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Color-coded map not changing after court ruling

Published: Sep. 25, 2020 at 10:46 AM EDT
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CHARLESTON, W.Va. (WSAZ) - Hearings began Friday morning in Kanawha County Circuit Court in a case alleging the West Virginia color-coded map system is unconstitutional.

Alex McLaughlin, a Kanawha County parent and lawyer, has sued West Virginia Gov. Jim Justice, the Department of Health and Human Resources and the Department of Education over the map, saying it violates the state constitution by discriminating against students based on where they live.

“The constitutional issue is, I think (Gov. Justice) has infringed on the right to education. He has done it in a way which discriminates against education,” McLaughlin said.

McLaughlin argued that the color-coded map singles out schools, adding that restaurants, bars and small businesses are all affected by the virus without being placed under the same rules. McLaughlin said that from a health perspective, there is no difference.

The state responded by saying schools cannot operate under the same social distancing guidelines as businesses that remained open, like daycares and nursing homes, and have COVID testing protocols in place. Lawyers for the governor said the state Constitution allows Justice to call a state of emergency and handle the response without requiring input from the Legislature.

Lawyers for the West Virginia Department of Education stated that the Constitution requires education to be safe, and remote education is an adequate alternative when school buildings cannot be open. McLaughlin’s children do not attend public school, so representatives for the WVDE argued that they are not regulated by the state.

The state made a motion to dismiss on the grounds that McLaughlin’s students are in private school, that the governor has authority while West Virginia remains under a state of emergency and that the color coded system ensures that schools are safe by state constitutional standards.

“In every effort that the governor and Secretary Crouch and Dr. Marsh and Dr. Amjad have made, is to try to draw that delicate balance between keeping people safe, preventing the spread of the virus and letting activities, that we all took for granted a year ago, continue as much as they can,” said Ben Bailey, special council for the attorney general.

McLaughlin asked for an injunction that would allow all schools to reopen for in-person classes, stating that everything should be closed if schools can’t be open.

Judge Kaufman made a ruling from the bench to not grant the injunction. Both sides have to submit formal arguments by next week before an official ruling on case dismissal is made.

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