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Lawsuit Challenging CMS Remote Learning Hits Delay Because Judge Is A CMS Parent

Charlotte-Mecklenburg Schools

A Tuesday hearing on a lawsuit challenging remote classes in Charlotte-Mecklenburg Schools was delayed when the judge recused himself because he has three children in CMS.

Five CMS parents sued in early September, after CMS opened with all-remote instruction. They said the suspension of in-person classes denied their children the right to a sound basic education guaranteed in North Carolina’s constitution.

The suit names the CMS school board, Superintendent Earnest Winston, board Chair Elyse Dashew -- and the Charlotte-Mecklenburg and North Carolina Association of Educators. The suit alleges the teachers’ groups engaged in illegal political activity in lobbying for remote learning.

CMS began bringing students back to in-person classes Sept. 29. As of Tuesday, elementary and K-8 schools are holding in-person rotations, and some special education classes in middle and high schools are meeting in person. Most middle and high school students remain in all-remote learning until second semester.

Tuesday’s hearing came hours before a school board meeting that includes a vote on changes to the in-person instruction plan. It was scheduled to hear motions to dismiss the suit.

Lawyers for CMS argue that the parents have no legal standing because the constitutional right to education applies only to children. That motion also notes that the suit says remote learning imposes special hardship on minorities, socioeconomically disadvantaged students and students with disabilities, but the plaintiffs provided no evidence that they or their children are in any of those groups.

The dismissal motion from the teachers’ groups says that the plaintiffs haven’t challenged the governor’s authority to close schools or limit in-person instruction, and CMS was acting within the governor's orders. Their lawyer argues that the CMAE and NCAE have exercised their right to voice opinions on policy matters.

Judge Charles Viser convened a remote hearing Tuesday morning, but decided to recuse himself because his three children would potentially be affected by his decision.

David Redding, the lawyer for the parents, urged him not to step aside, saying that other Mecklenburg judges are also likely to have family ties to CMS. The district has about 140,000 students and more than 19,000 employees.

Viser said it will likely be the second week of January before the motions can be heard. He said the judge assigning the hearing will try to avoid anyone with potential CMS conflicts.

Ann Doss Helms has covered education in the Charlotte area for over 20 years, first at The Charlotte Observer and then at WFAE. Reach her at ahelms@wfae.org or 704-926-3859.