CHARLESTON – Minutes before play was to begin, the state Supreme Court vacated a temporary restraining order that would have postponed the state Class AAA boys and girls soccer tournaments this weekend based on disparity of available COVID-19 testing.
Berkeley Circuit Judge Steven Redding issued the temporary restraining order November 5. Martinsburg High School soccer player Emily Beck had filed the petition seeking the order November 2, saying she and other Berkeley County high school soccer players were denied equal protection because the Secondary School Activities Commission uses the state Department of Education COVID-19 map. Redding had ordered a full hearing on the matter for November 12.
Later in the day, the SSAC filed a petition for a writ of prohibition with the Supreme Court, asking whether a Berkeley County judge has the authority to delay an event taking place in Raleigh County. The SSAC argues he doesn't have that power because he lacks jurisdiction. It also says Beck failed to establish that she likely will succeed on the merits of her case. The SSAC is being represented by Bill Wooton, who will become a state Supreme Court justice in January after having been elected to the bench in June. Beck's attorneys had until 9 a.m. November 6 to file their response.
They filed one asking the petition be denied. Gov. Jim Justice and school boards from counties with teams ready to play in the tournaments filed motions to intervene, supporting the SSAC's petition.
Just after 9 a.m. November 6, the Justices filed their order to vacate Redding's temporary restraining order. The first game began at 9:30 a.m.
"It is ordered that the temporary restraining order against the WVSSAC ... shall be and it hereby is vacated," the brief unsigned order states. "It is finally ordered that the motions for expedited consideration are refused as moot. Disposition in this matter is final and proceedings before this court have concluded."
During a November 4 hearing, Beck and her parents – attorneys Barry and Kelly Beck – argued that Berkeley County teams were unfairly left without a chance to play because the county is orange on the state’s school metric map. Berkeley County has been orange since October 17, meaning the high school sports teams there have not been allowed to play games. That includes postseason soccer games.
“At this stage of the litigation, the court finds that Ms. Beck and all other high school soccer athletes in Berkeley County have raised a significant claim that they are being denied equal protection under the law because the WVSSAC’s use of the WVDE map does not take into consideration the disparity of testing availability among the counties or the absurd reality that schools in counties with much higher infection rates are not barred from playing in the tournament,” Redding wrote in his order.
The state tournaments is taking place November 6-7 in Beckley. In fact, some teams playing in the tournament already had left for Beckley when the temporary restraining order was granted.
"The WVSSAC will be damaged or prejudiced in a way that is not correctable on appeal," the SSAC appeal states. "The state soccer tournament, scheduled more than a year in advance, is in fact already underway with teams in route to the site in Raleigh County."
Because teams from Berkeley County have been unable to play, Jefferson High School boys and girls soccer teams from neighboring Jefferson County were declared region champions. Meanwhile, Beck argued that three other girls regional champions (George Washington in Kanawha County, Parkersburg South in Wood County and Wheeling Park High School in Ohio County) all come from counties with higher percent positivity rates than Berkeley County.
They claim the lack of available testing has caused Berkeley’s positivity rate to be higher.
They also argue that the SSAC has modified criteria for other postseason sports, such as allowing cross country athletes to compete if they underwent individual testing.
Redding wrote that the Berkeley County athletes will suffer “immediate and irreparable harm” if the SSAC conducts the state tournament as scheduled.
“Simply put, if the tournament is not postponed, they will never have another opportunity to compete for a state soccer title this year,” the temporary restraining order states. “Further, Ms. Beck, like the other senior high school soccer athletes in Berkeley County, will never have another opportunity to compete in the state tournament.”
He wrote that delaying the tournament does not harm the SSAC.
“The ability to participate in high school sports is an important and integral part of our children’s overall educational experience,” Redding wrote. “Therefore, the public has a strong interest in seeing that students have an equal opportunity to participate in high school sports.
“Furthermore, because this action raises significant issues concerning the WVSSAC’s eligibility rules, the public has an interest in addressing those issues now since they are likely to arise again in connection with other sports such as volleyball, football and basketball.”
West Virginia Supreme Court of Appeals case number 20-0870 (Berkeley Circuit Court case number 20-P-337)
