Judge Sets Deadline for School Districts to Provide Plan for In-person Instruction Five Days a Week. State Told to Provide Social Distancing Guidance.

Attorneys Paul Cambria and Todd Aldinger recently appeared in New York State Supreme Court on behalf of parents from the Williamsville and Orchard Park school districts. The school districts, school boards, the governor, the New York State Department of Health, and the New York State Department of Education were all named as defendants in the lawsuit. 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.

As reported by the Buffalo News, the judge in this matter ordered Williamsville and Orchard Park school districts to present plans for five days of instruction by April 13th and stated that New York State must then approve or reject the plans by April 20th. The judge also stated that he wants a decision from New York State by April 20th on what type of social distancing is recommended, 3 feet or 6 feet.

Attorney Paul Cambria discussed the matter with WIVB News4 and stated “As far as we’re concerned, the educational law requires instruction to be given by competent teachers and that’s what we want to have happen.” Mr. Cambria went on to say “The bottom line is the kids need to be taught by teachers. They can’t just be sent to a room and say ‘ok learn.’ it doesn’t work that way.” Click the video below for WIVB’s full report, including comments from Paul Cambria.

The day after the judge’s ruling in the matter, attorney Todd Aldinger spoke with WBEN NewsRadio 930AM. Continue reading this post for portions of Todd Aldinger’s responses to questions and click the audio player at the end of this post to listen to Brian Mazurowski’s full interview with Mr. Aldinger that aired on WBEN.

Parents are going to court to try and get schools to open five days a week full-time for their kids. Yesterday we heard one of these cases in front of a judge. Exactly, what happened?

TA: “So yesterday, we were in court asking for a temporary restraining order. Telling the Williamsville and Orchard Park School Districts that they had to immediately resume in-person instruction or at least everyday instruction with some combination of remote and in-person classes. Right now, both these school districts are providing many, if not most of their students, with about half the days with instruction, whether it’s remote or whether it’s in person, and then other half the days they are just given a packet of information to work through on their own.

We thought that that was a violation of education law, multiple provisions of the education law, and we should get relief for that and get the students back in school. But, in the context of a temporary restraining order, it’s pretty extraordinary relief.

And the judge was hesitant to grant us that relief, but what he did do was he came up with a very clever and thoughtful way to move the calendar forward. He ordered both the school districts to come up with a plan to reopen for five days a week in-person instruction within the next week. That plan will then get submitted to the state. The state has a week after that to approve it. Then we’ll back in court a couple days after that, arguing that the judge should then impose that plan.

So, I think that we asked for the immediate resumption of schools. I think the judge was a little hesitant, not knowing if there was a plan. You know these school districts say they have a plan, but they’ve never published one. And so, I think that the judge’s way of doing this is very thoughtful because he’ll make sure that there is a plan that’s well thought out and once we have that plan then we will argue specifically on whether that plan should be implemented.”

We had heard from the president of the superintendent’s associations, we’ve heard from school district leaders, that they’re handcuffed so to speak by the state. That they can’t really open the doors, they can’t move the desks together to fit more kids in, until the state comes up with more guidance. The judge yesterday forced the districts to provide a plan. Is that why the school districts were included in this suit?

TA: “Yes, I think that we want to order these schools districts to go back to fulltime instruction. And they had brought up a bunch of reasons why, you know, even if they changed to three-person distancing, they’re not sure that they can go back to fulltime instruction. For example, they don’t know if they have enough cafeteria room, they argued they don’t know about busing, etc., etc.  So really, you really do need to sue the district and force them to come up with a comprehensive plan that takes into account all the different aspects of education and spacing. And so they really were a necessary party. We couldn’t just sue the state and tell them to go back to three feet because then there are all these other issues that are really within the prerogative of the school district that would have been remained unresolved.”

What did the Assistant Attorney General say when asked why the state hasn’t taken a position yet, why they haven’t released that guidance? Did he give any clue that, even without the judge’s order, that it would be coming soon?

TA: “Yes, he kind of repeated the same mantra we’ve been hearing from the state since late February when they said they were studying it and they would take action soon.  He said that within a week, but again, the judge set a fairly aggressive timetable here. Because the judge, just like the rest of us, has been hearing ‘a week or two, a week or two’ for six weeks now. And you know, the school year is quickly evaporating. So hopefully this time when the state says that they’re going to get it out within a week, they’re serious. But if not, they will have to do it within 2 weeks, because that is now a court order.”

Is that a big point when this is argued in front of a judge? That the transmission in school, yes we know kids can be infected in school with the coronavirus, we know that their outcomes are typically far less severe than people as old as say mid-20s to their early-50s, it’s less severe in kids. But still the transmission is not happening in a classroom from what we can see. How much is that talked about when you are arguing these cases?

TA: “Well, there really isn’t much data about classroom transmission because it’s occurring very rarely. And that really plays into our argument because you have other situations where the general population is allowed to interact with hundreds of thousands of people.

Think of going shopping at a crowded Walmart. You only have to wear a mask, you don’t have maintain six feet of social distancing. And then, we’re going into this subpopulation which is, as you said, the least vulnerable to both contracting and having serious symptoms of COVID, and they’re interacting with the same 20 to 30 kids every day, their classrooms don’t change like the population of Walmart changes, and they’re subject to a harsher mask and social distancing requirement.

Paul Cambria and I really hammered that home yesterday with the judge and really tried to explain how this is really an arbitrary and capricious standard because you’re applying a harsher stricter standard to the least vulnerable population than you are to the general population.”