A Superior Court judge ruled last week that Boston Public Schools can continue in-person teaching despite rising rates of coronavirus in the city. Earlier in the month, Boston Teachers Union asked for an injunction, noting that the positivity rate on all of the city’s coronavirus tests was then above the agreed-upon weekly threshold of 4 percent.

At the moment, only about 1,300 students — less than 2.5 percent of the district’s overall enrollment — are entering buildings each day. The eligible students are those who would suffer most from missing in-person instruction, including those with severe medical and emotional disabilities, those experiencing homelessness, and those at the earliest stages of learning English.

The union argued even that limited in-person instruction — serving only the highest-needs students, comprising about 5 percent of overall enrollment — violated a memorandum of agreement both parties signed on Sep. 9.

But in a 21-page decision after a hearing held over Zoom on Oct. 14, Judge Robert Gordon declined.

“The Court sees no material breach of contract in the actions taken by Boston Public Schools,” Gordon wrote.

The controversy — and the ruling — turned on the interpretation of two sentences in the Sept. 9 agreement between the union and the district.
The first states that, if the citywide COVID-19 positivity rate rises above 4 percent, “BPS will transition to full remote learning for all students and BTU bargaining unit members will have the option to be remote as well.” But the next sentence says BTU educators “will be expected to return” to buildings once the Boston Public Health Commission deems it safe.

On Oct. 7, the commission reported that the citywide rate crossed that threshold — if only slightly — to 4.1 percent. It has since climbed further to 4.4 percent citywide. But within hours, city health officials also told district officials that it was safe to continue operating under the limited in-person model, according to a Boston Public Health Commission spokesperson.

On the evening of Sept. 7, Superintendent Brenda Cassellius invoked that agreement’s second sentence — and the health commission’s advice — in an email to staff, saying that schools would be open and teachers would be expected.

In their complaint, the teachers union’s attorneys described the argument that schools closed and reopened over the course of an afternoon as “too clever.” Meanwhile, district officials argued that — however hurriedly —  the Boston Public Health Commission played its specified role as “referee” on Oct. 7.

Gordon agreed, saying the agreement as signed specifically “assigned the judgment of whether and when teaching could safely occur within BPS facilities to independent health care professionals” at the health commission.

This article was first published by WBUR 90.9FM on Oct. 14. WBUR and the Reporter share content through a media partnership.