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Second lawsuit over school re-opening rejected

CHARLESTON — A high school quarterback’s hail mary pass to block enforcement of the color-coded map and metrics used to determine whether schools can re-open for in-person learning was rejected, making it the second time the courts have thrown out a case to block the standards.

Kanawha County Circuit Judge Joanna Tabit rejected a motion for injunctive relief Tuesday filed by attorney J. David Fenwick for George Washington High School quarterback Robert Alexander. Fenwick argued that schools that were closed down in Kanawha County due to a spike in COVID-19 cases were being unfairly discriminated against while businesses and churches were allowed to remain open with limited restrictions.

In her ruling – livestreamed from the historic courtroom in the old Kanawha County Courthouse in Charleston – Tabit said students have a right to a “thorough and efficient system of free schools” as guaranteed by the West Virginia Constitution, but that right doesn’t carry over to athletics.

“There is no constitutional right to participate in extracurricular activities,” Tabit said. “There is a legitimate state purpose here through the executive order entered by the Governor through the school re-entry map that promotes the health, safety, and welfare of the athletic participants, the school communities, and the communities at large.”

Alexander claimed injury due to not being able to play high school football, missing out on possible athletic scholarship opportunities. Kanawha County schools had been closed since the Sept. 8 start date for public and private schools set by executive order due to high cases of COVID-19 in the county.

“I contend that there is a real and concrete harm in the loss of all or most of Mr. Alexander’s senior football season in and of itself,” Fenwick said. “That experience, that special and limited time of life, it may not be a monetary damage, but I believe that … is a concrete harm.”

Alexander took the stand during Tuesday’s hearing. He told Tabit that he wanted to play college football for a NCAA Division I school and earn a business degree while in school. He said the loss of most of his final season would harm his chances of getting noticed by recruiters and deny him the chance to make memories.

“It wouldn’t be a very good memory,” Alexander said. “I lost a lot of games and that’s where I keep my memories is in the games and with my fellow teammates. They’re like my brothers to me. If I only have one or two games, that’s all I have. I don’t want to end on a bad ending.”

Tabit said it was impossible to determine what harm would come to Alexander’s goal of winning an athletic scholarship and playing NCAA Division I football, since other schools in the state and nation were tackling similar issues.

“I don’t believe we know where he is going to go,” Tabit said. “I’m not saying he not going to have any options. I’m confident he will … the problem is we don’t know. So, in my view that is speculative.”

Schools in Kanawha County re-opened Monday after the color-code for the county moved from red to orange to gold, meaning school can re-open with stricter social distancing guidelines, limits on assemblies, and mandatory masks. High school athletics can also restart as long as schools play other teams within the county or other gold counties, with George Washington playing Riverside High School this week.

Attorneys for the Governor, DHHR, and the Department of Education filed motions to dismiss Alexander’s lawsuit. Attorney Ben Bailey, representing the Governor’s Office, said the lawsuit was moot since Kanawha County schools had re-opened and high school football had resumed.

“Kanawha County has dug in and has made itself open for football,” Bailey said. “(Alexander) has three games scheduled … The trends are all moving in the right direction for Kanawha County. The relief he seeks … doesn’t address his injuries. It’s been addressed by the very plan he attacks.”

The County Alert System map for school re-entry is updated every Saturday at 5 p.m. on the Department of Education website at wvde.us. Counties are rated by five colors from green to red. Schools in the green, yellow, and gold can re-open for in-person learning, though rules become stricter in schools and extracurricular activities as counties transition into gold.

Schools in the orange and red cannot open for in-person school. Orange counties can still allow some extracurricular practices, such as conditioning. Red counties must shut down all schools, sports, and extracurricular activities. Colors are determined based on the better of two metrics in counties: the incidence rate of COVID-19 cases per 100,000, or the positivity rate based on the number cases on a seven-day average.

“We are in an emergency; a pandemic that none of us have seen in our lifetimes,” Tabit said. “The Governor and these agencies need to be able to work collaboratively and they need to be able to act swiftly to protect the people of this state. Time is of the essence and lives are at stake. To rule otherwise would restrict the Governor and these agencies’ ability to respond to crisis and to respond to this pandemic.

“We’re seeing people become ill, we’re seeing people die every day,” Tabit continued. “I know we all love football. I love football, but folks, we need to do what we can to protect ourselves and one another.”

A third lawsuit challenging the school re-entry metrics and map was filed by the West Virginia Education Association in Kanawha County Circuit Court on Monday. A similar suit filed by a Kanawha County parent and attorney was dismissed last month by Kanawha County Circuit Judge Tod Kaufman.

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