A Kanawha County parent who filed a petition to keep the West Virginia government from enforcing the color-coded school reopening map has filed an additional motion asking the judge for an immediate ruling on the case.
Alex McLaughlin, a Charleston attorney and parent to two school-aged children, filed the motion Monday for a preliminary injunction and rule to show cause in the case. McLaughlin filed the original petition Sept. 4, calling portions of the color map unconstitutional because it has consequences only for school children.
The case was filed in Kanawha County Circuit Court and assigned to Judge Tod Kaufman.
McLaughlin wrote in the motion that irreparable harm is happening to his children while they remain out of school and are forced into virtual learning.
“Being denied access to the school building as a place of instruction causes irreparable harm, not only from the perspective of the mental and social well-being of children and the quality of instruction they receive, but also from the perspective of the equality of access to the remote education being offered,” the motion argues.
Under the West Virginia Constitution, children have the right to assemble and attend school. McLaughlin wrote that the color-coded map has consequences only for children attending school, a constitutionally privileged activity, while not prohibiting any other forms of private assembly, including “child care, dining, drinking, movie-viewing, gambling and playing bingo ... other traditional ‘camp’ activities, exercise and recreation [and] weddings.”
Providing a place of instruction is one of the three “integral fundamental part[s]” of the fundamental right to an education under the state constitution, McLaughlin wrote, and denying children this right goes against previous rulings by the West Virginia Supreme Court.
The state is discriminating against the use and occupancy of only educational buildings in red or orange counties, the motion argues, while it continues to allow buildings to be used for “essentially every other purpose” aside from live music, festivals and other mass-gathering entertainment.
“[This] basically guarantees that counties that turn ‘orange’ under the school re-entry program will remain orange for longer than they would if, for example, restaurants, bars, casinos, and many other indoor venues where people are currently allowed to gather, were also closed,” McLaughlin wrote.
Gov. Jim Justice again adjusted the color-coded map on Tuesday, creating a “gold” level between yellow and orange. If a county reaches the gold level, which is 10 to 14.9 positive COVID-19 cases per 100,000 residents on a seven-day rolling average, in-person schooling will be permitted.
Of the counties that were orange on the school reentry map released Saturday, only two — Kanawha and Monroe — remained orange after the governor’s decision. Monongalia County remained red.
Brian Abraham, counsel for the Governor’s Office, said by phone Tuesday the office has retained the Bailey & Glasser law firm to handle the case, and “they’re going to be responding in the very near future on our behalf.”
McLaughlin’s motion asks the judge to show cause, which requires the Governor’s Office, the Department of Education and the Department of Health and Human Resources to come forward with arguments and evidence that dispute McLaughlin’s arguments. The original petition also called for Justice to reconvene the West Virginia Legislature to address the state’s coronavirus response.