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Salt Lake City parents lose their legal fight to reopen schools. But not for the reasons you might think.

Decision comes after parents asked to force Salt Lake City School District to reopen.

(Leah Hogsten | The Salt Lake Tribune) Teaching assistant Becca Stevens holds the door open for returning Escalante Elementary students in Salt Lake City, January, 25, 2021. Salt Lake City School District began reopening all of the district's elementary schools to in-person learning on Monday. And a judge has declined to grant an injunction that would force it to open to more students or to move faster in reopening.

A district judge has ruled that Utah’s children are not entitled under the state constitution to an in-person education, leaving how and where learning happens — including entirely online during the pandemic — up to each local school district.

The decision, posted late Wednesday, comes as COVID-19 has tested the power of school boards both in Utah and nationally.

“Reasonable minds can differ on whether in-person instruction, online instruction, or some combination of them is best for the students of a particular school district in the midst of an unprecedented and evolving pandemic,” wrote 3rd District Judge Adam Mow.

But he stressed that at all times, “under Utah law and [Utah State Board of Education] guidelines, elected local district school boards have the authority to make that decision for their respective students.”

The 22-page ruling is part of a case brought by parents, who in a hearing early last week asked the court to force Salt Lake City School District to reopen with at least some in-person option for students. In his ruling, Mow declined to issue such an injunction.

After starting the year as the only one in the state to stay entirely online, the district’s board has already separately voted to allow students to return to the classroom, including having kindergartners and first graders start this week.

The reopening will continue on a staggered schedule until junior high and high school students come back on Feb. 8. The older students will be in person in classrooms for two days a week.

That would have effectively made any injunction moot anyway, though parents filed it before the board had made a decision on secondary schools welcoming students back.

The parents who sued also noted their reservations about any plan where students wouldn’t be in school for the full week, and said the current small group options weren’t working.

Ruling focuses on local control

Mow, though, said that the board’s move to reopen Salt Lake City schools and the details of its plan were not factors in his decision.

The school district, he wrote, never violated any students’ constitutional right — as parents argued — in staying virtual. And it could have continued to do so, he said.

The Utah Constitution only guarantees access to instruction, not to classes in person in a building. “Plaintiffs’ children are not entitled to a specific modality of education — they are instead entitled to access the curriculum,” Mow wrote. And in Salt Lake City School District, they got that online.

He emphasized that state law says all decisions on the actual delivery of education lie with “the democratically elected school board of the district.” Salt Lake City, he said, reached out to parents and teachers for input and had the authority to make a decision on delivering instruction.

Overall, it’s win for local control — especially when the board was pressured, too, by Utah lawmakers to reopen or lose funding. The district relented, in part, with the prioritization of COVID-19 vaccine for teachers in the state; the administration of those doses started earlier this month.

Both the Salt Lake City School District and the Utah Board of Education, which was named in the suit, declined to comment on the decision Thursday. Mow noted that that Utah Board of Education, in particular, never required that any district in the state reopen in person this fall.

Parents did not show ‘irreparable harm’

The parents who filed the case had argued that their kids were being hurt by the school board’s decision to remain online, when all the other public districts in the state reopened in person. They said they should have a right to education regardless of “race, color, location, religion, politics, or any other bar or barrier which may be set up which would deny to such child equality of educational opportunities or facilities with all other children of the state.”

They emphasized location and pointed to their kids’ grades declining under the all-virtual model in Salt Lake City. The data backs that up, showing an increase in failing scores during the first term this fall across both elementary and secondary schools there.

But Mow said that doesn’t constitute “irreparable harm,” which is the standard for issuing an injunction.

He also argued it wasn’t clear in their arguments if the students’ lower grades were actually because of online learning, “rather than other stresses attendant to life during a pandemic,” or even if the grades were worse than other districts in the state that did reopen in person.

He cited a survey from the district that found 70% of parents said online education was working this fall; the plaintiffs in the lawsuit, he noted, represent just 24 kids.

“Clearly,” he wrote, “some students in SLCSD have struggled with online instruction, which has resulted in academic, emotional, financial, and other issues. But this court’s task is not to determine whether the board made the best decision or to substitute its judgment for that of the board.”

Parents, Mow argued, have the choice through Utah’s open enrollment policy to transfer their kids to another district if they don’t like how Salt Lake City is operating. So far this academic year, 1,230 students have done so, including some of the plaintiffs who brought the case.

An appeal is possible, as similar cases are fought nationwide

It is yet to be determined if the parents will appeal the decision, said their attorney, Ryan Bell. He said Thursday that they are disappointed by the outcome.

“The court appears to have been persuaded by the district’s argument that the district is not required to provide an equal education to the students in this district, as long as some school somewhere else in the state might accept those students,” Bell added in a statement.

“We are saddened that this is the position our local school district has taken. It would shock thousands of families throughout Utah to learn that they are not entitled to a full slate of educational opportunities in their own local school district.”

Kody Powell, one of the parent plaintiffs who has three kids in the district, said Thursday that he’s feeling fine with the court’s decision — mostly because the district has already started reopening.

His biggest concern, he noted, was for his kids’ mental health in staying home for school, and the lawsuit gave him a platform to make that issue known. “I felt like this side of the conversation wasn’t always being heard,” Powell said.

Bell said that the parents will continue forward with more advocacy for in-person learning.

And Raina Williams, another parent involved with the lawsuit who has led protests for the district to reopen, added that she continues to worry what the decision could mean for the future. “Your district could reduce your child’s education to at-home worksheets and call that fair and equitable,” she added.

There are similar cases pending across the nation. In California, the state’s supreme court rejected a bid to force schools to open in person in Orange County; but attorneys said they aren’t dropping the case. Parents filed a lawsuit, too, in New York to force schools to have in-person instruction. There hasn’t been a hearing on that yet.

In other states, there are ongoing battles between teachers’ unions and governors over what the proper protocols are for reopening. Some educators, including in Illinois, have gone on strike.

Under the new Biden administration, the Centers for Disease Control and Prevention this week released research showing reopening schools is safe.

However, they said that’s only the case when mask-wearing and social distancing are maintained and there are limits on other settings — like indoor dining, bars or poorly ventilated gyms — in order to keep infection rates low in the community, the New York Times reported. It also has to occur in conjunction with prioritizing vaccine for K-12 staff and additional testing for the virus among students.

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