Libertas Classical Association v. Whitmer

498 F. Supp. 3d 961 (2020)


P operates a non-denominational Christian school. P filed this lawsuit alleging that the State of Michigan's COVID-19 mandates, specifically face coverings, social distancing requirements, and size limits on indoor gatherings, violate various rights guaranteed by the First Amendment. Allegedly due to the COVID-19 pandemic, D issued a series of Executive Orders designed to slow the spread of the virus. Executive Order 2020-142, required school districts and non-public schools to develop and adopt a COVID-19 Preparedness and Response Plan. The school's Preparedness and Response Plan had to 'require the wearing of face coverings, except during meals and unless face coverings cannot be medically tolerated.' The requirement extended to (1) all students when in an indoor hallway and common areas, (2) all staff, and (3) all students grades 6 and up when in classrooms. Students in grade 5 and under did not have to wear face coverings so long as the students remained with their classes throughout the school day and did not come into close contact with students in other classes. P did not require students, teachers, or staff to wear face coverings when school restarted in the fall of 2020. The Ottawa County Department of Public Health went into action. Based on anonymous tips P was warned that if additional complaints were made, there might be 'enforcement from state or local officials.' On October 2, 2020, the Michigan Supreme Court concluded that D's executive orders, at least those issued after April 30, 2020, lacked a legal basis. The court held that Michigan's Emergency Power of the Governor Act (EPGA) violated the separation-of-powers principle of the Michigan Constitution. Justice Viviano noted the provisions of Michigan's Public Health Code that address public health issues generally and more specifically communicable diseases and epidemics. Director Robert Gordon of the Michigan Department of Health and Human Services quickly issued Emergency Orders using provisions of Michigan's Public Health Code to enact restrictions designed to slow the spread of COVID-19. Gordon issued an emergency order that generally implemented restrictions similar to what D had previously required through her Executive Orders. On October 9, Gordon rescinded the October 5 Emergency Order and replaced it with a different order. The mandates for all three emergency orders are functionally the same. The sizes of indoor gatherings are limited, people must socially distance themselves, and the people gathering must wear masks. School classrooms are probably exempt from the social distance requirements and the occupancy limitations, but not from the requirement for face coverings. The orders do include exceptions for face covering. The orders also contain an exception for worship. In early October, Ottawa County sent the First Cease and Desist Order to P. Three more complaints about the failure to use masks or social distancing at D were received. After the Michigan Supreme Court issued its October 2 ruling D revised its Draft and emailed P the first Cease and Desist Order on Monday, October 12. A copy was sent by certified mail on October 12. On October 15 or October 16, a teacher had tested positive for COVID-19. P refused to file mandated weekly health reports. On Sunday, October 18, 2020, at 2:08 p.m., P filed its complaint in this Court. The Court denied P a TRO. The County issued more cease and desist orders and P simply refused to obey them or to cooperate with D. The County then required P to tell everyone everything including all the parents etc. P was told if it did not comply it would be closed. On October 22, 2020, the County filed a statement indicating that it intended to seek an injunction to enforce face coverings and social distancing at P. Around 9:00 p.m., the County posted closure notices at the school. P remains closed. P asks the Court to enjoin Ds from enforcing any part of its emergency orders and from taking criminal or civil actions to enforce them. D requested that the Court 'preliminarily enjoin P from operating in-person classes until it follows masking; gathering, and reporting requirements of the Michigan Public Health Laws.