In Response To Court Set-Back, Boston Educators To Launch Occupation

By Working Mass

After a minor defeat in court this week, the Boston Teachers Union (BTU) has launched a week of action to demand enforcement of their COVID19 safety contract with Boston Public Schools (BPS). 

The week of action has begun with a photo campaign and calling the mayor’s office, and will continue next week with petition signing and exposing dangerous conditions in Boston schools. 

“We need a better plan, and until we get a better, safer plan we will continue to advocate and do everything we can to get our students and our communities what they deserve.”

BTU President Jessica Tang

The week of action will conclude with a rally and occupation of the BPS Bolling administrative building on Wednesday, October 21. Working Mass spoke with BTU President Jessica Tang about the planned occupation. 

“Our goal for Wednesday is what it has been all along, to ensure safety for our students, our educators, and our community, and to have the best quality education possible both for our in person and remote students,” Tang said.

“We need a better plan, and until we get a better, safer plan we will continue to advocate and do everything we can to get our students and our communities what they deserve.”

Boston Democratic Socialists of America is hosting an emergency Zoom meeting on Sunday (10/18) 5pm-6pm to plan our support for Wednesday’s action, and to begin phone banking our membership. Click here to RSVP for both Sunday and Wednesday.

Read on for an analysis of the hypocrisy of the Wednesday court decision, for more information about the upcoming actions, and for a socialist perspective on this important struggle.

Judge Denies BTU Request for Injunction

On Wednesday, Suffolk Superior Court Judge Robert B. Gordon denied the BTU request for an injunction to enforce their COVID19 safety Memorandum Of Agreement (MOA) with BPS. The ruling is a minor setback in the BTU’s campaign to ensure safe working conditions for its members as COVID19 cases continue to rise in Boston.

The dispute centered around two sentences in the MOA which were interpreted differently by BPS and the BTU. The sentences read: 

“If the citywide COVID-19 positivity rate rises above 4% citywide, BPS will transition to full remote learning for all students and BTU bargaining unit members will have the option to be remote as well. When the Boston Public Health Commission or other City or State authority determines that the school district can reopen, BTU bargaining unit members will be expected to return to BPS buildings.”

As previously covered by Working Mass, the BPS violated the obvious spirit of the agreement by refusing to extend the option of remote work to all BTU members, instead requiring teachers working with students with high in-person learning needs to continue reporting to BPS buildings for in-person instruction.

An injunction is a preliminary order by a judge given in special circumstances before the full proceedings of a case have concluded. The judge formulated that in order to receive an injunction the BTU had to show that they (1) had a likelihood of winning the case on its merits; (2) would suffer irreparable harm without an injunction; (3) that this harm outweighed the harm caused by an injunction to BPS, and; (4) because BPS is a government entity, that the injunction would serve the public interest.

The Substance of the Agreement

The BTU argued that the MOA clearly required the schools to allow for teachers to transition to remote learning once the 4% threshold was crossed, and only then might BPS reopen schools on the recommendation of public health officials. BPS, on the other hand, affirmed that since public health officials immediately determined keeping schools open was safe, there was no requirement to allow for a transition to full remote learning.

The judge sided with BPS. While acknowledging that BTU’s argument “does not lack for textual logic,” and not denying that BPS’s actions were “out of sequence” with the MOA, the judge found that BPS’s actions were undeniably in line with the “substance, if not the precise form, of the agreement.” 

The teachers who have been in the buildings know that schools are not safe; BTU’s Tuesday action will expose this reality as teachers share pictures from their classrooms of the dangerous conditions on the ground.

BTU’s logic was common-sense: something must close before it can reopen. The judge blatantly admitted that BPS violated the letter of the agreement, but still sided with BPS. Let us be clear: the substance of the agreement is that schools would close at the 4% threshold.

The immediate confirmation by public health officials that schools were safe is reckless. BPS administrators should have closed schools to allow officials time to conduct a full review of working conditions before allowing schools to reopen. The teachers who have been in the buildings know that schools are not safe; BTU’s Tuesday action will expose this reality as teachers share pictures from their classrooms of the dangerous conditions on the ground.

“It is difficult to discern […] irreparable harm”

In the decision, Judge Gordon writes that “it is difficult to discern how BTU teachers… …face immediate or irreparable harm.” The judge’s logic is that, under the text of the agreement, BPS could theoretically have transitioned to remote learning, waited for teachers to exercise their right to work remotely, and then immediately ordered them back to in-person learning. The judge compares this possibility, which he thinks would technically be in accordance with the MOA, with the actions BPS took which technically violate the MOA, and finds that they would have the same impact. 

What is at stake is the danger of requiring students and teachers to enter unsafe buildings during a second wave of a global pandemic; apparently Judge Gordon has forgotten.

When framed like this, we cannot disagree with Judge Gordon. It is incoherent to assert that no irreparable harm will result to teachers from BPS’s plan just because we can imagine other scenarios where BPS also puts teachers in harm’s way. What is at stake is the danger of requiring students and teachers to enter unsafe buildings during a second wave of a global pandemic; apparently Judge Gordon has forgotten. Just yesterday, the Massachusetts Department of Education revealed that at least 160 students and staff tested positive around the state this week alone! 

To add insult to injury, Judge Gordon asserts that “if the parties intended 4% to be the bright-line determinant BTU insists it is, they would surely have so stated that in their MOA.” Instead, he finds that the MOA allows for reopening by public health officials even if the 4% threshold is passed, which although technically true, ignores that BPS agreed with BTU that 4% was the threshold for transitioning to remote learning.

Ironically, in defense of this interpretation, Judge Gordon cites precedent which holds that “a contract should be construed in such a way that no word or phrase is made meaningless by interpreting another word or phrase.” In this spirit, we would refer Judge Gordon to the words ‘transition’ and ‘reopen’ in the MOA. You cannot reopen a school that never closed!

In the Public Interest

Finally, the judge found that issuing an injunction would not be in the public interest, and would in fact “subvert the best educational judgement of those organizations entrusted by law to harmonize the competing concerns over learning and safety in the context of the COVID19 pandemic.”

Of course, BTU teachers do not want to teach remotely, nor are they to blame for this global pandemic. Indeed, the facts section of Judge Gordon’s ruling finds that during an October 5th meeting with Marty Walsh, BTU president Jessica Tang declined to waive BTU rights under the MOA, but affirmed that BTU members “would welcome a proposal for enhancing safety within the Boston schools in light of the increasing spread of COVID19.” The facts section continued, finding that “despite suggestions from [BPS superintendent] Dr. Cassellius that such a proposal would be forthcoming, none materialized.”

We believe that educators, who are actually in the classroom, are better qualified than administrators to determine what is safe.

We would remind the reader that last year, before the pandemic, it was BTU who heroically organized to demand a nurse in every BPS school, which the administration had failed to provide; in contrast, the BPS leadership has failed to fulfil their own promise for an additional safety proposal to deal with the current second wave. We believe that educators, who are actually in the classroom, are better qualified than administrators to determine what is safe.

No one can deny that students, and especially those with special needs, suffer from lack of access to remote learning. But is there not also a point where the safety of students, educators, and the public overrides the benefit of in-person learning, such as during a school fire, an active shooter, or say, a second wave of a deadly global health pandemic? If BPS did not feel that the 4% threshold was this tipping point, then why did they sign the MOA in the first place?

Workers Cannot Rely On the Courts

Judge Gordon’s decision to uphold BPS’s dangerous ‘reopening’ plan flies in the face of any common-sense reading of the MOA. Any experienced worker should not be surprised that the court is once again siding with the establishment against the workers. 

There is a long and harsh history of the courts siding with the employers; indeed, injunctions have been used time and time again to rule strikes illegal and to criminalize union leaders. As socialists, we know that the institutions of the government are not at all neutral, but rather are tied to the establishment and the ruling elite by a thousand threads. 

Take, for example, our Honorable Judge Robert B. Gordon. Before being appointed to the Massachusetts courts, Gordon was an employment lawyer; but do not let that phrase fool you into thinking he was a champion for workers’ rights. Our honorable friend cut his teeth representing big companies including Hooters and Sony. Probably the highlight of his career was when he argued before the Supreme Court that Hazen Paper Company did not discriminate against an employee when they fired him just before he would have qualified for a pension.

But don’t think for a second that Gordon is a one trick pony! He was also the judge that ruled that former Massachusetts House Speaker and convicted felon Salvatore F. DiMasi was eligible to apply to work as a lobbyist, despite having received a $65,000 kick-back for handing out state contracts. Truly the powerful protect their own.

It is shameful for a former labor leader to rely on the thinnest technicalities and our biased court system to renege on a common sense agreement with our city’s heroic educators. Instead, Walsh should stand unequivocally alongside workers in their fight for safe conditions.

And how could we forget to mention Marty Walsh, the ‘labor mayor’? It is shameful for a former labor leader to rely on the thinnest technicalities and our biased court system to renege on a common sense agreement with our city’s heroic educators. Instead, Walsh should stand unequivocally alongside workers in their fight for safe conditions.

As the BTU leadership rightly put it in a bulletin released after the disappointing ruling, “Our power as a union comes from our members, not from judges or government entities […] We are professionals and we are workers, and as workers, our power comes from a united willingness to advocate together to take collective action. 

Boston Teachers Union Plans To Continue The Fight

The bulletin continued:Tonight, we made it clear that we will be preparing over the next days and weeks to be ready to take collective work action, no matter what happens in the coming days. […] We know we need overwhelming support for this to be successful and we will continue to build our power to prepare for bolder actions.”

BTU has begun five days of action, which will culminate in a planned occupation of the BPS Bolling administrative building on Wednesday. These days of action will gauge membership engagement in the campaign, and Wednesday’s occupation will certainly capture the city’s attention. Bravo to the BTU for taking a courageous stand!

What Role Can Socialists Play?

The Boston DSA is organizing to support the Boston Teachers Union in their fight against unsafe conditions. As noted, the Labor Working Group has called an emergency meeting on Sunday to discuss the upcoming actions and to launch a phonebank of our own members. 

In general, the role of socialists in labor disputes is to follow the leadership of the fighting workers, to highlight the significance of the dispute, to organize socialist and community support for the union’s efforts, and to champion militant tactics which are raised from those directly involved or which worked for others workers in similar circumstances. 

As labor disputes develop, and after their conclusion, socialists can play an important role by offering an analysis of events which ties in both labor history and connections with struggles in other communities.

The BTU leadership has declared that they are just getting started. If this fight continues to escalate after Wednesday, we can draw lessons from the work of the East Bay DSA branch in their support of the recent Oakland teachers’ strike. 

Our East Bay comrades organized their members and supporters to attend the pickets, mobilized ‘flying pickets’ to rapidly reinforced the weakest picket lines, launched a ‘Bread for Ed’ program which raised a whopping $170,000 to pay for food for strikers and students, helped host ‘solidarity schools’ to supervise students whose parents refused to send them across picket lines, and launched a strike paper to provide daily news, analysis, and features covering the events of the strike.

For now, all our focus must be on building massive community participation and support for Wednesday’s action.

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