Several dozen students protested school reopening plans last Thursday before a San Dieguito school board meeting. Students plan similar protest Tuesday. Image via video.

Going in the opposite direction of most COVID-related lawsuits, a North County teachers union is suing to keep schools closed amid the worsening pandemic.

The San Dieguito Faculty Association is asking a San Diego Superior Court judge — yet to be named — to order the 10-school San Dieguito Union High School District to cancel plans for “expanded reopening” in January.

“Petitioners bring this action because district’s Board Resolution poses a grave threat to the health and welfare of the community, and because the [state health department] has no apparent ability to enforce the rules it promulgates for the benefit of the public pursuant to the Governor’s Executive Orders,” said attorneys for the California Teachers Association.

San Dieguito Faculty Association suit asking for district to keep schools closed. (PDF)

They added: “Petitioners have no financial stake or pecuniary interest in this matter.” (But they ask the district to pay the teachers’ unions legal costs.)

York Chang, a CTA staff attorney, said San Dieguito is the only district he’s aware of statewide seeking to “unlawfully reopen for a full five days of in-person instruction in the midst of the deadliest phase of the pandemic.”

CTA was prepared to file similar actions against a number of districts, including the San Ramon Valley Unified School District, he said, “but most districts reconsidered their reopening plans.”

“Given that ICU capacity in the region is being maxed out, the reopenings will also likely have an impact on the region’s mortality rate,” Chang said.

The school board voted 3-2 last week to follow once-a-week optional in-person learning Jan. 4 with five-day-a-week classroom instruction starting Jan. 27.

The school board will meet on the lawsuit at 3 p.m. Tuesday at Earl Warren Middle School in Solana Beach.

Newly elected board President Maureen “Mo” Muir said the district was evaluating claims made in the petition for a peremptory writ of mandate, filed Friday, and will respond to the filing in court.

But she defended the district’s plans to reopen to students who choose to go back to class.

“The district’s Safe Reopening Plan follows the guidance issued by the California Department of Public Health and includes detailed protocols for distancing and ventilation,” she told Times of San Diego via email Monday.

She said staff will be encouraged to maintain 6 feet of distancing, as practical, from one another at all times, and teacher desks will be at least 6 feet away from students.

“Students will maintain distancing as practicable and in compliance with guidance from CDPH, including arranging desks in a manner that minimizes face-to-face contact,” she said. “We have evaluated all of our classroom spaces and planned to maximize distancing. We have also planned carefully to maximize distancing for students and staff outside of our classrooms, including before, after and between classes.”

Despite earlier fears that all teachers would be required to return to class, Muir said the district is allowing teachers in a “high-risk group,” or who have a household member in a high-risk group, to teach from home for the rest of the second quarter, which ends Jan. 22, 2021.

“We have also informed teachers who have childcare needs due to COVID-19 that they may also work from home during this same time period,” she said. “The district has made every effort to work with our teachers to keep them safe and to address their concerns about returning to work.”

Muir said the district is reviewing potential staffing shortages — more than 40 teachers have requested leaves of absence — and has been actively recruiting teachers and substitute teachers to address this issue, with daily rates recently boosted to $250.

On Dec. 17, the San Diego County Office of Education issued its latest reminder to school superintendents about school reopenings.

But San Diego County schools Superintendent Paul Gothold said in that message: “The County of San Diego has offered a local standard that appears to be inconsistent with the position taken by” the California Department of Public Health.

The county says schools that opened in the Red Tier can continue opening in the current Purple Tier of health orders, he said. But the state says teaching “cohorts” of up to 10 students at a time — which San Dieguito does in some schools — aren’t considered “open.”

“SDCOE has asked the County of San Diego to describe the process for school leaders to use to obtain [reopening] authorization and to describe how such requests would be evaluated,” Gothold said.

“Given the lack of clarity on these questions, school leaders should proceed with caution when evaluating the reopening status of their schools and making plans to expand.”

In the teachers lawsuit, attorneys for the California Teachers Association said the district couldn’t count three high schools — Canyon Crest Academy, Torrey Pines High School and La Costa Canyon High School — as having been “open” in the Red Tier.

“The district had only offered limited-capacity targeted support services and supervised care environments, i.e., ‘distance learning hubs,’ for ‘cohorts’ of special education students, at-risk students, English Learners, or students with specialized support needs that could not
be served solely through distance learning,” the suit said.

So according to state rules, these schools are “thus precluded from reopening for general in-person education once the County shifts into the Purple Tier.”

The CTA lawyers said the district’s plan to fully reopen what locals call CCA, LCC and Torrey Pines High to all students is “unlawful and would result in thousands of students, staff, families and community members attending in-person education, a form of large gatherings, in a manner that greatly increases the likelihood of infection outbreaks and perpetuates the spread of COVID-19 throughout the local community.”

San Dieguito school board president Muir said: “The health and safety of our students and staff is the district’s highest priority.”

She said the district’s Safe Reopening Plan follows the guidance issued by the California Department of Public Health and includes detailed protocols for distancing and ventilation.

Does Chang expect the district to oppose the CTA petition?

“We hope they will comply with state law and common sense,” he said Monday via email, later adding that “we are planning to file an application for [a temporary restraining order] tomorrow.”

He said: “We are fully prepared to go the full distance on this case to protect the public health.”

Muir said Tuesday’s board meeting has only one item on the agenda: Closed Session.

“We’ll report out like any other Closed Session meeting,” she said.

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