Charles W. Smitherman, Esq.

, PhD
1903 Cameron
Dalton, Georgia 30720
drsmitherman@gmail.com

August 29, 2021

VIA ELECTRONIC SUBMISSION

and CERTIFIED MAIL

Lisa Chang, Enforcement Director

U.S. Department of Education
Office for Civil Rights
Lyndon Baines Johnson Department of Education Bldg.
400 Maryland Avenue, SW
Washington, DC 20202-1100

RE: Request for Investigation of Dalton Public Schools

Violations of Title IV Civil Rights Act of 1964 and
Section 504 Rehabilitation Act of 1973

Dear Ms. Chang:

This letter is delivered to you in your capacity as Enforcement Director in the Office of
Civil Rights at the U.S. Department of Education (DOE) to request the opening of an
investigation of the Dalton Public School (DPS) district in Dalton, Georgia and its
Board’s ongoing mismanagement and dereliction of duties to protect the health of all
students in pursuit of their vested statutory right to a free and public education arising
from the district’s actions related to the COVID-19 pandemic in the 2021-22 academic
school year. I am writing this request as a parent of a child in the district that contracted
COVID-19 on the first day of school from an infected unmasked child and as an attorney
in representation of the voices of a large group of similar parents facing the direct
consequences of infected children and fearing reprisals from the district in coming
forward.

DPS’s actions continue to directly contribute to rising case numbers in the school district
and local community with 268 of the 995 reported PCR cases in our local county over the
two-week period preceding the date of this letter constituting students and staff in DPS
schools. 209 of these reported cases are students. DPS continues to refuse to act to avert
the current public health crisis in the school district thereby depriving and infringing on
the students’ fundamental rights to protecting their health as a consequence of DPS’s
protections of infectious student preferences to not wear masks. DPS’s current policies
amount to maintaining a non-smoking section on an airplane where the preferences of
smokers are prioritized over the rights of others.

On August 22, 2021, Secretary Miguel Cardona publicly stated on NBC’s Meet the Press
of the DOE’s intent to use the Civil Rights Division to investigate school district efforts
to dissuade mask mandates in public schools where such actions place students’ health at
risk. Section 504 of the Rehabilitation Act of 1973 guarantees students entitled to a free
and appropriate public education. Title IV of the Civil Rights Act of 1964 prohibits
discrimination in public schools. DPS is actively and deliberately violating its district’s
students’ statutory rights under both statutes.

The facts of DPS’s actions are straightforward and presented with restrained
commentary. In May of 2021, DPS publicly asserted its intent to have a “normal” 2021-
22 school year. As part of its unwavering commitment to normality, DPS further
announced that it would no longer adhere to the masks mandate that it successfully
utilized in the preceding school year and no longer require masks to be worn by students
or staff in DPS buildings or classrooms. At that time, the Delta variant was not widely
present in the US or the state of Georgia with only two known cases in the US as of May
23rd. The Delta variant quickly spread in the Whitfield County area through July
becoming the dominant variant due to its high transmissibility. Despite significant case
numbers in the local area and rising hospital admissions, DPS proceeded to hold an-in-
person mandatory convocation of DPS’s 1000 faculty and staff employees at a local
indoor theater in Dalton on August 5. DPS specifically required its employees to ride
buses from designated schools to this meeting. This meeting served primarily as a pep
rally to recognize teacher award and promote the theme of normality for the school year
with little to no mention of COVID-19, associated protocols, or the emerging Delta
waive. By the end of the first week of school, 16 DPS staff had tested positive.

On August 9, 2021, the day before the first day of school, the DPS Board held a public
meeting. Despite pleas from local doctors, public health and infectious diseases experts,
and concerned parents, the Board opted not to alter its position from May for a “normal”
mask-less school year. As of that date, the highly contagious Delta variant with a R 0 of 8
accounted for 83.4% of all COVID-19 cases in the US.

As additional context for DPS’s decision making, Whitfield County, Georgia has one of
the lowest vaccination rates in the country. As of the date of this letter, only 33.89% of
the county’s residents are fully vaccinated with 37.68% having received one dose.
Approximately 57% of residents are white and 36% are Hispanic or Latino. Whitfield
County is deeply ideologically conservative as evident from the 2020 election where 70%
of those that voted chose Donald Trump, down from 75% of votes for the same candidate
in 2016. DPS currently maintains approximately 7900 students and 1000 staff across 10
schools. Nearly one-half of DPS students are under the age of 12 and ineligible for
COVID-19 vaccination. DPS has not mandated vaccines for its staff or faculty and mask
wearing remains at the discretion of its teachers in classrooms.

For the 2020-21 school year, DPS offered a virtual option, which was taken by
approximately 1300 students within the district. Consistent with its need for normality,
DPS announced in May 2021 that it would not offer a virtual option for 2021-22. On
August 5, 2021, five days before the first day of school, DPS announced that it was
exploring a virtual option and issued a parent survey to gauge interest. A virtual option
was eventually offered, though DPS’s commitment to this format is debatable given the
timing in light of increased case numbers over the summer months.

During the 2020-21 school year, DPS reported a total of 478 positive COVID-19 cases
amongst its student and staff for the entire 10 month academic year from August through
May. As of August 27, 2021, 14 school days into the current academic year, DPS
reported 268 positive COVID-19 cases, i.e. 56% of the total cases for the entire 2020-21
school year. School began on August 10, 2021. As a percentage of reported cases in
Whitfield County over the last two weeks, DPS accounts for 27% of positive cases in our
community.

While DPS initially maintained basic hygiene theater type COVID-19 protocols to begin
this new school year such as encouraging handwashing and copious usage of hand
sanitizers, the primary difference between 2020-21 and 2021-22 remains the mask
mandate. Despite pleadings from numerous parents, local doctors, public health experts,
and parents concerned with both the general welfare of all students and the potential
replication of DPS’s success in mitigating COVID-19 cases in 2020-21, the DPS Board
remained unanimous in its opposition to a mask mandate to protect the preferences of
parents that did not desire for their children to wear masks at public schools. DPS and its
Board weighed the vocal advocacy of these supporters of parent choice and their own
personal preferences over expert advice and published guidelines of the Center for
Disease Control and the American Pediatrics Association. DPS thus began the school
year without a mask mandate or requirement for either students or teachers.

On August 16, 2021, one week after DPS declined to alter their protocols, the City
Council for the City of Dalton voted to reinstitute a local state of emergency in response
to spiking COVID-19 case numbers that placed the local hospital at risk of overcapacity
and freeing city funds for fire and police officers to assist the hospital with needed
services. On August 18, the DPS Board held an emergency meeting and instituted a tier
system with COVID-19 protocols dependent on reported school cases and community
spread. Whilst on appearance the system seems pragmatic, DPS leadership has actively
sought to suppress reported case numbers to avoid triggering moves to higher tiers,
including continued manipulation of quarantine requirements for classroom exposures.
No protocols exist requiring symptomatic students be tested for COVID-19 resulting in
students attending school while infected and not counting towards the district’s positive
threshold requirements. DPS continues to associate positive case numbers to community
spread and not origination within DPS schools.

Significantly, the DPS Board’s August 18th protocols did not become effective for
another five days until August 23rd. As part of these revised protocols, the Board
instituted a mask requirement for all schools servicing ages 12 and under on the premise
that older students are vaccine eligible despite vaccination rates for county residents ages
12-14 being 6.89% and 15-19 being 27.83%. However, the Board, bowing to pro-choice
parental preference and pressure, instituted a no questions asked blanket opt-out policy
for mask-wearing. District wide mask opt-outs correlate to race and socio-demographic
backgrounds with the overwhelming majority of opt-outs being white, middle-class
students and families. Should your office choose to investigate, this fact will be clear.
DPS maintains no mask requirement for its faculty or staff in direct classroom contact
with students despite incidences of likely teacher to student spread in certain DPS
classrooms.

As noted previously, as of the date of this letter, according to DPS statistics, 286 students
and staff have reported COVID-19 positive test results to the district. For the first week
of August 9-13, these positive cases were comprised of 35 students and 16 staff. In the
second week of August 16-20, these numbers rose to 53 students and 23 staff. Following
the DPS Board’s revised protocols with the mask mandate opt-out that became effective
on August 23rd, these numbers spiked to 121 students and 20 staff. For comparison, the
highest number of positive cases in the 2020-21 school year when masks were mandated
and an actual virtual option existed was the first week following the Christmas holiday
period and peak of the second COVID-19 wave of January 5-8, 2021 where the district
reported 52 positive students and 23 staff. Whilst seemingly crude, the no-peeing section
of a public swimming pool is analogous.

The approach of DPS to the current COVID-19 health crisis in protecting preferences
over vested statutory rights demands an investigation by the DOE Civil Rights Division
for its discriminatory effects by preventing students from protecting their health while
pursuing their rights to a free public education. The blanket mask mandate opt-out that is
being utilized primarily by one racial group is both irresponsible and detrimental to the
students actively protecting their own health and the well-being of other students and
staff. As a result of the mask opt-out, students are being segregated in classrooms along
mask wearing lines with masked students separated from those that are mask-less. Yet, as
they effectively remain in the same swimming pool, this segregation is pointless. In view
of DPS and the Board’s actions, deliberate intent to allow COVID-19 to spread through
the district is a substantiated conclusion in an apparent unfounded hope of leaving the
pandemic behind to restore normality with no thought to the directly resulting human and
financial costs. DPS is actively taking steps to undermine its own purported efforts to
institute tier based COVID-19 protocols with underreported case numbers by dis-
incentivizing testing and case reporting. DPS is also taking active steps as of the date of
this letter to alter its own quarantine requirements. These actions merit investigation. A
significant paper trail exists of these warnings discoverable by your office. DPS and the
Board have been repeatedly warned by local doctors, public health and infectious
diseases experts, and Center for Disease Control and American Academy of Pediatrics
guidelines for effective, evidence-based COVID-19 protocols, but continues to substitute
its own judgment and biases to push a “normal” school year. The case numbers and
DPS’s clear contribution to the crises facing our local community and strain on our
hospital and health is unequivocal – 268 cases out of 995 directly attributable to DPS.
The actions to protect the non-legal preference to go without a mask and to promote
normality are being promoted over the statutory rights guaranteed by Title IV of the Civil
Rights Act of 1965 and Section 504 of the Rehabilitation Act of 1973 for students to
protect their own health in pursuit of a free public education. Local advocacy for action to
protect students has failed, DPS and the Board continue to remain disconnected from the
reality of the consequences of their decisions and protections of “preferences” on the 268
students and staff suffering to date. More students and staff will become infected and
suffer if action is not taken.

If the facts and actions discussed herein are not enough for an immediate investigation,
please note that upon information and belief DPS and the Board are discussing plans to
remove quarantine requirements for school exposures within the next few days. The
district currently has hundreds of students under quarantine as of last week’s disclosures.
With alleged plans, this number will be reduced dramatically giving the appearance of
improvement in the district whilst ignoring the abject reality that without quarantining of
exposed students, all students’ health and wellbeing will be placed at increased risk
beyond the district’s ongoing mismanagement with mask requirements. DPS has already
been warned by the Georgia Department of Public Health of the need to maintain any
quarantine requirements within published guidelines. However, DPS and the Board have
a demonstrable propensity to ignore public health guidelines, particularly the CDC and
AAP on mask mandates in schools.

As Sec. Cardona aptly stated, “it’s sad we’re talking about this right now”. It is equally
disheartening that enforcement of Civil Rights era legislation originally aimed as race-
based school segregation efforts, particularly in southern states like Georgia, is now
needed to be utilized as a means to protect the health and wellbeing of school children in
a district that refuses to face the reality of the ongoing public health crisis. DPS services
7900 students, at least 209 of these have contracted COVID in the last 14 school days.
209 students, 209 individual, subjective persons suffering unnecessarily from something
DPS could have mitigated and reduced their risks. The health and well-being of the
remaining students, faculty and staff, as well as the community at large that is being
subjected to the demonstrable cost of nearly 1 out every 4 cases being attributed to DPS
in the last two weeks, remain actively at risk demanding attention and protection.

Our students and our community need help and we need help immediately. DPS is
actively contributing to this public health crisis without oversight or accountability.
Please act, please do something now, today, this week, and without delay to protect the
health of our students being sent to schools each day in pursuit of their education while
putting their wellbeing at risk due to the actions and misguided priorities of protecting
some student preference to the exclusion of all the statutorily vested rights of the majority
of others. Please contact me if I can be of any further assistance.

Sincerely,

/s/ Charles W. Smitherman, Esq., PhD