CHARLESTON, WV (WOWK) – Kanawha County Circuit Court Judge Carrie Webster dismissed the West Virginia Education Association’s injunction to challenge the safety of the state’s school re-entry map.

The judge said the case lacked subject matter jurisdiction and the petition initially filed by WVEA had a lack of concrete injury.

Dale Lee, President of the WVEA said he is disappointed with the outcome of the hearing. The injunction sought to adopt a new system to determine school re-entry. Lee announced the organization’s intention to file earlier this month.

“We are disappointed in the outcome of today’s hearing. By choosing to use the lesser of the infection rate or the percentage of positive tests, WVEA and its members believe the governor’s color-coded map changes have created a false picture of COVID spread,” Lee said. “That has resulted in both education employees and students being placed in unsafe situations.

Lee and the WVEA say they are concerned because while the state’s COVID-19 numbers continue to rise, with 335 new cases reported as of 10 a.m. this morning, Friday, Oct. 23, the school re-entry map becomes greener.

As of the map released by the West Virginia Department of Education on Oct. 19, two counties were red, six were orange, five were gold, 17 were yellow and 25 were green. That map will be updated again Saturday, Oct. 24 at 5 p.m. for the upcoming school week.

As of 10 a.m. Friday morning, the West Virginia Department of Health and Human Resources daily County Alert System map listed one county in red, seven counties in orange, six counties in gold, nine counties in yellow and 32 counties in green.

We have multiple schools across the state dealing with closure and quarantine due to the number of active COVID cases in the community that have been brought into our schools,” Lee said. “To be frank, we knew we were fighting an uphill battle in challenging the governor’s changes in the map. Nevertheless, we needed to explore every possible avenue on behalf of our members’ and students’ safety.”

The WVEA says they are not questioning West Virginia Gov. Jim Justice’s ability to act in an emergency, but says those actions should not supersede school employees’ right to a safe work environment. They say the alleged “continued manipulation of the map” has crossed that line and created unsafe working environments.

“Many of our educators are working in situations where social distancing cannot be accomplished. The green on the governor’s map gives a sense of false security and has caused many school systems to move to a five-day in-person level of instruction. The lack of space and the increased number of students per session has led to unsafe situations.”

In a survey in August, two-thirds of educators indicated they fell into an at-risk category for COVID-19 due to age, health issues or roles as caregivers.

The organization says it plans to work with county superintendents and explore other options to keep schools safe for students and employees during the pandemic.