COVID Litigation - Shifting Rationales, Reopening Schools

There’s been a flood of COVID-related litigation since I last reported to you on this topic in May.  Tonight, we look at three cases - one in New Hampshire and two about reopening schools in Florida and California.

You may recall that, nationally, the lockdowns were originally justified as ‘flattening the curve’ and keeping the hospital system from being overwhelmed.  The hospitals never did get overwhelmed and the rationale for the lockdowns started shifting to waiting for a vaccine, finding a cure, and keeping everybody safe forever. 

In New Hampshire, Mary Rivard filed suit contesting the extension of the Governor’s COVID restrictions that kept her business, a hair salon, unable to open profitably.  The case is interesting because Rivard argued the original justification for the lockdown had disappeared and, therefore, the Governor’s order was unconstitutional.  At a court hearing, Rivard’s lawyer argued further that the number of fatalities, hospitalizations, and confirmed cases in the state did not meet the threshold for the Governor to declare a state of emergency, and that the pandemic turned out not to be as severe as predicted.  The state argued the Governor was following the advice of public health professionals and the virus was still around causing problems.  The case was filed in May and heard in June.  There has been no decision.

In California, the state Supreme Court took the unusual step of agreeing to hear two lawsuits about reopening schools without waiting for the cases to work their way through the lower courts.  The state’s high court has “original jurisdiction”, in cases of “great public importance that must be promptly resolved.” 

One of the cases was filed by the Orange County Board of Education.  The Board is arguing that the state’s actions restricting school reopenings violate the Equal Protection Clause of the California state constitution.  The crux of the argument is that schools in counties still on the state’s coronavirus watch list face more restrictions on reopening than schools in counties that are not on the list.  An attorney for the schools said at a press conference, “The California Constitution has an equal protection clause that says all kids… kids with special needs, minority children, poor children, kids from single parent families; they all deserve an equal education.”  The lawsuits are asking the court to give schools and parents more discretion to decide what to do.  The state was supposed to respond to the lawsuits this past Friday and a decision could be handed down as early as this coming week.

In Florida, the state ordered schools to reopen brick-and-mortar classrooms by the end of August, but Florida’s largest teachers union and the NAACP sued, claiming it was not safe to do so.  This past Monday, a Florida judge agreed it was not safe and issued a temporary injunction allowing local school boards to decide whether to reopen.  The judge wrote that the state’s order is “unconstitutional to the extent that it arbitrarily disregards safety, denies local school boards’ decision making with respect to reopening brick-and-mortar schools, and conditions funding on an approved reopening plan with a start date in August.”  The state filed a notice of appeal right after the decision.  Florida’s Education Commissioner said the lawsuit is frivolous and harms parents who want their kids back in school. 

All three cases I talked about tonight are still up in the air.  Stay tuned.