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Update: San Francisco City Attorney Herrera Asks Superior Court to Order Schools to Reopen

SAN FRANCISCO (CBS SF) -- City Attorney Dennis Herrera on Monday asked San Francisco's Superior Court to order the city's school district to commence in-person instruction at all schools by the end of April.

Herrera issued a press release regarding his request for an emergency court order to reopen schools late Monday afternoon following a Superior Court hearing on the city's lawsuit against the San Francisco Unified School District.

The court order would compel the district to reopen public schools as allowed by public health officials.

"Today SFUSD basically said, 'Trust us. We're working on it.' Well, that's just not good enough. I didn't want to sue the school district, but it was sadly necessary," Herrera said in the released statement. "The toll on families, the mental health crisis gripping our children, the devastating learning loss are all too much."

The statement went on to point out that health experts are widely in agreement that it is safe for students, teachers and staff to return to classrooms with basic COVID precautions, noting that "millions of students are back in class across the country."

Herrera wants the court to order the district to open all schools at all grade levels to begin in-person instruction by the end of next month for those who want it.

"SFUSD had nearly a year to present families with a clear plan to allow their children safely back in class if parents wanted. School officials failed to do so," Herrera said. "Even after the City gave the school district an extra $15 million for pandemic response, provided staff for site assessments and public health guidance, and partnered to deploy 25 WiFi Superspots in areas that lacked internet access, SFUSD still couldn't get its act together. Instead, SFUSD spent time and resources on things like renaming empty schools."

During a hearing on Monday, Deputy City Attorney Sara Eisenberg argued that the definition of "to the greatest extent possible" should be interpreted as to the greatest extent allowed by state health authorities.

"In the context of a pandemic, what is possible has to be left to the discretion of the health authorities. It can't be left to the discretion of the individual regulating industries to decide what is or is not possible," she said. "As soon as it is possible under the local and state health orders to resume in-person instruction, I believe there is a mandatory duty to do so."

Although the district announced plans to begin opening elementary schools in phases starting on April 12, plans to open middle schools and high schools for the current school year have not yet been announced.

The preliminary injunction seeks to open all schools in the district in April, which Eisenberg said would be a "reasonable amount of time."

Judge Ethan Schulman, however, said that ordering the reopening all of the district's 123 schools in such short time would be "enormously complicated."

"The district can't flip a switch and send everyone back to school overnight," he said.

It is a process to reopen schools because ventilation systems have to be turned on and classroom sizes approved by local health officials.

Suzanne Solomon, attorney for SFUSD, said the district is in accord with state health orders that have called for districts to prioritize in-person learning for the youngest students since COVID-19 is less transmissible in that group.

"The greatest extent possible under the existing health and safety orders up until now has required a focus on the younger students and that's what the district has done," she said.

"But shouldn't there also be a plan and deadlines, or at least targets, for older kids?" Schulman said. "Because after all, those older kids are suffering the same harms, and in some cases maybe even worse harms when we talk about depression and anxiety and substance abuse and worse, suicide."

Solomon said although reopening dates for grades six through 12 haven't been announced, plans to reopen those schools are indeed underway.

At the end of the hearing, Schulman said he would likely make a ruling on the preliminary injunction request "within a week or so."

Herrera initially announced the city's lawsuit against the district in early February, calling the school board and district's reopening plan "woefully inadequate."

A week later, Herrera filed a motion for a preliminary injunction against the San Francisco Unified School District (SFUSD), the San Francisco Board of Education, and Superintendent Vincent Matthews.

The motion alleges the failure to provide student in-class instruction when health officials have allowed schools to reopen violates children's state constitutional right to attend school and the California Education Code, which requires school districts to "offer in-person instruction to the greatest extent possible."

While negotiations between the district and the San Francisco teachers' union have made progress since, even after early word of a tentative agreement was confirmed, there was no announcement about when students would be returning to school until March 8.

Just two days later, San Francisco Unified School District Superintendent Dr. Vincent Matthews announced he was stepping down from his post amid the contentious battle over reopening the city's public schools for in-class instruction.

© Copyright 2021 CBS Broadcasting Inc. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed. Bay City News Service contributed to this report.

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