Lawsuit by private schools in Michigan dismissed as moot
John WiselyA federal judge in Michigan on Monday denied a request to overturn a state order that barred in-person learning at high schools, saying the case was now moot because the order expired.
"That order expired on December 20, 2020, and it has been replaced with a new emergency order that allows all schools to open for in-person instruction as of 12:01 a.m. today," U.S. District Judge Paul Maloney of the Western District of Michigan wrote in an order dismissing the lawsuit. "As of this morning, plaintiffs have received the relief they seek, and therefore, their motion seeking injunctive relief is moot."
Three Catholic high schools and an association of nonpublic schools sued the state Dec. 7, claiming it violated their First Amendment right to practice religion when it extended a Nov. 15 order barring in-person learning in high schools.
More:Michigan Catholic high schools sue state over in-person learning ban
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Michigan Department of Health and Human Services Director Robert Gordon had extended by 12 days that November order, which applied to high schools, colleges and universities. Gordon said the order was necessary to limit the spread of COVID-19.
Preschools, elementary and middle schools, as well as boarding schools, had been allowed to offer in-person learning under the order.
The three high schools — Everest Collegiate High School and Academy in Clarkston, Fr. Gabriel Richard High School in Ann Arbor and Lansing Catholic High School — along with the Michigan Association of Non-Public Schools said they should have been allowed to do the same, noting they use rigorous safety protocols and their infection rates are very low.
The Trump administration weighed in on the case on behalf of the schools, arguing that the state order wasn't applied fairly because it included exemptions for education in kindergarten through eighth grade, special education, English language learners and some forms of technical education like auto mechanics.
"The state has made a value judgment that discounts these religious needs for in-person instruction, while privileging various other categories of instruction," wrote three lawyers from the Civil Rights Division of the Department of Justice.
Lawyers for the state argued the restrictions were needed because statistics show high schoolers are more likely to spread the coronavirus than younger students. The state also insists the order does not discriminate against religious schools.
The schools "fail to acknowledge the obvious about the restriction they challenge — it impacts all high schools, whether public or private, secular or religious," the state argued in a reply to the suit. "This distinction is crucial to all of (schools') claims because the state is in no way discriminating against religious schools — the same restriction applies to all high schools."
Lawyers for the schools and the association blasted the state, saying its response to the lawsuit "is repugnant to the Constitution and threatens our free society. The government does not get to decide just how much religion is enough."
The schools noted that tattoo parlors, nail salons, tanning booths as well as shopping malls, ice rinks and public transportation systems all remain open.
The state's "defense to this blatant disparity is that high schools are different, but it is hard to see how," lawyers for the schools argued. "Each activity brings people in close proximity to others, which carries with it an attendant risk that the virus could be transmitted."
The state said the order was needed to reduce the spread of COVID-19, especially through indoor gatherings.
Gov. Gretchen Whitmer on Friday announced that the order would expire as scheduled Sunday, ending speculation that it would be extended into the new year.
The lawsuit was one of several around the country that have raised religious liberty claims in response to shutdown orders related to COVID-19.
Contact John Wisely: 313-222-6825 or jwisely@freepress.com. On Twitter @jwisely