The Palm Beach Post | by Andrew Marra | September 23, 2020
The court hearing started with an audacious goal: shutting down Palm Beach County’s public school campuses to the more than 55,000 students attending in person each day.
It ended, instead, with a skeptical judge explaining basic legal principles Wednesday to the attorney hoping to do the closing.
On paper, Boca Raton attorney Barry Silver represented eight school district educators who argued, in a lawsuit filed last week, that requiring them to teach on campus during a pandemic was so dangerous to their health it was illegal.
It turned out at least one teacher named in the lawsuit had been included without his consent. Of the others, just one showed up for a virtual hearing Wednesday where Silver made his case that schools should be immediately closed.
For nearly six hours, Silver subjected teachers, school district administrators and a school board member to circuitous questions about the risks of operating classrooms during the coronavirus pandemic.
Everyone seemed to agree there was risk. There was, they all acknowledged, a pandemic ongoing.
Hundreds of teachers with health complications have been allowed by the school district to work from home, administrators said, but more than 1,000 others have been told to teach on campus or quit.
Again and again, Silver hammered the district’s remote-work policy for employees as unfair and unevenly administered, awarded generously by some school principals and not at all by others.
Again and again, Circuit Judge Glenn Kelley gently tried to explain that was somewhat beside the point.
Yes, there are risks to being on campus, the judge agreed. Yes, some teachers with health risks face gutting decisions about whether to return to the classroom or quit
But the central question, Kelley told Silver as the testimony dragged on, wasn’t whether being on campus was risky. It was what role, if any, a court had in second-guessing the school board’s decision to reopen campuses this week.
To grant the requested injunction and force schools to operate online-only once more would require determining that ordering teachers to teach on campus violated their rights in some way, the judge said.
“What legal right do teachers have to work remotely?” Kelley asked Silver.
“There has to be a legal right to do this to start to get the court involved,” the judge continued.
Silver, a lawyer by trade but perhaps better know for his penchant for publicity, found time to object to the school district submitting into evidence a document with stock photos of smiling children.
“Children aren’t smiling these days,” he protested, to no avail.
Yet he struggled to answer Kelley’s overarching question.
Still, Silver assured the judge the matter at hand was “not a garden-variety case.” Teachers being asked to work on campus, he insisted, faced decisions too excruciating to be permissible.
“You’ve got a choice: either die or quit,” he said. “And that cannot be, that cannot be legal.”
Why not? He couldn’t quite say. He asked for an extra day to do more research and submit another legal brief.
That would delay the eventual ruling, the judge warned. But six hours in, Kelley tiredly assented.
Featured image: Boca Raton attorney Barry Silver appealed to judge Wednesday to close Palm Beach County Public School campuses. [Zoom screenshot] The Palm Beach Post