Hensley v Williamsville Cent. Sch. Dist.

[*1] Hensley v Williamsville Cent. Sch. Dist. 2021 NY Slip Op 21153 Decided on May 20, 2021 Supreme Court, Erie County Colaiacovo, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on May 20, 2021
Supreme Court, Erie County

Dana Hensley, on behalf of her minor children and on behalf of all others similarly situated; DANIELLE MACAULAY, on behalf of her minor children and on behalf of all others similarly situated; JILL LICATA, on behalf of her minor children and on behalf of all others similarly situated; MARK SPEYER, on behalf of his minor children and on behalf of all others similarly situated; CHARLES MACLAY, on behalf of his minor children and on behalf of all others similarly situated; CLARISSA ZADOR; on behalf of her minor child and on behalf of all others similarly situated; PARAG PARIKH, on behalf of his minor children and on behalf of all others similarly situated, Petitioners/Plaintiffs, For Judgment Pursuant to Article 78 of the CPLR, Article XI, § 1 of the New York State Constitution, and/or Article I, § 11 of the New York State Constitution.

against

Williamsville Central School District; BOARD OF EDUCATION OF THE WILLIAMSVILLE CENTRAL SCHOOL DISTRICT; ANDREW M. CUOMO, GOVERNOR OF NEW YORK; NEW YORK STATE DEPARTMENT OF HEALTH; and NEW YORK STATE EDUCATION DEPARTMENT, Respondents/Defendants.



Robert Dinero, on behalf of his minor children and on behalf of all others similarly situated, Petitioner/Plaintiff, For Judgment Pursuant to Article 78 of the CPLR, Article XI, § 1 of the New York State Constitution, and/or Article I, § 11 of the New York State Constitution.

against

Orchard Park Central School District; BOARD OF EDUCATION OF THE ORCHARD PARK CENTRAL SCHOOL DISTRICT; ANDREW M. CUOMO, GOVERNOR OF NEW YORK; NEW YORK STATE DEPARTMENT OF HEALTH; and NEW YORK STATE EDUCATION DEPARTMENT, Respondents/Defendants



Index No.: 804182/2021



LIPSITZ GREEN SCIME CAMBRIA LLP

Paul J. Cambria, Jr., Esq.

Jeffrey F. Reina, Esq.

Todd J. Aldinger, Esq.

Attorneys for Petitioners

HARRIS BEACH PLLC

Tracie Lopardi, Esq.

Brian C. Mahoney, Esq.

Joshua D. Steele, Esq.

Meaghan T. Feenan, Esq.

Attorneys for Williamsville Central School District

WEBSTER SZANYI LLP

Ryan G. Smith, Esq.

Kevin G. Cope, Esq.

Angela Kutzfara, Esq.

Attorneys for Orchard Park Central School District

LETITIA JAMES

Attorney General of the State of

New York

Attorney for State Respondents

David J. Sleight, Esq.

Kathleen M. Kaczor, Esq.

Heather L. McKay, Esq.

Attorneys for State Respondents
Emilio Colaiacovo, J.

In this hybrid Article 78 proceeding, Petitioners seek, inter alia, a judgment:

(1) Directing Respondents Williamsville Central School District (hereinafter "Williamsville") and Orchard Park Central School District (hereinafter "Orchard Park") to offer all students full time, in-person instruction five days per week;(2) Declaring (i) Executive Order 202.60, (ii) the New York State Department of Health Guidance issued under Executive Order 202.60, and (iii) the New York State Education Department Guidance issued under Executive Order 202.60 to have expired;(3) Declaring that (i) Executive Order 202.60, (ii) the New York State Department of Health Guidance issued under Executive Order 202.60, and (iii) the New York State Education Department Guidance issued under Executive Order 202.60 are invalid because they violate Chapter 23 of the Laws of 2020; and(4) Declaring the Department of Health and Department of Education Guidance issued pursuant to Executive Order 202.60 invalid as they are arbitrary and capricious to the [*2]extent they require schools to maintain more than three (3) feet of social distancing between students.

In the alternative, Petitioners seek declaratory judgment that the Hybrid/Remote Learning model is illegal.

The Court previously denied Petitioners' request for a temporary restraining order. See Memorandum Decision, dated April 6, 2021. In light of the CDC updating its guidance on social distancing and its effect on returning children to school, the Court directed the State Respondents to similarly update their guidance and policies. Thereafter, after further argument, the Court denied Petitioners' request for a preliminary injunction. See Decision & Order, dated April 28, 2021. However, in its Decision & Order, the Court held:

Conflicting affidavits and studies, purportedly by experts, which arrived at different conclusions as to whether three (3) feet or (6) feet of distancing is acceptable distancing for middle and high school students in a "high transmission" area have presented triable issues of fact requiring a hearing to determine whether the School District's decision to adhere to the State's arguably irrational guidelines is arbitrary and capricious.

Id. at p. 30. The Court also directed that any answers or motions to dismiss be filed prior to the hearing. Those motions were deemed submitted and oral argument was waived pursuant to 22 NYCRR §202.8. A hearing was held on May 7, 2021 and May 10, 2021. In light of the volume of the submissions previously received, the Court dispensed with the need for further writings. As such, the Court's decision is as follows.

I.

Pre-Hearing Motions

In its Decision & Order, the Court found

It is without question that the Petition is sufficient as a matter of law as the allegations must be construed favorably to the Petitioner. Gray v. Canisius College of Buffalo, 76 AD2d 30 (4th Dept. 1980); Emray Realty Corp. v Stoute, 157 N.Y.S.2d 457 (NY Sup. Ct. 1956). Petitioners have appropriately alleged the necessary factual and legal arguments to maintain its Article 78 causes of action.

Id., at p. 27. Yet, still, Respondents filed motions to dismiss the Petition.

Because pleadings are granted liberal construction, "[t]he facts are to be presumed to be true and are to be accorded every favorable inference" in a moving parties favor to see if they fit within any cognizable legal theory. Younts v. Martin, 60 AD3d 1373 (4th Dept. 2009).

State Respondents

The State Respondents in both actions filed motions to dismiss. Although quite similar, the State Respondents maintain that the State is in the best position to set public policy when determining how best to re-open schools. Further, State Respondents insist that the issue of determining public policy in the middle of a pandemic is nonjusticiable. State Respondents also argue that the matter is moot since children have returned to school. Also, State Respondents argue that the Court cannot entertain the relief requested as the Court lacks personal jurisdiction over the State Respondents, in that the DOH and DOE were not properly served. State Respondents also argue that Petitioners failed to exhaust their administrative remedies by not making application to the Commissioner of Education. Moreover, State Respondents argue that the action is time-barred by the four (4) month statue of limitations because the action was not [*3]commenced within four (4) months of the civil practice suspensions on November 4, 2020. More substantively, State Respondents insist that Petitioners do not have a "colorable" claim under the New York State Education Law and the Executive Law.

The Court finds these arguments without merit. Of course this matter is justiciable. While the State would prefer that its policies escape judicial review, the very essence of an Article 78 proceeding is a challenge to a determination of an agency or government body or official. Article 78 of the CPLR is the main procedural vehicle to review and challenge administrative action in New York. Given that pleadings are given every favorable inference and the issues raised by Petitioners are clearly within the marketplace of questionable determinations, the public policy doctrine does not exempt them from scrutiny.

On judicial review of an administrative action under CPLR Article 78, courts must uphold the administrative exercise of discretion unless it has "no rational basis" or the action is "arbitrary and capricious." Matter of Pell v. Board of Ed. Union Free School District, 34 NY2d 222 (1974). "The arbitrary and capricious test chiefly relates to whether a particular action should have been taken or is justified . . . and whether the administrative action is without foundation in fact. Arbitrary action is without sound basis in reason and is generally taken without regard to the facts." Id. at 231; See also Jackson v. New York State Urban Dev Corp., 67 NY2d 400 (1986). Rationality is the key in determining whether an action is arbitrary and capricious or an abuse of discretion. Matter of Pell v. Board of Education, 34 NY2d at 231. The Court's function is completed on finding that a rational basis supports the administrative determination. See Howard v. Wyman, 28 NY2d 434 (1971). "Where the administrative interpretation is founded on a rational basis, that interpretation should be affirmed even if the court might have come to a different conclusion." Mid-State Management Corp. v. New York City Conciliation and Appeals Board, 112 AD2d 72 (1st Dept. 1985) aff'd 66 NY2d 1032 (1985); Matter of Savetsky v. Zoning Bd. of Appeals of Southampton, 5 AD3d 779 (2d Dept. 2004).

The Court agrees with Petitioners that the claims are not moot. State Respondents ignore that secondary students are still subject to the restrictive hybrid learning model, the very policy that is being challenged by the Petitioners. Further, the regulations that are the subject of this lawsuit still exist and are being followed by both Williamsville and Orchard Park. To that end, the arguments are not moot.

It has not escaped the attention of the Court that State Respondents appeared at each court conference, argued, submitted papers, interposed an Answer and Return, participated in a mediation, and even called witnesses at a hearing on the merits. Yet, they insist that the Court does not have personal jurisdiction of the entities they represent. The Court finds these arguments unavailing. See generally Roslyn B. v. Alfred G., 222 AD2d 581 (2nd Dept. 1995).

Contrary to State Respondent's contentions, the Petition is not time-barred. Here, the alleged wrong, or the continuation of the hybrid model, has not stopped. Instead, the perceived wrong continues. Matter of Askew v. New York City Dept. of Envtl. Protection, 24 AD3d 544 (2nd Dept. 2005). Because the wrong continues, the statue of limitations has not accrued. As such, this too is meritless.

As the for the remaining points raised by the State Respondents, as the Court previously noted, there exist questions of fact that necessitated a hearing on the merits. Expert testimony was needed to ascertain the science and the basis behind the policies that remain the subject of this proceeding. As the issue of whether the guidance as to three (3) feet or six (6) feet of distancing is at the heart of this Petition, and because the Court required testimony to determine [*4]whether the guidance was arbitrary and capricious, the Court cannot grant the State Respondents' pre-hearing motion to dismiss.

As such, and because the remaining contentions are without merit, the State Respondents' Motions to Dismiss are hereby DENIED

Williamsville

Williamsville seeks to dismiss several of the grounds for relief Petitioner seeks. In particular, Williamsville maintains that the Petitioners' educational malpractice claims are barred in the State of New York. Williamsville argues that causes of action based on educational negligence and malpractice, as a matter of public policy, should not be entertained by the courts. See Hoffman v. Bd. of Educ., 49 NY2d 12 (1979). Similar to the arguments raised by the State Respondents, Williamsville claims that Petitioners' claims are time barred, that they failed to exhaust their administrative remedies, and that there is a lack of jurisdiction. Williamsville also argues that the petition is deficient as the moving parties failed to file a timely notice of claim. In addition, Williamsville maintains that Article 78 does not provide a basis to compel the performance of a discretionary act. At the heart of its motion, Williamsville insists that the district's re-opening plans were not arbitrary and capricious, were not made in violation of lawful procedure, nor did they violate the Constitution. Further, Williamsville argues that the Hybrid/Remote learning model does not violate the State's instructional requirements.

For the reasons stated previously, the petition is not untimely. The Court agrees that Petitioners were not required to exhaust their administrative remedies. The Petitioners are quite correct that the Commissioner of Education has no authority to make any determination on the issues raised herein. Here, the Commissioner has no specialized knowledge that would prove useful in resolving the factual or legal issues herein. Because it is for the Court to determine whether this lies with the purview of the Commissioner, based on the record here, the fundamental issues in this litigation do not lie in the hands of the Commissioner, but instead with the Court. The societal issues at stake here outweigh a referral to the Commissioner. Staatsburg Water Co. v. Staatsburg Fire Dist., 72 NY2d 147 (1998).

The Petitioners were not required to file a notice of claim as suggested by Petitioners. Because the relief is equitable in nature, a notice of claim is not required. See Matter of Fotopoulos v. Board of Fire Commr. of the Hicksville Fire Dist., 161 AD3d 733 (2nd Dept. 2018)

However, Williamsville is correct that Petitioners' educational malpractice claims are barred. It is generally understood that in New York, claims alleging educational malpractice must be eschewed. See generally Calhoun v. Ilion Cent. School Dist., 90 AD3d 1686 (4th Dept. 2011).

To that end, because the remaining arguments made by Williamsville are without merit, the Motion to Dismiss is DENIED. However, the Motion is GRANTED insofar as it relates to the educational malpractice claims made by Petitioners.

Orchard Park

Orchard Park moves to sever Petitioner's claims against it from the claims against the remaining Respondents, namely the Governor, the Department of Health, and the Department of Education. Orchard Park simply maintained that it has complied with the State's guidance. In addition, Orchard Park insists that it is not opposed to offering in-person learning on a full-time basis, but only once the State guidance permits it to do so. Orchard Park argues that it has not acted arbitrarily or capriciously by following the State's guidance. Lastly, Orchard Park maintains that because the two (2) Districts' plans vary significantly from one-another, the [*5]matters should be severed.

While the Court recognizes that the two (2) plans are indeed different, the fundamental issues herein are inextricably intertwined and related. "The grant or denial of a request for severance is a matter of judicial discretion, which should not be disturbed on appeal absent a showing of prejudice to a substantial right of the party seeking severance." Chiarello v. Rio, 101 AD3d 793 (2nd Dept. 2012); see Quiroz v. Beitia, 68 AD3d 957 (2nd Dept. 2009); Naylor v. Knoll Farms of Suffolk County, Inc., 31 AD3d 726 (2nd Dept. 2006). Indeed, "severance is inappropriate where there are common factual and legal issues and the interests of judicial economy and consistency of verdicts will be served by having a single trial." See Naylor v. Knoll Farms of Suffolk County, Inc., 31 AD3d at 727.

As such, the motion to sever is hereby DENIED.

II.

Hearing — Findings of Fact

A hearing was held on May 7 and May 10, 2021. The parties agreed to Stipulated Facts, which are incorporated herein. See Court's Exhibit #1. In addition, the following documents were received into evidence without objection.

EXHIBIT A Executive Order 22.60

EXHIBIT B NYSDOH Interim Guidance - 7/13/2020

EXHIBIT C NYSDOH Interim Guidance - 8/6/2020

EXHIBIT D NYSDOH Guidelines for In-Person Instruction

EXHIBIT E NYSDOH Checklist for Reopening Plans

EXHIBIT F NYS Reopening Guidance - 7/16/2020

EXHIBIT G NYSED FAQs - 7/17/2020 & 7/20/2020

EXHIBIT H NYSED Facility Clarification Memorandum — 8/26/2020

EXHIBIT I NYSED FAQs Re: Teaching and Learning - 9/23/2020

EXHIBIT J NYSED Reporting Attendance Memorandum - 12/1/2020

EXHIBIT K OPCSD Original Reopening Plan — 2020

EXHIBIT L Williamsville Original Reopening Plan

EXHIBIT M CDC Updated Guidance - 3/19/2021

EXHIBIT N NYSDOH Updated Guidance - 4/9/2021

EXHIBIT O Burstein Affidavit - 3/30/2021

EXHIBIT P OPCSD Updated Reopening Plan — 2021

EXHIBIT Q Williamsville Updated Opening Plan

EXHIBIT R Curriculum Vitae - Tracy Beth Høeg, MD, PhD

EXHIBIT S CDC Science Brief

EXHIBIT T Wisconsin Study

EXHIBIT U Missouri Study

EXHIBIT V North Carolina Study

EXHIBIT W Massachusetts Study

EXHIBIT X NYSDOH Sports and Recreation Master Guidance

EXHIBIT Z CDC Sports Guidance

Tracy Beth Høeg, MD, PhD

Dr. Høeg is an Epidemiologist with training in Public Health and Sports Medicine. She currently is engaged on a part-time basis in the field of Sports Medicine at the Bodor Clinic in [*6]Napa, California and a Research Associate at the University of California at Davis. Dr. Høeg completed a study of COVID-19 cases in Wood County, Wisconsin. The study focused on K-12 students for 13 weeks in a rural part of Wisconsin that included a sample of both private and public schools. The findings of the study were published in the "Morbidity and Mortality Weekly Report", a publication of the prepared by and for the CDC. See "Exhibit T". Generally, her study found that the rate of COVID transmission in schools was 37% less than in the general population. The study found that there was a low level of spread within the school of approximately 3-4%. In this study, students did not maintain six (6) feet of distancing. All busing services ran as normal. Buses did not space students six (6) feet apart, but did take some precautions such as grouping families together on the bus. Also, the study found that there was less distancing during lunch periods and in the hallways. Interestingly, the study also noted that there was 92% mask compliance. Ultimately, the study found that there was minimal spread within a school using less than six (6) feet of distancing. The study also concluded that there was no evidence that secondary students could transmit the disease more even if spaced at six (6) feet rather than three (3) feet in classrooms. In addition, the study concluded that mask wearing was essential to prevent the spread and that social distancing played little part in preventing spread. Symptom screening, mask wearing, and other preventive measures were found to be far more effective than social distancing. The study found that children, whether elementary or secondary school students, simply do not spread the virus at a significant level that justifies school closings or adopting other restrictive policies, such as hybrid models and distance learning.

Dr. Høeg also testified about the Massachusetts study that was published in the "Clinical Infectious Diseases Journal" affiliated with the Infectious Diseases Society of America (IDSA). See "Exhibit W". Like the study she completed in Wisconsin, the Massachusetts study found no scientific difference between six (6) and three (3) feet of social distancing. The Massachusetts study, Dr. Høeg noted, detailed and reported on airborne spread in classrooms. The study concluded that no amount of distancing could keep students from coming into contact with potential airborne spread because COVID is spread by "tiny, aerosolized particles." To that end, according to Dr. Høeg, no scientific data supported the required six (6) feet of social distancing.

In referencing the revised CDC guidance issued March 19, 2021, Dr. Høeg noted that none of the studies referenced in the accompanying CDC scientific brief showed variable spread when using three (3) feet versus six (6) feet. See "Exhibit M" and "Exhibit S". Further, she noted that no studies showed different rates of spread when comparing elementary and secondary schools. Dr. Høeg was critical of this fact, as guidance and recommendations should be consistent with data produced from scientific studies. She could not answer why the CDC would promulgate recommendations that were inconsistent with studies that showed no evidence of variable spread between elementary and secondary schools. She further testified that there existed no study or other empirical research that supported the CDC decision to have variable distances for elementary and secondary school students. Further, Dr. Høeg testified that she was unaware of any study that supported increased spread of COVID when not using six (6) feet of distancing. Also, she was unaware of any data or study that showed a statistical difference between cohorting and non-cohorting.

Under cross-examination, Dr. Høeg acknowledged that she was not currently working as an epidemiologist, but instead in sports medicine. Further, she admitted that she had never worked for a governmental agency that addressed public policy. The State Respondents took [*7]issue with the Wisconsin study insofar as the sample was a rural school district, which differs from Williamsville and Orchard Park schools. Further, State Respondents noted that the Massachusetts study and the North Carolina study samples all cohorted students, unlike the Wisconsin study.

Williamsville focused on Dr. Høeg's twitter posts and communications she had with Dana Hensley, one of the Williamsville petitioners. Williamsville also noted that the Wisconsin study did not appropriately evaluate the factor of appropriate ventilation in classrooms. Lastly, Williamsville took issue with a comment Dr. Høeg made during a podcast. During the podcast, Dr. Høeg said, "public health officials are more interested in perception". Williamsville found this comment to be reckless.

P. Bryon Backenson

Mr. Backenson is the Acting Director of the New York State Department of Health, Bureau of Communicable Disease Control. Mr. Backenson was involved with the development of the Department of Health's interim guidance issued in July 2020 and reopening guidelines issued in August 2020. See "Exhibit B" and "Exhibit C". Mr. Backenson made it quite clear in his testimony that the Department of Health never communicated that students could not return to school. Instead, it was the Department's policy to proceed with caution in light of the pandemic.

Mr. Backenson testified that there were approximately 94,000 journal articles on communicable spread. When fashioning guidance, his department adopts the largest scientific consensus. With communicable diseases, the goal is to prevent community spread. To best accomplish this, multiple layers of preventive factors are required.

In describing the difference between three (3) and six (6) feet of distancing, Mr. Backenson testified extensively about balancing the weight of biological and social factors. However, he was quick to clarify that these distinctions were not purely anecdotal. Mr. Backenson testified that the older children grow, the more symptomatic they become. Also, he noted that older children have larger lung capacities, which increases the chance of spread.

Mr. Backenson attempted to explain why it took his department three (3) additional weeks to review the CDC guidance that was issued on March 19, 2021 with respect to resuming full-time, in-person learning. He testified that his department took the time to "take a look at it", notwithstanding that he referred to the CDC as the "gold standard." Similarly, when asked why it was appropriate to use county-wide metrics when it comes to establishing rate of spread among 100 per 100,000 persons, Mr. Backenson conceded that "it wouldn't be wrong to use localized data points", though caution would be needed.

On cross-examination, counsel for Orchard Park identified several inconsistencies in the State's revised guidance with that of the CDC. Conceding that the primary objective of the DOH is to preserve and maintain public health, Backenson admitted that his department is not concerned with the education of students. Further, counsel inquired why the State, which at one point insisted on the use of polycarbonate shields during the first six (6) months of the school year, simply dropped all reference to them in their revised guidance. If they were so essential six (6) months ago, Orchard Park counsel asked, why were they so casually abandoned? In addition, counsel for Orchard Park inquired as to why the State did not adopt the CDC's guidance with respect to athletics.

Q. Do you — do you know, Mr. Backenson, what the current CDC guidance says about sports in relation to in-person instruction?A. It talks about six feet for sports. Is that what you're referring toQ. No. It's correct, is it not, Mr. Backenson, that the current CDC Guidance indicates that you should prioritize returning students to School before they're playing sports or works to that effect, does that sound familiar to you?A. It does

Also, during questioning, Mr. Backenson admitted that he had no direct role in developing the State's guidance in response to the CDC's revised guidance. He "deferred" to the people in his department who actually did the review. Despite being the Acting Director of the New York State Department of Health, Bureau of Communicable Disease Control, he "did not partake" in the review of the school guidance plan. Further, the witness testified that the revised State guidance was a document that contained a significant amount of flexibility. However, he conceded that the guidelines permitted a stricter interpretation but not less. In addition, in discussing the importance of cohorting, the witness conceded that despite the requirement of cohorting, he was unaware of any school district that had 2,000 students that could cohort under the guidelines. This clearly established that these "minimum" guidelines, perhaps, were unrealistic.

Mr. Backenson conceded that the five (5) to seventeen (17) age bracket was the highest infection group by percentage. He also acknowledged, under cross-examination, that the South Korea study, which was referenced in a footnote in the CDC's science brief, provides that even six (6) feet was not enough to deter the spread of the virus. See "Exhibit S".

During Petitioner's cross-examination, Backenson conceded that though the CDC recommended against sports in high schools, New York State permitted it. However, the witness did not seem to know some of the crucial details on how the revised guidelines were formulated. Petitioner's counsel asked, "what are your typical duties if not involved in forming and updating the guidance?" The witness also testified that he was aware of certain studies that noted COVID spread up to sixty (60) feet. If so, why insist on six (6) feet or any type of distancing? Mr. Backenson could not explain why, during the "Orange Zone" restrictions which saw schools and restaurants closed, certain restrictions were placed by town or zip code but, here, it was by a larger geographic region. He also conceded he was unaware of any evidence that demonstrated an increase in transmission where masks are worn and three (3) feet of social distancing is implemented. He also admitted that zip codes were an acceptable community metric when devising guidance as to transmission zones. However, he stated that a county-based metric is more commonly used. Yet, he did admit that a small sample is sometimes more reliable.

Interestingly, on re-direct, Mr. Backenson testified that his department does not know the actual spread in schools. This begs the question why restrictive measures were necessary.

III.

Decision

Executive Order

Petitioners argue, in their Fourth and Fifth causes of action, that the Governor's Executive Order 202.60 is invalid and illegal. More specifically, Petitioners suggest that the Executive Order expired and is, as such, a legal nullity. Further, Petitioners insist that the Executive Order violates Chapter 23 of 2020. Generally, Petitioners argue that the guidelines that emanate from the Executive Order are invalid because they exceed the Governor's executive authority, were not properly renewed and, consequently, are invalid.

The Court finds these arguments without merit. The Senate's bill, S. 5357, declared that [*8]the Governor was "adequately equipped with his previously existing emergency powers and with the authorization to continue existing directive extension and modifications powers to deal with the situation " See State Respondent's Memorandum, dated April 5, 2021, p. 23. Executive Law§29-a grants to the Governor the "existing emergency powers" as well as the authority to continue directives by extension or modification. The Court agrees with the State Respondents that because Executive Order 202.60 was continued on a thirty-day cycle, it remained in effect. To that end, this Court chooses not to adopt such a narrow interpretation of the Governor's authority vested during this extraordinary pandemic. See generally Big Apple Food v. Street Vendor Review Panel, 90 NY2d 402 (1997).

As such, the Fourth and Fifth causes of action are hereby DISMISSED.

Education Law

In their First, Second, and Third Causes of Action, Petitioners allege several violations of the New York State Constitution. More specifically, Petitioners argue that Education Law §3204 requires instruction be given by a "competent teacher." Further, Education Law §3205 provides that minor children from six (6) to sixteen (16) "shall attend full time instruction." By implementing a hybrid/remote learning model, attending school every other day, and utilizing at-home technology-based instruction, Petitioners contend that this violates the Education Law. Since children are entitled to a legal right to receive full-time, in-person instruction by a teacher, as opposed to remote learning with occasional if not infrequent instruction, children are being deprived their constitutional right to an education.

Petitioners' arguments are misplaced. While the Executive Orders certainly enable school districts to implement remote learning, nothing in §§3204 or 3205 prohibits remote learning. As the Court of Appeals noted in Campaign for Fiscal Equity v. State of New York, the Education Clause of the Constitution "requires the State to offer all children the opportunity of a sound basic education." 86 NY2d 307 (1995). The State must provide an opportunity for meaningful education. While the Court agrees with Petitioners that the hybrid/remote learning model is a poor substitute for in-person learning, the Court cannot ignore the realities imposed by the pandemic. However, without further evidence, Petitioners have not satisfied their burden to demonstrate that children are being deprived an education.

Contrary to Petitioners' arguments, the policies at issue here cannot be considered inconsistent with the Education Law, unconstitutional, or illegal. As such, the Petitioners' First, Second, and Third Causes of Action are hereby DISMISSED.

Arbitrary and Capricious

In their Sixth Cause of Action, Petitioners claim that the NYSDOH and NYSDOE guidelines dictating that, in order to attend school, children must be socially distanced by six (6) feet and wear face masks, are arbitrary and capricious.

Before the resumption of the 2020-2021 school year, the initial Federal and State guidance recommended that in order to have in-person learning, optimally, children were to be distanced six (6) feet apart and transparent shields were required. Due to spacing restrictions, most schools could not accommodate all of their students and distance them six (6) feet. This resulted in the hybrid/remote learning model, where students attended some days in person and other days remotely or sometimes not at all.

However, on March 19, 2021, the CDC revised its guidance. In it, the CDC recommended:

• In elementary schools, CDC recommends all students remain at least 3 feet apart in [*9]classrooms where mask use is universal — regardless of whether community transmission is low, moderate, substantial, or high.• In middle and high schools, CDC also recommends students should be at least 3 feet apart in classrooms where mask use is universal and in communities where transmission is low, moderate, or substantial.• Middle school students and high school students should be at least 6 feet apart in communities where transmission is high, if cohorting is not possible.

See "Exhibit M". Despite assurances from Health Commissioner Howard Zucker during his February 25, 2021 testimony to New York State Lawmakers that updated guidance would be forthcoming, the State waited more than three (3) weeks after the CDC issued its updated guidance to update its own guidelines.

So it is clear, Petitioners commenced their action after the CDC issued its guidance but before the State issued its revised guidance on April 9, 2021. In their Petition, the moving parties contend that because studies showed "no significant difference in infection rates between schools opening at three feet and the schools operating at six feet of social distancing when masks were being worn", the State's decision to insist on disparate requirements of social distancing was arbitrary and capricious. See Petition and Complaint, ¶117.

As noted previously, the standard for judicial review of an administrative regulation is whether the regulation has a rational basis and is not unreasonable, arbitrary or capricious. See Matter of New York State Assn. of Counties v. Axelrod, 78 NY2d 158 (1991); Matter of Bates v. Toia, 45 NY2d 460 (1978). An administrative agency's exercise of its rule-making powers is accorded a high degree of judicial deference, especially when the agency acts in the area of its particular expertise. See Matter of Memorial Hosp. v. Axelrod, 68 NY2d 958 (1986). Accordingly, the party seeking to nullify such a regulation has the heavy burden of showing that the regulation is unreasonable and unsupported by any evidence. See Matter of New York State Health Facilities Assn. v. Axelrod, 77 NY2d 340 (1991); Matter of Society of NY Hosp. v. Axelrod, 70 NY2d 467 (1987), Matter of Jewish Hosp. v. Whalen, 47 NY2d 331 (1979).

However, while documented studies often provide support for an agency's rule making, such studies are not the sine qua non of a rational determination. See Brodsky v. Zagata, 638 N.Y.S.2d 1018 (Sup. Crt. Albany Co., 1996).

While deference is certainly accorded to agencies such as the NYSDOH and NYSDOE, that, in and of itself, does not shield these State agencies from scrutiny. The only issue remaining before the Court is whether the State guidelines, which establish one set of guidelines for elementary students and another for secondary students are arbitrary and capricious. The Court finds that they are.

The New York Court of Appeals held that "[t]he arbitrary and capricious test chiefly 'relates to whether a particular action should have been taken or is justified and whether the administrative action is without foundation in fact.' Arbitrary action is without sound basis in reason and is generally taken without regard to the facts '[T]he proper test is whether there is a rational basis for the order[ ]'." Matter of Pell v. Board of Education, 34 NY2d 222 (1974); see also Matter of 512-3rd St. v. New York State Liq. Authority, 217 AD2d 1010 (4th Dept. 1995); Matter of Coco v. City of Rochester Zoning Bd. of Appeals, 236 AD2d 826 (4th Dept. 1997).

Here, the record is replete with questions that undermine the guidance issued by the State [*10]Respondents, which permits three (3) feet of distancing for elementary students but six (6) feet of distancing for secondary students. In her testimony, Dr. Høeg testified that there were several studies, including the Wisconsin Study, which she was responsible for, that make no distinction in the efficacy of using six (6) feet of social distancing when three (3) feet is just as effective. The Massachusetts Study came to a similar inescapable conclusion. With proper masking, there was no appreciable spread in a school that used less than six (6) feet of social distancing. Further, these studies, among others, concluded that there was no evidence that demonstrated secondary students were more likely to spread the virus if distanced less than six (6) feet. Also, she testified that mask wearing, symptom screening and basic hygienic measures such as hand washing were more effective than expansive social distancing measures.

Mr. Backenson, as the Acting Director of the New York State Department of Health, who is responsible for promulgating these guidelines, failed to justify the difference in social distancing for elementary and secondary students. Mr. Backenson was unable to explain why physical barriers were once required in schools to "slow the spread" of the virus, but now they were no longer necessary. He failed to explain why the State Department of Health ignored the CDC's recommendations that States should prioritize returning children to school before permitting athletics. Though Acting Director, he testified that he did not partake in the review of the school guidance plan but simply deferred that responsibility to others. He was unable to articulate some of the crucial details of his own department's guidance. More importantly, Mr. Backenson conceded that he was unaware of any evidence that demonstrated an increase in spread where masks are worn and three (3) feet of distancing was used as opposed to six (6) feet.

These admissions, as well as Mr. Backenson's general inability to offer a rational and reasoned explanation as to why three (3) feet is used for elementary schools and six (6) feet is used for secondary students, leads this Court to conclude that the guidance lacks a rational basis. Further, the Acting Director's failure to justify the current social distancing regiment when several recent studies show the very opposite underscores the unreliability of the revised guidance. As such, by definition, the guidelines are arbitrary and capricious and thus invalid.

Similarly, the State's insistence on using county-wide metrics as opposed to more localized data points also demonstrates the arbitrary nature of these guidelines. This was substantiated by the Acting Director's own concession that localized data may be more reliable. This was certainly true when the State Department of Health created certain zones in the Fall and Winter of 2020-2021 that forced the closures of schools. When the State created its infamous Yellow/Orange zones, schools within Orange zones were forced to close while schools in Yellow zones were permitted to stay open. In Erie County, several towns were forced to close schools and, in other towns, schools were permitted to remain open.Neither counsel for the State Respondents nor the Acting Director could sufficiently explain why more localized data points were used to close schools but broader data points, those that included geographically distant towns and zip codes, were used when evaluating whether schools can fully re-open.

Using the most recent data released by the Erie County Department of Health [FN1] , which this [*11]Court takes judicial notice of, Williamsville and Orchard Park have fewer new cases per 100,000 than the County-wide number. See generally Gomez-Jimenez v. New York Law School, 36 Misc 3d 230 (Supreme Court, NY County, 2012). In order to move from the high transmission zone, which requires six (6) feet of distancing in secondary schools, to the substantial zone, which permits secondary students to be distanced at three (3) feet, the State guidance requires that the total number of cases be less than 100 per 100,000 persons. Here, as published by the Erie County Department of Health on May 11, 2021, the rate per 100,000 in Amherst/Williamsville was 61.6. In Orchard Park, that number was 56.7 per 100,000.[FN2] Given that Mr. Backenson conceded that localized data points may be used, as opposed to a county-wide metric, there is no justifiable basis not to allow students in both school districts to return to full-time, in-person learning while observing three (3) feet of social distancing in classrooms, when the transmission rate there is less than 100 per 100,000.

See Erie County Department of Health, Office of Epidemiology, Erie County Confirmed COVID-19 Cases by Zip Code: 5/2/2021-5/8/2021, available at https://www2.erie.gov/health/sites/www2.erie.gov.health/files/uploads/pdfs/ECDOH-data-vis-05112021.pdf.

As such, the Court finds that it is arbitrary and capricious to use a broader metric when, in the past, a more localized data point was acceptable in gauging whether schools should close, remain open, or be classified in certain transmission zones. Such rigid applications should not be applied so mechanically, especially when considering an important question such as returning children to school. See generally New York Statewide Coal. of Hispanic Chambers of Commerce v. New York City Dept. of Health & Mental Hygiene, 23 NY3d 681 (2014). While the Court understands that some metric needs to be used, to anxiously wait for incidental data does not seem to be the best standard upon which to rely when it comes to educating our children, especially considering the social and psychological trauma that has been caused from pronounced periods of absence from schooling and the routines that accompany it. Instead, to minimize the effects of the broader pandemic, school districts should base their decisions on more localized, specific data.

The issues before this Court are not so unusual or different than those facing Courts across the country. Courts are facing similar calls to intervene when States adopt rigid and inflexible standards that are used to measure whether children should attend school full-time. In California, similarly situated parents, citing the psychological and social effects of remote learning and the poor substitute distance learning as compared to full-time, in person instruction, commenced an action challenging the State's decision to prevent in-person education and a preliminary injunction was sought. While the standard seeking a preliminary injunction is quite similar to that here in New York, a Superior Court Judge granted the preliminary injunction and directed school districts to reopen their schools to in-person instruction. Illustrative, but not controlling, the Superior Court Judge, acknowledging that State agencies had a compelling interest in preventing the spread of COVID-19, held the framework permitting a return to in-person instruction provided was "selective in its applicability, vague in its terms and arbitrary in its prescriptions." A.A. et. al. v. Gavin Newsom, (Superior Court, County of San Diego, Case [*12]No. 37-2021-00007536), p. 9.

In A.A., the Court found that State officials failed to justify why a six (6) foot distance was required before returning to in-person learning. In her decision, Judge Cynthia A. Freeland found that "secondary students in Defendant school districts have been prevented from returning to in-person learning whereas elementary students have been provided the opportunity to receive varying levels of in-person instruction. Id. at p 3. Dr. Cecilia Duenas, a Psychologist, noted in a Declaration that the CDC found that from April 2020 to October 2020, there was a 24% increase in mental health emergency visits from children ages 5-11 and a 31% increase in children ages 12-17. In her professional opinion, Dr. Duenas concluded that in-person learning was vital to the mental health of all children. Id. at p. 6.

Judge Freeland concluded that the State failed to submit specific, admissible evidence in support of its contention that elementary school students are not similarly situated with middle and high school students. Further, she found that the State failed to offer any admissible evidence to justify that disparate treatment of elementary schools and secondary schools serves the purpose of slowing the spread of COVID-19. Id. at p. 10. Citing to many of the same studies this Court received into evidence, there was no data that supported distinguishing elementary and secondary school students. In fact, citing the North Carolina study, the number of in-school transmission cases for middle and high school students combined was precisely the same as for elementary schools. Id. at 8-9.

Like in California, the Respondents here have failed to offer any evidence that would support continuing the difference in social distancing between elementary school students and secondary school students. As such, the insistence on adhering to guidelines that have no rational basis is misplaced.

As to the Seventh cause of action, Petitioners maintain that the Respondent School Districts acted in an arbitrary and capricious manner by failing to provide full-time, in-person learning five (5) days a week. Petitioners allege that the districts had the option to erect physical barriers to address physical space limitations that would have otherwise allowed students the opportunity to attend school on a full-time basis. The Court finds that the failure to purchase barriers was not arbitrary and/or capricious. Further, the Respondent School Districts were simply constrained by the arbitrary and capricious guidelines imposed by the State. As such, to hold them responsible for the policies of the State Respondent does not seem equitable.

Accordingly, this Court GRANTS Petitioners' Sixth Cause of Action and finds that the above-referenced guidelines are arbitrary, capricious and invalid, insofar as they address the distance to be observed between elementary school students and secondary school students in a high transmission area as well as the county-wide metric used to establish said zone. To that end, Petitioners are hereby granted Judgment consistent with this finding. See generally Klostermann v. Cuomo, 61 NY2d 525 (1984); Morgenthau v. Erlbaum, 59 NY2d 143 (1983). However, as they have failed to sustain their burden, Petitioner's Seventh cause of action is hereby DISMISSED.

It should be generally understood, as noted in the California case, that no path is free from risk. As the Court observed in its previous decision, it seems that "zero has become the only tolerable risk level", for schools even as every other business, forum, industry, or [*13]profession is opening up.[FN3] However, "reasonable policies cannot sprout from unreasonable levels of risk tolerance."[FN4] Guidelines must pose the least type of interruptions, no matter how high minded they are. While deference should be accorded to agencies as they navigate the pandemic, their policies must be reasonable and proportionate in response to the harm they seek to prevent. Guidelines, as the ones found here, that are not based on reliable data but instead on restrictive dogma cannot be permitted to continue in perpetuity. This Court has attempted to balance the gravity of the pandemic, the metrics involved, and the needs of children who need to be in school. While some may present an unrealistic fear about the risks associated with the return to full-time, in-person education, they certainly have the option of continuing with the remote option.

However, anxiety cannot be the basis to continue guidelines that are not so much based on data as they are policy considerations. Conflicting, confusing guidance has undermined public confidence when State recommendations contradict the scientific guidance of many experts. Guidelines designed with "may prevent", "should work", and "possibly contain" expectations are poor excuses to use, when the end results ultimately cheat students from their education, ability to socially interact with others, and otherwise grow mentally and physically. To develop insurmountable guidelines disproportionate with the risk cannot be considered reasonable or rational.

To the extent the State guidelines regarding social distancing are invalid and because the more localized data points, which are below the 100 per 100,000 person benchmark, are acceptable in determining which zones schools are permitted to function, it is hereby

ORDERED, that the SIXTH Cause of action is hereby GRANTED and the State guidelines, insofar as they address the different social distancing restrictions placed on elementary and secondary schools and the county-wide metrics used to determine the zone classification, are declared arbitrary, capricious, and INVALID ; and it is further

ORDERED, Petitioners' are awarded Judgment consistent with this finding; and it is further

ORDERED, that Petitioners' FIRST, SECOND, THIRD, FOURTH, FIFTH and SEVENTH Causes of action are hereby DISMISSED, and it is further

ORDERED, that the Williamsville Central School District and Orchard Park Central School District shall provide full-time, in-person learning five (5) days per week effective May 17, 2021; and it is further

ORDERED, each Respondent School District shall continue to offer remote learning to those students that elect to avail themselves of same; and it is further

ORDERED, any party or agency seeking to modify this Order or return to the Hybrid model citing an increase in confirmed transmitted cases for the 2020-2021 academic year must first seek leave from this Court; and it is further

ORDERED, State Respondents' Motions to Dismiss are hereby DENIED; and it is further

ORDERED, Williamsville's Motion to Dismiss the educational malpractice claims is hereby GRANTED with the remainder of the motion otherwise DENIED; and it is further

ORDERED, Orchard Park's Motion to Sever is hereby DENIED.

This shall constitute the Decision and Order of this Court. The delivery of a copy of this Decision and Order by this Court shall not constitute notice of

entry.

_______________________________

Hon. Emilio Colaiacovo, J.S.C.

ENTER

Buffalo, NY

May 20, 2021 Footnotes

Footnote 1:"Erie County Confirmed COVID-19 cases by Zip Code - 5/2/2021-5/8/2021", Erie County Department of Health, Office of Epidemiology, May 11, 2021. ECDOH-data-vis-05112021.pdf (erie.gov)

Footnote 2:As of May 13, 2021, the county-wide number per 100,000 persons was 102. See Erie County Department of Health, COVID-19 Update, as of May 12, 2021.

Footnote 3:Joseph A. Lapado, M.D., "An American Epidemic of Covid Mania", Wall Street Journal, April 20, 2021.

Footnote 4:Id.