A judge dismissed a teachers union challenge to a map established by Gov. Jim Justice to assess coronavirus spread and determine whether West Virginia schools should be open or closed.
The West Virginia Education Association contended the map has been altered repeatedly to make it more likely that classrooms will be open and football teams will play.
At the end of a hearing that lasted about two hours, Kanawha Circuit Judge Carrie Webster described the governor’s broad emergency powers and said the court’s judgement should not be a substitute unless circumstances are extreme.
“The governor of West Virginia is the person who is supposed to take charge. When he adopts policies and procedures after a State of Emergency has been declared, this court would have to find his acts to be arbitrary and capricious or unconstitutional– so, overtly reckless – before this court would intervene,” Webster said.
“This court cannot find that he has.”
The West Virginia Education Association almost immediately expressed disappointment.
“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,” said WVEA President Dale Lee in a statement distributed by the union.
“We were not questioning the governor’s ability to act in an emergency. However, we do not believe his actions should supersede our school employees’ right to have a safe environment in which to work. We believe the continued manipulation of the map has crossed the line and created an unsafe working environment based on the numbers in certain counties.”
This was the third challenge to the color-coded map established by the state to depict covid rates in West Virginia counties. Higher levels depicted as orange or red dictate remote learning and halt extracurricular activities. Lower levels depicted as gold, yellow or green allow classroom learning.
The previous two cases filed on behalf of a parent and an athlete contended the map is unfairly applied only to schools, rather than to additional aspects of society — like restaurants, bars, gyms or churches — that might also be involved virus spread.
Those cases were also dismissed, with judges citing the governor’s broad emergency powers.
“I think it would be very hard for any judge to look at what the executive of their state is doing and essentially thwart the ability to do it unless it somehow ran afoul of the Constitution,” Webster said.
WVEA said it wasn’t disputing the emergency powers but, instead, contended the map has been distorted to the point that it puts students and employees in dangerous situations.
Lee was the only witness. He took the stand and testified about Mercer County, his home and where his daughter is a teacher.
For several recent days, Mercer County has been red — signifying the danger zone — when assessed by its infection rate. But Mercer is green– the lowest level — for its percent positivity.
State leaders have said the better of the two measurements should apply. So Mercer is green on the map and eligible for classroom instruction. Nevertheless, local officials decided to close school until Oct. 30.
Referring to his daughter, Lee said, “I would have preferred that they look at the infection rate, rather than the positivity rate, which would have put her in a more safe environment.”
Lawyers for the state Attorney General’s Office, arguing on behalf of the governor, cited the latitude of his emergency powers. They contended interfering would need to be prompted by extraordinary circumstances. And they said any challenge would have to prove irreparable harm.
“They failed to allege a concrete or imminent injury in their pleadings. At best, the alleged harm is speculative,” said Brent Wolfingbarger, a lawyer for the Attorney General’s Office, saying that to do otherwise would amount to micromanaging the governor.
West Virginia initially based its map on a version developed by Harvard Global Health Institute but then made a series of changes.
Some, state officials said, were meant to adjust for West Virginia’s relatively rural population. Others, officials said, were meant to adjust for human behavior and to encourage more coronavirus testing.
Changes have included placing smaller counties on a 14-day rolling average; having nursing home residents, corrections inmates and now some isolating college students count as one unit; altering the cutoff points for colors meant to indicate county status; and adding an additional color, gold.
Initially, West Virginia’s map counted just daily positive cases on a rolling average and adjusted for 100,000 population. State officials concluded people were holding back on getting tested because positives would count against their local numbers.
So state officials now allow use of a percent positive figure. Counties are assessed by whichever is better, the average daily positives or the percent positive. State officials say that provides greater incentive for testing.
The WVEA wanted the state to return to the Harvard version.
Webster expressed reluctance to tell the state what map to use.
“For me to grant this extraordinary relief, this petition, something more than the arguments and testimony that’s been offered would be needed to show that what West Virginia is doing, what our governor is doing is reckless and contrary to the public’s best interest,” Webster said.
She acknowledged not knowing if the governor selected the best model, but “he has the broad authority to do that which he is doing.”