Herrera sues school board and district to implement real reopening plan

More than 54,000 public school children are suffering, and the achievement gap is widening as SFUSD fails to meet state reopening requirements

City Attorney Dennis Herrera

SAN FRANCISCO (Feb. 3, 2021) — City Attorney Dennis Herrera announced today he has sued the San Francisco Board of Education and the San Francisco Unified School District for failing to come up with a reopening plan that meets state requirements.

The lawsuit, filed today in San Francisco Superior Court, alleges that the school board and district’s reopening plan is woefully inadequate and doesn’t meet the basic requirements set by the state, including “to offer classroom-based instruction whenever possible.” The lawsuit seeks a court order directing the school district to prepare to offer in-person instruction now that it is possible to do so safely.

Since the school district and its independently elected leadership have already squandered months of opportunity to develop a real plan as required by state law, Herrera will file a motion on Feb. 11, 2021 asking the court to issue an emergency court order. If granted, the order would compel the district to act at that point, before the final outcome of the case. Such emergency court orders are known as preliminary injunctions. They can only come after a lawsuit is filed.

“It’s a shame it has come to this,” Herrera said. “The City has offered resources, logistical help and public health expertise. Unfortunately, the leadership of the school district and the educators’ union can’t seem to get their act together. The Board of Education and the school district have had more than 10 months to roll out a concrete plan to get these kids back in school. So far they have earned an F. Having a plan to make a plan doesn’t cut it.”

“This is not the path we would have chosen, but nothing matters more right now than getting our kids back in school,” Mayor London Breed said. “The city has offered resources and staff to get our school facilities ready and to support testing for our educators. We’ve offered the guidance and expertise of the Department of Public Health. We are ready and willing to do our part to get our kids back in the classroom. The data is clear. Black, Latino, and Asian students, especially low-income students, have lost ground academically compared to white and wealthier students. This is hurting the mental health of our kids and our families. Our teachers have done an incredible job of trying to support our kids through distance learning, but this isn’t working for anyone. And we know we can do this safely. We’ve seen our private schools open and our City-run community learning hubs serve our most at-need kids for months without any outbreaks. We need to get our schools open.”

“Public health experts at the federal, state and local level all agree it is safe for kids to go back to school,” Herrera said. “There are more than 54,000 San Francisco children suffering in isolation right now. Their families are suffering. Our city is suffering. The toll is falling most heavily on working mothers, particularly working mothers of color. The undisputed scientific consensus is that schools can reopen safely for teachers, staff and students with proper precautions, and that in-person instruction is not causing spikes in COVID-19 infections. Let’s follow the science and get the school doors open.”

“Various public schools in Marin, San Mateo, Santa Clara and Napa counties have all figured it out,” Herrera said. “Private and parochial schools in San Francisco have figured it out. In-person instruction needs to be the Board of Education’s singular focus — not renaming schools that are empty, or changing admission policies when teachers aren’t in classrooms. It’s unfortunate we have to take them to court to get it figured out, but enough is enough.”

The San Francisco Unified School District is a separate legal entity from the City and County of San Francisco. SFUSD is established under state law. It does not answer to the Mayor or Board of Supervisors. The City Attorney does not represent it. The school district is governed by the Board of Education, an independently elected body with seven members.

Reopening Schools is Safe
Scientific studies in both the United States and abroad have established that in-person schools do not significantly increase COVID-19 transmission.

Researchers at Brown University in December 2020 concluded that schools were “not a significant source of COVID-19 spread.” Similarly, a study by researchers at Duke University in January 2021 of 11 North Carolina school districts revealed: “No instances of child-to-adult transmission of SARS-CoV-2 were reported within schools.”

Last month, researchers with the Centers for Disease Control and Prevention published findings from a global examination of COVID-19 outbreaks at K-12 schools, which concluded that in-person instruction in the fall had not significantly increased COVID-19 infections. In accordance with that research, the CDC urged local school districts to begin in-person learning, stating: “It is critical for schools to open as safely and as quickly as possible for in-person learning.”

San Francisco schools have been allowed to reopen since September. The San Francisco Department of Public Health, the California Department of Public Health, and the U.S. Centers for Disease Control and Prevention all say schools can reopen safely.

In San Francisco, 113 private, independent and parochial schools — the overwhelming majority — have reopened and remain open. More than 15,800 students in the City have returned to in-person school. Less than five cases of in-school transmission have been reported, according to the Department of Public Health.

In neighboring Marin County, where nearly 90% of schools have resumed in-person instruction — including public schools, which began reopening their classrooms last fall — there have only been nine cases of suspected in-school transmission.

Remote Schooling is Widening the Achievement Gap
Among the San Francisco Unified School District’s official policy statements is this: “The achievement gap is the greatest civil rights issue facing SFUSD.”

However, the district’s own data show that the achievement gap is widening under SFUSD’s distance learning approach.

Black, Latino and other students of color in San Francisco, as well as those from low-income families, have lost significant academic ground compared with wealthier and white students during the pandemic, according to news accounts citing data released by the school district.

Black and Latino students were also more likely to be absent at least 60% of the time during the fall semester.

Nationally, the Journal of the American Medical Association posted a piece that noted: “with school closures comes the risk that children may experience worsened mental health as well as reduced access to nutritious foods and health services, lower academic gains, and less attention from protective services. These risks may be felt to a greater extent by underserved communities.”

State Law Requires SFUSD to Have a Real Plan
During the pandemic, the state legislature updated the California Education Code to require for the 2020–21 school year that each governing board of a school district and county board of education adopt a learning continuity and attendance plan. (Cal. Ed. Code § 43509) This plan, among other things, must describe the actions the district “will take to offer classroom-based instruction whenever possible, particularly for students who have experienced significant learning loss due to school closures in the 2019–2020 school year or are at a greater risk of experiencing learning loss due to future school closures.”

SFUSD and the Board of Education have failed to do so, violating their official duties as public officers under state law, Herrera’s lawsuit says. The state requires school districts to provide this information in a manner that is “specific, concise and clear” to promote stakeholder engagement and understanding. SFUSD has failed to do that. The plan SFUSD prepared and the Board of Education adopted is ambiguous empty rhetoric.

Writ petition filed in court 

The case is: City and County of San Francisco v. San Francisco Board of Education et al., San Francisco Superior Court Case, No. 517352, filed Feb. 3, 2021. Additional documentation from the case is available on the City Attorney’s website at: https://www.sfcityattorney.org/.

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