2021 | Courts

Federal lawsuit challenging closures of private schools dismissed

County already rescinded order; no constitutional rights violated, court rules

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About a year after some local parents filed a federal lawsuit challenging Montgomery County Health Officer Dr. Travis Gayles’ now-rescinded order to bar private schools from holding in-person classes last fall, the case was dismissed.

On Aug. 3, 2020, six families with children in Montgomery County private schools filed the lawsuit, alleging Gayles did not have the authority to issue the order in July mandating that all nonpublic schools hold classes virtually.

Gayles issued his order as COVID-19 cases were surging, before vaccinations were available.

The lawsuit also alleged Gayles violated several of their constitutional rights, including religion and to assemble. Two Catholic schools joined the lawsuit: Avalon School and Brookewood School.

Gayles issued his first order on a Friday evening. It was overturned the following Monday when Maryland Gov. Larry Hogan issued an executive order that prohibited a blanket ban of that type. Within days, Gayles responded with a new order, citing a different law as his authority to do so. That second order was subsequently overruled by state Secretary of Health Robert Neall.

In an order last week, after nearly eight months without any new filings, U.S. District Judge George Hazel ruled that the lawsuit is moot and the order did not violate any constitutional rights. He dismissed the case.

In an email to Bethesda Beat on Monday afternoon, Tim Maloney, an attorney representing the six families who filed the lawsuit, wrote that the plaintiffs achieved the “principal purpose of the litigation” when the “health officer backed off.”

“Hopefully common sense will prevail going forward,” Maloney wrote.

A spokeswoman for the Montgomery County Department of Health and Human Services declined to comment on Monday.

In the 30-page order to dismiss the lawsuit, Hazel wrote that the issue is no longer relevant because Gayles’ order is rescinded, and because the COVID-19 pandemic has vastly improved since the order was originally issued, making “[reinstatement] of the policy … all the more unlikely.”

“While the Court is all too aware of the danger of pronouncing the COVID-19 pandemic ‘over’ prematurely, and is cognizant of the risk posed by variants and vaccine-hesitancy, with vaccines widely available, the dire conditions that precipitated Defendant Gayles’ decision to close schools are not currently expected to return,” Hazel wrote.

At the time the order was issued, the county averaged about 92 new cases of COVID-19 per day.

In the past month, the county has averaged about 36 new cases per day. The average has been higher in the past week, however, with about 71 new cases reported on average.

The lawsuit originally argued that Gayles’ order to prohibit in-person classes at private schools unfairly targeted religiously affiliated schools because it did not expressly say the same for the public school system. MCPS at the time had already announced it planned to hold only virtual classes for the entirety of the first semester.

The complaint says about 40% of the county’s private schools are affiliated with a religion.

Hazel wrote that “there are no indications that the Directives were veiled attempts to target religious schools or that they were gerrymandered to regulate religious schools while appearing facially neutral.”

Hazel also ruled that because Gayles’ directives were temporary — planned to last about two months — there were “ample alternate channels for communication” and assembly.

After Gayles’ orders were rescinded last fall, many private schools opened for in-person classes, at least part-time, despite strong objection from Gayles.

Some small outbreaks were reported at private schools in the county — as they were at public schools when they began to reopen in March — but no major outbreaks were reported publicly.

Caitlynn Peetz can be reached at caitlynn.peetz@bethesdamagazine.com