Two West Virginia teachers unions filed separate lawsuits over the state’s return-to-classrooms mandate today, while the state school board weighed possible actions against counties not already in compliance.
It’s a push-and-pull on the state’s education system, up against the imposing backdrop of the coronavirus pandemic.
West Virginia is working through a return to classrooms even as covid-19 levels have remained elevated. The state’s map shows all but nine counties as orange or red, the highest virus levels that previously would have prompted school closures.
The two lawsuits were filed by American Federation of Teachers-West Virginia and the West Virginia Education Association. Kanawha Circuit Judge Carrie Webster has been assigned AFT-WV’s case.
WVEA named the state board along with Monongalia and Kanawha counties in the lawsuit that demands school employees have the choice to work remotely until all have opportunities to be vaccinated.
American Federation of Teachers-West Virginia seeks a temporary restraining order and/or injunctive relief to halt in-person teaching in Kanawha County until all education employees have the opportunity for a second vaccine dose. That’s likely to be provided in the first and second week of February.
The teachers union also wants a court ruling for the authority of local boards of education “in protecting the health and safety of the community and their students and education employees.” The union suggested such a ruling would protect the constitutional rights of teachers and service personnel statewide.
“While it can be argued that the new (state school board) policy is fraught with inconsistencies given past adherence to the map and current discarding of the same for most school students, it is particularly troubling that the map is being abandoned in some instances (but not others) while pandemic conditions in this state are getting worse,” lawyers for AFT-WV wrote.
One of the union’s claims is that by allowing some counties to divert from the state’s guidance up to now, state school officials have allowed unequal enforcement. The union says that undercuts the “contention that in-class instruction is a constitutional imperative for the next several weeks to meet its obligation to public school students.”
Earlier today, the state school board weighed possible actions on West Virginia counties not in compliance sending students back to classrooms. But members decided to watch and wait until next week.
“I think next Tuesday we’ll decide exactly what to do based on what they do,” state board President Miller Hall said.
Gov. Jim Justice has repeatedly urged a return to classroom instruction. State board members are appointed by the governor, and they select the superintendent.
In an emergency state board meeting today, Superintendent Clayton Burch said all but three counties meet state guidelines for either a full return to classrooms or a hybrid schedule option.
But Burch described three counties not yet meeting the standard that state officials set last week: Marion, Gilmer and Taylor.
“Two of the superintendents have cried out for help,” Burch told the state board.
“I do not believe there’s much more than their local boards who are not there to support and get this in place.”
Harrison is not yet meeting state guidelines, he said, but plans to by next week.
The state board’s general counsel, Heather Hutchens, laid out several legal options the state board could choose, including a court challenge or withholding state funding. The most extreme possibility would be a state takeover of a county’s schools.
A final option she described was making it clear to the three counties that if they don’t return to class they could sacrifice their school athletic schedules.
Hall made an emotional speech saying students need to return to classroom. He said some students are being treated as “throwaways” because they don’t have the access or guidance they need. “If I wasn’t here for kids, I’d quit today,” he said.
But Hall said he was not ready to implement the most stringent of the options presented. Instead, he suggested the three counties should move to comply.
“We’re going to give you an alternative to do what’s best for kids,” Hall said.
Board member Debra Sullivan suggested locally-elected leaders have the best feel for the situation in their communities. She proposed talking to them before taking action.
“I am not in a position to know the depths of information that our local boards of education know,” Sullivan said. “Every school is different and every county is different They all have different situations.”
Marion County has opted for a hybrid schedule with half of the students in classrooms two days a week and the other half in classrooms two different days. The off days have online learning.
That’s within the state board’s guidance, but Marion has also decided to close classrooms if the state’s map of coronavirus spread is orange or red, the highest levels.
The state’s guidance keeps high school-aged students home if a county is red, but lower grade levels continue to go to school.
Marion County board members made their decision with the guidance of local health officials.
Lloyd White, administrator of the Marion County Health Department, warned that more people enclosed in classrooms would increase the risk of covid-19 transmission.
“I cannot in good faith recommend anything that is going to increase the risk of COVID transmission,” White said in Fairmont’s Times West Virginian newspaper. “When we increase risk, we increase cases. When we increase cases, we increase death. And public health is about risk reduction.”
On Monday, Burch provided a report to state board members tallying seven counties that were not in compliance with the state. In just a few days since then, though, several had adjusted.
Monongalia County was one of those. The county had decided to use a hybrid schedule but also applied for a waiver with the state to remain remote. The waiver request was not approved.
“This week we’re anxious to see all of our students,” Deputy Superintendent Donna Talerico said on “Talk of the Town” on WAJR Radio.
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Two Eastern Panhandle counties also changed their plans in recent days.
Jefferson County, which was another county considered out of compliance earlier this week, voted today in an emergency meeting to use a hybrid schedule next week and then five-day-a-week instruction on Feb. 1.
Berkley County, yet another, voted Tuesday night to approve a blended schedule with the number of days in classrooms potentially increasing as the local covid situation improves.
“We must take steps now to have the school district in a better place so our students can have the possibility of enjoying the milestone moments that are typical at the end of the school year,” Berkeley Superintendent Patrick Murphy stated.
When the state board gathers again on Tuesday, it will be another emergency meeting.
Tom Campbell, the vice president of the state board, said he will be ready to act by then if necessary.
“I am prepared to take action on the 26th,” Campbell said.
“I personally have not heard a justifiable reason at this point that those counties should not be open.”
WVEA President Dale Lee attended the state board meeting and noted the social distancing precautions in place.
“It was ironic that the state board meeting was limited to eight people for social distancing in a room this size, and they expect 25 second graders and teachers to be safe in a room much smaller than this,” he said.
“Decisions to teach in person, remotely, hybrid and online should be a local decision, made by those who are the most impacted.”