Judge rules against teacher's union; CPS returns to in-person learning Tuesday
Madeline MitchellCincinnati Public Schools will return to in-person learning Tuesday, according to a ruling from Hamilton County Common Pleas Judge Lisa Allen.
“The Board's decision to commence in-person schooling must stand and the complaint is dismissed,” Allen wrote in her decision Monday afternoon. "There is no just cause for delay."
The Cincinnati Federation of Teachers filed a lawsuit against CPS after the school board voted to go back to in-person learning beginning this week. A court hearing was held at 1 p.m. Monday.
The union’s lawyer, Bennett Allen, said the union was not asking to abandon all plans to return to the classroom. Instead, he said, the union sought a status quo injunction until an arbitrator could help determine whether going back to in-person learning is safe.
“The school district has been operating remotely on and off since last year, your Honor. And while we certainly don’t downplay or deny that there have been very serious emotional and psychological effects on many children, we don’t deny that, but our members care a great deal about their kids. This action is not taken without their wellbeing in mind,” Allen said.
The school board’s lawyer, Evan Priestle, reminded the court that the transition back to in-person learning consists of a blended learning model. The model allows for half of each school’s students to be in school buildings Tuesday and Wednesday, and the other half to be in-person Thursday and Friday.
The model is designed, Priestle said, to ensure proper social distancing.
“Cincinnati Public Schools was open for in-person learning from October until about the third week of November,” Priestle said. “There were no contentions at that point in time that Cincinnati Public Schools was unsafe, and that’s because(…CPS) has taken extraordinary efforts to meet all of the CDC requirements in terms of mitigation efforts: masking, social distancing and as it relates to the reopening plan that they intend to proceed with.”
Allen did not rule from the bench, but released her decision about three hours after the court hearing ended.
"Determining when to open for in-person educational instruction clearly falls within the authority granted to the Board," she wrote in her decision.
In a statement Monday evening, union president Julie Sellers said the Cincinnati Federation of Teachers will examine its legal remedies in light of Allen's decision.
"In the meantime, CFT will continue to fight for the health and safety of its members and the entire CPS community," the Monday release reads. "We have advised our members that each of them must make their own personal decision on whether they should risk COVID infection by ignoring state health guidelines to minimize contacts with others while our county remains in the 'Red.' They and the parents of our students must consider their own health conditions, and the conditions of their family members in making the decision on whether to report to school.
"We had hoped to collaborate with CPS so we could assure our members and the entire community that our schools are as safe as possible before children return to class. Unfortunately, the Board chose to ignore the concerns of teachers, staff and many CPS parents. As a result we cannot assure our members or parents that schools will be safe as they reopen starting tomorrow and in coming weeks."
On Saturday, the district released a statement confirming its intent to continue with the hybrid learning plan beginning Tuesday. According to CPS’s plan, students pre-K through the third grade and specialized classrooms will start a blended learning model the week of Feb. 1; grades 4-6 and 9-12 will return the week of Feb. 15; and grades 7-8 will return the week of March 1.
The buildup to the lawsuit
The district announced its phase-in approach to hybrid learning in mid-December – an approach that hinged on various health and safety criteria, including that the city remain at or below 40 new positive COVID-19 cases per day per 100,000 residents.
The Cincinnati Health Department confirmed to The Enquirer that Cincinnati was seeing 44 daily new cases per 100,000 as of Monday.
But the CPS voted 6-1 to continue with its plan as is, prompting a grievance and then lawsuit and restraining order from the teacher's union. Sellers says "the lawsuit was an unfortunate last resort for our union."
More: CPS school board will not reconsider Feb. 1 start date for blended learning
The complaint filed says any teacher or group of CPS staff who believes they are being required to work under unsafe or unhealthy conditions can file a grievance, according to a collective bargaining agreement between the union and board implemented in July 2017 and extended through June 30, 2021. That grievance must be resolved within seven days.
The union's grievance to postpone the return to in-person instruction until all teachers have had the opportunity to receive both doses of the COVID-19 vaccine was filed Jan. 22, according to court documents.
The board advised the union that it would not reverse its decision during a Jan. 26 meeting. Documents say superintendent Laura Mitchell declined to attend the meeting.
“We have a contract. And the school district should not be permitted to simply ignore what it has agreed to,” the union's lawyer, Allen, said during the court hearing.
In addition to the grievance, Sellers says the union issued a survey to all members and received nearly 2,000 responses in one day. The survey showed nearly 78% of union members do not feel comfortable returning to in-person classes before receiving full immunization. CPS staff who opted to receive the COVID-19 vaccine received the first dose over the weekend.
More: Superintendent Laura Mitchell gets COVID-19 vaccine alongside other CPS staff
The survey also pointed to concerns about staffing issues. Sellers said hundreds of employees are considering seeking sick leave and health accommodations.
"This is the exact reason the Board decided to go remote back in March. How do they think staffing issues will be any different this time?" Sellers wrote in a Wednesday press release. "If anything, it will be worse."
Sellers wrote a letter to superintendent Laura Mitchell and the Board of Education in mid-January requesting the district extend the Families First Coronavirus Response Act (FFCRA) paid leave that expired on Dec. 31, 2020. The act required certain employers to offer employees paid leave for COVID-19 circumstances outside of normal sick leave.
Private employers that extend the paid leave beyond Dec. 31 are granted a tax credit extension; CPS is a public institution and therefore not eligible for the tax credit.
The Enquirer asked if the district would extend this policy and received the following response from a spokesperson: "We take all requests for leave on a case-by-case basis, consistent with our collective bargaining agreements. The district has very generous leave policies available to teachers and staff who need them."
Community response
Some parents have also shown concern regarding the district's back-to-school plan. Angie Wilson has two children in CPS schools and said believed her concerns, and the concerns of other parents and teachers, were not being heard. She created a YouTube video compiling the complaints.
"Even though I do not want to send my kid into the classroom, I also do not like the idea of my daughter's teacher, who we love, being exposed and potentially being sick," Wilson told The Enquirer. "That affects everybody."
More: 'It's like a sardine tin there.' Parents concerned as CPS moves to hybrid learning at Walnut Hills
Other parents thanked the board for making the decision to return to in-person learning during a Jan. 20 board meeting.
"Use us, call us," Rami Leventhal, a Walnut Hills High School parent, said. "Call us to clean, call us to set plexiglass. We'll do anything to get our kids back in schools."
CPS board president Carolyn Jones released a statement following the board's decision, addressing community concerns about the back-to-school plan.
"We know this is a stressful time for families, for students, and for our staff. As Board President, I believe it is my job to help guide the tough decisions in front of the board, to do so with all the information available to us, even as it evolves, and with the academic and social-emotional needs of our students at the forefront of our minds," Jones said. "I believe that, together, we can safely and thoughtfully return our students and staff to in-person learning."