Six Montgomery County families sue county over private school order

Families sue county over private school order, even though governor overturned it

Parents, schools proceed with federal lawsuit aimed at health officer’s directive

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Six families with children in Montgomery County private schools filed a federal lawsuit on Monday against Dr. Travis Gayles, the county’s health officer, for his decision to prohibit nonpublic schools from opening for in-person instruction.

Gayles announced the directive on Friday, but it was overturned on Monday, when Gov. Larry Hogan issued an executive order that prohibited a blanket ban of that type. Private schools may proceed with their plans for the coming semester, including possible in-person lessons, if they follow safety protocols.

In an interview Monday evening, Tim Maloney, an attorney for the plaintiffs, said the families felt compelled to file the lawsuit, even after Hogan’s amended executive order was announced, because they believe Gayles’ order remains in effect until it is rescinded.

If it is not rescinded, Maloney said, the plaintiffs are asking the federal court for an injunction.

Two Catholic schools joined the lawsuit as plaintiffs. Montgomery County and County Executive Marc Elrich also are named as defendants.

A spokeswoman for the county Department of Health and Human Services did not respond to a request for comment by email on Monday evening. 

But Gayles, in a briefing with journalists on Monday afternoon, said he relied on data and science for his decision.

He said the data clearly show that both public and private schools should not reopen yet in Montgomery County.

Specifically, he said, the increase in COVID-19 cases remains too high to be safe. Under Centers for Disease Control and Prevention guidelines, the county would have to record no more than about eight new cases a day to be considered having “low” community spread and about 38 cases a day for “moderate” community spread.

In the past 30 days, the county has averaged 92 new COVID-19 cases per day.

Gayles said in his directive that he was acting in his capacity as a “designee” for the state secretary of health in prohibiting “nonpublic schools from physically reopening for in-person instruction through October 1, 2020.” He planned to reevaluate by Oct. 1 to determine if the order needed to be extended.

Hogan’s amended order removes the possibility of a health officer making a “blanket” determination, leaving it up to schools and districts to decide.

Maloney said on Monday evening that he does not believe Gayles had the authority to issue his order in the first place.

“The governor clarified he never meant in his order that [health officers’] emergency powers could be used in a blanket closure of schools,” Maloney said, adding that Gayles’ order to shutter religious and private schools was “purely political.” 

The lawsuit goes into details about the plaintiffs — the families, the children and their circumstances. It talks about why parents chose those schools and how children benefited from attending them.

The lawsuit says:

  • John and Kimberly Beahn have three children who attend Our Lady of Mercy, a Catholic school in Potomac. The Beahns are Roman Catholic and “enrolled their children in a Catholic school to further their religious education and character development.”
  • James and Gem Lawson, whose son is a rising fourth-grader at Our Lady of Mercy, send him there “because of the Catholic education it provides.”
  • Clara Obermeier moved her children from Thomas W. Pyle Middle School to St. Bartholomew School in Bethesda because Montgomery County Public Schools was not going to have in-person instruction in the fall. She and her husband, an active duty officer in the U.S. Coast Guard, “have jobs that do not allow them to work from home.” She toured St. Bartholomew School and was pleased with the safety measures. Her daughter’s eighth-grade class would have nine students and her son’s sixth-grade class would have 14 students.
  • Miriam Roth has sons entering second and fourth grade at the Torah School of Greater Washington in Silver Spring. “It is essential to Ms. Roth, who is Jewish, that her children attend a Jewish School.” Her fourth-grade son was unable to focus on a computer for lessons.
  • Joshua and Penny Bortnick have a daughter who is a rising eighth-grader at Charles E. Smith Jewish Day School in Rockville. Their daughter struggled to adjust to online learning. She transferred to the school a year ago and was still trying to develop friendships.
  • Christopher and Meagan Rizzo have a son who is a rising fourth-grader at The Heights School in Potomac. They both have work demands outside the house and would have to hire a child care provider if their son can’t go to school.

The lawsuit talks about various safety measures the schools planned, including masks, plexiglass in classrooms, staggered times for pickups and dropoffs, physically distanced desks, serving lunch at desks instead of the cafeteria, using external entrances to classrooms and sometimes having class outside.

However, the county health department never visited the schools to see the measures, the lawsuit alleges.

The schools that joined the lawsuit as plaintiffs are:

  • The Avalon School, an all-boys K-12 Catholic school in Silver Spring
  • The Brookewood School, an all-girls grades 1-12 Catholic school in Kensington. It is affiliated with The Avalon School.

Both schools planned to reopen for in-person learning on Sept. 3. Their plans have included purchasing digital scanning thermometers, marking safe distances on sidewalks, buying smaller desks, reducing class sizes, and canceling sports and transportation.

Maloney, of Joseph, Greenwald & Laake, said county officials were “embarrassed” when independent schools were able to develop adequate reopening plans when the public school system could not.

“The county made this decision because of political pressure, or because of the embarrassment that public school students were staying home while religious and private schools found a way to stay open,” Maloney said.

During a video call with reporters on Monday afternoon, Gayles said he and Dr. Earl Stoddard, director of the county’s Department of Emergency Management and Homeland Security, met with independent school leaders in the middle of last week.

During that meeting, some school leaders demonstrated a “significant gap in terms of understanding COVID-19” and still planned to move forward with reopening, he said. At least one school planned to hold in-person instruction this week, even after Gayles recommended that they do not, he said.

The reality, Gayles said, is “we do not have control of the virus to date” and no reopening plan will be successful because the rate of transmission in the county is too high.

But Maloney argued that if that were true, the county would shut down other facilities, like colleges, day cares, bars and nail salons, rather than “target” nonpublic schools.

If Gayles would have visited the schools, Maloney said, he would have found comprehensive — and often expensive — social distancing and cleaning measures in place to ensure students’ and staff members’ safety. 

Maloney said thousands of Montgomery County families were caught off guard by Gayles’ order, which was announced on Friday evening.

Some schools were scheduled to reopen on Monday, Maloney said.

“When the county did this on Friday night, they blindsided thousands of people who had no idea this was coming,” he said. “If it wasn’t political, they would have taken time to understand what these schools did to prepare.”

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