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Thursday, September 10, 2020

MORE: The City Has Failed Us


3 Days Into NYC School Reopening and It’s Clear: Schools Are Not Safe

In our first 3 days back in the school buildings, NYC schools staff have witnessed conditions and situations that confirm what we knew all summer: that we must have fully remote learning until NYC schools are safe and fully funded.

Just three days into staff reporting back to work, we were horrified to hear about at least 16 schools where staff tested positive for COVID-19. Teachers at MS88 reported that they were not given this information immediately, contact tracers did not reach out to staff who were in contact and exposed, and staff were asked to report back to work this morning. This is unacceptable for our schools, and could have easily been avoided through allowing staff to report from home or through mandatory testing for all staff. This a preview of what will happen when students report on the 21st, again without any required testing beforehand. It is clear that our city does not have the capacity to sufficiently test all school community members and, instead of seeking to remedy that, they are forcing school staff and students into fatally decrepit school buildings.  Many members have taken “priority” DOE tests at NYC Health + Hospitals and still haven’t received results in a weeks’ time or, worse yet, have been told their tests have been lost. Meanwhile, there are likely many more staff members who have worked in school buildings the past 3 days, who are unknowingly positive for COVID-19 and may be unwittingly spreading the virus among coworkers. These cases occurred in school buildings as staff completed in-person professional development virtually, looking at computer screens, which could be done from any location with an internet connection. 

Staff without medical accommodations for remote work reported into school buildings starting Tuesday, many not seeing the “50-point” checklist agreed upon by the DOE and UFT prior to the return to schools. Schools received building ventilation reports the night before staff were supposed to return, and members are rightfully concerned that these ventilation reports don’t measure air change rates, but only whether supply/exhaust fans, windows, and air conditioners exist or are operational in rooms. According to the NYC DOE’s own inspection reports, over 13,000, or 57% of, school bathrooms are inoperable at this time due to ventilation issues. In the same vein, NYC DOE conducted 1,400 building ventilation checks all within a span of a week, further raising questions about the quality and thoroughness of building inspection reports. As industrial hygienists and lawyers have informed us, we must demand this information especially to stop the spread of an airborne virus during a global pandemic. 

Members also report they’re not getting the agreed-upon PPE, temperature checks, and supplies needed to maintain safe conditions. Depending on schools’ conditions and the goodwill of principals, some schools opted to start virtual professional development outdoors, and others conducted PD completely remotely from the safety of members’ homes. We applaud those choices to protect staff while knowing piecemeal protections at individual schools do not stop the systemic issue of putting bodies into unsafe school buildings. It should not be left up to individual schools to take common-sense measures to limit risk to their staff.  All staff should be able to participate in virtual professional development and meetings from home. 

The return to school buildings laid bare the inequities and funding issues we’ve had in our schools for decades, as we see photos, videos and emails from UFT members about broken bathrooms, broken sinks, broken windows propped up by binders for little ventilation, air vents covered with packing tape, mouse droppings, and dead cockroaches. If our schools can’t fix the sinks and maintain basic sanitation, how are we to trust that rooms will truly be deep cleaned each night and PPE supplies will be consistently provided?

Already with the cases announced yesterday, we’ve witnessed the same lack of transparency from the NYC Department of Education that we saw in the spring and summer regarding supplies, funding, safety, and logistics to make reopening schools in-person safe. We demand rapid transparent communication about cases within school buildings to keep us safe. 

What we have said all summer about school reopening has reared its ugly head, and we’ve only had 3 full days as staff doing virtual professional development in school buildings. We demand that professional development and learning continue fully remotely according to our Health Justice Agenda and that we delay reopening until schools are safe and adequately funded.

We encourage all UFT members to JOIN US for our general meeting, this weekend, and fight back against this unsafe school reopening plan. Choose either time: Saturday 9/12 at 12 pm or Sunday 9/13 at 2 pm.

An Open Letter from MS88 Teachers

Open Letter: We are teachers from the school with the first positive COVID-19 test of the 2020-21 school year. The city has failed us and, in turn, the public. What happened to us is a dress rehearsal for disaster for our school communities.

Our principal and leadership team are facing an impossible task, and have sought to put the health or safety of students and staff first throughout this entire pandemic, but the inaction and incompetence from the city and state are making it increasingly difficult to do so. 

As teachers, we encourage our students to raise their voices. Yet too often, we fail to speak up for ourselves. Policies on school reopening have been created from the safety of remote settings. But we are here to report the reality of the city’s reopening plan. We can no longer stay silent about conditions that we feel are unsafe, unjust, and untenable. 

Timeline of events at MS 88

At 3:30 am on September 7th DOE teachers received an email from the COO “encouraging all staff to get tested for COVID-19 before their first day returning to DOE buildings.” The first day of school was September 8th. This followed a summer of conflicting directions, with the UFT publicly demanding mandatory testing just two weeks prior. Despite the lack of clear guidelines, many staff members took it upon themselves to get tested before coming into the building. 

We reported to school on Tuesday, September 8th to plan for the school year. Staff was asked to work remotely on Wednesday. Wednesday afternoon, at 1:30pm, we received a staff-wide email informing us that a staff member who had reported to work the day prior had tested positive for asymptomatic COVID-19. A DOE spokesman reported to Gothamist that we were alerted immediately after the results were reported: this is not true. 

In a meeting later that day, the teacher who tested positive chose to report their case to the entire staff. From this voluntary disclosure, other staff members were able to identify who was at-risk from close contact. Today at 6:30 am — less than 24 hours after learning we had a positive case — we received an email stating that the investigation was concluded, the building is safe, and we should report back to work in person immediately. It quickly became evident that despite the assurance that rigorous contact tracing was completed, we know this to be false. It has now been more than 36 hours since our coworker reported her positive test result, and at least 2 of the teachers who were in close contact with her have still received no communication from contact tracers or city officials.  Staff is still in the process of self-reporting contact with the individual who has tested positive and has taken it upon themselves to quarantine, despite lack of guidance from the city.

Implementation of school-based protocols does not match messaging and policy

Despite early assurances by the Mayor, “recommended” testing of teachers has not been sufficient. DOE spokeswoman Miranda Barbot stated that “School staff has access to free, expedited testing and we’ve encouraged all staff to get tested before they return to buildings while we continue to navigate the realities of a pandemic” Yet, in practice, multiple staff members went to get tested at NY Health and Hospital testing sites, many of which were unaware of expedited testing for DOE employees. Some staff members were told it meant you got to skip the line; others were told that the sites simply were not designated for DOE employees. It has been left up to the discretion of staff to get tested and ultimately to report positive results to school principals, meaning that there are probably many COVID-positive teachers in our school sites. 

During the summer, we believed our union was taking an active stance to ensure our safety. But now we are back in the same buildings where COVID-19 ravaged our school community, reviewing safety documents that continue to be works-in-progress, often contradictory, and are fundamentally disconnected from reality. 

To enter a school building, staff are asked to present proof of a daily health screening and have a temperature screen. We are relying on the honor system when we need to rely on data, science, and testing. We don’t need empty reassurances or memos from political leaders saying we WILL be safe. We need truth and transparency to ensure that we ARE safe today.

Beyond our own personal safety and that of our family and loved ones, our thoughts immediately turned to our students returning to the building on September 21st. How can they safely return to the building without mandated testing? Will student cases result in the same delayed triggers in response that have occurred with our staff?

Return to spring trauma

This new year has already evoked memories of last spring, when we had numerous cases among staff, tried to support our students through the loss of parents, grandparents, and extended family, and had a colleague in the hospital, fighting for his life for 88 days. 

As we continue to process the trauma of our own loss, we are doing everything in our power to sustain hope and resilience for our students. We are grateful to receive much-needed trauma training from the DOE, but this learning rings hollow in the context of flawed decision making that prioritizes politics over preparedness, a context that brings us back to the chaos of March, when educator calls for school closures were dismissed by our city leaders. As we plan to support our students in reflecting on and moving through their own grief, it is clear that the current plan for hybrid learning will further traumatize them by failing to guarantee the safety and consistency that all children need to learn. 

We want to return to our classrooms and to deliver live instruction to students. This can’t happen without the proper infrastructure, logistical planning, safety measures, and funding. We know that reopening schools under current DOE protocols and practices (or the lack thereof) will once again set up our most vulnerable communities to experience grief and loss. The majority of our students at M.S. 88 live in neighborhoods that have been disproportionately impacted by Covid-19 and have followed protocols to protect their loved ones from future devastation. We do not want to see our kids battle a resurgence that will impact their communities most. 

Our Demands

As a community working through the ramifications of a first positive case, here is what our school community needs for a safe reopening:

  • Communication: We need transparent, direct lines of communication between the DOE, Test & Trace Corps, and school staff. We believe that self-reporting is not a reliable or expedient way of notifying school communities of positive cases. This communication also removes the burden from individuals who test positive and the administrators who are working around the clock to safely reopen schools during a pandemic. Much of the anxiety we have experienced in the last 48 hours are directly linked to simply not knowing what was happening or how to safely move forward. 
  • Protocols and Protections for Positive Cases: We need clear protocols and protections in place for individuals who have been in contact with staff who test positive, and we believe these should be publicly posted by the DOE and test & trace staff. These protocols also need to extend beyond staff members who were in direct contact. For example, many of our family members are now currently in quarantine, given that many of us have been in contact with the staff member who tested positive. We, and our families, should not lose pay or sick days for working remotely, given that the DOE has not followed through on all safety measures.
  • Mandated and Rapid Testing: We believe that mandated and rapid testing for all individuals entering school buildings is critical to protecting our staff, students, and communities safe from spread. Since learning about our first positive case, we learned that not all staff had been tested, or, that not all staff had received their test results prior to returning to school on September 8. Furthermore, despite statements from the city, many of our staff learned that many Health & Hospital sites were unaware and unable to provide expedited testing for DOE employees. Health & Hospital sites must be aware of all protocols, alongside all DOE staff.

We also support all of the demands outlined in the Slow Down to Save Lives letter from a coalition of NYC-based public school students, parents, teachers, school leaders, advocates, and elected officials who are demanding Governor Cuomo, Mayor de Blasio, UFT President Mulgrew, and Chancellor Carranza delay reopening school buildings, fully fund our schools, and invest in a safer, more equitable plan for NYC students that includes equitable remote learning, an expansion of REC centers and low-risk alternatives like outdoor learning.

What happened to us is a dress rehearsal for disaster for our school communities. If there is one thing we’ve learned from 7 months of COVID-19, it’s that the people who have been developing school reopening policies are far removed from those who are actually implementing those policies. It’s time that the DOE leadership center the voices of those working on the ground to reopen schools, and most importantly, those who are most harmed by existing inequities in our communities.

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.