Judge to decide whether schools are safe to open

South Florida Sun Sentinel | by Scott Travis | September 23, 2020

A judge is expected to rule soon whether it’s up to the courts to decide if Palm Beach County schools are safe to open.

A six-hour hearing was held Wednesday afternoon and evening over a lawsuit seven teachers filed against the school district. Palm Beach Circuit Judge Glenn Kelley gave the parties 24 hours to submit additional briefs. His ruling could come Friday or early next week.

Kelley asked questions that suggested he may believe the decision on whether to open schools, as well as whether to allow teachers to work remotely, is best left up to local school boards.

“What legal right in an employer-employee relationship do teachers have to work remotely? That’s a fundamental question,” Kelley asked. “It’s a policy that’s something the schools should try to do, aspire to do, but courts don’t enter injunctions on that basis.”

He also said it’s not the court’s job to determine what threshold makes schools safe enough to reopen.

The lawsuit was filed Friday in hopes of preventing school opening. Kelley allowed school to open at least temporarily until he made a final ruling. Students returned to campus Monday.

The teachers say it’s unsafe to open and they are being forced to risk their lives by working remotely.

Barry Silver, a lawyer for the teachers, noted reports of social distancing failures, including a crowded scene at Boca Raton High that was posted on social media. He said teachers with health conditions are being routinely denied accommodations to work remotely.

“Schools must be safe and secure and provide high quality education,” Silver said. “The back-to-school order fails miserably, and it’s gotten worse since we filed to order.”

He said School Board reopened schools because of threats from Gov. Ron DeSantis and Education Commissioner Richard Corcoran, champions of face-to-face learning, that the district could lose funding. The assertion was supported by School Board member Dr. Debra Robinson, a retired physician and School Board member who was the lone vote against reopening.

School district lawyer Sean Fahey argued the teachers had no case.

“There’s no irreparable harm here,” he said. “They’re presenting this as a life-or-death case here. That’s not what the issue is. The issue is a directive of an employer to an employee of where to report to work.”

Silver countered, “If people die, that’s irreparable harm. If they get sick and can’t teach, that’s irreparable harm.”

One teacher testified that the issue is life and death for her. Jane Tobal, an art teacher at Olympic Heights High, west of Boca Raton, said she has cancer and asked to work remotely. She said the reaction from the district was “too bad. you’re not approved.” She said the response came in a form letter, which said there were no remote jobs for her.

Deputy Superintendent Keith Oswald said the district has allowed some teachers to work remotely, but it wasn’t possible for Tobal, due to her teaching specialty.

“She teaches a high-level art class. Those are portfolio driven and and hands on and difficult to do remotely,” he said.

The hearing included testimony from health experts who questioned whether it was safe to open schools, as well as school district administrators who said the district was doing a good job enforcing facial coverings and social distancing to keep children and employees safe.

About a third of students have returned to school, while the rest are learning remotely.

Vicki Evans-Pare, director of employee and labor relations, said she didn’t know the exact number of teachers are leaving because of schools reopening.

“From what I understand, it hasn’t been as great as we feared, but there are a lot of people afraid to come back to work and they’ve chosen to resign to retire.”

Featured Photo: Palm Beach County parents and teachers protest the opening of schools outside of the Palm Beach School District Building in West Palm Beach, Florida, on Sept. 8. A judge is expected to rule soon whether the school district is allowed to keep its building open to students. (Mike Stocker / South Florida Sun Sentinel)