Judge dismisses PPO against Rep. Marino after review of 'totality of circumstances'

Religious, private schools sue Michigan health official over COVID restrictions

Mark Hicks
The Detroit News

A group of religious and private schools as well as parents whose students attend the schools are suing Michigan's top health official over the latest state restrictions halting in-person instruction, alleging such actions are unfair, violate constitutional rights and fail "to advance the common good."

"The Order is a one-size-must-fit-all directive that does not allow flexibility or tailoring by schools to allow in-person religious formation," read the federal lawsuit against Michigan Department of Health and Human Services Director Robert Gordon that was filed Monday in U.S. District Court for the Western District of Michigan.

"Under Michigan law, anyone who fails to obey the Order is guilty of a misdemeanor and may be imprisoned for up to six months. ... Although all high schools must shut down, the Order expressly allows many other locations and entities to continue in-person activities."

Robert Gordon, director of the Michigan Department of Health and Human Services,  has been sued by a group of religious and private schools, who say state restrictions halting in-person instruction violate their constitutional rights.

The complaint from the Michigan Association of Non-Public Schools and members came the same day Gov. Gretchen Whitmer announced extended closures for some businesses, banned indoor dining at restaurants, and suspended in-person instruction at high schools through Dec. 20 amid rising COVID-19 cases.

The initial three-week "Pause to Save Lives" order announced last month had been set to end at 11:59 p.m. Tuesday.

According to the federal lawsuit Everest Collegiate High School and Academy in Clarkston, Lansing Catholic High School and Father Gabriel Richard High School in Ann Arbor spent thousands of dollars to implement "strong, effective and proven preventative measures against the transmission of COVID-19, while still allowing in-person instruction and formation" this academic year.

Virus transmission related to the schools "is extremely limited," their lawyers wrote in the filing.

Everest, which has 357 students in preschool through 12th grade, reported no cases this fall, according to the document.

Lansing Catholic, which has about 437 students and 43 faculty members, reported 15 positive cases that were believed to have been contracted off-campus, the Diocese of Lansing said in a statement Monday.

“All the evidence shows that during the three months we had in-person education at Lansing Catholic there were no COVID-19 outbreaks; no spread of COVID-19; and no hospitalizations of students or staff, thus adding no burden to our healthcare system,” Dominic Iocco, president of Lansing Catholic High School, said in the statement.

Father Gabriel Richard High, which has 468 students and 47 faculty, reported 27 cases believed to have been contracted off campus, the diocese said.

The pandemic orders deprive students who attend Michigan Association of Non-Public Schools members "the religious formation and community that is at the core of their faith and the very reason for their enrollment," the filing said. "Forbidding students from attending religious schools that have protective measures in place, and while permitting countless other gatherings that pose equal or higher risks, is irrational and arbitrary."

In a statement Monday, Dr. Christopher Abood said his family chose to enroll their son at Lansing Catholic "because we firmly believe that the human person is both soul and body and that the practice of our faith demands certain physical elements, such as the reception of the Holy Eucharist and Sacrament of Reconciliation, that cannot be accomplished through video chats and other technological means."

In a statement Tuesday, Lynn Sutfin, a spokeswoman for the Michigan Department of Health and Human Services, said the restrictions are aimed at limiting the virus spread. 

"We will be monitoring three data points very carefully over the next 12 days with the goal of slowly reopening schools, businesses and other activities as we see significant progress in these measures," she said. "In-person learning at high schools is one of the first priorities because of their unique value for kids, families and our future. The order rests firmly on epidemic powers given to the director of the Michigan Department of Health and Human Services after the Spanish Flu a century ago."

Sutfin added: "The sooner Michiganders put a pause on indoor social gatherings, the more lives we will save, and the sooner we will be able to resume our normal lives."

The lawsuit seeks a judgment allowing the schools to conduct in-person instruction and activities as well as a declaration that such schooling must be determined on a case-by-case basis. 

Dr. Joneigh Khaldun, the state's chief medical executive, on Monday said coronavirus infection rates remain "alarmingly high," and Gordon noted Michigan has seen a "surge" in COVID-related deaths.

On Tuesday, Michigan reported 10,000 deaths related to COVID-19 since March; the state reported a daily total of 5,909 cases and 191 deaths from the virus, of which 79 of the deaths were identified during a delayed records review, the state said Tuesday.

The state reported 45,015 new cases last week, 47,316 the previous week and established a weekly record of 50,892 three weeks ago. The state was averaging nearly 84 daily cases per 100,000 people in the last week — the 10th-highest rate in the country, according to the Centers for Disease Control and Prevention. 

While the number of outbreaks in Michigan public schools and higher-education institutions dips slightly, the state reported 34 new ones Monday, all at pre-K through 12 schools, and 98 virus cases among them, officials said.

An outbreak is defined as two or more COVID-19 cases among people who are from different households but might have shared exposure.