Herrera expands lawsuit, adds constitutional violations against SF school district

SFUSD is violating students’ state constitutional right to attend school and discriminating against them on the basis of wealth, new filing alleges

SAN FRANCISCO (Feb. 9, 2021) — City Attorney Dennis Herrera announced today he has amended his lawsuit against the San Francisco Board of Education, the San Francisco Unified School District and Superintendent Vincent Matthews to add three new allegations, including violations of the California Constitution.

City Attorney Dennis Herrera

The expanded lawsuit, filed today in San Francisco Superior Court, alleges that the school district is:

  • violating students’ right under the California Constitution to attend public school
  • discriminating against students on the basis of wealth in violation of the California Constitution’s equal protection clause
  • violating the state law that requires school districts to “offer in-person instruction to the greatest extent possible”

These counts are in addition to the original allegation that the district’s reopening plan is inadequate and doesn’t meet the basic requirements set by the state.

Herrera is now seeking a court order requiring the school district to, among other things, stop depriving San Francisco school children of their constitutional rights and to offer in-person instruction to the greatest extent possible, as the law requires. Herrera intends to file a motion for an emergency court order, known as a preliminary injunction, later this week.

“We’re pleased the school district and its unions finally seem to be making some progress on reopening, but it’s not nearly enough,” Herrera said. “There are more questions than answers at this point. We have not seen an agreement, but our understanding is that it still doesn’t cover classroom instruction. Which kids will be able to go back? When will they be able to? How many days a week? How many hours a day? These are just some of the questions the district hasn’t answered for parents. Our public school families are dealing with mental health and education crises on top of a pandemic.  It’s not sustainable. That’s why we have gone to court. I took this step only as a last resort. The reality is 54,000 public school children are suffering across our City. Just sticking with the status quo and hoping the district came up with an effective plan wasn’t working.  Hopefully the prospect of court scrutiny will focus the district’s attention like nothing else could have. Let’s get this fixed.”

“All children in California have a right to attend a public school and to be treated equally, regardless of their wealth,” Herrera said. “That is not happening in San Francisco right now, where SFUSD’s own data show the achievement gap is widening. A large number of kids, many of them from low-income families, aren’t getting to see their teachers. The educational damage caused by remote learning — particularly for low-income students — is likely to have severe and lifelong consequences.  We need to fix this situation before things get worse.”

As Dr. Jeanne Noble, director of COVID-19 Response for the University of California San Francisco, recently stated: “Every place you look—signs of social phobia and isolation all the way up to suicide attempts—screams crisis.”

State Law Requires In-Person Learning
Last summer the California Legislature passed Senate Bill 98 and Governor Newsom signed it into law.  Senate Bill 98 amended and added various provisions to the California Education Code to clarify the obligations of school districts during the COVID-19 pandemic.

The legislature specified that remote learning may be offered in two circumstances: 1) as a result of an order or guidance from a state or local public health officer or, 2) for pupils who are medically fragile or would be put at risk by in-person instruction, or who are self-quarantining because of exposure to COVID-19.

Except where those conditions are met, a local educational agency is required to “offer in-person instruction to the greatest extent possible,” which SFUSD is failing to do. Neither state nor local public health officials currently require remote learning in San Francisco. In fact, the consensus among public health officials is that schools can reopen safely, with masks, physical distance, hand washing and proper ventilation. Vaccinations are not a prerequisite. City health officials have already approved 114 private and parochial schools for reopening, and more than 15,800 students in San Francisco have been attending in-person school for months.  Less than five cases of in-school transmission have been reported, according to the San Francisco Department of Public Health.

Right to Attend Public School
California school children have a constitutional right to a free education in our public schools. As far back as 1874 in the Ward v. Flood case, the California Supreme Court noted that: “The advantage or benefit thereby vouchsafed to each child, of attending a public school is, therefore, … a right — a legal right.”

The California Supreme Court in a 1984 case, Hartzell v. Connell, found that this right is not limited to academic subjects, but instead extends to “the practical training and experience — from communicative skills to experience in group activities — necessary for full participation in the ‘uninhibited, robust, and wide-open’ debate that is central to our democracy.”

Widening Achievement Gap
Although schools can safely reopen with the appropriate protections in place, SFUSD is keeping children out of school despite the inevitable consequences for low-income students and the school district’s awareness that remote learning is causing educational disparities between low-income students and their more affluent peers.

SFUSD’s own research and data show students of color and low-income students are having higher incidents of absenteeism and experiencing notable learning losses as compared to previous years. The district’s review, contained in a report titled “SFUSD Fall 2020 Attendance and Academic Performance during COVID-19 Pandemic” (Jan. 14, 2021), indicated that of 910 students who have missed more than 60% of classes, 70% are from low-income families.

Those learning losses have severe consequences for students and the City.  For example, children who are chronically absent in preschool, kindergarten, and first grade are much less likely to read at grade level by the third grade.  Students who cannot read at grade level by the end of third grade are four times more likely than proficient readers to drop out of high school.

By high school, irregular attendance is a better predictor of school dropout than test scores.  Indeed, studies suggest that a student who is chronically absent in even a single school year between the eighth and twelfth grades is over seven times more likely to drop out of school than a student who is not chronically absent. Studies also show that 70% of these student dropouts will never return, and of those that return, only a small fraction will end up graduating from high school.

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.

The case is: City and County of San Francisco v. San Francisco Board of Education et al., San Francisco Superior Court case number CPF-21-517352, filed Feb.  3, 2021. Additional documentation from the case is available on the City Attorney’s website at: sfcityattorney.org