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Thursday, September 10, 2020

School Law: Schools Are Losing Cases Challenging State Executive Orders

School law examines the contracts, rules, regulations, and laws that control public education. Subject areas may include union collective bargaining agreements, student codes of conduct, boards/departments of education policies, department of education regulations, state and federal statutes and constitutions, attorney general opinions and court opinions.

Issues addressed in court may include student speech, student privacy, discipline, searches of students, the separation of church and state, the education of children with disabilities, employment matters, discrimination, harassment, and bullying.

A national issue right now is the question of what rights a school has to reopen or not, respectful of the health, safety, and welfare of the constituents involved (students, parents + families, teachers and staff).

Education Week posted an article on September 10, 2020 which examines the cases brought to court in several states in the U.S.

The outcomes are not good for those who want to stay closed, or on-line only, depending on the Executive Orders of the Governors.

 Betsy Combier
Editor, ADVOCATZ Blog

Editor, Inside 3020-a Teacher Trials

Schools Losing Out So Far in Court Challenges to Pandemic Orders

Legal clashes over reopening schools amid the coronavirus pandemic are continuing, but challengers of state executive orders—whether to open schools or keep them closed—are having trouble getting any practical relief from the courts so far.

The California Supreme Court late Wednesday denied relief to a Fresno-area private Christian school that had asked the court to overturn California Gov. Gavin Newsom's orders that limit public and private school reopenings in the counties that have been on the state's monitoring list for the previous 14 days. The state high court also denied relief to one county education agency and a charter school.

In Iowa, meanwhile, two state judges this week issued separate rulings favorable to Republican Gov. Kim Reynolds's order requiring school districts to hold at least 50 percent of classes in person.

In Florida, meanwhile, challengers to a state executive order requiring all schools to offer in-person instruction five days a week won a hard-fought injunction blocking the policy from a state trial judge in August. But a state appellate court soon stayed the effect of that decision and issued an opinion last week indicating that the policy of Republican Gov. Ron DeSantis's administration had a strong likelihood of being upheld.

Those legal battles, among several around the country, all come as the traditional school year is opening. 

In the California case, Immanuel Schools in Reedley, Calif., and a handful of other private schools filed their challenge directly in the state supreme court, arguing that Newsom exceeded his authority under the state constitution and that his closure orders violated the state constitutional right to education and the right of private schools to contract. A similar challenge was filed by the Orange County Board of Education and the Palm Lane Charter School in Anaheim.

The school took it as a good sign when the state high court required the state to file a brief defending the orders. 

On Sept. 9, after receiving briefs from both sides, the California Supreme Court issued a short order denying the request of Immanuel Schools and the Orange County board that it take up the constitutionality of Newsom's orders.

"The petition for immediate stay and peremptory writ of mandate in the first instance is denied," the state high court said in Immanuel Schools v. Newsom.

Robert Tyler, a lawyer for the schools, told The Fresno Bee that the schools' would proceed with challenging the governor's orders in lower state courts.

In the meantime, the 600-student school opened Aug. 13 in defiance of the orders and has remained open since then. The school even defeated a separate effort by Fresno County authorities for a temporary restraining order to shut down the school. But proceedings in that separate lawsuit will continue with a Sept. 15 hearing on a preliminary injunction sought by the county to close the school.

In Iowa, state trial judges issued preliminary rulings this week that rejected efforts by the 33,000-student Des Moines and 14,000-student Iowa City school districts, along with the Iowa State Education Association, to block Reynolds's school reopening orders.

In Des Moines Independent Community School District v. Reynolds, Judge Jeffrey Farrell of Polk County District Court said the Des Moines district was using "a more robust collection" of risk factors than "the simplistic model used by state education officials."

But school districts cannot reverse orders by the state Department of Education "because it disregarded the facts," the judge said.

"School districts are a creation of state law and have no rights beyond those given by the legislature," Farrell said.

The Des Moines district's request to move to remote learning "is well-supported by the facts," the judge said. "I am sympathetic to its arguments of local control, as its board and management staff are in a better condition to understand the conditions and obstacles in the district than officials at the state level. However, [the education department's] decision is not really one of fact, but one of policy as directed by the legislature and the governor."

In Iowa State Education Association v. Reynolds, Judge Mary E. Chiccelly of Johnson County District Court held that the state constitution gives the governor broad emergency powers. She noted that state officials have given the Iowa City district temporary approval for all-remote learning because Johnson County has a COVID-19 positivity rate that exceeds the 15 percent threshold in the governor's order, which cut against its need for emergency injunctive relief.

A Shield for Employers: State COVID-19 Indemnity Laws

As states begin to reopen, employers and employees alike may be worried about exposure –both to the virus itself and to liability. States have begun to act by introducing certain legislation to protect employers, who are opening in good faith and complying with the law. Most of the legislation remains pending, but the movement that states are making to provide employers with protection may provide peace of mind to many employers who may be worried about liability exposure.

North Carolina, Louisiana (Act No. 305 and Act No. 366), Oklahoma, Utah, and Wyoming have all passed legislation that protects employers from these types of tort claims. Most have introduced legislation that specifically protect an employer as long as they are acting in good faith and not recklessly, willfully, or intentionally exposing customers, clients, or their employees to COVID-19. The reckless, willful, and intentional requirement will protect employers from possible negligence claims whereas the employer acted in good faith to protect customers and employees alike. Other states like Arizona and Ohio (House Bill 606 and Senate Bill 308) have yet to pass this legislation, but it has been introduced. It should also be noted, however, that some of these indemnity laws only protect certain types of employers – for example, Louisiana’s Act No. 305 only protects restaurants who provide to-go food during the pandemic while Oklahoma and Wyoming’s laws provide a more expansive protection to employers who are safely reopening. Therefore, employers should carefully review their state laws as they are passed to ensure the liability protection has been afforded to them.

Other states have chosen to provide protection to employers by expanding their workers’ compensation laws to allow for coverage of COVID-19 related claims. Each state has taken a different path towards expanding coverage for workers’ compensation claims related to COVID-19. Some states, like Alaska, California, Colorado, Illinois, Minnesota, Missouri, North Carolina, Ohio, Pennsylvania, Vermont, and Wyoming create a presumption of such coverage when an employee’s job directly exposes them to COVID-19, such as an emergency responder, health care employee, or critical worker. Under most laws, employers are afforded the opportunity to rebut the presumption of coverage. Other states, like New York and California’s AB 196, have simply amended the state’s workers’ compensation laws to include COVID-19 related illnesses as an injury eligible for coverage.

New York, however, has also proposed legislation that remains strict and imposes an affirmative duty on employers to notify employees of any health hazards and to take steps to mitigate risks.

As the employees of large employers, like Amazon and at least one fast food chain, begin filing lawsuits against their employers for the alleged lack of protection from COVID-19 in the workplace, the importance of these indemnity laws becomes heightened for employers. The indemnity laws will likely protect employers from such lawsuits as they require something more than mere negligence. As employers and employees alike begin to wade through the uncertain waters of re-opening, state indemnity laws can provide peace of mind to employers who are following Executive Orders and related laws as they begin to re-open their businesses.

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