A Kanawha County parent has filed a petition to keep the state government from enforcing portions of the color-coded school reopening map and protocols while calling for Gov. Jim Justice to reconvene the West Virginia Legislature.
Alex McLaughlin, a Charleston attorney and parent to two school-aged children, filed the petition Friday in Kanawha Circuit Court. Judge Tod Kaufman was assigned the case.
The petition argues that the color-coded map and protocols violate the Equal Protection Clause of the West Virginia Constitution because they discriminate against counties that turn orange or red. It also says they block children’s rights to “free schools,” as granted under the state constitution.
The map only has consequences for children attending school, a constitutionally privileged activity, while not prohibiting any other forms of private assembly, such as drinking in bars, the petition says.
“Students are being singled out and their assembly is being restricted, while adults are permitted to assemble, and other kinds of assemblies are being permitted, and that is not justified under the [West Virginia] Constitution,” McLaughlin said by phone.
If stopping community transmission of COVID-19 was truly the state’s concern, the petition argues, “then it is impossible to justify the discriminatory focus on children and the closing of schools and school sports, while adults are free to assemble in their customary venues for socializing, recreation, exercise and work — such as at bars, gyms, weddings, parties, stores and office buildings.”
McLaughlin wrote that Justice was “making the laws, not enforcing them” when the governor introduced the color-coded map, and then adjusted it.
The petition argues that the governor has unlawfully kept the Legislature out of session since the coronavirus lockdown was ordered in March.
The Governor’s Office declined to comment for this report.
The petition cites the provision in the West Virginia Constitution that imposes an “immediate duty” on the Legislature, in the event of an emergency or disaster, to adopt measures that ensure “the continuity of governmental operations.” In this case, making sure children have access to schools.
The petition asserts that Justice should have called the Legislature back into session months ago to conduct hearings and take testimony related to COVID-19. It adds that West Virginia parents have waited the entire summer for decisive action on continuing education.
McLaughlin said concerned citizens should not be forced to write to the president or governor in times of emergency, but rather to their local delegates, representatives and senators who were elected to hear concerns and pass laws.
The petition also addresses the West Virginia Department of Health and Human Resources and the state Board of Education.