Judge orders testing of Detroit summer school students for COVID-19 in five days

Detroit Public School officials have five days, starting Wednesday, to test more than 630 summer school students for COVID-19 as a condition of keeping the program operating, a federal judge ruled Tuesday.

Detroit Public Schools Community District attempted to fight the testing requirement, put in place by a Detroit U.S. District Judge Arthur Tarnow, but were able to expand the testing window from two to five days.

Tarnow held a Zoom hearing with attorneys and members of the media over a lawsuit seeking to shut down in-person summer school inside 23 Detroit Public School Community District buildings.

Earlier in the day, Tarnow ordered the district and lawyers for a group suing to stop summer school to create a plan to have students tested for COVID-19 in the next two days.

Detroit school district attorney Jenice Ford, who requested the second hearing before Tarnow, and told him the order he issued earlier in the day was unfair. Ford said there is no legal authority to order testing of students and that testing is not a requirement in Michigan Gov. Gretchen Whitmer's executive orders on reopening schools.

"To have testing conducted to continue summer school and not have the same requirement on anyone in state or in the county is an undue burden and it's unfair," Ford said. "It creates in inequitability."

Tarnow noted her objection but directed Ford to include testing in the order being drafted. He also gave the district five days to conduct tests, starting Wednesday.

There are between 630 and 650 students attending DPSCD summer school.

"The test is for the benefit of the child. The people who should be complaining are those in the suburbs or other parts of Michigan who are not required to go through a test," said Tarnow, who was appointed by President Bill Clinton. "The injustice is they could be in a school that could be unsafe."

Under the expanded five-day window for testing, the judge said no one would be barred from summer school, based on COVID-19 test results, until Monday.

Tarnow suggested to Ford that testers come to Detroit school buildings to conduct tests. He also suggested the district contact Mayor Mike Duggan for help.

Ford asked the judge if testing was a requirement for all ages of students, even kindergarteners, and Tarnow said yes. If a parent refuses to consent to testing, the judge said the child is out of school.

Plaintiffs lawyer Shanta Driver called Tarnow's earlier ruling a victory.

"For us, this is a real victory," she said. "For the students, the teachers, the bus driver and the community at large, it is our way to know whether the summer school should be shut down in total."

Tarnow told attorneys Tuesday that if a small number of students were attending summer school in district school buildings, the Detroit district could follow its own protocols for COVID-19 safety, Driver said.

Driver said the district is responsible for testing the students and must submit proof of testing.

"The district has to make a real showing it is safe to have summer school," Driver said.

Tarnow also ordered that state claims in the case be returned to Wayne Circuit Court.

Driver is suing the district, Detroit Superintendent Nikolai Vitti, Gov. Gretchen Whitmer and other state officials to close school buildings to summer school classes due to the increasing number of COVID-19 cases. 

Driver sued the district and Vitti in the Michigan Court of Claims on July 15 but on Friday voluntarily withdrew the case there. Driver's lawsuit against Whitmer and other state officials remains in the Michigan Court of Claims and is reset for July 27.

Driver said the lawsuit seeks to stop classes in Detroit immediately, not to reopen schools until the science says it is safe to do so and for Whitmer to issue an executive order eliminating all summer school programs across the state until it is safe to operate them.

Summer school started for district students on July 13. Summer classes are scheduled for four hours Monday through Thursday. The summer semester will end Aug. 6. The district has said that summer learning is on a voluntary basis for students and teachers.

The lawsuit alleges the district, in its decision to hold in-person summer school this week, is "showing no concern" for the lives of students, teachers and families and will "refuel" the resurgence of COVID-19 cases in Michigan and nationally.

Vitti has said the district's reopening plan for summer school is aligned with guidance from the federal Centers for Disease Control and Prevention, recommendations from the governor's Return to Learn Council's Roadmap and national teachers union guidance.

“Although we are opposed to the federal judge’s order, we will comply to provide our students and families with the face-to-face (F2F) instruction services that they are legally entitled to receive through Detroit Public Schools Community District’s summer school offering under MI’s Safe Return Phases," Vitti said.

"It is insulting to our parents that they must have their children COVID tested to receive public school services yet parents outside of the city can receive the same services without testing. 

"We want to thank the City of Detroit for working with us to provide all F2F summer school students with free, rapid testing. Beginning this week, we will allow parents who made the decision to send their children for F2F summer school instruction to have their children COVID tested through nasal swabs.

"These tests will be done at school to reduce the burden on parents if their consent is given. Results will be returned in 30 minutes."

In legal briefs, attorneys for the Detroit public schools and Whitmer are asking for the case to be dismissed. 

jchambers@detroitnews.com