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Teachers’ union files injunction to halt school re-entry map and metrics

CHARLESTON — Making good on its promise last week, the West Virginia Education Association announced Monday that it had filed an injunction to block the current version of metrics used to make school re-opening decisions.

The WVEA, one of two unions that represent public school teachers in West Virginia, filed an injunction against the state in Kanawha County Circuit Court on Monday.

Dale Lee, president of WVEA, said the union is seeking a temporary restraining order to block implementation of the County Alert System color-coded map and the metrics used to determine the colors based on the incidence rate of cases per 100,000 and the positivity rate using a seven-day average of cases.

“Our members have watched the constant manipulation of the map,” Lee said. “As each rendition failed to provide the desired results sought by our state leaders, additional changes were made.”

The union is also asking for the State Open Meetings Act to apply to the panel that reviews the data used for the school map, which is updated every Saturday at 5 p.m. on the Department of Education’s website. The union would prefer to see a map developed by independent health experts and see a map more closely aligned with the map developed by the Harvard Global Health Institute.

“The only way to restore confidence in the process and ensure safety in our public schools is to adopt a new system from independent experts recognized in the field of infectious diseases and public health, such as the original color-coded map from Harvard,” Lee said.

Responding to the lawsuit Monday during his coronavirus briefing, Gov. Jim Justice called the WVEA’s lawsuit politically motivated.

“Isn’t it awfully coincidental that this is done three or four weeks before an election? It’s political and surely smells of political,” Justice said.

Justice said the Harvard model was too strict for the state. With the spike in cases during the summer and fall, the state has still seen fewer cases and deaths than most surrounding states with few outbreaks in schools.

“We know we would have a third or half of the State of West Virginia – probably the safest state in the nation – a third or half of the state would be shut down from the standpoint of being in school,” Justice said. “If we didn’t have a color-coded system at all, we’d be back in school everywhere.”

The original County Alert System map and metrics were unveiled in August and based on a map developed by the Harvard Global Health Institute. The map was adapted to account for West Virginia’s rural population. The metrics, colors, and what the colors mean have changed several times since August.

The most recent changes to the County Alert System map and metrics are the addition of a gold category and using both the incidence rate of cases per 100,000 people or the percent of positive – whichever rate is better – to determine what color a county is and whether it can re-open for in-person learning.

Counties are color-coded based on the incidence rate — the number of cases per 100,000 people on a seven-day rolling average of cases in counties with a population of 16,000 or more or a 14-day average based on counties with a population of less than 16,000 — or the percent of positive cases based on the same seven-day and 14-day rolling averages depending on county population.

Green counties have three cases or less per 100,000 people or less than a 3-percent positivity rate. Yellow counties have between 3.1 and 9.9 cases per 100,000 people or a positivity rate between 3 percent and 3.9 percent. Gold counties have between 10 and 14.9 cases per 100,000 people or a positivity rate between 4 percent and 4.9 percent. Counties in the green, yellow, and gold counties can open for in-person learning, but social distancing and mask requirements increase as the colors change.

Orange and Red counties are required to close for in-person learning, with orange counties required to limit extracurricular activities to conditioning while red counties must halt all extracurricular activities and sports. Orange counties have between 15 and 24.9 cases per 100,000 people or a positivity rate between 5 percent and 7.9 percent. Red counties have more than 25 cases per 100,000 people or a positivity rate greater than 8 percent.

As of Monday, there were no red counties on the daily map updated by DHHR and only three counties in the gold category: Harrison, Upshur, and Boone counties. According to Saturday’s map posted at wvde.us, only Upshur was red, requiring it to close schools and halt sports and extracurricular activities. Most of the state was green, with eight counties in the yellow, six counties in the gold, and two counties in the orange. Lee said this was misleading and an “illusion.”

“We have seen the manipulation of the map’s colors and metrics on numerous occasions as protests occurred and pressure was placed on the governor,” Lee said. “Now we’re seeing the manipulation of the testing numbers as a result of the changes made to the map using the positivity rate for counties to re-open.”

The WVEA lawsuit marks the third lawsuit filed in state courts over the County Alert System metrics. Kanawha County Circuit Judge Joanna Tabit will hear a case this morning brought by R.T. Alexander, a quarterback for George Washington High School’s varsity football team. Kanawha County schools have been closed since the Sept. 8 due to high cases of COVID-19 in the county. Alexander claims injury due to not being able to play, missing out on possible athletic scholarship opportunities.

Kanawha County Circuit Judge Tod Kaufman rejected an attempt to block Justice’s executive orders regarding school re-opening and the re-entry plan by another Charleston parent at the end of September.

“We are trying with all in us to make it beyond belief safe,” Justice said. “If they sue, if they don’t sue, that’s up to them. I could give a hoot. Really and truly at the end of the day, I’m going to continue on and do the right things.”

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