A State Supreme Court justice today denied the request of parents in Williamsville and Orchard Park for a preliminary injunction that would have allowed schools to offer full-time, in-person learning to all students.
While Justice Emilio Colaiacovo denied the request, he ordered a hearing May 7 to address the merits of the parents' arguments.
"After the hearing, this court will be in a better position to evaluate whether the guidelines promulgated by the state are appropriate, fair and reasonable given what we now know about this virus, how it is transmitted, and where it is transmitted," Colaiacovo said in a written decision.
Colaiacovo also ordered the state to revisit, and if applicable, to revise its social distancing guidance for middle and high schoolers by Friday.
The parents filed petitions asking the judge to permit the districts to not adhere to the state Health Department guidance requiring 6 feet of distance between students in middle and high schools if they are located in counties with a high risk of transmission of Covid-19. The parents want in-person learning for five days a week offered to students. They sued the school districts, governor, state Health Department and state Education Department.
The state Health Department issued guidance April 9 allowing schools to return students at 3 feet of distancing instead of 6 feet. But the guidance said middle and high schools are to remain at 6 feet of distancing if they are in counties with a high risk of transmission, and they cannot cohort their students. Erie and Niagara counties both have high transmission rates.
Todd Aldinger, an attorney representing the parents in both districts, said parents are glad the judge scheduled an expedited hearing on the merits of the case. They also are happy Colaiacovo ordered the state to review its guidance.
"If they honestly take a look at it, I think they would possibly allow 3 feet of distancing for all students in all grades, regardless of the community transmission rate," Aldinger said.
Colaiacovo called the parents' petitions moving, and said they demonstrate the physical and psychological harm caused by hybrid and remote learning.
"While respondents seek to dismiss the connection, no other logical conclusion can be reached when students, who otherwise have no reported academic, social or behavior issues, now are listless, cannot get out of bed, have been diagnosed with depression, have attempted self-harm, and act aggressively towards others. The issues raised by parents in these affidavits cannot be ignored and they certainly show the irreparable harm they will face if Williamsville and Orchard Park continue to rely on the Hybrid/Remote Learning models," he wrote.
Ryan Smith, the attorney for Orchard Park Central School District, said the district would embrace the opportunity to bring kids back full-time, but the district cannot accommodate all students full-time based on the social distancing requirements.
"From the school’s perspective, there’s no question that in-person learning is pedagogically superior to hybrid and remote learning models," Smith said.
The parents needed to show the likelihood of success on the merits, irreparable injury if the injunction were not granted, and a balancing of equities in favor of granting the injunction, the judge's decision said. But they sought to compel relief, not just to preserve the status quo to prevent irreparable damage, the judge decided. And he could not decide the merits without conducting a hearing.
"This court acknowledges that at the very beginning of the pandemic, certain restrictions were necessary in light of the fog of uncertainty posed by the coronavirus. However, much has changed in the last 14 months and more is known about the virus," the decision said.