delaying the start of schools until it individually determines it is safe to do so for its county, it risks losing state funding, even though every student is being taught.”

A Florida appeals court agreed to temporarily halt Judge Dodson’s order from taking effect while DeSantis appeals.

The state contends that the benefit of in-person instruction outweighs the health risks associated with reopening brick-and-mortar schools. Some Florida school officials have also declined to disclose incidents of positive COVID-19 cases to school communities, citing the need for patient privacy. 

Attorneys for Florida have also argued in hearings that courts should not substitute their judgment for that of policymakers who have balanced all the equities and decided a prompt in-person reopening is the best policy.

Randi Weingarten, president of the American Federation of Teachers (AFT), one of the largest teachers unions in the country, said Florida has its priorities backward.

“What their arguments show is that they don’t care about human life,” Weingarten told The Hill.

According to Weingarten, internal AFT polling in June showed that about 3 in 4 teachers said they would be comfortable returning to the classroom if guidelines from the Centers for Disease Control and Prevention (CDC) were implemented in schools.

But she predicts that attitudes among teachers have shifted dramatically in past months as the Trump administration has failed to adequately manage the virus to ensure schools can be reopened safely.

“We’re polling right now,” she said. “And my hunch is that just like the public polls, it’s totally flipped.”

The AFT is backing lawsuits in Florida, New Mexico and Texas. Before schools can reopen safely — for what Weingarten calls “the biggest move indoors that the nation has done since March” — the group says local positivity rates should be below 3 percent and schools should have visibility into daily transmission rates. 

The union is also pushing for protocols that involve testing, contact tracing and isolation and implement best practices from the CDC for things such as ventilation, cleaning, physical distancing, mask-wearing and other safeguards.

As teachers unions make their case in court, parents in at least five states have filed lawsuits of their own to accelerate school reopenings.

A nonprofit litigation group called the Center for American Liberty, co-founded by lawyer and GOP official Harmeet Dhillon, is backing one such suit in California. Democratic Gov. Gavin Newsom’s restrictions on in-person school openings in the Golden State will affect an estimated 80 percent of K-12 students.

“The effects of this ham-handed policy are as predictable as they are tragic,” the lawsuit filed in a federal court in California states. “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 litigation raises concerns about everything from school closures exacerbating the achievement gap and disproportionately harming special needs students and those without convenient internet access to challenges over the constitutional validity of government health orders.

Weingarten, of AFT, said it’s important to remember that despite seemingly irreconcilable differences over the policy details, all parties want to see schools reopen as soon as it’s safe to do so.

“None of us believes that remote is a substitute,” she said. “It’s a supplement.”