Feds side with Michigan religious schools in suit over COVID restrictions

Melissa Nann Burke
The Detroit News

The U.S. Department of Justice on Friday sided with religious and private schools in Michigan that brought a lawsuit challenging the state's latest restrictions halting in-person high school instruction due to the coronavirus pandemic.

The Justice Department filed a statement of interest in the U.S. District Court for the Western District of Michigan in support of the plaintiff schools' motion to halt the shutdown of in-person instruction, arguing the move was unlawful and violated the students' constitutional right to free exercise of religion. 

The department in its filing challenged Michigan to justify why it cannot allow exemptions for in-person instruction at religious high schools when it provided carve-outs for trade and technical classes in high schools and colleges, for students in elementary and middle school, for special education and for college sports teams. 

The Justice Department has charged five Chinese citizens with hacks targeting more than 100 companies and institutions in the United States and elsewhere, officials said Wednesday.

“The education of children is a matter of faith to many people, and the Free Exercise Clause of First Amendment to the United States Constitution protects religious education," Eric Dreiband, assistant attorney general for the DOJ's Civil Rights Division, said in a statement.

"The Free Exercise Clause does not protect nonreligious activities such as trade and technical classes and college sports."

Gov. Gretchen Whitmer's office on Friday defended the closure of high schools, saying the protocols are reasonable and backed by both science and the law, applying to all high schools, which as a category have been a "driver of spread." 

“Not only has the Trump administration made it clear that they won’t protect American families, front-line workers and small businesses from the spread of COVID-19, but they’re also fighting against leaders like those here in Michigan who are following the recommendations of health experts and working to eradicate COVID-19,” Whitmer spokeswoman Tiffany Brown said.

“Here in Michigan, the Department of Health and Human Services put in place temporary protocols pausing in-person learning in high schools to limit indoor gatherings where the virus can spread easily from person to person. We are looking to reopen high schools as soon as we can do so safely."

The Michigan Attorney General's Office declined to comment on pending litigation.

The state's response to the lawsuit this week urged the court to deny the relief sought by the plaintiff schools. It stressed that Michigan is "in the throes" of a second wave of COVID-19, with deaths and hospitalizations soaring and case counts regularly hitting daily records. The state surpassed 10,000 COVID-linked deaths this week.

"Under our system of ordered liberty, everyone must do their part for the benefit of all. High schools of all stripes are among those who have to shoulder certain burdens," lawyers for the state argued in court papers.

"There is no constitutional impediment to regulating schools as schools, particularly in the context of this public health crisis."

A group of religious and private schools and parents filed suit Monday against the state's top health official, Robert Gordon, arguing the COVID restrictions announced that day were unfair, violate constitutional rights and fail "to advance the common good."

The suit argues that aspects of a Catholic education must be carried out in person, such as daily Mass and communal prayer throughout the school day. The plaintiffs include three Catholic high schools, parents of students at those schools and the Michigan Association of Non-Public Schools. 

The legal brief filed by Dreiband and his deputy says "differential" treatment of religious reasons for in‑person learning and various secular reasons for in-person activities "must be justified by a compelling government interest carried out through the least restrictive means."

They claim the state has failed to do so, saying officials are singling out particular religious conduct for adverse treatment.

"The state has made a value judgment that discounts these religious needs for in-person instruction, while privileging various other categories of instruction," Dreiband wrote. "This is neither neutral nor generally applicable."

Attorneys for the state argue the opposite — that the restriction on in-person instruction applies generally to all high schools, whether they are public or private, secular or religious. 

"This distinction is crucial to all of plaintiffs’ claims because the State is in no way discriminating against religious schools — the same restriction applies to all high schools," wrote lawyers representing Gordon on behalf of the Michigan Attorney General's Office. 

The attorneys for the state said Monday's order from the state Department of Health and Human Services was grounded in public health data that has tracked 96 outbreaks in the state to high schools.

Also, they said early data has suggested that high-school-aged children contract and spread the virus at greater rates than elementary-school kids.

The state rejected the assertion that the schools will be irreparably harmed by the requirement to provide remote instruction for the next six school days, noting the health department's order is temporary and expires Dec. 20.

They also pointed out that schools are headed into a holiday break. For example, plaintiffs Lansing Catholic High School and Father Gabriel Richard High School will have to host online learning for six days before their scheduled Christmas breaks start Dec. 21.

"Here, an injunction would represent a deep, unwarranted intrusion into Michigan’s sovereignty and its traditional police powers," the attorneys wrote. 

"Judicial tinkering in a public health crisis will have unintended consequences resulting in a patchwork of one-off carve-outs for litigants who race to the courthouse while others accept and comply with the law. The result will be more litigation, not less, as well as diminished public confidence in the pandemic response." 

A hearing on the schools' motion for preliminary injunction is set for 1 p.m. Monday before U.S. District Judge Paul L. Maloney.