CHARLESTON – A circuit judge has scheduled a show cause hearing in a petition filed by the state’s largest teachers union challenging continuing changes made to the state’s color-coded school re-entry map.
Kanawha Circuit Judge Carrie Webster has scheduled the hearing for October 23 in Ceremonial Courtroom Four of the Kanawha County Courthouse.
“Our members have watched the constant manipulation of the map,” West Virginia Education Association President Dale Lee said in a statement announcing the October 5 filing. “As each rendition failed to provide the desired results sought by our state leaders, additional changes were made.
Lee
“The only way to restore confidence in the process and ensure safety in our public schools is to adopt a new system from independent experts recognized in the field of infectious diseases and public health, such as the original color-coded from Harvard.”
The WVEA filing seeks injunctive relief, including a temporary restraining order, as well as the enforcement of the West Virginia Open Meeting Act as it pertains to the experts making changes to the map and the panel adjusting the map prior to its posting.
Lee, Kanawha County teacher Holly Rhinehart and the WVEA are the petitioners, and Gov. Jim Justice is the respondent.
“We have seen the manipulation of the map’s colors and metrics on numerous occasions as protests occurred and pressure was placed on the governor,” Lee said. “Now, we are seeing the manipulation of the testing numbers as a result of the changes made to the map using the positivity rate for counties to re-open.
“The fact that the manipulation is occurring, and people are bragging about getting tested on multiple days show that the map and its metrics are not looking out for the safety of our students and employees and should not be used as the criteria for school re-opening.”
The current plan is a color-coded county-by-county system that measures, in general, a county’s daily average of new COVID-19 cases per 100,000 residents. Each Saturday, the statewide map is locked in for schools for the following week. Counties with the lowest cumulative average of active cases are labeled green, followed by yellow, gold, orange and red. It has been modified numerous times in the last few weeks, including
Currently, most counties on the state map are green, and none are red. Meanwhile, the Harvard map still shows most counties yellow or orange with a few still red.
“The latest changes to the map simply go too far and the illusion of a ‘green map’ does not mean it is safe to return to in-person learning in many of our counties,” Lee said. “We know how important it is for students to be back in classrooms working with their teachers. No one wants in-person education more than our members, but they no longer feel safety is the top priority for our state government’s leadership.
“We have educators all over the state who have lost confidence in the governor and his statements regarding his desire to keep them safe.”
Lee said the state’s focus “clearly” has been on getting school athletic teams on the field and students back in classes.
“The changes in the calculations, we believe, are being manipulated,” Lee told The West Virginia Record. “We’ve agreed that people should be tested. But, we know of people who are being tested every day and going to multiple sites to be tested. That’s a manipulation of the numbers.
“You have a board member in Putnam County who posted on social media about doing that. He said he’s already went twice, and he said he’ll go back every day if that’s what it takes. So, for them to say these numbers are not being manipulated? Come on. Justice said if coaches are doing this or encouraging others to do this, then they shouldn’t be coaches. What about board members?”
The WVEA petition mentions Putnam County school board member Christian Wells and his Facebook comments.
“I went twice,” Wells posted on Facebook. “Tuesday and Wednesday. Got both back already. I’ll go back every day if that’s what it takes.”
The bottom line, Lee said, is that working conditions for educators inside schools haven’t changed.
“There are still places where you can’t do the required social distancing,” he told The Record. “Even the mask requirements are different in different counties of different colors on the map.
“If a county was too dangerous to go to school with 50 cases at the start of September, how is it now safe to go when there are 60 cases?”
Lee also said the recent allowances made for private schools in Kanawha County aren’t fair. The governor is allowing those schools to open if every student and staff member are tested.
“If that’s what it takes, why aren’t we doing that in our public schools?” Lee said. “The governor, in his press conference today, accused us of being political. I can assure you that this is not political at all. It’s about the safety of our educators, our students and their families.”
In the petition, the WVEA says some school systems in the state have trouble finding substitute teachers while teachers are quarantined. It says teachers are being forced to teach more classes and do significant additional work because some students are in the classroom while others are learning virtually.
It says the entire Tucker County school system had to close because of a lack of substitute teachers to replace those in quarantine “even though respondent has represented that Tucker County is green, which indicates that students may safely attend school.”
It also says Justice has refused to spend “tens of millions of dollars” of money provided by the federal government to increase safety.
“Respondent, by his actions and words, is demonstrating that his primary concern is not the safety of the students, public school employees and their families,” the petition states.
The petition seeks an immediate temporary restraining order and eventual permanent restraining order forcing Justice and his agents to strictly follow the criteria of the Harvard Map, requiring the state to keep track of those who are tested and that those who are tested more than one time in two weeks be counted only once and forcing Justice release additional federal funds to increase the safety of students, education personnel and their families.
It also seeks to have Justice’s panel of experts provide notice of meetings with an agenda, for minutes to be kept or a recording of the meeting to be made available to the public, for minutes and agenda of previous meetings to be released and for Justice to do the same when he meets with his advisors on these issues.
The petitioners are being represented by WVEA attorney Andrew J. Katz. The case has been assigned to Circuit Judge Carrie Webster.
Kanawha Circuit Court case number 20-P-280