Second Lawsuit Over School Reopening Metrics and Map Rejected


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

Meanwhile, the Wheeling-Ohio County Health Department announced five new cases of COVID-19 have been confirmed in the county, including a single positive case at Wheeling Park High School.

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 — live streamed 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 a high rate of 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 an 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 is 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 reopened Monday after the color code for the county moved from red to orange to gold, meaning school can reopen 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, Department of Health and Human Resources, 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 reopened 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 at 5 p.m. every Saturday 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 reopen 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 of 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.

Also on Tuesday, the Wheeling-Ohio County Health Department is announced the new cases of COVID-19. The health department reports a total of 392 cases have occurred, including seven probable cases and seven deaths.

One recent case was transferred to a neighboring county health department and two recent cases tested negative in recent follow-up testing and were removed from the county’s cumulative case count. Case surveillance, contact tracing, and monitoring continue for many of the reported cases.

The Wheeling-Ohio County Health Department notified the Ohio County Board of Education that a student tested positive on Oct. 1. The health department and school officials investigated and identified the students and staff that were direct contacts. Those individuals were contacted and placed in quarantine. School staff will conduct appropriate disinfection and cleaning of all areas within the school over the weekend. All students and staff should monitor their health. Anyone who develops symptoms of COVID-19 should get tested. Ohio County Schools and the County Health Department remind all students and staff to continue to follow proper COVID-19 prevention and health practices including wearing face coverings, practicing social distancing, hand washing, and routine cleaning.

Investigation to date indicates that cases are associated with resident and nonresident vacation travel, group events including family gatherings, cases at higher education centers and cases with no other risk factor, which can be an indicator of active community spread. The Wheeling-Ohio County Health Department is monitoring three outbreaks among facilities in Ohio County. These facilities include two local long-term care centers and a local university.

Ohio County and Ohio Valley residents are advised to limit public contact; implement social distancing; work at home where possible; wear a face covering when out in public, indoors, or at work; wash your hands frequently; and contact your personal physician if you become ill with fever, cough, or difficulty breathing.

The Wheeling-Ohio County Health Department is reminding Ohio Valley residents that if you are tested for COVID-19 that you are to remain in home isolation until you receive negative test results. Individuals who test positive will be contacted by a county health department and receive further instructions in regard to care and monitoring.

If positive, you should restrict activities outside your home, except for getting medical care. Do not go to work, school or public areas. If you have a medical appointment, call the health care provider and tell them that you have or may have COVID-19 prior to arriving at the facility. This will help the health care provider’s office take steps to keep other people from getting infected or exposed.

The off-site Wheeling Hospital COVID-19 testing clinic continues operations. Ohio Valley residents who are interested in being tested at this location should call the on-call number at 304-221-3995. Testing is also available at Doctor’s Urgent Care; call 304-232-0725 for more information. MedExpress is also testing for COVID-19; for more information call 304-242-4228; Wheeling Health Right is offering testing; call 304-233-9323 for more information.


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