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Saturday, January 22, 2022

U.S. Supreme Court Blocks Biden COVID Vaccination Mandate For Large Employers


Supreme Court Blocks Biden Vaccine Rules for Large Employers

A federal judge blocked the Biden administration’s Covid-19 vaccine requirement for federal employees, the latest legal setback for the president’s push to inoculate workers.

U.S. District Judge Jeffrey V. Brown in Texas said President Biden didn’t have the broad, unilateral authority to mandate “that all federal employees consent to vaccination against Covid-19 or lose their jobs.”

The judge’s ruling Friday said that the case wasn’t about whether people should be vaccinated.

“It is instead about whether the President can, with the stroke of a pen and without the input of Congress, require millions of federal employees to undergo a medical procedure as a condition of their employment,” Judge Brown, an appointee of former President Donald Trump who is based in Galveston, wrote. “That, under the current state of the law as just recently expressed by the Supreme Court, is a bridge too far.”

“Today’s decision by Judge Brown is a victory for the thousands of men and women who want to serve their government without sacrificing their individual rights,” said Marcus Thornton, president of Feds for Medical Freedom, a newly launched anti-vaccination-mandate group that challenged Mr. Biden’s executive order. Mr. Thornton works as a political officer at the State Department, according to the organization.

Mr. Biden said in September that he would require federal employees in the executive branch either to be vaccinated against Covid-19 or to receive a religious or medical exemption or else face termination.

The president also has mandated vaccination for employees of federal contractors, but those requirements have been put on hold in the lower courts, where proceedings are continuing.

Federal agencies were preparing to punish workers for failing to comply with the president’s order. The judge and Feds for Medical Freedom said the disciplining of noncompliant employees was imminent.

The Biden administration cited several statutes that it said authorized the president to issue the federal-worker mandate, including a law that says the president “may prescribe regulations for the conduct of employees in the executive branch.” It also contended that the Constitution gave the president inherent authority to set internal employment policy for the executive branch.

The administration argued that it wasn’t the court’s role to settle the dispute but said workers facing termination first had to challenge any discipline through administrative channels.

Judge Brown rejected all of those arguments, saying the Biden administration pointed to no example of a previous president invoking the power to impose medical procedures on civilian federal employees.

The judge, citing the Supreme Court’s recent rulings, said the president, without express congressional authorization, was trying to regulate federal employee conduct beyond the context of the workplace, stretching his authority too far.

“The government has offered no answer—no limiting principle to the reach of the power they insist the President enjoys,” Judge Brown wrote. “For its part, this court will say only this: however extensive that power is, the federal-worker mandate exceeds it.”

In deciding to apply his preliminary injunction nationwide, Judge Brown said he saw no practical way of limiting the scope of his order given the broad membership of the lead plaintiff.

Feds for Medical Freedom, he wrote, has “more than 6,000 members spread across every state and in nearly every federal agency.”

Appeals Court Orders The Vaccine Mandate To Move Forward, Removing The Temporary Hold

Michael Kane, et al. File Federal Case in Opposition to New York State Vaccine Mandate

Saturday, January 15, 2022

NYC Mayor Considers a Remote Option For Students and Code 65

Mayor Eric Adams at Concourse Village Elementary School in the Bronx on January 3, 2022

UPDATE: Mayor Adams will allow students to stay home and receive code "65" as a reason. Yes, folks, it is all about money. Schools need to get their budgeted amounts from "seat time", the number of seats filled during the school day, to justify state and federal funds coming into the school.

The following information is from the NY POST article:

"Students can still be marked present, for instance, if they log onto Google Classroom to view PowerPoint presentations, subject notes and assignments. They can also communicate with teachers via email.

“We’re giving students permission to stay home as long as they are showing some level of participation online,” a Queens teacher told The Post."


In an email to principals last week, First Deputy Chancellor Dan Weisberg said schools “cannot be required” to give online instruction or office hours to students absent for “non-COVID reasons” or if a family is keeping a student home and is requesting assignments.

“However, if staff are willing and their supervisor approves,” they can do so “and be compensated accordingly,” Weisberg wrote.     

Schools can now mark students present using the reason code “65,” which can mean either present in-person — or absent from the classroom but learning remotely."

So, now some students who never wanted to learn in the classroom for any reason can get credited for staying home and simply logging in sometime during the school day. This leads to the question, when college applications and tests are given, what knowledge will the higher education institutions be looking for or given?

See my post in 2009:

Credit Recovery and Joel Klein's Direct Harm to Students

This past week the news is not good for NYC public school teachers and students.

Schools are open, but thousands are missing in action due to COVID, classes are empty, either without a certified teacher or without half of the regularly-scheduled students. (We are not saying that the numbers given by the NYC Department of Education on attendance are true, just that the overall consensus of parents and teachers who have been on social media is that these numbers are in the ballpark of true). Students walked out in protest.

However, it is clear from the news and testimonials from teachers, parents and students who could not get an appropriate education under the remote learning model when NYC schools were closed, that city-wide closures are not the answer. We are in favor of school choice, and a child going into private, charter or religious schools should be available to everyone.

What is the "right answer"?

There is none.

For example. we have been doing special education advocacy - Impartial Hearings and IEP reviews - for about 22 years, and if you look at this one category of students, remote options do not work in general. 

The best solution is to seek a high standard of learning for each child, and offer all options with oversight and accountability.

Coronavirus Hub

UFT Remote Instruction Memorandum of Agreement

UFT-DOE Agreement of Social-Emotional Screening

In-School Testing: Step By Step

Labor Policy Guidance: DOE-UFT Digital Classroom Agreement 

Mayor Adams, do not close all schools, but allow students who can and want temporary remote learning to get this option, but only AFTER you have assessed the online teachers and curriculum used, and found the correct mix of resources to support the choice.

Betsy Combier

NYC Education Department Quietly Opens Door For Teachers To Allow More Remote Learning

Sophia Chang, The Gothamist, January 14, 2022

The New York City Department of Education has updated its attendance policy to give educators discretion on allowing students to learn remotely during the current COVID surge, and to count those students as present for attendance purposes — a possible sign of movement towards a remote option for all students.

The policy update appeared online Friday afternoon without any formal announcement, a day after Mayor Eric Adams acknowledged the school system is considering a remote option. The change follows growing protest over his refusal to entertain the notion and a sharp decline in student attendance since COVID cases surged over the winter holidays.

Attendance was 77.09% across the system Thursday, meaning more than 214,800 students out of the system's 938,000 students missed class. In pre-pandemic times, attendance averaged 91% across the system for the 2019 school year.

The DOE previously spelled out specific circumstances wherein it would allow remote learning: a full classroom or school closure, a positive test result, Election Day and snow days.

Now, the updated policy says “staff may provide asynchronous remote instruction and Office Hours … to students who are absent for reasons other than those stated above…” based on staff willingness and the approval of their supervisors. These students may also be counted as remotely present for class for attendance purposes.

The policy, which reflects language in a memo sent to principals this week by First Deputy Chancellor Dan Weisberg, does not specify what other reasons will qualify students for remote learning, including whether they are staying home out of caution during the recent COVID surge. But it could pave the way for educators to allow more students to learn remotely — and to not penalize those who choose to learn at home by counting them absent.

The DOE did not immediately respond to a request for comment Friday evening.

Schools Chancellor David Banks has appeared to support a remote learning system involving livestreaming from classes, though the city’s agreement with the United Federation of Teachers union prohibits that arrangement because of logistical and instructional difficulties.

Chalkbeat reported that, during a meeting with parent leaders this week, Banks mused, “‘Can we turn that agreement around and just do a livestream and let kids just participate in the class?’”

The UFT also did not immediately respond to a request for comment.

After days of pressure from a vocal contingent of educators and students, Adams abruptly pivoted this week on the question of remote learning as a temporary option during the COVID surge. He has long insisted that in-person learning was crucial for students, citing the many children who rely on social services and food provided by schools, as well as the families who count on open school buildings for stability.

But on Thursday, the mayor said he was in talks with the UFT to figure out a temporary solution.

“We do have to be honest that there's a substantial number of children for whatever reason, parents are not bringing them to school," Adams said. "I have to make sure children are educated."

Sophia Chang, Reporter
Sophia Chang is a reporter on the NYC Accountability desk covering government policy, social structures and other issues that enable and complicate city life.


From: First Deputy Chancellor Dan Weisberg <>
Sent: Wednesday, January 12, 2022 8:52 PM
Subject: Updated DOE/UFT Pivot to Remote MOA - Providing Instruction to Students Who Are Absent Due to COVID


Dear Principals,  


I’m writing to provide some clarification around how to address teaching staff who provide asynchronous instruction and office hours to students who are absent due to COVID.  


The definition of a "partial closure" as outlined in the Memorandum of Agreement with UFT (MOA) regarding emergency closures has been updated to reflect new Situation Room procedures for reporting positive COVID-19 cases. Effective immediately, any student that has a positive COVID-19 test (at-home, rapid, PCR test, etc.) is entitled to asynchronous instruction and access to Office Hours as outlined in the Pivot to Remote MOA and as outlined in the updated Field Guidance and Overview of the Agreement.  


Teachers providing asynchronous instruction and office hours to these students are entitled to compensation as per the pivot to remote MOA. A "partial closure" is now defined as when any part of a class is in isolation or is unable to attend in-person instruction due to a positive COVID-19 test as described above.   


Note that the scenarios listed below are not currently considered partial closures and teachers cannot be required to provide asynchronous instruction and Office Hours as set forth in the MOA:   

  • If a student fails the health screen and there is no COVID-19 test  
  • A student is absent for non-COVID reasons   
  • A family is keeping a student home and is requesting all assignments  


For these students, staff are expected to engage in normal past practices with respect to non-COVID student absences. However, if staff are willing and their supervisor approves, staff may provide Office Hours and asynchronous instruction to these students and shall be compensated accordingly.   

Please feel free to reach out to your Senior Field Counsel with any questions.  

Thank you again for your tireless service and leadership.  

Dan Weisberg 
First Deputy Chancellor 

Sunday, January 9, 2022

New Jersey Parents File a Lawsuit To Block Remote Learning For Their Children With Disabilities


Daniella Rutz, a Kindergarten teacher at School Number 5 in Cliffside Park, N.J. on
Friday Sept. 18, 2020. Tariq Zehawqi/

Parents of students with disabilities in New Jersey oppose remote learning for their children, saying ""Since the beginning of the pandemic, we have learned that students attending school remotely suffer socially, emotionally, and academically," the motion says. "Special-education students suffer more so than non-disabled students."

See also:

NYC Parents Oppose Remote Learning and the Digital Divide, File Lawsuit

 Betsy Combier

NJ lawsuit seeks to block remote learning on behalf of special-education students

Gene Myers

A group of New Jersey parents has gone to court to bar schools across the state from switching to remote learning, arguing that online instruction violates the rights of students with disabilities.

A federal judge has set a Friday deadline for the state and 19 school districts named in the lawsuit – including Camden, Toms River, Cape May and Roxbury in Morris County – to respond with details about their virtual-learning programs.

The motion filed by Manhattan attorney Patrick Donohue and his nonprofit Brain Injury Rights Group comes as schools around New Jersey have curtailed in-person learning amid another surge in the coronavirus. In North Jersey, Hackensack, Teaneck, Paterson, Dover and Sparta, among others, are all operating remotely this week.

Remote learning has had disastrous consequences for special-education students, said Donohue, who filed a similar motion in Michigan this week and says he plans to take the fight to other states.

“It is inexcusable for school districts to continue to violate the rights of special education students by closing schools," he said in a statement. "Shame on those who were silent while the greatest case of child sacrifice occurs in human history! Where is Gov. Phil Murphy?”

Donohue on Monday asked U.S. District Court Judge John Michael Vazquez to issue a temporary restraining order forbidding districts from closing schools. The motion was filed in federal court in Newark and lists 13 parents of special-education students as plaintiffs.

"Since the beginning of the pandemic, we have learned that students attending school remotely suffer socially, emotionally, and academically," the motion says. "Special-education students suffer more so than non-disabled students."

The state Department of Education "doesn't publicly comment on matters involving pending litigation," spokesperson Michael Yaple said in an email.

A wintertime spike in COVID infections has shattered records in recent weeks, with the state announcing another 27,404 cases on Thursday. Hospitalizations climbed to almost 5,600, rivaling levels seen during the deadly first wave of the pandemic in spring 2020, though there are signs that new infections have often been more mild.

Donohue's motion is the latest salvo in a class-action lawsuit filed in October on behalf of special-education students. The suit seeks to resume services outlined in students’ education plans or to force districts to issue vouchers so parents can pay for supplemental resources.

Regardless of whether motivated by staff shortages or inhibiting the spread of COVID, school closings have unfairly harmed the parents who brought the suit who rely on individualized education programs (IEPs) for the welfare of their children, Donohue said.

IEPs are plans hashed out by families and local school officials, along with special education teachers and psychologists, who tailor curriculum guidelines to meet the physical, emotional, and behavioral needs of students with disabilities.

Not providing the services laid out in these plans violates students’ civil rights under the federal Individuals with Disability Education Act, the plaintiffs said.

Monday's motion called out a number of local districts that have gone remote or substantially reduced instruction time, including those in Newark, Jersey City, Hackensack, West Orange, and the South Orange-Maplewood district.

Up to $600M for disabled students: NJ will spend up to $600M to expand schooling for students with disabilities, Murphy says

Unnecessary COVID deaths across the U.S.: 'Extreme disability bias' spurred unnecessary COVID deaths across U.S., advocates say

Closings are “illegal” and violate the “rights of each special-education student” whenever decisions are made without the consent of parents, Donohue said. When there are disagreements over which services are to be offered, students are supposed to remain in their current programs until they are resolved, Donohue said.

There were 223,903 New Jersey students between the ages of 5 and 21 in special-education programs in 2020, according to the most recent figures from the state Department of Education.

Other New Jersey school districts named in the suit are Camden City School District, New Brunswick, Pennsauken, Union City, West New York, Trenton, Bridgeton, Black Horse Pike Regional School District, Plainfield, Rahway, Merchantville, Lower Cape May Regional School District, Lower Township Elementary School District, and Burlington City schools.

Families and advocates of people with disabilities stress the importance of routines and in-person instruction for some students in these programs. Students on the autism spectrum, for example, suffer larger setbacks when personal interactions and schedules are taken away.

“Kids with autism have a lot of deficits in communication and socialization areas, so learning through a computer screen presents a challenge,” said Leah Farinola, the principal of REED Academy in Oakland, which is geared to students with autism. Farinola is not connected to the suit.

Recognizing that challenge, the Bergen County school has stayed open through the pandemic. Some students lose more ground than others when schools close, she said.

Gene Myers is a reporter for For unlimited access to the most important news from your local community, please subscribe or activate your digital account today.


Friday, January 7, 2022

NYC Parents Oppose Remote Learning and the Digital Divide, File Lawsuit

A teacher works with students over Zoom in her classroom. A new lawsuit claims that New York state and city officials failed to provide adequate access to internet and devices during remote learning in the wake of the pandemic.
 Michael Appleton / Mayoral Photography Office

Parents of color and/or who are low-income in New York City know that the computer technology handed out by the Department was not given to all children equally and/or did not have an educational value to their children. These parents are particularly upset with what they call the digital divide where the Department of Education neglected to give adequate resources to their children and have filed a lawsuit in the Supreme Court. The lawsuit states a claim that the city violated state and city law by not providing a “sound, basic education,” resulting in a disparate impact on low-income children and those of color and is calling for academic services to help affected students catch up."

NYC Mayor Eric Adams agrees with this and is keeping schools open.

See here:

Teachers union pushes for remote ‘learning’ — as in Chicago’s walkout — hurt minority kids most

Now, due to the hysteria of teachers who do not want to work during COVID, children city-wide are being denied their education because classes are being canceled. 

Bottom line: parents want technological equality for every child and a rigorous plan with high standards to cover remote learning or full, rigorous educational programs in every class.

They are getting neither.

 Betsy Combier

NYC schools failed to provide students with adequate remote learning access: lawsuit

When the coronavirus pandemic forced schools to go remote in March 2020, Queens mom Marie struggled to help her then-seventh grader access coursework using her phone or computer.

Because her daughter had fallen so far behind, she was mandated to go to virtual summer school. Despite obtaining an internet-enabled iPad for summer classes, the seventh-grader could not get Zoom or other applications to complete assignments. School officials repeatedly told the family there was nothing they could do, she said.

Ultimately, her daughter had to repeat seventh grade, said Marie, who asked to use her middle name for privacy reasons and is one of five families suing state and city officials over their failure to provide adequate internet access and working devices to city students, particularly low-income children of color.

The lawsuit, filed Thursday in New York State Supreme Court, alleges that top state and city officials knew the scope of the digital divide as the pandemic progressed, but failed to properly address it. It claims that the city violated state and city law by not providing a “sound, basic education,” resulting in a disparate impact on low-income children and those of color and is calling for academic services to help affected students catch up.

Marie’s daughter continued to learn at home during the 2020-2021 school year with a faulty device and still had trouble accessing websites or certain assignments, Marie said. The school gave her a new device in October 2020, but that one didn’t work well, so Marie purchased high-speed internet from Spectrum hoping that would solve the problem. It didn’t, she said. According to the lawsuit, she still pays more than $100 a month for that service, which she said she cannot afford.

Marie said her daughter became depressed — she struggled both with school and with being held back a grade as her friends moved on. At one point, Marie said she took her daughter to the emergency room because she had attempted suicide.

“You have no idea psychologically what this did to my child,” Marie said through tears. “As a mother, this broke me. I did everything I could. I did everything I did to try to help her.”

‘Falling behind’

Many children were left without a connection to their teachers and classes, the suit said, which names Gov. Kathy Hochul, State Education Commissioner Betty Rosa, former Mayor Bill de Blasio and former schools chancellor Meisha Porter as defendants.

When the families in the lawsuit, as well as others, reached out to their schools or the education department for help with getting or paying for internet, they were instructed to reach out to local internet providers and request discounts, the complaint said.

A basic internet plan costs an average $40 a month in New York City, where about 45% of low-income families don’t have a connection, and 100,000 city children live in homes without internet, according to a 2020 analysis from former Comptroller Scott Stringer.

Even though this lawsuit comes nearly two years after the pandemic started, attorneys from Legal Services along with Arnold & Porter said they only filed it after repeated attempts to contact the education department and find solutions for their clients. Additionally, they said, remote learning in some form will likely persist as children may have to go remote and quarantine if they test positive for COVID as the city experiences another massive surge. (Classes are also remote on Election Day as well as snow days.)

“It’s our hope that the city will act quickly to fix this and not choose to litigate for years before addressing these problems,” said Lucy S. McMillan, one of the attorneys behind the suit. “The point is that these students have missed so much, and they are falling behind. If it takes years to assess this and implement some sort of remediation, that’s not going to be helpful for these students, who are getting older every year. Our hope is that the city will take this on now.”

When the pandemic first shuttered schools, city officials had to quickly distribute hundreds of thousands of devices to students across the nation’s largest school system. The city would go on to spend nearly $260 million on 511,000 internet-enabled iPads that were purchased from the 2019-2020 school year through last school year, plus $4 million a month for data plans, according to an audit by Stringer.

But that massive task took months to carry out. Five weeks after schools closed, 19,000 children were still waiting for devices, the lawsuit noted.

Many families struggled to get online, sometimes barred from discounts offered by internet companies aimed at helping school children. Even with internet-connected iPads in hand, families still ran into spotty connectivity, could not get their devices to work, and weren’t able to get timely help from their schools or the education department, the lawsuit said. Internet access was a particular problem for children who lived in homeless shelters, where WiFi wasn’t available and cell phone connection was poor.

When it was time to return for the 2020-2021 school year, most children had still chosen to learn remotely full-time, while others were going into their schools part-time. Even then, the lawsuit claims, the city didn’t ensure every family had working devices and internet access before classes began.

By October 2020, one month after school started, 77,000 students were still without a device, city officials said at the time. Reliable internet access was also still an issue, the lawsuit said.

The lawsuit also claims that the education department did not have a consistent system to fix or replace broken devices, especially for families who primarily spoke a language other than English.

Calls for reimbursement

Another plaintiff, a mother who primarily speaks Bengali, had repeatedly asked her then-kindergartener’s school for assistance with navigating remote learning, their city-issued iPad, and internet connectivity, according to the lawsuit. However, she was not provided with a Bengali interpreter, and any written information on how to navigate remote learning was provided in English.

As a result, her family had to purchase internet service, but her son’s device still did not work some days. Now in second grade, her son has struggled with school so far this year, the lawsuit claims.

All five plaintiffs, with children ranging from elementary to middle school, say that they failed to get help from their schools or the education department to troubleshoot technology issues, the lawsuit said.

Among their demands, they are asking the city to fix remote learning so that it doesn’t force families to pay for anything out-of-pocket. They also want city officials to develop a claims process so that families can be reimbursed for any out-of-pocket costs related to remote learning since March 2020.

Additionally, they want the city to assess what sort of academic recovery services are owed to children who struggled with remote learning, as well as other damages and attorneys fees. The education department created a $635 million academic recovery plan this year, including a plan to ensure all students have access to a device with internet service and extra services for students with disabilities.

Neither city officials nor the governor’s office immediately responded to requests for comment. A spokesperson for the state education department said it does not comment on ongoing litigation.

A new lawsuit is speaking up for families struggling to cope with remote learning.

Families struggle with faulty DOE computers

Remote learning has been a failure for low-income kids relying on faulty laptops and iPads from the city Department of Education — which offered no technical support to the struggling families, according to a lawsuit.

Five parents, who say they’re too poor to pay for high-speed Internet or quality computers for their kids, claim in the court papers their children have been academically left behind when they were forced to use the malfunctioning equipment.

And while the city DOE says all families who have requested devices for remote learning have gotten them, the parents who are suing in Manhattan Supreme Court say poor kids and those who don’t speak English are still not getting “free and reliable Internet service or reliable, working iPads and laptops.”

“Untold numbers of low-income students, and especially low-income students of color, in New York City have been deprived and continue to be deprived, of the sound basic education that is their right,” the group of anonymous parents claim in the litigation.

Some of the children whose parents are fighting in court did not receive any devices for months into remote learning, according to the court papers.

One mom of three, identified only as S.M. in court papers, said when her kids’ devices finally did show up, they couldn’t access the Internet.

Other families in the suit said they were falsely told Internet companies would connect the laptops and iPads online for free — only to be asked to pay monthly fees they couldn’t afford.

July audit by the City Comptroller’s office found that as of March, the DOE was still reviewing 19,425 student requests for tablets, 16,000 of which dated to 2020, while 3,045 students were mistakenly sent more than one remote learning device.

Even with the city sticking to in-person learning in the 2021-2022 school year, remote classes — such as for some snow days, or Election Day — have now been baked into the academic calendar, the anonymous parents said in court papers.

“Many students continue to struggle with device and Internet issues on this day,” according to the lawsuit.

The city also has no system to repair or replace broken equipment, the parents charge.

The families behind the lawsuit still “have devices that are inadequate,” said Legal Services NYC spokesman Seth Hoy.

“Our clients continue to pay out of pocket for internet service they cannot afford, and their children have not received education services that compensate for their lost education during remote learning days,” he added.

The city has handed out more than 650,000 Internet-enabled devices and more than 27,000 hot spots, and schools have bought more than 400,000 devices, said a DOE spokeswoman who called the city’s distribution of remote learning devices “robust.”

“There are no outstanding device requests at this time,” said spokeswoman Sarah Casasnovas, who said the DOE will review the lawsuit. “Families can continue to request one if they need.”