CHARLESTON — A school counselor filed a lawsuit against the Kanawha County Board of Education and its superintendent claiming her First Amendment rights were violated.
Chelena J. McCoy filed the lawsuit April 5 in federal court. As the long-time school counselor for Belle Elementary School, McCoy claims it was her responsibility to oversee the administration of the federally-mandated West Virginia General Summative Assessment each year, including the spring of 2021.
She claims the WVGSA was canceled in 2020 due to concerns about the COVID-19 virus.
"However, Kanawha County Schools administered the test in 2021 even though the pandemic continued," the complaint states. "Exercising a safety option, approximately 30 Belle students, called E-Learners or virtual learners, attended school from home."
This option allowed for concerns that the COVID-19 virus could cause serious illness or death to vulnerable parents or household members if it was brought home from school, according to the suit.
McCoy claims in recognition of the risks of requiring online learners to take the test in the school building in 2021, the U.S. Department of Education granted the West Virginia State Department of Education a "waiver" from the usual 95% participation requirement and, in granting the waiver, the USDOE instructed Kanawha County Schools and all West Virginia public schools to offer various safe testing options in relation to the WVGSA, including the option to test remotely or at other times or places or not test that year, and to take into account the safety concerns of online learners who had not attended school the entire school year.
"As the date for testing approached, numerous parents of Online Learners expressed concerns to Belle Online teachers about sending their children into the building to test in the middle of the pandemic," the complaint states. "McCoy knew that parents of Online Learners had not been informed of their right to request safe testing alternatives recommended by the USDOE, and had been provided confusing or misleading information about their right to request safe testing alternatives outside of the face-to-face classroom."
McCoy claims she became worried for the safety of Belle students and their families and requested permission from the defendants’ staff to communicate this important health and safety information through Schoology, the official school communication platform.
However, the defendants’ administrative employees – Belle's Principal Danielle Burke and Director of Counseling and Testing Jon Duffy – told McCoy she could not do so, according to the suit.
McCoy claims Duffy said it was their policy not to preemptively share the availability of testing alternatives for fear it could lower test participation rates not just that year, but also in future years when accountability standards are reinstated.
"Realizing that vulnerable family members faced the risk of serious illness or death if their Online Learners were required to take the test inside the crowded school building, McCoy concluded she had an ethical obligation as a counselor, educator, and as a private citizen to inform the public of the potentially life-saving options and information offered by the USDOE," the complaint states. "McCoy had begun to fear that other school districts may also be suppressing this important safety information."
Because the defendants had foreclosed McCoy from conveying this information through Belle’s official communication platform, she says she contacted statewide news media on her own time during a weekend in an effort to inform as many potentially affected people in the state as possible of the information that Kanawha County Schools administrators and possibly other school administrators had suppressed so they could take appropriate measures to protect their families. In taking these actions, McCoy availed herself of the protections under the Whistle-blower Law and her right to freedom of speech as a private citizen.
McCoy claims only one news outlet, WCHS-TV, reported her concerns by airing a brief story on April 19, 2021. In the story, Duffy conceded that children were not required to take the test.
On April 27, 2021, the defendants delivered a formal letter of reprimand to McCoy for allegedly providing inaccurate information to the news media, according to the suit.
McCoy claims she later was informed by the board that the letter of reprimand would go into the board’s personnel file, the letter would follow her within and outside the Kanawha County Schools, including school systems in other states, and that McCoy could face further disciplinary action if there were future infractions.
"Ultimately, the letter of reprimand was requested by both licensing agencies for school counselors, the West Virginia Department of Education and the National Board of Certified Counselors," the complaint states. "Both licensing agencies also requested that McCoy explain in writing the shortcomings and failures as it related to the receipt of the reprimand received by Kanawha County Schools. This placed McCoy’s professional licenses in peril, required additional work, and caused stress and embarrassment for McCoy."
McCoy claims the reprimand also helped to send the message to all Kanawha County Schools staff that if they are told by the board administrators to suppress public information, they better comply or they will face severe professional consequences and hardships.
McCoy claims the defendants have acted unethically and violated the public and employees’ trust by placing their narrow interest in future test participation rates over their obligation to provide complete and accurate information to protect the health and safety of the children and families that they serve.
McCoy is seeking compensatory and punitive damages. She is represented by Hoyt Glazer of Glazer Saad Anderson in Huntington.
U.S. District Court for the Southern District of West Virginia case number: 2:23-cv-00314
