CHARLESTON – A Kanawha Circuit Court judge has scheduled a show cause hearing regarding a preliminary injunction to keep state officials from enforcing the school re-entry plan.
Judge Tod Kaufman issued an order Sept. 16 setting oral arguments for Sept. 25.
Alexander McLaughlin originally filed his petition September 4 in Kanawha Circuit Court against Gov Jim Justice, the state Board of Education and the state Department of Health and Human Resources to keep them from enforcing portions of the West Virginia School Re-entry Metrics and Protocols program. The petition also seeks to compel Justice to convene the Legislature immediately to properly adopt measures to keep state government operating in a period of emergency. On September 14, McLaughlin filed the Motion For Preliminary Injunction And Rule To Show Cause.
McLaughlin
Kaufman also ordered parties to file simultaneous briefs on the issues by October 8. Reply briefs are due by October 30. Motions and proposed orders for the show causing hearing are due by September 22.
In his original 23-page petition, McLaughlin says the school re-entry program was first introduced August 14, but it was revised shortly thereafter because Justice “decided that we needed to pivot just a little bit.”
Specifically, McLaughlin seeks to prohibit the government agencies from enforcing against Kanawha County public and private schools the “unconstitutional discrimination against schools in counties that meet the criterion for ‘orange’ status prior to the scheduled September 8, 2020, school year start date.”
“Irreparable harm to our education system will result if this instant action is delayed by 30 days,” wrote McLaughlin, who has two school-aged children.
In the newly filed motion, McLaughlin says Justice’s Executive Order 68-20, which was dated September 4 (the same day as McLaughlin’s petition), discriminates against a constitutionally protected fundamental right to education “on its face.”
The current plan is a color-coded county-by-county system that measures, in general, a county’s daily average of new COVID-19 cases per 100,000 residents. Each Saturday, the statewide map is locked in for schools for the following week. Counties with the lowest cumulative average of active cases are labeled green, followed by yellow, gold, orange and red.
“Obviously, ultimately, I want my children to go to school in-person and be able to get back to life,” McLaughlin told The West Virginia Record. “My personal opinion is that we can do it safely now, and that we shouldn’t start re-introducing shutdowns until we see real evidence of demonstrable sickness – not just increased ‘cases’ defined as positive tests – and evidence that our hospitals might be stressed if we don’t act immediately.
“But, this is still a constitutional democracy and these decisions need to be made democratically, obviously not by me, but also not by the governor in closed-door sessions and especially not by special interest groups. So that’s why I filed this.”
In his motion, McLaughlin says his children haven’t been able to attend in-person classes in Kanawha County yet and may not “for many weeks to come.”
“Being denied access to the school building as a place of instruction causes irreparable harm not only from the perspective of the mental and social well-being of children and the quality of instruction they receive, but also from the perspective of equality of access to the remote education being offered,” the motion states. “For example, for those who, like petitioner, are single parents required to work outside of the home during regular school hours, and for many others for myriad reasons, there is often no adult available to sit with elementary-aged children (including my third-grader) while children attempt to participate in the virtual lessons. Kanawha County school officials acknowledge that this puts children at a special disadvantage.”
Regarding the schools, McLaughlin’s petition says “free schools” provides taxpayers with “critical childcare and child supervision for ‘free.’”
“For the students themselves, non-voters who are being isolated and kept in a seemingly permanent state of reduced productivity and lowered expectations by the governor’s decrees, ‘free schools’ has been in this state, since its inception, the single most important productive and social activity that we provide for them,” McLaughlin writes.
“Until COVID, the right to ‘schools’ and the right to ‘education’ have been regarded as essentially inseparable.”
McLaughlin says the current school re-entry plan discriminates against counties with 10 or more cases per 100,000 population, especially the “orange” and “red” counties. He says it also discriminates against essential and non-essential workers by “protecting teachers, a politically powerful group, from the obligation to show up to work and take on whatever viral perils may exist even in facilities that are able to comply with all of the social distancing, masking and hygiene protocols deemed to be sufficient for the protection of workers.” He also says it discriminates against counties that report 10 new cases per 100,000 population compared to counties that report 10 new cases of flu per 100,000 population “given that the flu is universally recognized as being a greater threat to school-age children than COVID.”
“Respondents, who conducted their meetings and deliberations regarding their school re-entry program behind closed doors, have not identified the compelling interest they seek to serve by using these discriminatory categories,” McLaughlin writes. “Governor Justice provided us with no names of any qualified infectious disease expert or epidemiologist who may have worked on this – almost certainly because there are none – and no information about what considerations went in the decision or how the metrics they chose were ‘narrowly tailored’ to meet a compelling state interest.
“Instead … it appears that the metrics and protective measures were arbitrarily chosen, as by throwing darts at a dartboard. A more sinister possibility is that these metrics and measures were tailored quite carefully to satisfy some illegitimate interest, such as the behind-the-scenes maneuvering of a powerful interest group, like the teachers’ unions, who stand to gain from the closing of school buildings by receiving full pay for performing only a small portion of their contractual duties, and by being relieved entirely of their contractual obligation to supervise our children while parents work, while lower-paid daycare workers are forced to assume whatever perils may genuinely be associated with supervising children.”
As for the Legislature being convened, McLaughlin’s petition notes that it appears Justice “does not believe that he is under any obligation to convene the Legislature to legislate, and that he can, in secrecy, convene a panel of undisclosed ‘people from West Virginia, out of state and around the world, our medical experts, the education community, our teachers and counties, and many more’ to restrict, modify and otherwise alter the right of the people to freedom of movement, freedom of assembly, the right to education and the right to ‘free school’ embedded in West Virginia Constitution for so long as he, in his sole discretion, declares that an emergency exists, or at least until the Legislature convenes itself.”
McLaughlin says the Legislature lacks the will or strength to convene even remotely to hold public hearings, to investigate facts, to take testimony from experts and citizens, to consider data and to pass laws for the continuity of the government during the COVID pandemic.
“The West Virginia Constitution does not tolerate the governor’s indefinite usurpation of the legislative power in times of disaster or emergency, nor does it tolerate the Legislature’s abdication of that power,” McLaughlin writes.
“The governor must also convene the Legislature because the governor, in promulgating the School Re-entry Metrics and Protocols program and then almost immediately revising it in secret over a single weekend, is making the laws, not enforcing them.”
McLaughlin seeks a Writ of Mandamus and/or Prohibition prohibiting the respondents from enforcing in Kanawha County against public and private schools the “orange” level provisions of the school re-entry plan.
Also, McLaughlin seeks a Writ of Mandamus and/or Prohibition requiring Justice to immediately convene a special session of the Legislature to properly continue government operations.
Kanawha Circuit Court case number 20-P-246