By STEVEN ALLEN ADAMS, Parkersburg News and Sentinel
For The West Virginia Press Association
CHARLESTON, W.Va. – A third attempt to challenge the color-coded map and metrics for reopening schools in West Virginia failed Friday as a Kanawha County judge upheld the current standards.
Kanawha County Circuit Judge Carrie Webster ruled against a motion filed by the West Virginia Education Association for a preliminary injunction to block the current version of metrics used in making school reopening decisions.
Webster heard arguments from attorneys for the WVEA and Gov. Jim Justice. The hearing was held Friday afternoon in the ceremonial courtroom of the Kanawha County Courthouse in downtown Charleston.
“In this case, the Governor of West Virginia is the person who is supposed to take charge,” Webster said. “When he adopts policies and procedures after a state of emergency has been declared, then this court would have to find, I believe, his acts to be arbitrary and capricious or unconstitutional or so overtly reckless before this court would intervene. This court cannot find he has.”
The WVEA filed the injunction against Justice seeking a preliminary injunction to block implementation of the County Alert System color-coded map and the metrics used to determine the colors based on the incidence rate of cases per 100,000 and the positivity rate based on the number cases compared to the number of tests in a county.
WVEA President Dale Lee has accused Justice of forcing state health officials to change the metrics and color codes multiple times since unveiling the County Alert System plan in August. Lee said the changes were made in order to manipulate schools to reopen for in-person classes and to allow extracurricular activities, such as fall sports.
After Friday’s ruling, Lee said he was disappointed, adding it was too soon to say whether the WVEA would appeal Webster’s ruling to the West Virginia Supreme Court of Appeals.
“We’re very disappointed in the ruling, but we knew it was a long shot to begin with,” Lee said. “We have an obligation to our members and the students of West Virginia to do everything to ensure their safety. The evidence we presented … just shows there are problems with the system and that we have to maintain the safety of our members, our educators, the students, and their families.”
Andrew Katz, attorney for WVEA, said the court should order the state to follow the map and metrics created by the Harvard Global Health Initiative, which is the basis for the state County Alert System map and metrics. The Harvard map uses the incidence rate. The County Alert System uses both the incidence rate and the percent of positive cases for counties and then chooses the least worst metric to determine the color of the county.
“What (Harvard) wants to look at is community spread, and the incidence rate is the most direct statistic on community spread,” Katz said. “We think the Harvard way is better. Even using the percent positive … we definitely think there is no scientific basis for saying we’re going to pick and choose the lesser of the two.”
The WVEA also asked the court to require the state to keep track of residents who get tested more than one time in a two-week period and release additional federal C.A.R.E.S. Act for school safety initiatives. Additionally the WVEA wanted the court to force the COVID-19 Data Review Panel to abide by the state Open Meetings Act and open their meetings and minutes to the public and post them on the Department of Education’s website. The COVID panel makes the decisions on the weekly County Alert System map, which is updated every Saturday. Those motions were also rejected.
Attorneys for the Governor filed a motion to dismiss the WVEA injunction request. Brian Abraham, general counsel for the Governor’s Office, was in attendance at Friday’s hearing but declined to comment on the decision.
Senior Deputy Attorney General Brent Wolfingbarger, during his arguments for dismissing the case, said the WVEA did not give the state the required 30-day notice. Wolfingbarger also argued that the courts have no jurisdiction regarding executive orders during a state of emergency, including the orders that put the County Alert System map and metrics in place.
“The (WVEA) case is based on speculation,” Wolfingbarger said. “There’s no competent scientific evidence if their approach was put into place by this court over the Governor’s position that the kids would be any safer, the students would be any safer, or that the teachers would be any safer. There’s been no testimony that what they claim needs to be applied here in West Virginia would accomplish the results they’re promising the court.”
Webster, when rendering her decision, said it was not in the court’s best interest to try to decide what metrics the state should use or not use when determining school reopening decisions.
“Substituting one metric for another is not something this court has the authority to do and declines to do so,” Webster said.
Justice unveiled the County Alert System map and metrics on Aug. 14, which originally included green, yellow, orange, and red to denote the rise of cases per 100,000 people based on a rolling seven-day average of cases. Justice also issued executives orders allowing schools to reopen on Sept. 8. By Aug. 21, the metrics were changed to create a seven-day rolling average for counties with populations more than 16,000 and a 14-day rolling average for counties with less than 16,000 residents.
Since August, the County Alert System metrics have been tweaked multiple times with the most recent changes set on Sept. 25. The current incarnation of the metrics saw a gold color added as a transition between the green and yellow counties and the orange and red counties. Counties designated orange or red are required to close and switch to distance learning. Green, yellow and gold counties can reopen, though requirements on social distancing and mask-wearing increase starting at yellow and gold, as well as limitations on sports and extracurricular activities.
Friday’s WVEA injunction was the third time Justice’s school re-entry map and metrics have been challenged in state court. Kanawha County Circuit Judge Joanna Tabit rejected a motion for injunctive relief Oct. 6 filed by George Washington High School quarterback Robert Alexander, who argued schools that were closed in Kanawha County at the time due to an increase in COVID-19 cases faced unfair discrimination. A similar suit filed by Kanawha County parent and attorney Alex McLaughlin was dismissed last month by Kanawha County Circuit Judge Tod Kaufman.