CHARLESTON — An attempt by West Virginia’s two teachers’ unions to block the current school re-entry plans for public schools was blocked by a judge Tuesday.

Kanawha County Circuit Judge Carrie Webster ruled Tuesday against a request for a temporary restraining order against the West Virginia Board of Education brought by the West Virginia Education Association and the West Virginia chapter of the American Federation of Teachers.

The two separate suits were rolled into one, but both unions requested a restraining order and injunction. Webster ruled against the restraining order but is taking a motion to dismiss the case under advisement.

“While we’re disappointed with the decision, the judge did make a point of saying educators are at greater risk during this pandemic and that educators do have standing in filing this (temporary restraining order),” said Dale Lee, president of the WVEA, in a statement Tuesday afternoon.

“Obviously, we are disappointed by the judge’s decision to deny the temporary restraining order; we were hoping to secure time for our members to become fully vaccinated and protected during in-person instruction,” said AFT-WV President Fred Albert. “However, we are respectful of the process and the opportunity to have the concerns of our members heard before the court. AFT-WV still believes these decisions are best left to the local boards of education, who are elected by the citizens of their communities to govern their local schools.”

The unions want to halt the current school re-opening plans, put in place by the state Board of Education at a Jan. 13 meeting, that require Pre-K, elementary, and middle schools to remain open for in-person instruction regardless of the county’s color on the Department of Health and Human Resources County Alert System map.

Counties can either open those schools for four or five days per week, or they can do a hybrid/blended model that allows for schools to be open at least two days per week until all their teachers are fully vaccinated with both doses of either the Pfizer/BioNTech or Moderna COVID-19 vaccines. High schools can also re-open except if their county is red due to the greater risk of older students spreading the virus.

Public and private schools re-opened by executive order from Gov. Jim Justice on Jan. 19. Last week, 52 out of 55 counties had complied with the state board’s directive for re-opening. During an emergency meeting of the state board last Thursday, board members gave the boards of education in Gilmer, Marion, and Taylor until Tuesday to comply with the directive. All three counties changed their re-opening plans, resulting in the state board canceling Tuesday’s meeting.

Both unions contend that local county school boards, in conjunction with local health departments, should be empowered to make decisions regarding re-opening decisions, including switching to remote learning if cases are high in their counties.

“Decisions to teach in-person, remotely, hybrid and online should be a local decision, made by those who are the most impacted and who best understand how to best educate students safely,” Lee said.

Justice and state school board leaders contend that schools are safe to re-open with safeguards, such as mask-wearing and social distancing. They cite data that shows that transmission of COVID-19 in schools is low, and that students are facing both learning and psychological issues due to remote learning.

The Journal of the American Medical Association published a report by three researchers with the U.S. Centers for Disease Control claiming that in-school COVID019 transmission was low.

“Accumulating data now suggest a path forward to maintain or return primarily or fully to in-person instructional delivery,” the report stated. “The preponderance of available evidence from the fall school semester has been reassuring insofar as the type of rapid spread that was frequently observed in congregate living facilities or high-density worksites has not been reported in education settings in schools.”

Both unions are re-evaluating their legal options. While it remains to be seen how Webster will rule on the state board’s motion to dismiss, Webster previously ruled against lawsuit filed by the WVEA last fall attempting to block changes to the previous school re-entry metrics and map.