By Chris Villani

Law360 (October 14, 2020, 2:03 PM EDT ) A Boston Superior Court judge on Wednesday denied a bid by the city's teacher's union to shift to all-remote learning admit an uptick in COVID-19 cases, ruling that local health officials determined it safe to have high-need students in their classrooms.

In a decision that came down just hours after a hearing on the Boston Teachers Union's motion for a preliminary injunction, Suffolk Superior Court Justice Robert Gordon found that the memorandum of agreement between the union and the Boston Public Schools allowed the Boston Public Health Commission to greenlight the school's reopening if the percentage of positive tests in the city eclipsed 4%.

The union said the schools were never closed once the 4% threshold was breached, so health officials could not undertake a meaningful review to determine whether or how to reopen the buildings. It's an argument Justice Gordon said he did not agree with.

"While [Boston Teachers Union]'s position does not lack for textual logic, it ultimately proves too much, and asks the court to impose an outcome that could not reasonably have been intended by these parties," Justice Gordon wrote in the 21-page order. "The [memorandum of agreement] unambiguously invests the Boston Public Health Commission with ultimate authority to determine when school districts can be open to on-site learning."

The memorandum of agreement, the judge found, strikes a balance between putting complete control of the decision to work remotely in the hands of either the union or the school district.

"The 4% positivity rate thus triggers an initial transfer of the normal management right to direct where bargaining members work," Justice Gordon wrote. "However, in accordance with the second sentence of the [memorandum of agreement] Section V(3), this transferred right to determine the situs of teacher service lasts only until 'the Boston Public Health Commision determines the school district can reopen.'"

Nothing in the agreement imagines the 4% threshold as a bright line indicator that on-site learning is unsafe, the judge ruled. Otherwise, the pact would not have included a second step allowing for health officials to give the go-ahead for on-site instruction.

The ruling also noted that the framework of the memorandum of agreement imagined there would be up to 13,000 students in school buildings when the 4% positivity rate was hit. Instead, only as many 1,300 high-need students are in school buildings on any given day.

During the motion hearing Wednesday morning, Justice Gordon said these are the students who benefit most from in-person instruction.

"These are kids who crave routine, who are depending on consistency," he said, addressing a lawyer for the union. "What you're talking about is they would have gone for a week of on-site learning and then been pingponged back home for remote learning and then as soon as that ramped up ... back they come. How is that maintaining good order from the standpoint of the kids?"

Despite an argument by the union that the process was rushed, Justice Gordon wrote Wednesday afternoon that nothing suggests the health commission's evaluation of the situation was done with "anything but the highest fidelity to good science."

Boston Mayor Marty Walsh and BPS Superintendent Brenda Cassellius said in a statement Wednesday evening they are "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."

"We deeply appreciate the hard work, unwavering commitment, and public service of our staff, including those who have been reporting to classrooms for in-person teaching and learning, and we look forward to working together towards a successful school year in service of our students and families," Walsh and Cassellius said.

BTU released its own statement Wednesday, saying that it hopes the ruling will "accelerate" conversations with the district to ensure the safest environment possible for students and staff.

"While we view the language in the safety agreement differently, what is most important is that we figure out a collaborative plan as soon as possible that includes safe staffing ratios, that reduces the viral footprint in our school buildings, and that ensures high-quality in-person instruction for our highest-needs students," the union said. 

As he had done during the hearing, Justice Gordon noted in his order that nothing in the September agreement between the parties governed how long the health commission had to wait before issuing a determination on the safety of Boston's school buildings.

"What is to stop the Boston Public Health Commission from making the same decision 10 minutes after the teachers make their election?" he asked during the hearing. "Or 10 hours? Or the following day? Or on a Wednesday when no one is in the building anyway?"

The justice found that the agreement had been carried out properly, as a lawyer for Boston Mayor Marty Walsh and the school system, Robert Hillman of Valerio Dominello & Hillman LLC, had argued Wednesday morning when he said the test rate is a "tripwire."

"Sentence one is sending it to the referees, throwing it up to the replay booth," Hillman said of the agreement. "When you hit this number, something happens. What happens is [BPHC] renders a decision, they are the referee."

Cassellius said last week that teachers working with high-needs students would be required to show up at their buildings. But the president of the union told teachers the September memorandum of agreement between the two sides renders their in-person appearance "optional" and promised to back any teachers who faced discipline for not reporting to work at their schools.

The state lists Boston's percentage of COVID-19 positivity at a much lower number than 4%, because it counts the total number of tests including those who are tested more than once.

The agreement between the school system and the teachers' union requires the city to use a rate Justice Gordon called more "conservative," counting each individual person as "one" test even if they are tested multiple times. The latter approach produces a higher positivity rate, but Justice Gordon said that method is not the "prevailing norm."

The teachers' union is represented by Jamie Goodwin of KJC Law LLC and Christina Duddy of Dwyer & Duddy.

The city and the school district are represented by Nicholas Dominello, Robert Hillman and John Foskett of Valerio Dominello & Hillman LLC.

The case is Boston Teachers Union v. Mayor Martin J. Walsh et al., case number 2084CV02324, in Suffolk County Superior Court.

--Editing by Stephen Berg.

Updated: This story has been updated with additional information and to add comments from the parties.

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