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Teacher Walkouts Are Unions’ Next Play After Courts OK Reopening

Oct. 23, 2020, 9:30 AM

Teachers unions kicked off the 2020-21 school year with a flurry of lawsuits aimed at securing remote instruction, nearly all of which have failed as the U.S. enters its third coronavirus peak.

Their challenges to school reopening plans across the country have been rejected by judges reluctant to plunge into the political fight over Covid-19.

In Iowa, unions are taking their case to the state’s supreme court after two districts were denied injunctions that would have blocked Republican Gov. Kim Reynolds’ reopening order. And in Boston, they lost a bid for remote work before school officials backpedaled a reopening plan due to a rise in cases.

Left largely to fend for themselves, teachers associations are turning to more extreme measures, including mass walkouts, raising the possibility of even greater legal conflict.

“You are asking a judge to make, in many of these cases, a bit of a leap,” said Christy Hickman, general counsel for the Iowa State Education Association. “They’re not politicians. Their role is not to make policy.”

Nowhere is this truer than in Florida, where a state appeals court overturned an injunction on Republican Gov. Ron DeSantis’ reopening plan after a lower court had sided with the Florida Education Association.

The appellate panel disagreed with the union’s core argument—that DeSantis violated a provision of the state constitution requiring safe schools—and concluded that was a political question that shouldn’t be decided in court.

Reticent Courts

It’s not surprising courts have been reluctant to overturn or revise state officials’ reopening plans, said Phyllis DianeWilliams Kotey, a law professor at Florida International University in Miami and state circuit court judge. Such cases require judges to think first about the separation of powers and whether the situation justifies the courts overruling the executive branch.

“The biggest issue and the biggest problem with all of these cases is the very political nature of them,” Kotey added. “When you’re dealing with political questions, courts are less likely or more reticent about jumping in.”

Many of the legal battles are ongoing. In Florida, the FEA has filed for a rehearing before the entire Florida First District Court of Appeal. Union officials are quick to note that all three judges in the initial panel were appointed by Republican governors.

The union is sticking to its argument that life-and-death decisions on reopening are not a political question. At least 14 school employees statewide have died from Covid-19, according to the union, including a bus driver near Jacksonville this month.

“How do you tell her family that in all likelihood she got Covid from driving a school bus, and you say it doesn’t matter?” FEA President Andrew Spar said. “That’s what our governor is doing.”

Hickman, the Iowa union’s general counsel, said it’s a matter of enforcing existing laws.

“While we are facing new challenges, and unprecedented times, we have jurisprudence that helps us through this situation,” she said. “Apply the law to the facts even though the facts are new. That’s not policymaking.”

Extralegal Options

Beleaguered by losses in the courts, teachers in other states are turning to collective bargaining and more extreme measures, including not showing up.

Teachers from several dozen campuses in Houston public schools staged a “sick-out” on Thursday to demand greater safety precautions.

Teachers and local school systems in Arkansas similarly faced a de facto mandate to reopen for in-person instruction five days a week. Instead of suing the state, the Little Rock Education Association staged a one-day walkout aimed at highlighting poorly enforced safety measures. The teachers who participated were disciplined, including three- to five-day suspensions, the union said.

In Idaho, where strikes are prohibited by law, 700 Boise-area teachers called in sick Monday and Tuesday to protest a hybrid learning model. That prompted a lawsuit from parents, represented by the Liberty Justice Center, to prevent another strike.

“You can’t hold kids hostage for your agenda,” said Daniel Suhr, a Liberty Justice Center senior attorney. “You need to work this out between the union and the school board like adults.”

Not Condemn, Nor Condone

The American Federation of Teachers, the nation’s second-largest teachers union, last summer gave its blessing for educators to strike over safety conditions—as a last resort. Mass sick-outs, however, fall into a gray area, bypassing the requisite member vote to induce a traditional strike.

“I’m not going to condemn it and I’m not going to condone it,” AFT President Randi Weingarten said. “If you’re seeing people call in sick like that, on a concerted basis, they don’t feel like they have any other choice.”

But, Weingarten added, “I’m a big believer in if you’re going to do a strike, you do it frontally; and you do it with notice to people; and you make sure that people know what’s going on.”

Even in blue states such as Massachusetts and New York, teachers and their unions have had limited success in the courts, although they’ve enjoyed small wins outside of court.

Boston Teachers Union was denied an injunction Oct. 14, as it pushed for teachers to work remotely whenever a community’s positive-test rate exceeded 4%, citing a stipulation in an agreement between the union and local school officials.

Officials at the time planned to switch all students to remote learning except for those with special learning needs.

Judge Robert B. Gordon of the state superior court in Suffolk County found the agreement gave city and state public health officials authority to determine whether and when it was safe for students and teachers to return to in-person instruction after the city reached a 4% positivity rate.

Despite the court decision, city officials announced Wednesday they would switch to remote-only instruction as the city’s infection rate climbs.

Naturally, unions tend to have more political sway in Democratic-led cities, allowing them to exert pressure on school leaders outside the courtroom.

A study published in September by researchers from the conservative Reason Foundation and Arizona State University found that cancellation of in-person classes correlated more closely with teachers union strength than a community’s infection rate.

“It doesn’t take an official lawsuit to keep the schools closed,” said Corey DeAngelis, one of the study’s authors.

Feeling the Pressure

In New York, teachers seeking work-from-home accommodations to in-person instruction got a court to grant a three-day temporary restraining order. The case led to out-of-court negotiations with the city that have yielded accommodations for about 20 teachers, said their attorney Bryan D. Glass, of Glass, Harlow, & Hogrogian LLP.

“We felt that the pressure of our case had some success in that,” Glass said. “The city was concerned that hundreds of teachers would come forward.”

Whether teacher lawsuits will have broader success in New York remains to be seen. The statewide union New York State United Teachers is involved in at least five pending cases, four of which involve reopening issues.

Teacher unions in New York City, led by the United Federation of Teachers, battled with Mayor Bill de Blasio before in-person reopenings this fall, pressuring him through negotiations and threat of litigation.

The city reopened public schools Oct. 1, only to temporarily close some in parts of the city with rising virus infection numbers.

To contact the reporters on this story: Chris Marr in Atlanta at cmarr@bloomberglaw.com; Ian Kullgren in Washington at ikullgren@bloombergindustry.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; John Lauinger at jlauinger@bloomberglaw.com

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