Judge denies request for temporary stop to west Michigan school closure

Beth LeBlanc
The Detroit News

A legal battle between a west Michigan Christian school and the Ottawa County Health Department is setting the stage for the most forceful challenge to date of the state’s new epidemic orders.

Libertas Christian School filed a lawsuit last Sunday against the state and local health department, challenging the state’s mask mandate. It triggered an aggressive response from the health department as it issued additional cease-and-desist orders and culminated with a Thursday order closing the premises.

The school argues that its activities — from chapel in the morning to classes that each begin with prayer — are exempt under the state’s carve-out for religious worship in both Gov. Gretchen Whitmer’s executive orders and the more recent state Department of Health and Human Services epidemic orders.

Even absent that exemption, the enforcement of the state’s orders on the religious school would violate its constitutional rights to freedom of association, freedom of religion and family integrity and education, the school argued.

Though the case could set a precedent throughout the state, the school’s leadership has little interest in that.

“We just want to be left alone,” said Bob Davis, headmaster for the school. “We just want to be left alone to pursue a classical Christian education as desired by our parents.”

The county is experiencing a spike in cases and needed cooperation from schools like Libertas to contact trace and control the outbreak, said Doug Van Essen, a lawyer for the Ottawa County Health Department.

“In addition to our diligent disease investigation process, we had numerous fearful individuals reach out to us concerned about health and safety in an environment that was not working to protect them," said Lisa Stefanovsky, administrative health officer for the department. "We hear those voices and take seriously our duty to protect our community.”

The battle between the school and health department reached a peak Friday as the school’s lead counsel, Ian Northon, asked a federal court to call an immediate halt to the school's closure by the Ottawa County Health Department and hold the health department in contempt of court. 

Western U.S. District Judge Paul Maloney denied the requests, arguing the health department did not violate any court orders and that the temporary reversal the school was requesting did not have an effect on religious liberties.

 "The closure was due to Libertas’ unwillingness to comply with orders that did not implicate religious beliefs or exercise, at least on the record before this court," wrote Maloney, an appointee of Republican former President George W. Bush.

Libertas had sued the state in federal court over the enforcement of a statewide mask mandate and a subsequent cease-and-desist order from the Ottawa County Health Department challenging the school’s refusal.

After the suit was filed, the health department issued two other cease-and-desist letters that argued the school had also avoided reporting requirements after two teachers tested positive and failed to quarantine the teachers’ second-grade students. The school has denied negligence in reporting the cases or taking appropriate precautions with the teachers.

On Thursday, under "cover of darkness," health officials posted notices to the school’s doors with a fourth quarantine order that closed the building due to COVID-19, according to the school's lawsuit.

Maloney had set an emergency hearing for Wednesday, when he plans to consider the school’s motion for a preliminary injunction.

The county used the delay between the lawsuit’s filing and the time of the emergency hearing “to shut down the constitutionally protected free association of parents and their children without any investigation or opportunity to be heard,” Northon said.

"The county has shut down the religious activities of more than 250 healthy people without basis in fact or law,” he said.

'We're not anti-mask'

Libertas Christian School grew from a home school group in a church basement to more than 250 students in a separate building in Hudsonville, Davis said. 

Some home school families still attend part-time through a partnership program at the school, which centers around faith-based learning, with praise and worship at the beginning of each day, each class and sporting events. 

In part because its roots are in the home school community, the school views itself as assisting parents in the education and faith formation of children. Each family can decide whether their child will wear a mask, Davis said, and some staff members also wear them.  

“We’re not anti-mask,” Davis said. “We just honor what parents want. It goes back to parental rights.”

The Ottawa County Health Department first sent a warning letter to the school on Sept. 25 about failing to comply with the mask mandate and gathering limitations, specifically when the students were in morning chapel. A cease-and-desist order dated Oct. 6 followed, a day after the state health department issued its mask mandate.

The school said it didn’t receive the first order until Oct. 15, at which point it corresponded with the health department about the order. The school filed suit Sunday in federal court.

After the suit was filed, the health department learned of two teachers who had tested positive for COVID-19 and who they said had not cooperated with contact tracers. The discovery prompted two additional cease-and-desist orders last Monday.

The second and third cease-and-desist orders directed the school to quarantine its second-grade students, whom the teachers had taught.

Prior to the order, the teachers consulted with their doctors and concluded they had not exposed any students to the virus before testing positive, Northon said. They remained home for the appropriate period after their diagnoses and the health department was given the doctors’ notes for both teachers, he said.

No students have tested positive for the virus, Northon said.

Despite the precautions taken, at least one teacher was pressured to release the names of her students to the health department and was told she would be apprehended if she left her home, he said. 

"They’re trying to now claim that a two-week-old potential exposure is now an imminent threat," Northon said.

The health department did not threaten the teacher, said Van Essen, the health department's lawyer. 

"I can assure you that while someone may have advised her that she had to quarantine, no one threatened to arrest her if she left her house," Van Essen said. "We are not enforcing against the teacher. We are enforcing against the school, which has a legal duty to report the close contact information."

As of Thursday, Ottawa County had 4,458 confirmed cases of the virus and 67 confirmed deaths, with a case incidence of 16,899 cases per million people. The rate is higher than Muskegon County to the north or Allegan County to south, but lower than Kent County to the east.

At about 9 p.m. Thursday, the Ottawa County Health Department posted closure signs on the doors of the school serving as "a final cease-and-desist order" for the facility, where the authorities contend there is "an ongoing outbreak of COVID-19” because of the two teachers who tested positive.

The closure — which Davis and Northon called “retaliatory” and “cowardly” — will cost the school $1,000 a day in lost tuition, said Northon, whose legal fees are being paid for by the Thomas More Society in Chicago.

“This is a school that on Thursday a week ago got told it was going to shut down because it was ‘singing in the chapel,’” Northon said. “They’re trying to comply with the laws to the best of their ability, but they will not compromise their position with the Lord.”

School argues religious exemption

The state has long had an exemption for religious services in Whitmer's executive orders and the state health department's epidemic orders. The exemption shields people attending religious worship and the churches themselves from penalties for violations of the orders. 

But Ottawa County's health department contends the exemption comes down to "a matter of how one enforces it."

"A declaration by the court stating that they have to follow them in chapel is all we are asking for on that subject," Van Essen said. "This is a deflecting issue by the school. ​​​​​​"

Besides, he said, students also are failing to wear masks in class and the school isn't following reporting requirements, a claim the school denies. 

Every class is “infused with the biblical world view” and begins with a short worship service, Davis said. “You can’t cut out a piece of our day and say that’s religious, but over here, mathematics, that’s secular." 

In its lawsuit, the school said it had increased cleaning at its facilities, encouraged hand washing, made masks and hand sanitizer available, and implemented procedures requiring sick or exposed kids to stay home. 

In addition, the school has implemented "prayer, fasting, almsgiving and traditional spiritual aids to combat disease."

Libertas said the health department's main areas of concern included the school's "morning worship assembly" or "morning chapel."

The school argued the cease-and-desist orders, underpinned by the state's epidemic orders, violated the school and its students' rights to freedom of association, due process, religious liberty and the civil right to family integrity and education. It also violates Michigan's separation of powers doctrine, the lawsuit said. 

Its suit came a week after misdemeanor charges were dropped against an Owosso barber who defied Whitmer's stay-home order and reopened last spring. 

The state had threatened to shut Barber Karl Manke's shop down but never did so.

But the governor's executive orders at issue in Manke's case are separate from the state health department's epidemic orders and quarantine rules being used in the Libertas case. 

Whitmer's executive orders at issue in Manke's case were overturned Oct. 2 by the Michigan Supreme Court when the justices ruled unanimously that she had no authority under a 1976 law to extend an emergency without the Legislature's approval and ruled 4-3 that the 1945 law also supporting her orders was unconstitutional.