Judge denies Boston Teachers Union request to allow educators to work remotely when city’s virus rate is above 4 percent

Teachers union argued its agreement with the district made working in person optional when virus rate is above 4 percent

Melonie Miller, a fifth-grade teacher at George Conley Elementary School, helds a sign while gathering with other teachers, parents, and community members in Dorchester on Saturday to demand that in-person instruction be optional for Boston educators. On Wednesday, a judge denied the union's request.Erin Clark/Globe Staff

A Suffolk Superior Court judge on Wednesday denied a request from the Boston Teachers Union for an injunction that would have allowed all educators to choose whether to work remotely while coronavirus positivity rates in the city exceed 4 percent.

Superior Court Judge Robert Gordon said the high-needs students who are currently attending school in-person would “suffer measurable deficits” if the district did an about-face and decided to conduct classes remotely. About 2,600 high-needs students have been attending classes in person — fewer than the district had initially expected — but all other students are learning at home.

In its lawsuit, filed Oct. 8, the union argued that the school district was violating their coronavirus safety agreement, which states that all schools will “transition to full remote learning for all students and BTU bargaining unit members” when the city’s positivity rate is above the 4 percent threshold. The rate hit 4.1 percent last week and rose to 4.4 percent for the week ending Oct. 10.

“You have to do these things the right way because people need to know what they’re doing, and they need to know how to do it safely,” Jamie Goodwin, who represented the Boston Teachers Union, said during a hearing Wednesday, held over Zoom. “The union is not trying to deprive individuals of services. The union’s trying to have an orderly process by which we know how to give those services to whom in the same way in each and every school.”

The ruling primarily affects educators who teach students with high needs. The students, including those with severe disabilities, limited English backgrounds, and those facing homelessness or involvement with child protective services, returned to school buildings earlier this month.

On Oct. 7, the high positivity rate led Boston leaders to announce they would be delaying the next phase of in-person learning — affecting the bulk of the rest of the student population — but would allow students who had already returned to classrooms to continue learning in person.

Because of Wednesday’s ruling, educators who provide services to those students will be required to continue working from school buildings.

The lawsuit, which specifically named Mayor Martin J. Walsh, Superintendent Brenda Cassellius, and the School Committee as defendants, took issue with the district’s interpretation of a specific clause in the coronavirus memorandum of agreement negotiated in September between district leaders and the teachers union.

The clause states: “If the citywide COVID-19 positivity rate rises above 4% citywide, BPS will transition to full remote learning for all students and BTU bargaining unit members will have the option to be remote as well. When the Boston Public Health Commission or other City or State authority determines that the school district can reopen, BTU bargaining unit members will be expected to return to BPS buildings.”

The teachers union argues that because the rate has risen above 4 percent, all educators — including those who teach high-needs students — should be allowed to teach remotely if they choose. But the district has said that because the health commission determined it was safe for schools to be open, certain staff members must be there.

Rob Hillman, the attorney representing Walsh, Cassellius, and the School Committee, said during Wednesday’s hearing that the 4 percent threshold actually kicks the decision to a “referee” to determine what the safe course of action is. In this case, he said, it’s the health commission.

“Sentence 1 is sending it to the referees, throwing it up to the replay booth,” he said. “Send it to the experts. When you hit this number, something happens. What happens? It goes to the experts. The experts render a decision. They’re the referee.”

Gordon ultimately agreed. In his decision, Gordon wrote that the “ultimate call as to whether teachers and staff will provide services to students within BPS buildings or remotely from home” lies not with the union or the School Committee, but with the “independent health care professionals at the Boston Public Health Commission."

Goodwin and the teachers union argued that schools can’t “reopen” and teachers can’t be ordered to “return” — as the clause dictates — if schools didn’t first close and teachers weren’t universally given the opportunity to work remotely. Gordon pointed out, however, that the clause doesn’t specifically require a period of time in between a school closure and the health commission’s ruling for schools to reopen.

In his decision, Gordon wrote that he somewhat agreed with the union’s assertion about the order of events, writing that the “scientific determination” by the health commission “took place slightly out of sequence from what is contemplated” in the clause.

But, he added, “little good would have been served by this sort of formalistic sequencing. The judgment of the Boston Public Health Commission itself would clearly not have been affected by such a brevis [short] deferral.”

“More importantly, families of high-need students and the teachers and staff serving them would have made plans for at-home learning, only to see such arrangements abruptly scrapped as soon as they took effect," he continued. “The students themselves, of course, would have been caught in the switches of this about-facing, and would have suffered from the confusion and disruption to their schooling that likely followed in its wake.”

During the hearing, Gordon also raised the question of whether the issue was under the court’s jurisdiction at all. Because the disagreement is over a labor contract, he said, should the union go through the grievance and arbitration process instead? Or is the situation uniquely “ill-suited” for arbitration?

Christina Duddy, another lawyer representing the Boston Teachers Union, said at the end of the hearing that the union has filed a grievance, as well, but the process can be lengthy.

“As you noted yourself, it’s a very long process,” Duddy said, speaking to the judge, “and going through the grievance and arbitration process and the brief-writing process, et cetera, could mean that it’s close to the end of the school year before we have a decision.”

In a statement following the decision, teachers union leaders said they want to work with the school district to figure out safe staffing ratios and create a plan that reduces the “viral footprint in our school buildings and that ensures high-quality in-person instruction for our highest-needs students.”

"Hopefully, this ruling will accelerate our ongoing conversations with the district so that students and staff are learning and working in the safest environment possible when in-person,” they wrote.

Walsh and Cassellius said in their own joint statement that they were “pleased that the court has preserved the opportunity for our highest needs students to continue learning inside our schools, supported with the critical services that they require and deserve.”