A Kanawha circuit judge dismissed a parent’s lawsuit that claimed Gov. Jim Justice is unevenly applying precautions for the coronavirus pandemic to shut some school systems while other aspects of daily life like bars and restaurants go on.
Kanawha Circuit Judge Tod Kaufman also denied a motion for preliminary injunction that had been requested by Alex McLaughlin, a lawyer who had filed the lawsuit over his daughter’s educational status.
At the conclusion of a hearing that lasted almost two hours, Kaufman announced his decisions and described how close West Virginia is to the next election when citizens can select its statewide decision makers.
Gov. Jim Justice and his administration established a color-coded map tracking the spread of coronavirus in West Virginia that designates school status.
Counties depicted as red or orange have to conduct school remotely. Kanawha and some other counties have not yet been able to start classroom instruction.
The map does not affect other aspects of society except for visitation at nursing homes. However, the governor has issued executive orders affecting occupancy in businesses such as restaurants and bars.
The state Constitution provides a guarantee for a “thorough and efficient education of free schools.”
McLaughlin has a young daughter who transferred from the public Kanawha City Elementary to Sacred Heart Elementary, a Catholic school, this fall. His hope was that although Kanawha County public schools were remaining shut down because of the virus that the Catholic school might provide classroom learning.
Instead, even with the transfer, his daughter has been receiving her education through online instruction and educational packets this fall. McLaughlin said no one is around to help her during the day except her 15-year-old brother.
“She has been denied the access to go to school where she would have a plan for education, an opportunity for social interaction and have a teacher supervising her,” McLaughlin said.
“I come home and I spent three hours almost every night doing work with her that she should have been doing in school.”
Kaufman then asked, “How’s that going?”
McLaughlin responded, “It’s going miserably.”
Shortly after that Kaufman asked, “What do you think the governor should do about that? What constitutionally do you think he should do about that?
McLaughlin said that if the governor believes a lockdown would suppress the spread of virus then it should be neutral, applying to other activities as well as schools. “He’s infringed on the right to education,” he said.
The governor has been issuing emergency orders under separate powers in the Constitution and state code.
The orders cite powers giving the governor the authority “to control ingress and egress to and from a disaster area or an area where large-scale threat exists, the movement of persons within the area and the occupancy of premises therein.”
In other words, Justice has been citing the large-scale threat of the virus to restrict people’s movements.
Lawyers for the state, particularly attorney Ben Bailey, argued that schools differ from other aspects of society because children gather in close contact for hours each day.
“They just can’t be operated when the rate of infection in the community or the rate of the positivity index is, in the best judgment of the people empowered to make the decision, too high,” Bailey said.
Bailey argued that other places where people gather — bars, restaurants, ice cream shops, gyms — also have restrictions, including the limited time people spend there.
As an example, he described the very courtroom where the hearing was taking place.
“Look at this courtroom judge. To protect each other we wear masks. We have screens. We sit six feet apart,” Bailey said. “You can’t run a school this way. It’s not possible.”
Lawyers for the state also questioned some aspects of McLaughlin’s standing.
One question was whether McLaughlin, the parent, could prove he’d suffered specific harm aside from having to help with homework at night.
And there were lengthy periods of questioning over whether the McLaughlin family maintains a constitutional right to a thorough and efficient education, or whether that was set aside when his daughter enrolled in the Catholic school.
McLaughlin argued that right does not go away even if a family makes a choice for private school.
“It’s a right that resides to parents and to school children,” he said. “Both of them have the right.”
Alex McLoughlin, Charleston Attorney, talks with @HoppyKercheval about the petition he filed challenging Governor Justice’s emergency orders/metric for public schools. WATCH: https://t.co/wkudfIRZCB pic.twitter.com/03wYJD1g4p
— MetroNews (@WVMetroNews) September 25, 2020