Lawsuits Filed Against Local School Districts to Allow In-person Learning Five Days a Week

Attorneys Paul Cambria and Todd Aldinger have filed lawsuits on behalf of parents in the Williamsville and Orchard Park school districts. Parents involved in the lawsuits want the school districts to offer five days of in school learning per week for those who desire that their students receive such in-person education.

WBEN recently interview Todd Aldinger to discuss certain aspects of the lawsuits. In the interview, WBEN’s Susan Rose and Mr. Aldinger discuss who the lawsuits have been filed against, the current status of the suits, some of the arguments being made in the lawsuits, and Lipsitz Green Scime Cambria’s past success in legal challenges made against New York State’s COVID-related restrictions.

Continue reading this post for portions of Todd Aldinger’s comments and click the audio player at the end of this post to listen to Susan Rose’s full interview with Mr. Aldinger that aired on WBEN.

Todd, you are working on behalf of parents in Williamsville and Orchard Park, is that right?

TA: That is correct.

What is the status of your suits?

TA: Our suit, at least the Williamsville one, will be going before a judge on Tuesday and the judge will either give us a temporary restraining order, or bring the students back to the school full time, or he will schedule a further hearing to further explore the issues on that day.

The decision that this judge makes; would it be for all of the student in Williamsville or would it be for just those that are families in the suit, the plaintiffs?

TA: We think that if relief is granted, in that case the plaintiffs, it should be for all students who want to attend school in-person. We found some case law allowing the judge to make that type of wider ruling than just doing it for the plaintiffs. So, we think that would be the correct resolution. We hope that the judge sees it the same way.

Who are the defendants that are named in the suit?

TA: It’s the school board, the school district, the governor, the Department of Health, and the Department of Education.

Why name a school board and a school district? Aren’t their hands tied?

TA: Well, there’s two things here. One, is there are the executive order and the guidance saying that you have to have six feet of social distancing between students. And the schools are arguing that they can’t fit all of the kids in the classroom. And this directive, like a lot of the other directives that have already been defeated, has expired because it’s more than thirty days old. So that’s one prong.

The second prong is that the schools have all along had opportunity to install curtains or barriers in between students if they couldn’t fit them all in a classroom and maintain six feet of social distancing. But, these schools have chosen not to take advantage of that option. And instead of spending the money, they’ve been relegating these student to receiving two days of in-person education and then two-to-three days of no education whatsoever at home, just getting a packet of assignments to do. So, I think there are things that the school could be doing that is separate and apart from the directives that are issued by the state.

Now, Erie County, that was one of the defendant too, right?

TA: Not in our suits, no.

The county has said previously that it doesn’t have the authority to give schools the ok to open up more. Do you agree with that?

TA: I think that that’s right and that’s why we did not choose to sue the county in our lawsuits.

Ok, because schools would be liable then, right? If the county said it was ok and the state hadn’t come out and said it was ok?

TA: Well I think that the schools are continuing to rely on expired guidance. I think if the schools really wanted to go back they could challenge that guidance themselves, but they haven’t. And that’s why we’ve had to bring this lawsuit against both the state parties and the school district parties.

The lawsuit though, essentially, is challenging expired guidance or expired science?

TA: Expired guidance. And also, the guidance told them they could offer virtual education, but they’re not doing that. For two to three days a week, they’re not even educating their students. They’re giving them a packet of assignment to complete at home on their own. So the school districts have taken the guidance and gone beyond what the guidance allows them to do and provide less education than they should be providing under the guidance. If they were doing zoom classroom instructions five days a week, that would be one thing, but they’re not doing that. On two to three days a week the schools are just giving the students a packet of assignments to go through on their own without any instruction whatsoever from a teacher. And the education law requires daily instruction.

And just to be clear too, this lawsuit is also for the option of in-person five-day-a-week learning, right?

TA: Yes.

So, if it was granted by the judge, not every family would have to go with this?

TA: Parents won’t have to send their kid to school if they don’t think it’s safe or if their kid has an underlying health condition. That’s not something we’re looking to do. We are just looking to allow students and parents that want their students educated every day in a classroom to have that option.

Are you aware of any other lawsuits that have been filed like this that have had success?

TA: I think these four lawsuits are four of the first ones brought under this theory. We laid the groundwork for this in a lot of our previous wins. Paul Cambria and I got the gym reopened and the restaurants reopened and the orange zone removed. So, I think we’ve laid the groundwork and made it possible for this lawsuit to be successful now. So that’s why I think this is the right time for it.

As you’ve been researching this Todd, where’s the opposition been coming from do you think? Is it teachers or is it the teacher unions?

TA: I don’t know where it is. I think it’s everyone hesitant and afraid to make a mistake. And its paralization and not willing to take a stand and say we need to get our kids back in school. I think that’s really what the point of this lawsuit is. To force things forward because action is not being taken and it’s pretty clear that, it’s been pretty clear for a while, that school aged children are not a vulnerable population yet we are treating them more harshly under these regulations then the general population is when they go to a crowded supermarket.

And we’ve been waiting for state guidance, right, from the health commissioner? I think he said on February 25th that he thought it would be coming out the following week?

TA: I think everyone knows that these regulations on schools is overkill by this point. It’s just that no one has made the move to change it. We thought we needed to bring a lawsuit to really force that change.