In the News

California’s Double-Standard for Schools

September 9, 2020

By Stephanie Taub, Senior Counsel

California’s differential treatment of schools and childcare centers in response to COVID-19 is nonsensical and unscientific. Americans have placed their trust in state and local health officials. Acts of bureaucratic overreach undermine that trust.

California allows small groups of children to gather for a variety of purposes, including for childcare, preschool, daycare, day camps, and recreation programs. This week, the state issued guidance approving such gatherings of up to 14 children and 2 adults in a stable cohort. This guidance also added a variety of other allowed purposes, vaguely defined under the umbrella of “targeted, specialized support and services.”

Yet, there is one glaring exception. For most of the state’s inhabitants who live in counties on the COVID-19 monitoring list, children may not gather in these cohorts for the purpose of learning. Specifically, with a few exceptions, the state forbids “in-person instruction.”

In other words, schools in affected counties may open if divided into small, stable cohorts of 14 students and 2 adults, as long as they do not provide “in-person instruction.” Students may only learn through remote instruction. That’s right – a group of 14 students can meet in their school classroom with their teacher, but that teacher may not teach them. They must instead open their computer screens to be taught remotely, all while sitting in their classrooms.

Surely, the act of teaching children who are already placed safely under a school’s care does not spread the virus. This teaching ban is not rationally related to any legitimate government purpose. The only purpose it serves is political – so that the state can maintain that schools are not officially “open.”

Under the policy, schools are forced to withhold teaching, acting only as childcare providers, under the threat of $1,000 per day fines or potential jail time for giving in-person instruction to students.

There are a few exceptions to the in-person teaching ban.

First, schools may open in counties that are not on the monitoring list and in counties that have been removed from the list for 14 consecutive days. However, at least one such county has threatened to go beyond the state’s requirements and continue to block schools from opening as “schools,” while allowing them to oversee the same number of students as childcare providers. My law firm First Liberty Institute represents a small Christian school in Santa Cruz county that has been working tirelessly to prepare to reopen safely. Our letter urged the county to cease its teaching ban.

Second, elementary schools in certain counties with a low enough case rate of COVID-19 may open if they are granted a waiver from a local health official. The state has put forth a detailed waiver application process. Some private schools, while eager to implement evidence-based health and safety standards, are uncomfortable with the government oversight that this process may entail. By contrast, the state allows small, stable cohorts to meet for non-school purposes without receiving prior approval from their local health official.

Finally, the new state guidance allows certain subjects, such as English as a Second Language classes, and certain students to be taught in person. It also allows schools to teach at-risk or high-need students, as well as students with disabilities. Which additional services are permitted is subject to the discretion of local officials.

Banning in-person instruction contradicts the evidence-based recommendations of the Center for Disease Control and the American Academy of Pediatrics. The experts at the CDC have concluded that “in-person schooling is in the best interest of students.” Similarly, the American Academy of Pediatrics “strongly advocates that all policy considerations for the coming school year should start with a goal of having students physically present in school.” These experts conclude that virtual-only instruction harms many students.

Not only are these “teaching bans” nonsensical and harmful to children, they also threaten the existence of many private and faith-based schools in California whose attendance has dropped in the wake of the changing restrictions and uncertainty. Because many of these private schools already have small class sizes, they would have been well-positioned to open safely with small, stable class sizes. Arbitrary rules like the teaching-ban seem tailor-made to harm alternatives to public schools.

Of course, schools, childcare providers, and the public should follow the advice of experts and abide by their evidence-based health and safety guidance. We should all do what we can to promote a safe reopening. At the same time, state and local officials must be mindful not to abuse the public’s trust by creating arbitrary restrictions like the “teaching ban” that are not grounded in science or reason.

Note: This article was first published on August 27, 2020 and is re-published here with permission. The article presents the main points of an op-ed published in cnsnews. This work was authored by Stephanie Taub, Senior Counsel. The full article can be found on the cnsnews website, here.

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