Montgomery County officials have filed a motion to dismiss a federal lawsuit challenging a now-rescinded order that prohibited private schools from reopening this fall, calling its arguments “moot.”
On July 31, the county’s health officer, Dr. Travis Gayles, issued an order that said nonpublic schools could not hold in-person classes until at least October because the level of community spread of the coronavirus was too high and face-to-face instruction was not safe.
Within days, Maryland Gov. Larry Hogan pushed back, signing an order of his own that banned “blanket closures” of private schools.
On Aug. 5, Gayles issued a new order, citing a different state law, with the same restrictions. The next day, the state Department of Health released a memo that said, “at this time, it is the health policy … that non-public schools not be closed in a blanket manner.” Gayles subsequently rescinded his order, and private schools were allowed to reopen for in-person instruction.
Simultaneously, a group of Montgomery County parents filed a federal lawsuit alleging Gayles did not have the authority to close school buildings, and that his order to do so violated families’ constitutional rights to practice their religion. They said the decision was “purely political” and made because county officials were “embarrassed” MCPS opted to not reopen facilities while private schools were able to develop adequate reopening plans.
In a new court filing, attorneys representing Gayles and County Executive Marc Elrich requested that the case, which has been sitting idle since August, be dismissed.
County attorneys argue that the lawsuit is no longer relevant, and, even if it were, Gayles acted within his authority and did not violate any state or federal laws in doing so.
The attorneys wrote that the complaint is filled with “paranoia, baseless speculation, and conspiracy theories.”
“While such conjecture makes for entertaining reading, and no doubt fuels internet gossip and outrage, it does not satisfy the requirements for maintaining a cause of action, nor justify imposing upon the time and resources of the Court,” the motion says. “… There exists no actual controversy for the Court to decide.”
In an email to Bethesda Beat, responding to a request for comment, Tim Maloney, an attorney representing the families who filed the lawsuit wrote, “We are addressing the motion in accordance with the court rules.” He did not elaborate.
The county also argues that state law gives broad authority to county health officers to take “any action or measure necessary” to protect public health. State law does not require Gayles to obtain approval from the governor or the secretary of health to make such decisions, and he does not need approval from county government officials, either.
“To the contrary, the health officer, as the subject matter expert, is vested with broad discretion to take whatever action he deems necessary to prevent the spread of the disease,” court documents say.
Gayles has repeatedly said the rate of COVID-19 transmission in Montgomery County is too high for even the best crafted school reopening plans to be effective. State and federal guidance about reopenings, which call for social distancing, face coverings and frequent hand washing, are “based upon the premise that community transmission is lower,” Gayles has said.
And, court documents say, Gayles’ order did not bar students from a religious education. Rather, the order only meant religious education could not be held in person, but could be held remotely.
A date to consider the county’s motion to dismiss the case has not been set, according to online court records.
Caitlynn Peetz can be reached at caitlynn.peetz@moco360.media
