Families protested outside City Hall in February calling for city schools to resume in-person learning. (Samantha Laurey/Special to SF Examiner)

Families protested outside City Hall in February calling for city schools to resume in-person learning. (Samantha Laurey/Special to SF Examiner)

Judge reluctant to issue order in SFUSD reopening lawsuit

City Attorney alleges school district failure to provide in-person learning violates state law

A San Francisco judge on Monday cast doubt on the City Attorney’s lawsuit to compel public schools to reopen.

San Francisco Superior Court Judge Ethan Schulman acknowledged that school districts statewide have struggled to reopen and suggested the case may be more appropriate for a federal judge. While the City Attorney has requested an injunction ordering the district to move ahead with reopening, Schulman also expressed skepticism about the ability of a court order to speed up that process.

“Parties have to take into account what’s practical,” Schulman said. “The idea that an individual state court should be trying to micromanage what, as the district points out, is an enormous and complicated process….I must say even if I thought it were appropriate, it seems to me it poses very difficult issues of manageability from a judicial standpoint.”

A ruling on the injunction will be made within a week.

City Attorney Dennis Herrera filed the suit in early February, arguing San Francisco Unified School District’s plans to reopen were inadequate and not in compliance with state law. Since then, district officials have announced plans for reopening to begin April 12 after reaching an agreement with the teacher’s union earlier this month.

Herrera later warned SFUSD he would challenge any reopening plans that were contingent on vaccine availability. The district’s deal with teachers includes a provision that it will reopen when The City is in the red tier if vaccines are available to all school staff or in the orange tier regardless of vaccines. San Francisco is expected to reach the orange tier this week.

Sara Eisenberg, deputy city attorney and chief of strategic advocacy, argued Monday that SFUSD, which has been providing only distance learning since March last year, has been in violation of state and local health orders to provide in-person instruction “to the greatest extent possible.” She emphasized that SFUSD has not shared plans to bring back middle and high school students outside specific priority populations.

“Other districts are, in fact, moving more quickly toward reopening at the level required by law than San Francisco is,” Eisenberg said. “The order is simply to comply with existing state and local orders.”

A San Diego judge last week granted parents a temporary restraining order blocking parts of California’s framework for reopening schools, including around the four-foot distancing minimum and having different rules for elementary schools and older students. The ruling was frequently brought up at Monday’s hearing around San Francisco’s reopening.

“What that means for this case, big picture, fundamentally, is that it is premature for the court to issue an injunction,” said Suzanne Solomon, SFUSD attorney, of the San Diego ruling. “Although the district does not have a plan for middle and high school students, it doesn’t mean they’re not doing it. We are working on it.”

At question was also whether SFUSD would adjust reopening plans to comply with new federal and state guidance slashing the social distancing requirement in schools from 6 feet to 3 feet. The memorandum of understanding between the district and United Educators of San Francisco states 6 feet, but allows parties to meet and confer about impacts should any provisions conflict with revised guidance, Solomon noted.

“Today SFUSD basically said, ‘Trust us. We’re working on it,’” Herrera said in a statement after the hearing. “Well, that’s just not good enough. I didn’t want to sue the school district, but it was sadly necessary. The toll on families, the mental health crisis gripping our children, the devastating learning loss are all too much.”

The lawsuit filed by the City Attorney is only one of several legal challenges SFUSD faces right now. Attorney Paul Scott has filed suit on behalf of groups including the alumni associations of Washington and Lincoln high schools over the school board’s decision to rename 44 schools, a volunteer-led process that was criticized for occurring while schools were closed with a lack of historical guidance. The lawsuit argued that the public did not receive enough notification about the vote, among other issues.

The district may soon also have another suit on its hands regarding Lowell High School. The Friends of Lowell Foundation formed last week and threatened to file suit over the board’s vote to end merit-based admissions at the high school as part of a larger effort to combat decades-long criticism of a racist culture at the school.

A demand letter sent by attorney Harmeet Dhillon, a Republican Party official, called the move unconstitutional and alleged it sought to reduce Asian American enrollment at the academically-renowned magnet school.

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