Gov. Kim Reynolds’ order requiring schools to offer at least 50 percent in-person instruction even if a school board decides the spread of COVID-19 in its community makes it unsafe to do so is unconstitutional, according to the attorney for the Iowa State Education Association (ISEA).
ISEA General Counsel Jay Hammond said during a news conference on Wednesday that the governor’s order violates provisions in the Iowa Constitution which he described as requiring the state to protect “the health and welfare of the citizens of this state to the greatest extent it can.”
The news conference was held to announce that ISEA, the state’s largest teachers union, and the Iowa City Community School District (ICCSD) have filed a lawsuit seeking an injunction against the state enforcing the governor’s 50 percent in-person instruction mandate.
The lawsuit seeks to restore to school boards the authority to make health and safety decision for their schools, Hammond said. ICCSD Board of Directors President Shawn Eyestone also described the lawsuit in those terms during the board’s meeting on Tuesday.
After months of planning how to safely reopen Iowa City schools, the ICCSD Board of Directors voted unanimously on July 14 to begin the new school year with all online instruction before transitioning to a hybrid model that would combine in-person and online instruction, when COVID-19 conditions in Johnson County permitted.
Three days later, Gov. Reynolds announced that schools would have to offer at least 50 percent in-person instruction for students unless a district received a waiver from the Iowa Department of Education (DOE). On July 30, DOE published the criteria a district would have to meet before receiving a waiver to offer less than 50 percent in-person instruction.
The county in which a school district is located would have to have a 14-day average positivity rate of 15 percent or higher in its COVID-19 tests, and a school would have to have an absentee rate of at least 10 percent, before a school could qualify for a waiver. Even then, the waiver would only be good for two weeks.
The average positivity rate required by DOE is far higher than the WHO, the director of the CDC and the vast majority of public health experts recommend. According to Iowa Department of Public Health Medical Director Dr. Caitlin Pedati, the exceptionally high positivity threshold was set because just a few cases in rural counties with a small population could result in a high positivity rate.
Both ISEA and ICCSD object to requiring all districts in the state to follow a standard set for small communities.
ISEA President Mike Beranek said during the news conference “a 50,000-foot view of this pandemic” such as the governor and DOE are using “isn’t capturing what is happening locally.”
Members of the ICCSD Board of Directors expressed the same concern when discussing whether to join the lawsuit during their Tuesday meeting.
“The concern that I have had since the various piecemeal guidance has come out is that it doesn’t take into consideration our local conditions,” Eyestone said. “It lumps every district across the state into one bucket. It’s a one-size-fits-all kind of plan.”
ICCSD has followed the requirements laid down by the governor and DOE. It adjusted its hybrid model to made the 50 percent in-person instruction requirement. It applied for a waiver to start the new school year with two weeks of all online instruction. DOE rejected the waiver application on Aug. 6, even though the Johnson County Public Health Department fully supported the district’s request, citing the likelihood that student returning to the University of Iowa may cause a surge in virus activity in Iowa City.
Board member Lisa Williams said the governor’s approach to schools reopening violates the state’s “rich tradition of local control and home rule.”
“And to see that tradition kind of cast aside and discarded because of one person’s interpretation of what a statute means is really disheartening,” Williams said. “That’s not what we do in Iowa.”
The board voted unanimously on Tuesday night to join the ISEA’s lawsuit.
Reynolds claims a bill passed at the end of this year’s legislative session, SF 2310, grants her the authority to overrule the decisions of local school boards regarding the mode of instruction used during the pandemic, and cites two sections of the bill to support her position. But according to Hammond, the bill in its entirety authorizes local school boards and districts to make decisions regarding what is “needed to return the students and staff to their schools as safely as possible and protect students, staff and members of the community at large.”
Hammond pointed out that the 50 percent requirement isn’t in SF 2310. The bill doesn’t contain any percentages. Instead it says in-person instruction should be the method of instruction primarily used by schools.
“The governor has built a house of cards on one word — ‘primarily,’” Hammond said.
Reynolds has said “primarily” means at least 50 percent in-person instruction not just for the school year as a whole — in which case a district could offer all online classes for a few months before returning to the classroom for the rest of the year — but for every two-week period while schools are in session.
“This doesn’t say the first day of school you have to have 50 percent in class,” Hammond said. “That is something the governor has made up wholesale. And that’s why this lawsuit has been filed.”
It isn’t certain that a judge will issue a ruling in the lawsuit before classes begin in Iowa City on Sept. 8, so at its Tuesday meeting the ICCSD board also voted unanimously to begin the year in its hybrid instructional model.
Eyestone said at the board meeting that might not change, even if the lawsuit is successful.
“I want to be clear that [the decision to join the lawsuit is] not saying, ‘we’re suing so we can start completely online,’ or ‘we’re suing to have this put in place or that put in place,’” Eyestone said before the vote.
The lawsuit, he said, is about “how we best can make decisions locally.”