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SF City Attorney Asks Judge to Expand In-Person Learning to All SFUSD Students by End of April

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Protest sign saying "I want school! Full time. I miss my friends" in foreground of crowd before City Hall. Protestors in yellow T-shirts, Mayor Breed at podium in background.
Mayor London Breed speaks during a rally to reopen San Francisco public schools on March 13, 2021, the one-year anniversary of school buildings being closed due to the pandemic. (Beth LaBerge/KQED)

San Francisco city attorneys on Monday asked a Superior Court judge to require the San Francisco Unified School District to offer in-person learning to all students, in all grades, by the end of April.

The request is the latest attempt by San Francisco officials to use the legal and political levers at their disposal to speed up the pace of school reopenings in the city, where public school students have been in distance learning since the outset of the pandemic.

The hearing came on the heels of a decision by a judge in San Diego last week to block state restrictions on school openings in areas of the state with the highest rates of coronavirus infections.

But it is unclear whether the courts in San Francisco will be willing to take the reins of the city's complex and contentious school reopening debate.

The hearing on Monday concerned a lawsuit filed by City Attorney Dennis Herrera against the district in early February.

At issue is language in California's 2020-2021 state budget, directing schools to "offer classroom-based instruction whenever possible."

Since Herrera filed the suit, the district and its teachers union have agreed to bring back preschool and elementary school students in April – but not for five full days a week.

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The city maintains that declining coronavirus case rates are making it possible to offer in-person learning to all students, as large districts including Los Angeles and San Diego are doing.

"What we are seeking is simply an order that the district comply with their legal obligation," Deputy City Attorney Sara Eisenberg said at the hearing.

"So what that would mean is to offer in-person instruction to all students, in all grades, to the maximum extent that the health orders allow them to," Eisenberg added. "And we believe that it is appropriate to say that they must do so by the end of April."

Judge Ethan Schulman questioned the idea "that an individual state court should be trying to micromanage what, as the district points out, is an enormously complicated process."

"Even if I thought it were appropriate," Schulman said, "it seems to me it poses very difficult issues of manageability from a judicial standpoint."

The district contends that no legal action is required because they are already making progress on reopening classrooms, as evidenced by their approved reopening plan.

"Big picture, this is moot because the district has already been doing everything that's necessary to meet the language in the statute," said SFUSD's attorney, Suzanne Solomon, a lawyer with Liebert Cassidy Whitmore.

Solomon argued that the reopening decisions involved a great deal of negotiation and discretion — and that they couldn’t simply be imposed by the district.

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Asked by Judge Schulman whether improving public health conditions should oblige the district to expand in-person instruction to older students, Solomon said progress was being made behind the scenes.

"Although the school [district] does not have anything public right now about a plan to return the middle school students, that does not mean that the [district] is not doing that," she said.

Attorneys for the city countered that the district has given no indications that older students would return to class this year.

"They are again asking us to take their word for it, that they are doing something about sixth to 12th grade," Eisenberg said.

Schulman said he could rule on the request for a preliminary injunction by the end of the week.

In much of the state, teacher vaccinations, local negotiations and declining case levels are moving the needle on reopening more quickly than judicial action.

Last week, a Superior Court judge in San Diego blocked Gov. Gavin Newsom’s ban on in-person instruction for middle and high schools located in counties that fall into the most restrictive purple tier under the state's reopening guidelines.

Days after the temporary restraining order, San Diego moved into the less-restrictive red tier, allowing districts to reopen classrooms for those older students.

Currently, just 11 counties – mostly in the San Joaquin Valley – remain in the purple tier.

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