Holy Family Academy on Thursday, December 10. (Amanda Loman/Salem Reporter)

A Salem private school is under state investigation after the Oregon Department of Education concluded it violated state Covid restrictions by fully opening for regular classes in the fall.

Holy Family Academy, a K-8 Catholic school serving about 70 students in northeast Salem, has been holding regular classes five days per week, according to a state report, even as most schools in the area remain closed.

The state’s investigation was triggered by a complaint in August and an Education Department investigator referred the complaint to the Oregon Occupational Safety and Health Administration Nov. 9, according to records obtained by Salem Reporter through a public records request.

Scott Nine, Education Department assistant superintendent, said it took weeks to act because the Education Department had to set up a system to respond to more than 100 complaints about potential violations at schools across the state.

The Education Department has never before had to assess compliance with public health requirements in real-time, Nine said.

“You’re basically doing that from scratch with no new staffing or money,” he said.

The OSHA investigation into the Salem school remains open, spokesman Aaron Corvin said.

Holy Family Principal Cheryl Schwartz and board chair Ronald Beyer declined interviews with Salem Reporter and recently responded to written questions about their operations with a general statement.

“Our faith community is committed to the education of our students in an atmosphere where faith is the prominent focus, and the students have an opportunity to gain a faith-based education while also developing their social and interpersonal skills,” Schwartz and Beyer wrote. “We are also aware that distance learning is not as effective as in-person learning as to the emotional, spiritual, and intellectual development of students. We are aware of the need to observe [Centers for Disease Control and Prevention] and Oregon Health Authority protocols as to the protection of young students and our staff. Our operation is maintained with these principles in mind.”

They did not respond to written questions Monday following the release of the state's investigation file.

Oregon does not accredit private schools or require them to register with the state, and the Education Department can’t require a school to close. The authority to enforce school reopening rules lies with OSHA, which has authority over workplace safety violations, Corvin said. That could mean citations or fines.

The reopening

As Oregon students prepared to head back to school in the fall, administrators and principals around the state were scrambling to plan how they would educate kids during a pandemic. Schools that planned for in-person classes had to follow strict health guidelines, but the decision about returning to classrooms was initially left to individual districts or schools.

On July 28, after some schools had already completed plans, the state imposed new restrictions. The prime impact was that regions with high Covid infections, including Marion County, had to shift to teaching largely online. Provision was made for bringing in groups of no more than 10 students in one room for no more than two hours a day – a limit recently increased to 20 students.

State rules said those sessions should be reserved for academic or social and emotional needs that can’t be met through online school and should supplement. They were not intended to replace remote instruction.

The state imposed the limits to keep students and school employees from getting sick with Covid in areas where the virus was spreading widely in the community.

The state provided exemptions for small, rural and remote schools. Under an August update, the rules allowed public school districts with 75 or fewer students to work with the local public health department to reopen for in-person classes, Nine said.

That's since been expanded to any school with 75 or fewer students. But the rules said Covid couldn't be spreading in the community the school serves for the exception to apply. The rules said health departments were to consider recent Covid case numbers, the percentage of positive tests, hospital capacity and other factors in deciding whether to support a return to classrooms.

Marion County’s health department sent letters to small schools asking them to fill out a form if they intended to have in-person school, Commission Chair Colm Willis said. He said the county understood the rule to mean any school with fewer than 75 students could reopen.

The health department's Aug. 27 form asked schools to list student enrollment by grade and describe the geographic area students lived in "to be considered for reopening approval."

Willis said several schools had questions about whether they could reopen and urged them to fill out the form. He said he believed Holy Family was among those he spoke to.

Chad Ball, a county spokesman, said the health department ultimately did not approve or reject reopening plans or issue recommendations on them. He said the department updated small schools as the state's guidelines shifted.

The investigation

Holy Family notified county and state officials in August that it intended to hold in-person classes. The school outlined steps to screen students for illness, require masks or face shields and keep students clustered into smaller groups.

In reports to the Education Department since, Holy Family has reported about 65 students on campus each week. Weekly reports from Oregon Health Authority show no Covid infections among students or employees at the school since classes began.

The number of students on campus by itself doesn’t violate state rules, so long as students are kept separated into smaller groups and classes are limited to two hours. But the school’s weekly reports to the state list the students on campus for regular classes, indicating they are in class more than two hours a day.

Nine said the agency didn’t review such school plans for compliance with the Covid limits, instead relying on local health authorities to do so. With about 1,400 schools in Oregon, he said the agency's role was to help schools and respond to complaints, not evaluate what each school intended for its students.

OSHA in October started reviewing school-related complaints as part of its workplace monitoring, but the Education Department has still not passed on all such complaints because it is still evaluating them.

Nine said the department received a complaint about Holy Family on Aug. 28 and talked to Schwartz and Beyer in early October.

“Holy Family Academy is opening, claiming the county commissioner said it’s okay over the governor’s order,” the complaint read.

State records show a department investigator determined the school was out of compliance on Oct. 7 and gave school officials five days to submit a revised plan. In an email on Oct. 7, Schwartz wrote that the school would submit a revised plan to offer online school with limited in-person classes.

“I just heard from our Board chair Ron Beyer that we are to transition to distance learning by Monday,” Schwartz wrote. “We will comply.”

On the deadline to switch back, Beyer emailed the investigator and said school leaders wouldn’t be available for a call later that afternoon proposed by the Education Department.

“We are taking your information to the board of directors for their action as to your position on moving the school to distance learning,” Beyer wrote on Oct 12. Beyer said the school wanted to remain in touch but asked further communication be done by email.

Nine said the leaders didn’t respond to follow-up calls or emails from the state and didn’t submit a revised plan.

The department’s report concluded Holy Family Academy did not meet the requirements to hold school in-person, either when school opened in the fall or under less restrictive rules adopted in October.

“The conditions have never existed for them to be operating the way they are,” the report said.

By mid-October, the Education Department received 235 complaints about schools violating reopening guidelines. Some were about issues like enforcing mask wearing on campus, but about 100 complaints, covering about 80 schools, involved questions about whether a particular school was allowed to open, Nine said.

Four department employees were assigned to review the complaints and work with schools, a task on top of their existing full-time jobs, Nine said.

He said school officials sometimes were unclear about whether the metrics applied or whether a particular school qualified for an exemption. Some schools, for instance, operate preschool programs which operate under different state rules.

Nine said a handful of schools, mostly private, contended the state had no authority over their operations.

Three private Christian schools in August sued Gov. Kate Brown and other state officials seeking to overturn the rules that barred them from reopening. A federal judge denied the schools’ motion for a temporary restraining order later that month, finding school reopening orders were not discriminatory because they applied equally to public and private schools. The suit is ongoing.

In October, the Hermiston Christian School sued Brown and state agency leaders to claim that state rules discriminated against religious organizations because they permitted the school to provide childcare, but not to have the children attend classes.

The school argued remaining open was essential to its religion. Brown and other state officials have denied that their rules are discriminatory or target religious organizations, according to court documents.

OSHA earlier this month fined Cascade Christian School, a private school in Medford, $360 after concluding the school had remained open in violation of state rules and had failed to enforce mask or face covering guidelines.

Contact reporter Rachel Alexander: [email protected] or 503-575-1241.

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