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Kanawha County parent challenges W.Va. school re-entry plan in court

CHARLESTON — A request for a preliminary injunction was filed in Kanawha County Circuit Court Monday to block enforcement of Gov. Jim Justice’s executive orders for school re-entry and his color-coded school re-entry map.

Kanawha County resident Alex McLaughlin, a parent, filed for the injunction to block enforcement of an executive order requiring county public school systems and private schools to abide by the County Alert System color-coded map updated every Saturday by the Department of Education.

The County Alert System map and determines whether a county can have in-person school or if they need to close and switch to distance learning depending on the spread of COVID-19 cases in the county. The system also determines whether schools can have sports or extracurricular activities.

The colors range from green, yellow, gold, orange and red depending on either the percentage of positivity in a county or the number of cases per 100,000 people based on either a seven-day or 14-day rolling average depending on the size of the county.

In his court filing, McLaughlin said the executive order is discriminatory and violates the U.S. and West Virginia constitutions.

“As it is written, Executive Order No. 68-20 discriminates against a constitutionally protected fundamental right-the right to education-on its face, by prohibiting…all assemblies organized by ‘[K-12] educational institutions’ for the purpose of ‘in-person instruction’ while permitting assemblies for all other purposes (unless generally prohibited), such as child care, dining, drinking, movie-viewing, gambling and playing bingo, crafting and other traditional ‘camp’ activities, exercise and recreation, weddings and socializing…,” McLaughlin wrote.

McLaughlin, a single parent who has two children, one who attends a private school and one who attends a public school in Kanawha County, said the mental and social well-being of school children outweighs the risks of opening schools in counties where the coronavirus is spreading. Kanawha County accounts for nearly 25 percent of all active COVID-19 cases in the state, with 746 active cases as of Wednesday.

“Covid-19 does not know or care whether the assembled children in a room are engaged in learning, crafting or playing bingo,” McLaughlin wrote. “Nor does the virus know or care whether the adult directing the activity is a daycare counselor, a camp counselor, a bingo caller or a certified teacher.”

“Worse still, in a complete inversion of our constitutional priorities and rights, the purpose singled out for discriminatory treatment under EO No. 68-20 is a constitutionally protected fundamental right, the right to a thorough and efficient education, including the explicit right to ‘free schools.'” McLaughlin continued. “Because, in this case, the discriminatory category itself-education-is a constitutionally-protected fundamental right, Respondents’ school re-entry program and EO No. 68-20 are textbook examples of unconstitutional infringements on a fundamental right.”

McLaughlin first filed a petition for mandamus against Justice, the Department of Health and Human Resources, and the West Virginia Board of Education on Sept. 4. In the petition, McLaughlin asked the court to order Justice to call a special session of the West Virginia Legislature and prohibit Justice and state health and education officials from enforcing the school re-entry executive order and metrics.

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