Letter to Gov. Cooper and education officials threatens legal action over school closures

Gov. Roy Cooper briefs media at the Emergency Operations Center in Raleigh. Photo via N.C. Dept. of Public Safety

RALEIGH — A letter sent to Gov. Roy Cooper, state Superintendent Catherine Truitt and to members of the Wake County Public Schools board threatens legal action if students are not allowed to return to full-time in-person instruction.

“There can be no reasonable doubt that the ordering public-schools closed while allowing private schools to remain open denies my clients of equal protection under the law,” reads the letter from Anthony J. Biller of the Envisage Law Firm, located in Raleigh. “There is no rational basis for restricting public-school children in one set of schools while allowing private school children in the same neighborhood to enjoy the benefits of in person instruction.”

Biller continues, “Such policy making is arbitrary and capricious. Such discrimination is particularly troubling considering that public-schools educate a higher percentage of socio-economically disadvantaged students, learning impaired students, and minority and ESL students.”

A portion of a parent letter included by Envisage states that “Everyone should have a choice. A mandated punitive one-dimensional approach is not appropriate.”

The letter, dated Feb. 3, also requests that the governor “immediately drop the prohibitions against in-person instruction for public-school K–12 classes and allow our public-school children to return to class.”

Envisage wants an answer from Cooper “within two weeks” of receipt of their letter which lands on Wednesday, Feb. 17.

“Superintendent Truitt understands and values the importance of in-person instruction for students,” said Blair Rhodes, the communication director at the N.C. Department of Public Instruction. “While decisions about reopening are made on a local level by the local school board in consultation with the local health department, and not at the discretion of the state superintendent, Superintendent Truitt has publicly urged schools to reopen.”

Rhodes added that Truitt believes that “we must get students back in the classroom for more face to face instruction while keeping teachers, students and other school support staff safe.”

Neither Cooper nor Wake County Public Schools responded to requests for comment.

The main arguments in the letter are that the governor’s orders are unconstitutional, invalid and are depriving students of their “fundamental right to Equal Protection under the Law and their right to a sound education.”

The letter also says Cooper’s executive orders “constitute executive rule making,” but those orders do not follow requirements of the North Carolina Administrative Procedures Act and as such “are void and unenforceable.”

Additionally, the letter states that “EO 141 is unilateral action [and] does not satisfy state statute criteria for emergency powers and is therefore invalid,” calling Cooper’s emergency orders unconstitutional “as presently applied.”

“Partial time does not account for a solid education,” said Carrie Flowers, who started a Facebook support group for the parents. “We still have kids hurting themselves, neglected IEPs, neglected 504 plans… so it’s still not working.”

Flowers said she and other parents are frustrated because it seems like Cooper “just doesn’t want to make the call” that schools need to open.

In Wake County, the school board is refusing to reopen full-time for all students beyond K-3. The board voted to treat elementary grades four and five in the same manner as middle and high schoolers, with three-week cohort rotations consisting of one week of in-person learning and two weeks of remote instruction.

Flowers and her parent group are not alone, with parents in Charlotte-Mecklenburg filing a complaint against that district last September over the failure to return to in-person instruction.

Lawsuits filed against school districts and state education entities continue to grow, with the city of San Francisco suing its own school district over continued school closures, citing record numbers of suicidal school-aged children. The lawsuit cites UCSF Benioff Children’s Hospital, which reported a 66% increase in the number of emergency room visits by suicidal children and a 75% increase in children needing hospitalization for mental health services.

A bill making its way through the General Assembly aiming to return K-12 students to the classroom also cites mental health statistics from the Centers for Disease Control and Prevention (CDC). Comparing April through October of 2020 to the same months in 2019 showed an increase in mental health related emergency room visits of 24% for children ages five to 11 and 30% for older children between the ages of 12 and 17.

Teacher unions both national and local have pressured school officials and the Biden administration to keep schools closed, demanding teachers be vaccinated before agreeing to return to the classroom.

In a television interview over the past weekend, CDC Director Rochelle Walensky reiterated that vaccination is not a requirement for teachers to return to the classroom. Walensky said that teachers have been made part of the “S1B” vaccination priority group, placing them at the same vaccination priority level as persons over age 75 and older.

Teachers already have been bumped up in the vaccination line in North Carolina. Cooper announced that as of Feb. 24, “educators will be the first in Group 3 to be eligible to get their shot.” He said that priority grouping includes “teachers, principals, childcare providers, bus drivers, custodial and cafeteria staff and others in our pre-K-12 schools and childcare centers.”

During the same interview, Walensky implied that schools should not reopen in “red zones,” where community spread is high, despite the CDC stating there is “little evidence” schools contribute to community transmission and numerous studies showing little to no child-to-adult transmission in school settings.

A North Carolina study of 11 districts that held in-person learning last fall showed no child-to-adult transmission and “extremely limited within-school secondary transmission.”

About A.P. Dillon 374 Articles
A.P. Dillon is a North State Journal reporter located near Raleigh, North Carolina. Find her on Twitter: @APDillon_