'Let them play!' High school athletes sue Michigan over contact sports ban

LANSING — Michigan high school athletes fighting to get back on the basketball court – and the hockey rink – are taking their case to the court of law.

Parents of five student athletes, along with an advocacy group and a hockey association, on Tuesday sued the Michigan Department of Health and Human Services over an pandemic order recently extended to prohibit contact sport competitions through at least Feb. 21. 

The suit is a step the coalition "would have preferred not to take," said Peter Ruddell, a Lansing-based attorney with the Honigman LLP law firm. "Unfortunately, there is no other place for citizens to appeal a decision that restricts the parents' and student athletes' ability to pursue a key component of their public education."

The lawsuit in the Michigan Court of Claims alleges the state’s COVID-19 restrictions are unconstitutional because they deny students equal protection under the law, due process and the right to free assembly, among other things. 

Related stories

• Schools outraged that bars can open in Michigan, but not winter sports
• Opinion | Detroit schools chief: Gov. Whitmer, let students play ball
• Michigan bars, restaurants can reopen Feb. 1 with restrictions, state says
• Opinion | Dear Gov. Whitmer, our Michigan restaurants must open now to survive

The state order "arbitrarily and irrationally singles out and deprives" high school athletes of "their rights and freedoms to associate with other students and engage in athletic competitions," attorneys wrote. The state is treating older collegiate and professional athletes differently from younger high school athletes "without any rational basis for the disparate treatment.”

Michigan’s COVID-19 case counts have fallen significantly in recent weeks and Gov. Gretchen Whitmer is urging all schools to resume in-person instruction by March, but state officials have defended the ongoing restrictions against high school contact sports, citing transmission risks and the emergence of highly-contagious variants. 

A Whitmer spokesperson declined comment on the new legal action, telling Bridge the administration “does not make decisions based on lawsuits, but on data and the ongoing advice of public health experts.”

“As the numbers in Michigan continue to decline, and as the governor has already indicated, the administration is reviewing current mitigation measures, including those around contact sports,” said Tiffany Brown. 

In a paper released last week, researchers from the Centers for Disease Control and Prevention said it is safe to re-open schools with precautions but recommended continued limitations on indoor sports, often played in poorly ventilated gymnasiums.  

The CDC researchers cited a December outbreak in Florida, where 38 of 130 high school athletes who competed in local wrestling tournaments later tested positive for COVID-19. Those students contacted another 446 people at home or school, leading to another 41 confirmed cases and one reported death of an adult. 

But high school sports advocates note the virus poses a lower risk for young people and contend that athletic competition is beneficial for mental health, especially amid a pandemic that has upended student life. Michiganders under the age of 19 comprise 24 percent of the state's population but 12 percent of confirmed COVID-19 cases and far less than 1 percent of deaths.

"This pandemic is real and so are our concerns for our students' mental health and physical well being," Clio Area High School Principal Lisa Taylor and other local officials wrote in a recent letter to the state. 

"Trust us to follow the guidelines that have been put in place to keep our students and staff safe. Trust that our students will comply to COVID guidelines because they want to play. They need it, and they deserve it."

Plaintiffs in the new lawsuit include the Let Them Play nonprofit, Michigan Amateur Youth Hockey League and parents of several students, including Brennan Dethloff, a Mona Shores teen who died in a single-car crash last month "after succumbing to the mental struggles he endured from the continued delays in winter sports," according to attorneys.

Dethloff's parents have publicly said they believe delays in the winter hockey season, coupled with their son’s ongoing mental health issues, pushed him to a breaking point and contributed to his death.

The lawsuit points to a University of Wisconsin study from October that found little evidence of spread through high school sports teams.

But fall sports, such as football, cross country, tennis and soccer, are played outside, while winter sports are played inside. A Japanese study COVID spread was 18 times greater indoors than outdoors.

The state health department did not immediately respond to a request for comment on the new legal action, which Ruddell said was filed amid fears the state could again extend the ban on high school contact sports competition beyond Feb. 21. 

Student athletes had expected to start winter sports seasons by Feb. 1, and last month’s order by the state health department “took everyone by surprise,” Ruddell said. 

Schools are currently limited to non-contact practices for sports like basketball, competitive cheer, hockey and wrestling. Athletes must wear face masks or plastic shields at all times.

The same state order allowed bars and restaurants to open at 25 percent capacity, frustrating students and supporters who took to social media to demand the state #LetThemPlay. Thousands of athletes and advocates turned out to a weekend rally at the Michigan Capitol, and more than 100 schools have written letters to Whitmer or the health department.

Michigan's policy has made it an outlier. 

As of last week, 47 states had at least provided a start date for all sports, and all border states like Ohio and Indiana were allowing competition, according to an analysis by plaintiff attorneys.

While high school sports advocates argue sciences on their side, the  Michigan Advance last week reported that one of the leaders of the "Let Them Play" movement has used social media channels to promote misinformation about the virus and conspiracies about the 2020 presidential election.

In an interview with WXYZ last week, Whitmer suggested the state was reviewing its high schools sports regulations and may consider changes before Feb. 21. 

“It’s not about changing our mind, it's about being smart and when the numbers support taking this next step," the governor said. "We’re in a stronger position than most other states in our region and even across the country. So that is a very possible thing that may happen in the coming weeks or days."

State officials have sounded alarms over the spread of new variants, including a more contagious version that has spread in Washtenaw County and prompted a two-week pause for the entire University of Michigan athletics department.

"There is a variant that’s coming out of Brazil that’s even more deadly, and so that’s the context that matters when we’re looking at these numbers too," Whitmer said. "But trust me, as a parent of a high schooler myself, I’d love to get this part of life reengaged, but getting the kids back in the classroom, that’s paramount.”