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Tuesday, January 25, 2022

NY Appeals Court and NYC Mayor Adams Say That the Mask Mandate Remains


Mayor Eric Adams criticized the judge's ruling against the statewide school mask mandate but says
 the NYC mandate will remain.


NY TIMES, January 25, 2022

New York Appeals Court Grants Stay, Allowing State to Reinstate Mask Mandate
By , National Review, January 25, 2022

New York’s indoor mask mandate for schools and other public locations will remain in effect after an appeals court judge granted a stay on Tuesday, temporarily blocking a ruling from a lower court that struck down the mandate one day earlier.

Another hearing is scheduled on the mask mandate for Friday morning. Until then, the mandate remains in effect.

“As Governor, my top priority is protecting the people of this state. These measures are critical tools to prevent the spread of COVID-19, make schools and businesses safe, and save lives,” Governor Kathy Hochul said Tuesday. “I commend the Attorney General for her defense of the health and safety of New Yorkers, and applaud the Appellate Division, Second Department for siding with common sense and granting an interim stay to keep the state’s important masking regulations in place. We will not stop fighting to protect New Yorkers, and we are confident we will continue to prevail.”

Sign outside a business in Times Square in New York City, December 15, 2021. (Carlo Allegri/Reuters)

Adams says NYC school mask mandates remain after judge shoots down Hochul rule

   NY POST, January 25, 2022

Mask mandates in New York City public schools will remain in effect, Mayor Eric Adams said Tuesday, a day after a Long Island judge ruled against Gov. Kathy Hochul’s statewide mask requirement.

During a morning radio appearance, Adams labeled the ruling “unfortunate” and said the Big Apple plans to maintain masking rules in public schools.

“I believe it’s unfortunate that it was struck down, and I believe those jurisdictions that are using it as an opportunity to remove mandates are making a big mistake. We need to follow the science, not the fears that are actually coming with this virus,” he said on 1010 WINS.

“We’re going to continue our mandates in schools.”

The state education department told The Post on Tuesday that masks are still required in schools because the Hochul administration is appealing the decision.

“The governor and state DOH have filed a Notice of Appeal and are seeking confirmation that the court’s order is stayed,” state Education Department spokesperson Emily DeSantis said in a statement. “While these legal steps occur, it is NYSED’s position that schools should continue to follow the mask rule.”

And the city Department of Education said Tuesday that the decision doesn’t apply to the five boroughs because the municipal mandate predated Hochul’s state one.

Adams, who has repeatedly declared New York City schools won’t return to remote learning, explained he considers mandating masks as a way to keep schools open.

“We believe that it’s allowing us to keep our schools open, as part of our overall safety plan,” he said. “Many people wanted schools to close, I was very clear that I was not going to close. Our children need to be in schools. It’s the safest place for children and we’re going to continue to have the mandate in place.” 

In a decision that prompted the removal of mask requirements in schools across the state, Nassau County Supreme Court Justice Thomas Rademaker on Monday threw out a Nov. 24 rule issued by state Health Commissioner Mary Bassett that prompted Hochul to order that all workers, customers and guests wear masks to slow the spread of COVID-19.

In the ruling, Rademaker said the mandate amounted to “a law that was promulgated and enacted unlawfully by an Executive branch state agency, and therefore void and unenforceable as a matter of law.” The case was brought by Michael Demetriou and 13 other parents who objected to a provision in Bassett’s rule that allowed her to order masking in “certain settings,” including schools.

In response, ABC 7 reported Tuesday that at least 20 Long Island districts will allow students and staff to attend classes without masks, including Plainedge, Massapequa, North Merrick, Smithtown, Levittown, East Meadow, Sachem, West Islip, Farmingdale, Franklin Square, Rockville Centre, Sewanhaka, Bellmore-Merrick Central High School Districts, Copiague, Carle Place, Harborfields, Commack, Connetquot, Lindenhurst, South Huntington, and Cold Spring Harbor.

Masks are still mandatory in Jericho, Baldwin, Syosset, and Catholic schools.

In Westchester, masks are now “optional” in the Harrison school district, according to an email from superintendent Louis Wool obtained by The Post.

 Even prior to the judge’s decision, Democratic leaders of the two Long Island counties in mid-December joined with dozens of Republican officials in the Empire State to refuse to enforce Hochul’s mask mandate.

On Tuesday, Adams insisted that the masking requirement isn’t a burden, pitching it as a way to keep students and teachers healthy without adding restrictions.

“Right now, we have mandates in various locations. We do it with our school children. None of those mandates are created to give people madness; they’re created to give people safety,” he said on NY1. “This is crucial. We can’t close our city down again. We must take all the steps possible to empower New Yorkers to be safe.”

Saturday, January 22, 2022

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



OSHA cancels business vaccine mandate after Supreme Court loss

Biden Administration Scraps Covid-Vaccine 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.