Judges in Johnson County and Polk County denied requests from school districts for temporary injunctions blocking the state from enforcing Gov. Kim Reynolds’ mandate that schools provide at least 50 percent in-person instruction, unless the Iowa Department of Education (DOE) decides the spread of COVID-19 in a school district is severe enough to allow more online instruction.
The lawsuit in Johnson County was filed by the Iowa City Community School District (ICCSD) and Iowa State Education Association (ISEA), which represents more than 30,000 Iowa educators, and the lawsuit in Polk County was filed by Des Moines Public Schools (DMPS), the state’s largest school district.
Both lawsuits seek to have the courts declare that decisions regarding the health and safety of students and staff fall within the authority of local school boards.
The judges in both cases said Iowa law gives control of decisions in this area to the state.
“The question is which government body is authorized to make the decision,” Polk County Judge Jeffery Farrell wrote in the first of the two decisions handed down on Tuesday afternoon. “This is an area in which state law controls.”
Johnson County Judge Mary Chicchelly wrote, “The Iowa Legislature passed SF 2310, which was signed into law by Governor Reynolds, and the Court is bound to apply Iowa law in reaching its decisions.”
SF 2310 was passed at the end of the legislative session with little discussion, and no debate or public hearings on the provisions that allow the governor to set the conditions under which school must provide more than 50 percent in-person instruction.
According to DOE guidelines, a school district should not apply for waivers to offer 14 days of instruction with less than 50 percent in-person instruction until the county in which a school district is located has a 14-day average positivity rate in its COVID-19 tests of 15 percent or higher.
That threshold is three times the 5 percent 14-day average positivity rate that both the WHO and CDC recommend a community have before students return to the classroom.
DOE guidelines also call for a school to have an absentee rate due to illness of 10 percent or higher in addition to the 15 percent positivity rate to qualify for a two-week waiver. And according to a recent change in DOE guidance, students who are quarantined at home for possible exposure to COVID-19, but have not yet tested positive, do not count as absent for meeting the absenteeism threshold for a waiver.
Iowa Starting Line, which was the first to report on this change, noted that this new guidance announced on Sept. 3 contradicts guidance published by DOE on Aug. 13 specifying that the absentee rate submitted for a waiver “should include all students who are absent due to covid-related reasons — including illness, quarantine and isolation.”
“The change makes it virtually impossible to meet the 10% absentee rate needed to move to online learning,” ISEA Director Randy Richardson told Iowa Starting Line’s Isabella Murray.
According to Murray, DOE has not yet responded to questions about the change.
In his ruling in the Polk County case on Tuesday, Judge Farrell acknowledged that DMPS may be using better metrics than DOE to determine the threat posed by COVID-19 to students and staff, but that doesn’t override the state’s legal authority to make COVID-related decisions.
“There is no question that DMPS is using a more robust collection of factors than the simplistic model used by [DOE],” Farrell wrote. “Still, this does not mean that [DOE’s] decision can be reversed because it disregarded the facts.”
In her decision, Judge Chicchelly found the risks described by both the petitioners, ICCSD and ISEA, and the respondents, the governor and DOE, to be compelling.
While COVID-19 certainly presents the risk of harm to Petitioners’ members, staff, and students, there also are risks to students that may result from school closures, as described in Dr. Pedati’s affidavit. The risks are compelling and equal on both sides of this argument, and Petitioners cannot show that the harms of which they complain outweigh those of the experiences that students might have if schools are permitted to shutdown indefinitely and without oversight from Respondents.
Neither judge found that denying the temporary injunction would result in irreparable harm to the school districts or ISEA. The governor and DOE have warned that if a district provides less than 50 percent in-person instruction without a waiver no class time will count towards the total number of instructional hours for the school year, and district officials may face disciplinary procedures.
DMPS has started its school year with all online instruction, despite its request for a waiver being rejected by DOE.
“[DMPS] Superintendent [Thomas] Ahart said online learning would continue for most students ‘until further notice,’ Iowa Public Radio reported after the Polk County decision was published. “He testified last week that the district cannot safely distance students in its high schools, even under a hybrid plan. He also said the cost of extending the year if the district is forced to make up for virtual days would likely exceed its spending authority.”
ICCSD had its first request for a 14-day waiver to start the school year all online rejected on Aug. 6, despite full support from the Johnson County Department of Public Health. A second request for a waiver was granted on Aug. 27, when cases were already spiking in Johnson County, as the first request for a waiver explained was anticipated, when University of Iowa students returned to Iowa City.
Both decisions were handed down on Sept. 8, six months to the day after the first three cases of COVID-19 were confirmed in Iowa. The three cases were in Johnson County. It’s also the first day of the new school year for ICCSD.
At 10 a.m. on Tuesday, the Iowa Department of Public Health reported another 34 residents of Johnson County tested positive for COVID-19 during the preceding 24 hours. That is the lowest number of new cases of the virus confirmed in a 24-hour period ending at 10 a.m. since Aug. 21, and only the second time since that IDPH has reported fewer than 65 new cases in Johnson County during that daily time period.
It is worth noting, however, that all Test Iowa sites were closed the three days of the Labor Day weekend, which may have affected IDPH’s statistics.
The department’s 14-day positivity average for Johnson County on Tuesday was 22.2 percent.
Statewide, IDPH reported another 345 cases of COVID-19 between 10 a.m. Monday and 10 a.m. Tuesday, including 24 cases in Linn County. The department also reported six more deaths, bringing the state’s COVID-19 death toll to 1,173.
Responding to the decision in Polk County court, the governor’s office released the following statement on Reynolds’ behalf: “The court’s decision today recognizes that we are correctly interpreting Iowa law, and I remain committed to working with Des Moines Public Schools on their return to learn plan so that it meets the educational and health needs of Iowa’s children.”
Following the Johnson County decision, the governor’s office released another statement on her behalf: “This second court decision today again recognizes that we are correctly interpreting Iowa law, and I remain committed to working with the Iowa City Schools and all districts to meet the educational and health needs of Iowa’s children.”
Although the preliminary injunctions were denied, both districts can still move forward and bring their cases to trial.