So-called guidance, which made teaching a crime, is no longer ‘mandatory’
Oregon was so afraid of a “mass exodus” from public schools last fall that it banned private schools from reopening in person on the same terms as public schools. The state made it a crime for them to reopen for teaching, even as it approved some of them as emergency daycares.
This led a Christian school in the remote northeast corner of the state to sue Democratic Gov. Kate Brown for violating the First Amendment.
Now that the state has “eliminated special exceptions” for public schools in COVID-19 reopening plans that weren’t available to private schools, Alliance Defending Freedom attorneys for Hermiston Christian School dropped the lawsuit.
The joint stipulation of dismissal Wednesday specifies that the plaintiff can’t bring the lawsuit again (“with prejudice”), but the alliance said it will “review any future orders to ensure that they comport with the Constitution.”
The state allowed public schools with 75 or fewer students to provide in-person instruction last fall, but deprived the same conditions to private schools of the same size. All private schools in Umatilla County, where Hermiston Christian School is located, are religious.
Despite its larger footprint than nearby public schools, which makes physical distancing easier, the school and its 51 students were banned from in-person instruction.
“The governor had no legitimate reason” for this disparity, senior counsel Mark Lippelmann said in a statement Wednesday. “Re-opening plans can differ in timing and details, but they must follow the Constitution.”
The school’s lawsuit claimed that “the very same day” the state banned private schools from equal treatment in reopening plans, “a policy advisor and liaison” for the governor warned of a “mass exodus” if public schools didn’t reopen at the same time other schools were reopening.
The “small school” exception was “inexplicably” changed a week after its release to deprive private schools of the same treatment, under a new “Section 0.” There was no public-health rationale for this disparity, as private schools eight miles away in Washington state were open for in-person instruction and families were threatening to enroll their children there.
After being sued, the state “issued new guidance to remove their facial preference for public schools while ensuring the same outcome: small public schools … remain open while all of the county’s small private (religious) schools must remain closed,” the amended complaint reads.
The alliance provided The College Fix versions of Oregon’s reopening “guidance” – a misnomer because the state enforced them – going back to August, when the “small school” exception was first outlined.
The Oct. 30 revision, which followed the lawsuit, forces schools to remain closed if the county doesn’t meet certain COVID “metrics,” but still allowed local public schools to remain open because of “numerous exceptions” and “delegation of reopening decisions to local health officials in each country,” according to the amended complaint.
This shows that the guidance “gives rise to a system of individualized assessments, and therefore, is not generally applicable.”
Gov. Brown stated in a Dec. 23 letter that the state’s “mandatory” health metrics for returning to in-person instruction would become “advisory” on Jan. 1. She said reopening decisions would be “made locally, district by district, school by school,” noting that Washington state – eight miles away from Hermiston Christian School – uses “advisory metrics.”
The Dec. 31 version of the so-called guidance – which previously made it a crime, punishable by 30 days in jail and fines, to reopen private schools for in-person instruction – formalized the governor’s change of “Section 0” to advisory.
The Fix has asked the alliance to clarify why the parties didn’t jointly agree to the lawsuit’s dismissal earlier than a month and a half after the state removed the mandatory provision.
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