Free speech is still alive–court dismisses lawsuit against CMS and NCAE

A Superior Court judge has dismissed a lawsuit filed against the North Carolina Association of Educators (NCAE) and the Charlotte Mecklenburg Board of Education by a group of parents who are opposed to remote learning.

The suit stated that COVID-19 is less dangerous than the flu and that remote instruction is unnecessary and harmful. Plaintiffs argued the constitutional rights of students to a sound basic education and statutory right to uniform public schools are being violated by denying them in-person instruction, which they referred to as “Active Instruction.”

They asked the courts to force CMS to “reestablish Active Instruction to the fullest extent permitted by the Governor of the State of North Carolina.”

You’re probably wondering, what does this all have to do with NCAE?

Last July I was among a number of educators and community members, some NCAE members and some not, who voiced COVID safety concerns to the board and district leadership via email and public comments at a meeting of the Board of Education.

After that meeting, our school board decided to forego a planned two week in-person onboarding period and instead begin the school year in Plan C.

This lawsuit claimed that the action of educators speaking up about our own safety and that of our students constituted a violation of North Carolina state law prohibiting strikes, defined in law as “a cessation or deliberate slowing down of work.” It said “NCAE has coordinated a deliberate slowing down of work of CMS by way of denying and/or delaying Active Instruction to CMS Students.”

In the likely event that you didn’t follow that absurd logic, plaintiffs were arguing that educators speaking during public comments at a board meeting and then board members voting to open in Plan C amounted to an unlawful strike.

The suit singled me out repeatedly by name, accused me of having a “clear bias against Active Instruction” and claimed that “members of the NCAE organized a campaign to improperly influence and intimidate the Board members and Mr. Winston into issuing the Suspension of Active Instruction.”

Obviously NCAE has no authority on decisions about schools reopening, but the suit asked the courts to prohibit NCAE from advocating its position to the Board and to compel NCAE–a nonprofit organization supported by the dues of its members–to pay court costs.

In his Brief in Support of Motion to Dismiss, NCAE’s attorney Luke Largess noted that CMS’s actions were authorized by Governor Cooper’s executive orders and that under the separation of powers doctrine it’s not possible to declare the school district’s selection of an instructional option approved by the governor unlawful.

As for the claims specifically against NCAE, he pointed out that the same statute cited by plaintiffs prohibiting strikes also says the following:

nothing herein shall limit or impair the right of any public employee to express or communicate a complaint or opinion on any matter related to the conditions of public employment so long as the same is not designed to and does not interfere with the full, faithful, and proper performance of the duties of employment. 

He added, “Calling support of a lawful instructional plan an illegal work slowdown is not a cause of action – it is rhetorical flourish born of the palpable disdain of Plaintiffs and at least one board member for NCAE/CMAE support of remote instruction as a safety measure.”

Fortunately the judge agreed.

This pandemic is taking a toll on all of us.  It’s turned our educational system upside down, ruined people financially, and cost far too many families their loved ones.  It’s not surprising that we would have major disagreements over how to proceed as we try to find our way through to the other side.

With that said, the ability of public employees to petition their elected representatives and to speak out about workplace safety should be something that we can take for granted in a democratic society.  We cannot allow our legal system to be used in ways that result in people being afraid to do either of those things.

I’m grateful for the efforts of NCAE’s legal team in standing up for the rights of its members and successfully arguing for the dismissal of this frivolous suit.  There has never been a better time to join NCAE than right now.  For any North Carolina educators who are interested, please feel free to reach out to me for more information, or visit this link.  

Want more in-person classes? Vaccinate educators

*This piece first appeared in the Charlotte Observer

On the day North Carolina’s first COVID vaccine was administered last month, Governor Cooper tempered optimism, saying, “Seeing vaccinations underway gives us hope at the end of a hard year. But this virus continues to be extremely contagious and deadly.”

In the six weeks since, we’ve seen a frightening nationwide spike in viral infection rates and hospitalizations.  A change in guidelines by the CDC expanded early vaccine eligibility to include everyone age 65 and older.  The new criteria placed a lot of people ahead of essential workers, effectively moving North Carolina’s educators further back in the line.  There are currently no vaccines on the horizon for the vast majority of CMS educators and the rest of Group 3, and Mecklenburg County has yet to announce how it intends to vaccinate such a large group.

The lack of educator vaccines hasn’t stopped those advocating for an immediate return to in-person learning.  A recent opinion piece by CDC staff is being used as ammunition in that battle–despite the fact that it calls for a number of approaches that aren’t currently in place, including closing restaurants, ensuring outside air ventilation and using screening tests in schools to identify asymptomatic carriers.  

The rocky vaccine rollout has been confounded by factors such as limited supply and logistical snags.  But for many local educators, returning to in-person learning at a time of double digit positivity rates without being vaccinated first is a risk they’d prefer not to take.

Last week Alabama’s State Health Officer expanded that state’s vaccine eligibility to include educators.  The move came shortly after the deaths of four Montgomery Public Schools teachers led the state’s fourth largest district to draw a line in the sand and say classes would remain remote until vaccines were available for employees.  

That kind of support for North Carolina educators is sorely needed from decision makers at all levels.  Instead, having faced tremendous backlash from reopening advocates after recommending virtual instruction, County Health Director Gibbie Harris made one key change last week when extending a county health directive through February:  language advising remote learning has been removed.  The county’s announcement of the modified directive paraphrased the same CDC opinion piece as saying “with appropriate safety measures in place schools can be a safe location for students to learn.” It failed to mention that the safety measures in question are not actually in place.  

Harris’s 180 paves the way for the Board of Education to return students and staff for face-to-face instruction in February.  To be clear, the board has no control over vaccines beyond advocating for student-facing staff to be prioritized–which it did before vaccines were even available.  But it is responsible for deciding whether to resume in-person learning at a time when CMS dashboard metrics for public health are still well in the red and vaccines are not on staff calendars.

North Carolina’s educators have grown accustomed to feeling underappreciated in a state that has valued tax cuts over education for years.  Time and again we’ve heard lip service to the sacrifices we make and gratitude for our willingness to do more with less.  But in this moment the stakes of doing without a vaccine are life and death.  That’s a scary prospect.

Imagine if all stakeholders involved in this pandemic education struggle were to unite around a shared goal of calling on federal, state, and local officials to solve supply and distribution problems and begin Group 3 vaccinations.  Imagine if those utilizing lawsuits, harassment, and financial resources to push for an immediate return to face-to-face learning were to instead use their energy to make that return considerably safer for all involved, including their own families.  

Like so many things about this pandemic, remote learning has not been ideal for anyone, and teachers want nothing more than to be back in the classroom where we belong.  Let’s get our educators vaccinated so we can do so safely.  

North Carolina Senate bill to force in-person learning would not apply to charter schools

A bill expected to be voted on in the North Carolina Senate today would force an immediate return to in-person instruction for North Carolina schools.

That is, some of them.

The legislation is sponsored by Senators Ballard, Lee, and Hise, and rumored to have some Democratic support as well. The bill cites mental health and academic impacts of pandemic building closures and claims they are a “disaster that some children may never recover from.” It asserts that for every one-third of a school year physical school buildings remain closed “current students will suffer a 3% loss in income across their entire careers.”

The bill requires that “all local school administrative units shall provide the option of in-person instruction to students in grades kindergarten through enrolled in that unit in accordance with this act for the remainder of the scheduled 2020-2021 school year.” But the term “local school administrative units” applies only to public school districts, not to charter schools or private schools.

If the law passes as written and is signed by Governor Cooper (or his veto overridden with support from Democrats), districts would be required to offer Plan A (minimal social distancing) to all students with IEPs and 504s, regardless of community COVID metrics. All other students grades K-12 would have the option of Plan B.

If the sponsors and supporters of this bill legitimately believe everything it says about the mental health of children, the lack of in-school COVID transmission risk, the impact on career earning, etc. they should extend this same requirement to all of North Carolina’s schools, not just traditional public schools.

You can read the current bill in its entirety below.