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School Reopening Hearing

Attorney Alex McLaughlin makes a point during the school reopening hearing on Sept. 25.

Nearly six weeks ago, a Charleston attorney and parent of two school-aged children tried to have the state’s color-coded school reopening map thrown out in court, arguing the map unlawfully discriminates against children.

Kanawha County Circuit Judge Tod Kaufman heard Alex McLaughlin’s argument Sept. 25, but dismissed the case for a number of reasons. In an order issued Tuesday, Kaufman explained why he rejected McLaughlin’s argument and upheld the state’s use of the map.

The strongest argument for Gov. Jim Justice, the Department of Health and Human Resources and the Department of Education, Kaufman wrote, is McLaughlin’s children attended private school at the time of the case. McLaughlin argued his elementary school-aged daughter would have attended public school had they been open at the beginning of the school year, and it’s his right under the state Constitution to utilize the public school system at any time.

Under the West Virginia Constitution, school children are guaranteed “a thorough and efficient system of free schools,” which McLaughlin argued should be grounds to have the color map thrown out of use. He said the map unfairly discriminates against children attending public school — a constitutionally privileged activity in West Virginia — yet the map doesn’t have consequences for adults who continue to spread the virus at an increasing rate.

Kaufman ruled McLaughlin’s children were not public school children, and he had no standing to bring this case against the Department of Education.

Kaufman also cited the ruling in the 1996 case Phillip Leon M. v. Greenbrier County Board of Education, which found “a safe and secure school environment” must be present to ensure thorough and efficient schooling.

“Without a safe and secure environment, a school is unable to fulfill its basic purpose of providing an education,” Greenbrier Circuit Judge George Scott found.

This argument coincided with Dr. Clay Marsh’s affidavit in the McLaughlin case. Marsh, the state’s coronavirus czar, wrote schoolchildren in counties with high transmission rates who are forced to attend in-person classes for eight hours a day would put children and their families at greater risk.

Kaufman also found that if he issued an injunction to stop the use of the map, the harm to the state would be far greater than the harm to McLaughlin.

“An injunction would derail the swift, concerted efforts of the governor and various state agencies and would cause irreparable harm to the [state] by undermining the governor’s emergency powers, contravening the separation of powers and restricting the government’s ability to respond to future crises,” Kaufman wrote.

Striking down the map would also run counter to the public’s interest, Kaufman wrote.

“The [state’s] response to the pandemic and their efforts to reopen schools safely should be driven by public health and public interest,” Kaufman wrote. “Educating our youth and providing a robust education is critical, but ... efforts to keep the people of West Virginia safe outweighs the concerns of sending children back to in-person instruction in the midst of a pandemic that quickly spreads when people are closely congregated.”

Reach Joe Severino at joe.severino@wvgazettemail.com, 304-348-4814 or follow @jj_severino on Twitter.