Michaela Pearson vs. School District of the Menomonie Area Hearing | WisCommunity

Michaela Pearson vs. School District of the Menomonie Area Hearing

January 27, 2022 - 6:39pm

WisCommunity intended to live stream or record this hearing but the judge ruled that although this was an open hearing, that did not allow recording of the hearing or a live stream.

Judge Sally Pederson presided over this hearing. She is a due process hearing officer with the Wisconsin Department of Public Instruction.

Jeff Spitzer-Resnick was the counsel for the plaintiff, representing Michaela Pearson and her parents. 

Tess O'Brien Heinzen was the defense counsel in the hearing, representing the School District of the Menomonie Area.

What follows is an informal narrative of the hearing, which was held Jan. 10-12, 2022. 

The first day's hearing on this case started more than an hour late due to technical issues of running a blended meeting with people participating virtually along with multiple people in the hearing room. The judge participated virtually in the case. 

Two issues were raised in the case initially. The first being that Michaela Pearson, a student in the district with Down Syndrome, has not been given an appropriate education by the school district because she was only given two hours of virtual schooling daily. Both parties reached an agreement on this portion of the lawsuit in December.

The second portion of the suit claims that the SDMA has not provided adequate amelioration of COVID-19 in the district and that the district policies leave Michaela at an unacceptable risk of infection from COVID-19.

Dr. Sara Hermann

Michaela Pearson's pediatrician Dr. Sara Hermann was called as the first witness. She testified that the student has had educational problems due to her Down Syndrome, including visual issues, motor issues, and minor mental insufficiency.  She has said that Michaela is particularly vulnerable to respiratory illnesses due to her Down Syndrome.

Questions were raised with the pediatrician as to what COVID-19 prevention practices would be appropriate for a special-needs student with Down Syndrome.  The pediatrician had sent a letter to Oaklawn Elementary asking that the school follow the approved prevention strategies, including masking of individuals in the classroom and maintaining a 3-foot distance between people in the classroom.  Dr. Hermann stated that she would not consider that to be changed since Ms. Pearson was vaccinated and that not following these guidelines continues to be a risk for the student. Michaela's occupational therapist is not known to be vaccinated and has been providing services through a paraprofessional because of this. Dr. Hermann testified that having the occupational therapist help directly is important for having the student "reach her best potential". 

Further questions were asked about the district's failure to follow the CDC guidelines including masking and separation. 

Counsel for the district cross-examined Dr. Hermann. She was asked about other special-needs patients that the doctor has and her experience with interaction with the school district. The question was raised that the letter that Dr. Hermann sent to the district did not require that all staff in the school be vaccinated, and Dr. Hermann agreed that she had not demanded that when the letter was sent in September, and that the letter did not mention a school-wide mandate. The question is whether the request was just for people contacting Michaela or the school as a whole. The witness was also asked whether the correct distance between students was six feet or three feet - Dr. Hermann stated that her understanding of the CDC guidelines was that a three-foot distance is allowable if students are masked. 

District counsel attempted to argue that Ms. Pearson was not at increased risk because she did not have co-morbidities such as obesity or heart disease, which Dr. Hermann rejected, and that although those health issues would have made her more vulnerable to COVID-19, she is vulnerable solely due to having Down Syndrome. The argument was further made that the clinical study supporting this primarily involved children in India and only 9% from the US, and that no deaths occurred among the students. Furthermore, the aforementioned co-morbidities were significant risk factors for hospitalization.

Counsel for the district asked Dr. Hermann if she had made a definite recommendation that Michaela not be in school due to the risks of attending and Dr. Hermann responded that this is a decision for parents to make, and that she simply provides information on the risks and benefits of being in school. 

Dr. Paul Horvath

The second witness was Dr. Paul Horvath, who was the medical advisor to the school district from summer of 2020  and an emergency medicine specialist at Mayo Health Systems. Dr. Horvath stopped being the medical advisor in Dec. 2021. 

Dr. Horvath stated that he had concerns about the district's ability to maintain proper distancing and masking during the pandemic. Dr. Horvath stated that he had concerns about the changes in the distancing part of the plan from requiring 6 feet to encouraging six feet and many conversations about masking policies. These changes took place between the two school years, but the major change was from mandatory masking to optional masking. Dr. Horvath stated that he raised concerns with Dr.Zydowsky about his concerns about the implementation of the CDC guidelines, and although those conversations were cordial, they had different opinions. According to Dr. Horvath Dr. Zydowsky did not support universal masking in schools. He also raised some of the concerns he had that board member Angela Skillings had presented misinformation about the health issues from COVID and appropriate mitigation.

Dr. Horvath testified that he was questioned by the district administration about the GoFundMe campaign that was taking place on behalf of the Pearson family and that Dr. Zydowsky had been concerned that Dr. Horvath's wife had made to the GoFundMe campaign. This donation was not done with Dr. Horvath's knowledge though the donation was made from a joint banking account. 

Dr. Horvath stated that he would have been more direct about the mitigation policies than the district has been in regard to masking, distancing, vaccination and contact tracing, and that masking and distancing, and that vaccinations should be required for those who are eligible to be vaccinated. 

DIstrict attorneys questioned Dr. Horvath on the percentage of additional risk for Down syndrome complications and the differences in risk for Down syndrome patients between children and adults. Dr. Horvath replied that we know many differences between risks for adults and children but he cannot provide information on the differences for Down patients because that data is not clearly available. 

Dr. Horvath was asked by district counsel if he believed that he was no longer the medical advisor to the district because he disagreed with Dr. Zydowsky and the board about what appropriate policy would be. He responded that he "did noy know" why he is not the advisor any more, or why the district started questioning him because he believed his advice was "medically accurate". 

Dr. Alexandra Hall

After the lunch break Dr. Alexandra Hall testified. She spoke to the issues in Michaela's IEP and that the provisions are not sufficient to make her as safe as possible from COVID infection. Dr. Hall made the point that safety is a spectrum and it is impossible to say that any mitigation strategy will make a student "safe" but that the district's policy does not follow the guidelines of the CDC and other public health experts. 

Dr. Hall was questioned extensively by the district attorney about various issues of COVID mitigation and details on the risks of students in schools.  She expressed a concern that students with autoimmune diseases cannot mount a sufficient immunity response to make vaccines effective. 

KT Gallagher

Dunn County Health Director KT Gallagher was the next and final witness for the day. The health director testified that the COVID-19 pandemic has overwhelmed the Dunn County Health Department, requiring expanding the staff to as many as 30 people and forcing Ms. Gallagher to work 60-80 hour weeks for the past two years. 

Ms. Gallagher has sent two different letters to the school board expressing concern about a masking optional policy in the district. The need for non-pharmaceutical interventions in the county is more serious because of the very low vaccination rate in Dunn County. The second letter was sent on August 29 to board president David Styer and expressed concerns about the new variants and that all of the county school districts were considering changing their policy to make masks optional in  the classroom. "I was deeply concerned that without those mitigation strategies in place we would see a significant increase in infections". 

Ms. Gallagher was asked about the changes the school board made to policy on Sept. 13 that made masking optional in the elementary schools as of Dec. 13. This was done on the theory that by that date it would have been possible for a student to be fully vaccinated if their parents took them in for the initial vaccination very soon after the vaccine was available. Ms. Gallagher referred to the current vaccination rate in Dunn County as "abysmal". 

Ms. Gallagher further was asked about the fact that she has not instituted a masking order for Dunn County and if that was because of the issues faced by all local governments in imposing a mask mandate. 

Ms. Gallagher was asked whether she had requested a police escort out of one of the board meetings because she felt threatened, and she replied that she had done so. 

Raemalee McMahon

Raemalee McMahon was the first witness on Tuesday. She is the student health services coordinator for the district. She had a positive COVID antigen test yesterday and therefore is testifying virtually but is currently asymptomatic. She is a registered nurse and has a DPI health nursing license and is a former critical care nurse at Mayo. 

She testified about the policies in the district in regard to exclusion and testing. The district was following the DHS flowchart on exclusion of students who had symptoms and were either not tested or tested positive. These policies were in effect during the 2020-2021 school year. 

Plaintiff counsel questioned her about the masking requirements in the 2020-2021 school year for both students and staff. During that school year masks were required at all times except for during meals. 

On May 20, 2021 she wrote a letter to the district administrator, Dr. Zydowski. She was concerned because she had heard that the school board was considering making masks optional for the summer school session and she believed it was important to continue the mask requirement. The board voted to make masks optional for the summer session effective on June 4. 

On August 9 the school board voted to make masks optional for the 2021-2022 regular school year. This decision continued to concern Ms. McMahon particularly due to the expected surge due to the delta variant and the low vaccination rate in the county. 

She was asked about multiple emails that were passed through the school district and answered that she was unaware of any of the emails. 

On Sept. 13 the school board voted to make exclusions for close contacts optional except in cases where the contact took  place in the home environment. She was concerned that this change in policy would increase the spread of COVID in the district and was surprised that the board made this change. 

McMahon expressed some concern that although vaccination rates are high (approximately 80%) for teachers in the district, it is still inappropriate for teachers to be unmasked in the classroom. 

Both attorneys asked multiple questions about the district COVID dashboard, the statistics there, and how teachers in the district determine close contacts in the district when masks are optional and it is difficult, particularly in the elementary schools, to maintain a 6 foot distance when students are unmasked. 

Brittany Engle

At 10:30 another plaintiff witness was sworn in. Brittany Engle is a registered nurse for the school district. She was added to the school nurse program in the district because of the COVID pandemic. She and Ms. McMahon wrote a letter on August 23, 2021 to Dr. Zydowsky and the school board about the changes to mitigation and masking for summer school last year and asking them not to remove universal masking. She was concerned personally at the time that the changes in school board members due to the election would change the decisions the board would make on COVID mitigation and that the new board might not follow the recommendations of the CDC, the health department, Dr. Horvath, and local staff. 

Defense asked multiple questions about procedures for mitigation in the district and the process of exclusion and contact tracing in the district. 

Spitzer-Resnick asked her several questions about whether she was aware that Michaela's modified IEP contained new COVID-19 mitigation requirements and she answered that she did not know about this and was not consulted about it. 

David Styer

At approximately 11:30 AM school board president David Styer was called as a witness. He has been a school board member for 9 years and is at the end of his third term. Spitzer-Resnick questioned Styer about an update that Dr. Zydowsky sent to Styer and the rest of the board about the high COVID-19 disease activity in the county. At that time only 40% of county residents had completed their vaccinations. 35% of eligible students had been vaccinated but there were also concerns that vaccinated individuals were subject to breakthrough infections. Styer stated that the board voted to make masking optional and that the reasoning for the majority of the board voting that way was not something he was "exactly sure of". Styer was asked if there were any medical or public health reasons stated for making masks optional and Styer replied he "did not recall" but that the community was 70% against masking. He further stated he was "not sure" if that was the reason the board voted that way.

Styer was further asked why he had made a motion to reduce the quarantine requirements in the district. He stated that he had friends in other districts who had implemented this policy and that he was concerned about the number of students being held out of the district for quarantining. 

He was asked about another communication from KT Gallagher requesting that the district implement all of the CDC recommendations for COVID mitigation and why the board voted to ignore this recommendation. He stated he did not know why the board voted this way. He was asked about why he voted that way but the judge stopped him from asking the question as she had previously ruled that individual board members could not be asked about their votes.

He was also asked about the Sept. 27th meeting in which board member Amy Riddle-Swanson asked to have mandatory masking in the grade schools and on which the board voted 5-4 to support that item. He said he believed the issue of vaccination was one of the reasons for this vote. He was also asked if he was at that time aware that a lawsuit was being instigated against the district and he replied he did not know about the litigation at that time.  Shortly after that vote a special meeting was called by board member Tanya Husby to re-consider the mask policy but the meeting was then canceled. At the next board meeting board member Angela Skillings also put forward a motion to remove the mask mandate, but the agenda for the meeting stated that Dr. Zydowsky and the administrative team, legal counsel and the district insurance carrier all recommended that the motion not be passed, partly because of the pending legal action being addressed in this hearing. The board then did not vote to pass the action at that time.

Shortly thereafter (November 8) the board did vote to remove the mask mandate because at that time vaccine would be available to elementary students. Since that time no COVID actions have been taken up by the board. 

The district counsel cross-examined. She questioned Styer about the responsibility of the board to all students and if that would include students who have difficulty wearing masks and students with special health conditions, and Styer answered affirmatively. He was also asked about the survey sent out to parents on COVID mitigation, for which the results were provided to the board. Styer was asked if there was a division in the community about that issue and he replied "yes, very much so" and that police were involved in some of the meetings at the request of board members. 

Defense also asked Styer about the issue of maintaining a balance between the risks of COVID and the benefits of students remaining in school, and that that argument was one of the things discussed by the board and community members. 

Styer was asked if there were any board actions that would prevent COVID mitigation in an IEP from being implemented and he said "to my knowledge I am not aware of any." Specifically he was asked if the board actions would prevent staff interacting with students from being required to have vaccinations. Further he was asked if there had ever been any discussion of requiring vaccinations of district staff, and he said he did not remember any. 

Styer was asked by plaintiff counsel if he understood that the reduction of COVID mitigation might increase the likelihood of the schools closing or having to go virtual. Styer replied that he did not know. He replied that he disagrees that the changes of the quarantine period increased the likelihood of school closures. 

In 2020 Dr. Zydowsky was given power to implement COVID measures on his own. Styer was asked if that would have allowed Zydowsky to, for example, implement mandatory masking in an individual school, such as Oakwood, where Michaela Pearson attends. Styer answered that Zydowsky did have that power. 

Styer was asked if the public opinion on this issue has the right to put the health of students in danger when all of the medical advice had a different opinion. He responded that the board took many different issues into effect and that he believed that was an issue on which each board member needed to make their own decision. An objection was raised on Spitzer-Resnick's method of demanding an answer to that question. Further objections were raised to the line of questioning. 

Styer was asked by Spitzer-Resnick if it would violate the board policy if the IEP team at Michaela's school required universal masking in her single school, and Styer replied that as board president he believed that the IEP team could implement that. He also stated that the IEP team could require all staff to be masked and vaccinated and Styer replied that could be done. 

Karen Wick

The next witness was Karen Wick, who is a speech and language pathologist in the school district. She has worked for SDMA for 24 years and is Michaela Pearson's pathologist. She works with her on articulation and volume of her speech. Michaela did not attend school in person from September through December 13 of this school year, and she works with her one time per week for 20 minutes or more. Since Dec. 13 she has received in-person attention rather than virtually. 

When instructed in person Michaela and the instructor wear a shield rather than a mask, and they have a plexigrlass shield between them. Wick stated that Michaela has made steady progression in her speech while in class. On the first day of class Michaela's parents asked Wick about her vaccination status and she replied that she was uncomfortable providing that information. Defense objected to the line of questioning because Wick actually has been vaccinated. The defense team stipulated that this was the case, and then Spitzer-Resnick said in that case he had no further questions. 

Wick stated that on orientation day the Pearson family came in to discuss how the speech pathology classes would be run. Defense asked many questions about the interaction between Michaela and Wick and if they maintained a social distance. Wick responded that Michala and her sibling were exploring the room. Questions were also posed about the process of removing Ms. Pearson from the normal classroom and changing masking equipment and getting placed behid the plexiglass shield. The response was that this includes hand sanitizing, and mask switching done individually.

Wick described a discussion in a meeting about the IEP for the student that included a parent request that staff and student should be masked and that staff should be vaccinated. Many questions followed about Michaela's progress and details of the IEP and the pathologist's understanding of the IEP. Wick stated that she was surprised that the due process hearing took place because she believed there was an agreement in place delineated in the IEP  and that the parents were comfortable with the program. 

Spitzer-Resnick then questioned Wick, stating that after the IEP was put into place the parents decided to remove the student from school. There was an agreement on Dec. 7 about the IEP and an agreement on the 17th about what the compensatory education would look like. 

Rita Lambertsen

 The next witness at approximately 3 PM was Rita Lambertsen who is a district occupational therapist in the district. She is Michala's occupational therapist. She discussed some of the issues of working with her virtually and some of the attempts at engaging her more virtually, and how some of those worked and some did not. 

The next exhibit was a letter Lambertsen sent an email on August 31 to the parents regarding the IEP and how they would handle the mask policy and vaccination. She at that time kept her vaccination status private. At the time the district treated staff keeping their vaccination status private as if they were non-vaccinated. She continues to keep her status private and therefore is still considered non-vaccinated by the district. She is providing services and is staying six feet away and masked while the para-educator provides the hands-on services. The IEP requires that non-vaccinated individuals must provide services only through a delegated person, and the question is whether this qualifies as a delegated service. This was discussed at an IEP meeting and was considered to be in line with the IEP. 

A long line of questioning followed in regard to her understanding of the IEP and what was required to conform to it. 

Leslie LeBarron

Leslie LeBarron was the next witness. She is a special education teacher in the Menomonie school district. She has been the IEP coordinator for the student's kindergarten year and served as a consultant for her IEP services. She received an email from Tom Pearson asking for extended COVID mitigation because Michaela was particularly vulnerable to COVID, but she did not respond to the request because she had no control over the vaccination status of staff and she felt constrained because it was a decision her superiors needed to make. 

She testified that at times Michaela will be within three feet of students who are not masked. Various other questions were posed about the day-to-day process of educating Michaela. 

Lori Smith

The next witness was Lori Smith, who is the elementary principal at Oaklawn School. She is a member of Michaela's IEP team. She had a request from the Pearson family as to whether the student's teachers were vaccinated, and that the fmily believed that as an employer the district could ask the vaccination status of staff. 

Ms. Smith was asked about the limitations imposed by the IEP for COVID mitigation. She was also asked if the IEP team could have expanded their control over quarantining after the school board changed their policy to only require quarantining after close contact within the family setting, and not in the school. She responded that she was struggling with that question and replied no. Further questions followed about the understanding of the guidelines in Oakwood School and how they were implemented, and that universal masking took place for all students in the school until the mandate expired on Dec. 13, 2021. She was asked by the defense counsel if the requirements in the communications from the parents were being provided to Michaela now and she responded yes. She believed in mid-summer that she was not allowed to ask staff about their vaccination status due to HIPAA regulations but she believes she received more information in November and December and now believes she can ask staff those questions. 

She was asked if the request of having all students in contact with the student be masked could have been implemented by the IEP team. She replied that she could not put that in the IEP because it is not feasible in a community that is this divided, and because of the board policy.

At this point it was decided to terminate the hearing for today rather than run very late tonight, and consider the possibility that the hearing might run into a fourth day. The hearing will start at 8 AM tomorrow. 

Wednesday afternoon 1/12/2022

No staff from WisCommunity could attend the hearing on the morning of the 12th.

Daniel Kelly Benjamin Jr.

Daniel Kelly Benjamin Jr. was the first afternoon witness at 1:45 PM. He is the distinguished professor of pediatrics at the Duke University School of Medicine and has an appointment in public health at the University of North Carolina Chapel Hill. 

In his position, he helps school boards make medical decisions on a pro-bono basis and produces presentations for decision support. He is also involved in several research projects about therapeutics for COVID-19. In children, his research has involved masking, long COVID, and other research projects. His team was tasked to look at the COVID safety of school by the state of North Carolina and found that most of the schools being studied provided a safe school environment under a universal masking order. 

Defense counsel asked if children and adults are affected differently by COVID. He responded that the original belief that children were not very susceptible was wrong, but the primary difference is the rate at which serious illness occurs. Death occurs much less frequently in children from 5-17, and this is at a rate comparable to deaths from flu. Although adults are more effective as super-spreaders, children are very capable of spreading the disease. These numbers are primarily from pre-vaccine days. In children the MRNA vaccine reduces morbidity and mortality by 90-95%. In children who are vaccinated the death rate is approximately 1 per million. According to Benjamin, children who are vaccinated are less likely to die of COVID than of influenza. With the advent of the Omicron variant transmissibility is much greater but the vaccine still is useful in preventing serious morbidity and mortality. Dr, Benjamin stated that children who are vaccinated still maintain at least a 90% reduction of mortality but they are more likely to be infected than before the new variant. 

Benjamin was asked by defense about underlying health conditions. He replied that some people are more vulnerable including children who are obese, those with severe congenital heart disease, bone marrow transplant patients, and other transplant patients. These were the children who were first vaccinated due to concerns over their vulnerability. He was asked specifically about Down Syndrome, and he said "No Ma,am, that is not on the list". But he did say that on the CDC website there is also a list of conditions that have been reported in other studies to have more susceptibility to morbidity and death from COVID, but most of those studies were in adults. He also stated "individuals with Down Syndrome can go through almost an accelerated aging process due to Down Syndrome. This makes them clearly more susceptible". He stated that those risks start with people in their 20's and 30's. "The lack of that link is demonstrated in the studies that were submitted by the plaintiffs."

Defense also asked about co-morbidities and how they affect susceptibility in children and he responded that if children have Down Syndrome and have not had transplants or are obese their risk of morbidity is very close to or the same as children who do not have Down Syndrome. 

A disagreement broke out as to whether previous testimony had indicated that the student's Down Syndrome was an autoimmune disorder and defense claims that the student does not have an autoimmune disorder. Benjamin answered both for the illnesses that the defense counsel described and the risks for someone with other autoimmune diseases. He responded that the risks for death and morbidity are similar to children who do not have Down Syndrome. He did state that children with Down Syndrome may have an increased risk of acquiring COVID compared to the general pediatric population but has not seen reports of that leading to "an increased risk of morbidity or mortality in a vaccinated child with Downs". 

He was skeptical about whether the student has a severe autoimmune deficiency as she has not had admissions to the hospital and there are no indications of that in her medical history as he knows it, although he has not reviewed her medical records. 

The defense counsel laid out the status of COVID mitigation in the school and asked if that changes his response, to which he responded "the rate of transmission is way up. This school district will probably have a 90% higher transmission of COVID". He then laid out the advantages of a universal masking policy, and that masking is essentially a bridge to vaccination for 5-17-year-olds. "Masking and universal masking have a benefit to the entire community" by reducing the infections spread throughout the community from the schools. He stated that masking, a strong quarantining policy, and a vaccination mandate would not be needed to protect the plaintiff, but would be a good public health measure to protect the rest of the community. 

The plaintiff's counsel then cross-examined and asked about when he was brought in on the case and he responded he has not examined the child and has not given counsel to the school district since he was first contacted in December. He was also asked if he was testifying pro-bono in this case, and he responded that he originally planned not to charge but since he was not brought in at  the originally scheduled time he would charge for his time, approximately 1000-2000 dollars depending on what Duke would allow him to charge

Benjamin stated it is "plausible" that there may be differences in morbidity and mortality in students with Down Syndrome with the advent of the Omicron variant. 

He was asked about the school district's COVID dashboard and he responded that the dashboard was not useful since it does not reflect how much transmission is happening inside the school. "You need to have contact tracing and quarantine, and my understanding is that is not happening in this school district". He was critical of the COVID policy in the school district for not masking, contact tracing, and conducting proper quarantining. Other questions were asked in regard to studies of the Omicron variant in children with Down Syndrome to which he replied that there is no specific study on that but it appears there is no significant difference. 

In later testimony on questioning by the plaintiff attorney he stated that distancing is not an effective strategy for limiting spread of COVID-19. 

Katie Webb

At 3:41 PM another district witness was called. Katie Webb is a paraeducator with the district and has been since 2019. She is Ms. Pearson's paraeducator and helps her with various issues in school. She is with Michaela during the entire school day. She and Michaela wear masks at all times except during lunch. 

Ms. O'Brien-Heinzen stepped through Michaela's day at school with the witness, including masking policies in each of the school environments.

On cross-examination, the witness stated that 6 children in Michaela's class wear masks out of a class of 30. She stated that the other children always stay at least 3 feet away from Michaela.

Thomas Pearson

The next witness was Thomas Pearson, Michaela's father. He was called at 4 PM. Pearson is a professor of anthropology at UW-Stout. He expressed difficulty with the decision to send Michaela to school this year due to the pandemic. He said that if he had the means he would have kept all three of the children home but both parents are working full-time and at the time she was sent to school the district was following the recommended COVID protocols and although he had doubts it was a good experience for her of being in kindergarten. They had not had a specific discussion with Dr. Hermann, the child's pediatrician, about COVID and sending the child to school but everyone was still learning about COVID at the time. They also sent Michaela to summer school assuming that the same mitigation requirements would be in place, but they were "very disappointed" that the district changed the policy to make masks optional for summer school. In the summer of 2021 people were optimistic that COVID was subsiding and that vaccines were becoming available and transmission rates in the community were relatively low. It was a difficult decision but they decided to send the three children to summer school and have them wear masks.

In the summer school, Michaela was in a small class of 4-6 students and the students were outside quite a lot in the summer weather. 

Pearson was presented with a document that was a letter to the district from the school health staff. He was not aware of the document until recently although it was publicly available on the district website. He believed the mitigation measures would be in place for summer school because that is what the summer school brochure stated. 

The parents became increasingly concerned with the Delta variant about what the district's policies would be for the new school year. He stated he had been attempting to understand the health issues for a child with Down Syndrome in the pandemic, including studying the CDC documents that listed Down Syndrome as a high-risk category for COVID-19. 

His particular concern for Michaela was that children with Down Syndrome are at a higher risk for respiratory illnesses and in the yearly wellness check her pediatrician raised the vulnerability to respiratory problems as an issue. He was concerned that the district had lowered their COVID mitigation issues and felt a continuing uncertainty about what the district policy would be. 

In August 2021 he attended a school board meeting for the first time and was aware for the first time of how school board meetings take place and the dynamics of how the board makes decisions. Previously on July 27, he had sent a letter to Dr. Zydowsky and the board about his concerns. He had also contacted them during summer school about their removal of universal masking. The board president Mr. Styer responded that he was looking at all sides of the issue.

In correspondence with the board and Dr. Zydowsky he asked for the scientific reason for changing the masking policy, and Dr. Zydowsky responded that masking is recommended by the CDC as a mitigation policy in schools. 

He attended the August 3 school board meeting (Ed Note - I think this was actually - the dates of the meetings were often mis-stated by witnesses and legal counsel) and read a comment at the meeting during the community conversation portion of the meeting raising his concerns about the CDC guidelines and the statistics on COVID spread. He asked the board to implement the CDC recommendations in the district schools.

Pearson was asked by plaintiff attorney if he was ever told by anyone from the district that they do not believe that Michaela was at increased risk due to her Down Syndrome. He responded that he was never told that. 

There were multiple meetings in August about COVID since it had become a divisive consideration and the board reconsidered its decision to not require masks in the schools. He spoke at another of these meetings several days later.

On August 11 he sent a letter to Oaklawn principal Lori Smith about his concerns because the board did adopt an optional masking policy. He inquired about what mitigation measures the district would follow including vaccination. He was informed that the school board would be meeting again to consider masking, and at that point he believed the decision was in the hands of the school board. 

On August 31 he had a meeting with the child's IEP team. In that meeting, it was Pearson's understanding that they would not be able to achieve what they were asking for because the policy was being determined by the board, not the IEP team. The focus of the discussion at that point was how to facilitate Michaela being at home since they believed at that point that it would not be safe for her to attend school because mask use was optional.  

Pearson stated that although it was also a difficult decision they sent their son to school because they considered him less at risk and because he was in third grade and really wanted to attend school in person. They believed he was old enough to be trusted to wear his mask. They also sent their four-year-old daughter to school. She attends at the child care center at UW-Stout, and that school conforms to the CDC policy on masking and other COVID mitigations. 

When the school board decided to make the quarantine of close contacts optional the parents became concerned that the school board was "gutting" their safety plan, and they decided to keep their son home, where he remained for several weeks. After the school board re-introduced the mask requirement they decided the school was safe enough for him to return. 

Pearson became concerned that the board members who wanted to lower the COVID mitigation were not acting on scientific evidence, the advice of the county and school health staff, or Dr. Zydowsky, but were making their decisions based on parental choice rather than the well-being of the students. 

Pearson was happy when the board resumed masking for students in the elementary schools but had further concerns that he expressed to multiple people in the district and at Oakwood Elementary. Nobody had time to respond to this because within days the board was again discussing re-considering the masking policy and making it optional again in an emergency Sunday meeting. At that point the parents had no faith that the district could maintain a consistent policy and they then decided to keep Michaela home. The continual changing of policy in the district was what prompted the parents to file the due-process procedure. 

The parents decided to have Michaela vaccinated and after that they felt comfortable enough to return her to school even though that was also the date on which the district again rescinded the full-masking policy in the elementary schools. Pearson stated that this was "a difficult decision" because although everyone in his family is vaccinated, it also coincided with the emergence of the Omicron variant. 

Pearson was asked if Dr. Benjamin's testimony made him feel more confident about Michaela attending school - he said "yes and no" because he agrees that vaccination is very important, but also feels that we are in a world of uncertainty and nobody knows where the pandemic is going. His attorney asked if he is asking the judge to force Oakwood Elementary to follow the CDC and local recommendations for school safety and he replied "that seems logical". 

In cross-examination, Pearson was questioned about the various documents and what happened in the process of the correspondence. 

Tonya Kowitzky

The last witness is Tonya Kowitzky, the director of student services in the SDMA. She was questioned by Ms. O'Brien-Heinzen about the correspondence from the parents requesting accommodations for their daughter. She expected that this information would be resolved in an IEP meeting. 

When the IEP meeting finally did occur (August 31) the district was informed that they had decided not to send Michaela to school, and focused the meeting on dealing with providing services to Michaela at home. Ms. Kowitzky believed at the time that they were simply making a personal choice to keep her home, and did not have an understanding that they were keeping her home because the district could not honor their requests. 

On Oct. 1 Mr. Pearson and Ms. Tageart filed the due process request. 

On Oct. 22 Ms. Kowitzky responded to a request for an IEP meeting from Ms. Taegert proposing an IEP meeting because Michaela was not progressing as hoped, but that meeting never actually took place. 

On Dec. 3 there was a mediation meeting in which the issue of Michaela coming back to school was discussed and in another meeting on Dec. 7 a new IEP was written. The IEP reflects some discussion about COVID mitigation on her return. The masking issues for staff were discussed and the request that staff working in close proximity would be vaccinated. 

On Dec. 17 another meeting was held to discuss compensatory education for Michaela to replace the time she was out of school due to concerns over the COVID mitigation. In several of these meetings there were discussions that the occupational therapy would be delegated to a paraeducator because the therapist was believed to not be vaccinated. Ms. Kowitzky understood that in this case delegation meant that the therapist would be in the classroom at a six foot distance but Ms. Taegert (the student's mother) had testified earlier in the day that the parents were not aware that was what was meant by "delegation". 

Ms. Kowitzky testified that she would if possible have gone back and written the IEP somewhat differently in ways to remove the phrase "reasonable effort to the maximum extent possible" that became a point of contention and corrected the inaccurate date on the document. 

In cross-examination, Ms. Kowitzky was asked if she had ever told the parents that the IEP team could make a decision that they could have met the requests of the parents contrary to board policy. She responded that she does not believe she ever told them they could or could not do that and cannot remember if she ever specifically told the IEP team they needed to fulfill the parents' requests. 

She stated that she never received information that Michaela was at greater risk due to her health issues but that she had done research on her own. She was asked if she ever told the parents or the IEP team that she did not believe the parents' contention that Michaela was at higher risk and she responded no to both.  

The first meeting in which COVID mitigation was requested was on Dec. 7. Ms. Kowitzky cannot recall if universal masking or changes in quarantine policy were requested in the meeting though she knew that the due process procedure was still happening about those concerns on the part of the parents. 

She was also questioned about the Dec. 17 meeting and if there was any discussion of full masking in the Oaklawn school or a quarantine policy in line with public health guidelines and she does not remember that being discussed. 

She was again questioned about the "reasonable effort" phrase and the issue of why she wrote it the way she did and that she perhaps made an effort to be too formal and would have changed that wording if she realized it was a problem. 

She was asked if the leadership team of which she is a part supported universal masking in the district, and she said she believes masks are very difficult for some students in the district, so she has mixed feelings about saying "universal for all" but needs to accommodate students needs. She stated she does in general support students wearing masks. 

The witness was asked if the Dec. 17 language was provided by the district attorney - she responded that she had discussed it with Ms. O'Brien but that the language was not directly provided. 

On re-direct, Ms. O'Brien questioned Ms. Kowitzky about the details of some of the language in some of the documents. 

Plaintiff counsel asked about language in the IEP saying that the potential COVID risk is something that needs to be addressed first. 

Judge Pederson is expected to provide an opinion on the case on March 1, 2022.

Steve Hanson
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