by Michael Kane
The New York City Department of Education (NYC DOE) agreed to a stipulation containing language written by our attorney, Michael Sussman, ensuring all specimens collected for in-person COVID testing will not be stored, used or copied in any way and will be destroyed once a COVID test result is obtained. The stipulation signed by all parties is short and sweet, to the point, and written in plain English.
You can download the stipulation here:
One important point for our regular readership – this stipulation completely ends any prior “stay” on signing the in-school COVID consent form from our case. You can no longer cite KANE vs. NYC DOE as a rationale for not signing the consent form for teachers or students. There is another lawsuit, AVILES vs. DE BLASIO, that needs to be followed for any potential future relief in this fashion and, as always, stay tuned to this website for any new developments.
The DOE attorney, Phillip S. Frank, had already agreed to work out a stipulation similar to the one we ultimately received. However no deal had been reached by December 23rd when the second virtual hearing was held in front of Judge Eileen Rakower. The hearing went so incredibly bad for the DOE they subsequently stopped all of their protests to Michael Sussman’s language and, essentially, agreed to everything Mr. Sussman asked for within hours after the proceeding. At one point during the hearing Judge Rakower essentially yelled at DOE counsel Mr. Frank saying he was doing more to hinder the proceedings than help!
But where I think the DOE got truly nervous and decided to stop battling us was when Judge Rakower asked DOE counsel why his client will not accept COVID test results submitted by parents from outside doctors. When Mr. Frank reminded Judge Rakower that this was not even a part of plaintiff’s complaint the judge said she didn’t want to hear that. She added that the DOE was trying to make parents look like the villains when that is clearly not the case.
The issue of accepting outside COVID test results is one of many issues being brought up in AVILES vs. DE BLASIO. The last thing the DOE needs is to have Judge Rakower do anything to assist that case, which is a bigger, broader challenge to the in-school COVID testing regime. AVILES vs. DE BLASIO is much more dangerous to the DOE’s agenda than anything KANE vs. NYC DOE ever attempted .
Mr. Frank was right in stating the issue of outside test results (while a valid concern) was never a part of our complaint. Nevertheless the judge was clearly asserting common sense while letting Mr. Frank and everyone who attended the virtual court hearing know that she was done with the DOE’s nonsense.
We are very happy to have this matter resolved. There is a very good chance I, as an NYC teacher, will now sign the consent form for in-school COVID testing. However there are still other problems with NYC’s testing regime that I and others I work and consult with, including other attorneys, continue to pursue. Stay tuned as more information will be coming out in the near future.