UPDATE: The SSAC filed a petition with the state Supreme Court Thursday evening in an attempt to get the TRO overturned. The Court has given the plaintiffs in the case until 9 a.m. Friday to file a written response. The High Court has not yet decided to take up the case.
MARTINSBURG, W.Va. — A Berkeley County circuit judge issued a temporary restraining order Thursday stopping the state AAA high school boys and girls soccer tournament set for this weekend in Beckley over what he said was a COVID-19 testing disparity.
Judge Steven Redding said Martinsburg High School soccer player Emily Beck and other high school soccer players in Berkeley County are being denied equal protection under the law by the West Virginia Secondary Schools Activities Commission use of the state Department of Education COVID-19 map
“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.
The percent positivity metric is the total number of individuals who test positive divided by the total number of individuals tested.
Beck and her parents, attorneys Barry and Kelly Beck, argued Wednesday the Berkeley County teams were shut out by default because of their orange status on the state’s school metric map.
The petition claimed Berkeley County athletes were denied equal protection under the law because they had not had access to the amount of testing other counties had.
They argued that during the month of October Kanawha County residents were afforded at least 83 hours of unscheduled free testing throughout the county in addition to testing offered at local pharmacies. ….”On Friday October 30th Kanawha County had an infection rate of 23.26 per 100,000 but had a positivity rate of 2.97. By comparison Berkeley County residents had approximately forty-eight hours of unscheduled free testing.”
SSAC Executive Director Bernie Dolan said during Wednesday night’s MetroNews High School Sportsline testing had been offered in the Eastern Panhandle but he was told participation was low.
“When you look at the Eastern Panhandle, that is a huge community over there and it was not overwhelmed with testing,” Dolan said. “I talked to General Hoyer (Major General James A. Hoyer) and the person who was in charge of testing, I said, ‘Did you turn anybody away? Were you overwhelmed with the number?’ It was pretty much that they were underwhelmed with the amount of people who came out to get tested. I think we can make all the options we want. But until the people make a commitment to go get tested, I am not sure there is anything we can do to force them to go get tested.”
Redding’s order is a temporary restraining order. He’s scheduled a full hearing on the case for Thursday, Nov. 12.
Several AAA teams, including the Wheeling Park girls team, had already left for Beckley when the order came down late Thursday morning.
Let’s go!!!!! pic.twitter.com/26kL7iI9Ra
— Ohio County Schools (@OhioCounty1) November 5, 2020