The U.S. Department of Justice has 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 on Friday 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 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.”
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. 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.
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.
“Here, an injunction would represent a deep, unwarranted intrusion into Michigan’s sovereignty and its traditional police powers,” the attorneys wrote.
A hearing on the schools’ motion for preliminary injunction is set for 1 p.m. Monday before U.S. District Judge Paul L. Maloney.