Judge denies advocacy group's bid to stop COVID-19 rules for student athletes

Mark Hicks
The Detroit News

A judge on Wednesday denied an advocacy group’s request to halt COVID-19 testing for state school athletes and other measures health officials instituted amid the pandemic.

The group Let Them Play Michigan, which this year sued after Gov. Gretchen Whitmer extended a lockdown order on high school sports, filed a lawsuit this month challenging the rapid testing requirements of youths age 13-19 practicing and playing on teams.  

The suit questioned the authority to impose the order and subsequent guidance while arguing that “student-athletes have endured unilateral orders enacted by Executive Branch officials that severely restrict their ability to freely associate with one another and compete in high school sports.”

The group also criticized how the Michigan Department of Health and Human Services director, led by director Elizabeth Hertel, issued orders in light of the state’s Administrative Procedures Act, or APA, saying the rules "were invalidly promulgated without any opportunity for public participation."

FILE - High school athletes and parents gathered on the Capitol lawn Friday, Aug. 28, 2020 to protest changes to the high school athletic season during a "Let them play" rally.

In his opinion and order Wednesday denying Let Them Play’s motion for a preliminary injunction, Michigan Court of Claims Judge Michael Kelly said the “plaintiffs are not generally disputing defendant’s ability to take measures to regulate or set parameters relating to public health. The issue, according to plaintiffs, is how defendant went about the task of regulating matters affecting public health.”

He said the group had “not demonstrated an ability to succeed on the merits of their APA claim” and state law “plainly gives the MDHHS director authority to issue emergency orders in order to control an ongoing epidemic. This permissive grant of authority expressly authorizes the very action taken in this case as it concerns emergency orders.”

Since the Michigan Supreme Court struck down the emergency orders of Gov. Gretchen Whitmer in October, the state Department of Health and Human Services has issued epidemic orders under the public health code. 

Addressing the group’s claim that the state rules violated their right to procedural due process, the judge said: “Plaintiffs have not cited authority for the notion that they have a liberty interest or a property interest in participating in interscholastic athletics, and case law opposes the idea that such an interest exists. … In addition to failing to show a likelihood of success on the merits, plaintiffs have also fallen short with regard to demonstrating a particularized showing of irreparable harm.”

Reached Wednesday, Peter Ruddell, a lawyer for Let Them Play, told The Detroit News: “We are disappointed the judge did not grant the extraordinary relief we requested, but are looking forward to full adjudication of our claims.”

Michigan health officials on March 19 issued a new epidemic order requiring rapid testing for all youth athletes ages 13-19.  The state provides the rapid tests, but the schools and clubs decide who performs the testing and reports the results. 

Under the state guidelines, young athletes who test positive after a weekly rapid coronavirus test cannot return to practice or play on a team for the duration of their infection until they get a negative test.

In a video posted Wednesday on Facebook for Let Them Play, Jayme McElvany, a Michigan mother leading the effort, said the group would continue fighting.

"With summer almost being here we don’t want to stop the fight because then we have fall coming," she said. "We're not going to stop these things and then have to start all over again. So we’re still going to push forward with our case."

The Court of Claims order came as Michigan on Wednesday added 4,371 cases and 38 deaths from the coronavirus. The latest figures bring the state's cases to 833,891 and deaths to 17,467 since the virus was first detected in March 2020, according to the MDHHS.

The state continues to lead the nation in new cases per capita for four straight weeks despite a third of its residents being fully vaccinated.

The percentage of COVID-19 tests bringing positive results has decreased after eight weeks of increases and is at 12.2%.

As of Tuesday, 3,374 people were hospitalized with COVID-19, with 843 in an intensive care unit and 534 on ventilators. 

The state is tracking 1,277 active outbreaks including 42 new school outbreaks since last week at education institutions including K-12 public and private schools.

In early April, Whitmer strongly urged a two-week pause for youth sports, in-person high school classes and in-door dining.

Her administration had been relaxing restrictions in Michigan in late January, February and early March before the spring surge gained strength. 

On Tuesday, the governor said she "would anticipate forthcoming policy changes potentially that will feel a little bit more normal for all of us."