The first day back to school for BUSD Ruth Acty Elementary school after over a year of lockdown resulting from the COVID 19 pandemic, March 29, 2021 Photo: Pete Rosos
The first day back to classes at Ruth Acty Elementary school on March 29. Credit: Pete Rosos

A private law firm representing 40 Berkeley families sent a letter last week demanding that Berkeley Unified School District open its middle and high schools five days per week, threatening legal action if the district does not comply.

The letter, dated May 7, claims that the district has violated SB 98 and the equal protection clause of California’s constitution by failing to offer full in-person instruction. It demands the district fully reopen no later than Monday, May 17.

“Nothing is preventing BUSD from expanding in-person instruction, and BUSD is legally obligated to do so under the legislative mandate of SB 98 and the equal protection clause of the California Constitution,” reads the letter from Aannestad Andelin & Corn LLP, a Southern California law firm that has represented parent groups in three lawsuits against eight school districts in the state over school closures.

Under SB 98, school districts are required to offer in-person instruction to the greatest extent possible, according to Lee Andelin, a partner in the firm. “The data is very clear that all schools can reopen safely,” he said. “There’s really no good reason anymore to keep schools closed, if there ever was.”

Andelin’s firm has had some success with its approach. A San Diego County judge sided with a parents group in March, saying that California had denied students in online learning the right to an education. While a judge ultimately declined to demand that schools resume in person classes immediately, the six San Diego districts involved in the suit each voluntarily provided more in-person instruction. Andelin said that nearly half of the 23 districts his firm has threatened with legal letters have since reopened fully, though he acknowledged that it’s difficult to identify the role the letters have played in their decision.

The group of Berkeley parents that hired the firm, called Berkeley Parents for Full Reopening, is “prepared to take further legal action if BUSD does not immediately fulfill its duty to provide in-person instruction to the greatest extent possible to all students,” the letter reads.

The parents are fed up with what they describe as a lack of urgency and transparency from the district about reopening as their children suffer from continued social isolation. All elementary school grades have been back in person five days a week since April 12. The district began reopening middle schools for hybrid instruction a few hours per week April 12. All students could return for hybrid instruction at the high school April 26.

“I have seen many students who are socially isolated and go through significant episodes of depression,” said Nova Blazej, the parent of a ninth-grader and an eleventh-grader at Berkeley High. “There is an incredibly high level of frustration with the school board and the superintendent, in particular, for not getting middle school and high school students more academic time this school year.”

Blazej said her hope is that returning to school in person this spring can reassure students that they will return to school five days a week in the fall.

The law firm requested a response from the district by May 11. The district acknowledged receipt of the letter but has not responded. (Berkeleyside has requested a comment from the district for this story but has not heard back.)

“We are disappointed that BUSD leadership has so far not felt the urgency to respond to any of our demands,” Berkeley Parents for a Full Reopening said in a statement to Berkeleyside. “The district has not shown a willingness to view parents as equal stakeholders in the same way it regards its unions.”

In February, a group of six Berkeley lawyers penned a letter to BUSD arguing that it was legally obligated to reopen for full in-person instruction for students in transitional kindergarten through sixth grade. The district announced March 8 that it would open its elementary schools five days per week.

In the past year, Aanestad Andelin & Corn LLP has sued the state of California, as well as California school districts in Los Angeles, San Diego and Fremont to reopen for in-person instruction.

“This is a question of statewide concern,” Andelin said. “Our hope is that as we target individual school districts, those school districts will reopen and it starts a cascading effect.”

Ally Markovich, who covers the school beat for Berkeleyside, is a former high school English teacher. Her work has appeared in The Oaklandside, The New York Times, Huffington Post and Washington Post,...