CHARLETON – A Kanawha Circuit Judge has denied the temporary restraining order sought by the state's two largest teacher’s unions that sought to postpone a return to full-time in-person schooling until all school personnel receive a complete vaccination against COVID-19 and to allow county school boards to determine how and when in-person instruction and activity will resume.
“I do not find the irreparable harm that has been asserted in the petitions,” Judge Carrie Webster said during the January 26 hearing. “The court has given considerable thought to this. This was brought out of great concern by the two major groups acting on behalf of teachers that this was premature and their return could cause infection and increase the spread of it.
“I think that’s a legitimate reason in light of the numbers. But I give deference to the Board of Education.”
The West Virginia Federation of Teachers AFL-CIO, President Fred Albert and members Jerry Throckmorton, Greg Garber and Amy Haden filed their complaint January 20 in Kanawha Circuit Court against the West Virginia Department of Education, state Schools Superintendent Clayton Burch, the state Board of Education, the Kanawha County Board of Education and Kanawha Superintendent Dr. Tom Williams.
The West Virginia Education Association and president Dale Lee filed their complaint in Kanawha Circuit Court as well against the state DOE, the state BOE, Burch, the Kanawha County BOE and the Monongalia County BOE.
“AFT-WV filed a complaint in the Circuit Court of Kanawha County to protect the health and safety of students, teachers and the community in West Virginia,” Albert said in a January 20 statement. “Specifically, AFT-WV seeks a temporary restraining order and/or injunctive relief to enjoin in-person teaching in Kanawha County until all education employees have the opportunity to have the second vaccine which is scheduled to be provided in the first and second week of February.
“AFT-WV also seeks to protect and affirm the important role of local boards of education in protecting the health and safety of the community and their students and education employees. Local control of such decisions is vital to the effective operation of 55 school systems in this very diverse state.”
According to the AFT-WV complaint, the total number of positive Coronavirus cases in the state have more than doubled since December 1.
“The public schools of the State of West Virginia are an integral part of the fabric of our society and democracy,” the AFT-WV complaint states. “Clearly, novel Coronavirus has greatly impacted the operation of public schools in West Virginia. Undoubtedly, the education of our youth must continue (and it has).
“However, our public schools must also be operated safely. There is no question that all education stakeholders in this state – including professional education and school service personnel – seek a return to the normal routines of life, work and the daily personal interaction that is vital to the educational process.”
The AFT-WV complaint goes on to say West Virginia is close to vaccinating most public education employees.
“Petitioners and all school personnel and students have a clear, legal right to a safe and secure school system,” the AFT-WV complaint continues. “KCBOE (and numerous other county boards of education) considered the safety of the school system – its students and their families, as well as all public education employees and the community at large – and recently voted to return to in-person instruction only after many, if not all, of their employees had been fully vaccinated in or around the second week of February 2021.”
In the WVEA complaint, it also seeks injunctive relief to keep the defendants from enforcing the in-person policy until all employees of the Kanawha and Monongalia school systems are fully vaccinated. It also seeks a temporary restraining order, a temporary injunction and a permanent injunction.
But that was before state officials intervened and overturned the decision of local school boards and mandated that all public education employees in the state return to work with students four days a week beginning January 19. Then, Kanawha County and other boards decided to follow that directive “possibly under a threat of loss of funding from the state.”
The AFT-WV seeks a temporary restraining order and/or injunctive relief in Kanawha County and a declaratory judgment and mandamus that it says would protect the constitutional rights of teachers and service personnel statewide.
The AFT-WV is being represented by Jeffrey G. Blaydes of Blaydes Law Firm in Charleston. The WVEA is being represented by staff attorney Andrew J. Katz.
Kanawha Circuit Court case numbers 21-C-56 (AFT-WV), 21-C-57 (Throckmorton), 21-C-58 (Garber), 21-C-59 (Haden)