Catholic high schools sue for exemption from Michigan COVID closure order

Three Michigan Catholic high schools have filed a federal lawsuit claiming a Whitmer administration order closing high school classrooms during a coronavirus spike is a violation of their religious liberty.

The lawsuit was filed in Michigan’s Western District federal court late Monday, just hours after the Michigan Department of Health and Human Services extended an order mandating the closure of public and private high schools through Dec. 20. High school students across the state have been learning from home since Nov. 18 under a previous order.

“The state’s latest order inhibits the faith formation of students and violates their constitutional right to practice religion while leaving open secular businesses where transmission of COVID-19 is more likely to occur,” Brian Broderick, executive director of the Michigan Association of Nonpublic Schools, said in a statement announcing the lawsuit. 

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The organization, which represents about 400 religious schools, of which 60 are high schools, is a party to the suit.

There are between 15,000 and 20,000 students who attend religious high schools in Michigan, Broderick told Bridge Michigan Tuesday. The three schools listed as plaintiffs are Everest Collegiate High School and Academy in Clarkston, Father Gabriel Richard High School in Ann Arbor, and Lansing Catholic High School.

During the pandemic, religious schools have gone along with state-mandated closures, Broderick said, but religious school officials are concerned closures could extend into 2021, a possibility that MDHHS Director Robert Gordon and Gov. Gretchen Whitmer haven’t ruled out.

“We think the decision (to hold classes in-person or go fully remote) should be made locally,” Broderick said. “At some point, we’re saying, we can do this safely, and we want to educate children according to their religious liberties.”

MDHHS spokesperson Lynn Sutfin told Bridge in an emailed statement that the health agency’s order “rests firmly on epidemic powers given to the director of the Michigan Department of Health and Human Services after the Spanish Flu a century ago.

“The sooner Michiganders put a pause on indoor social gatherings, the more lives we will save, and the sooner we will be able to resume our normal lives,” Sutfin said.

There have been COVID-19 outbreaks in hundreds of Michigan school buildings this fall, but most have been limited to a handful of students or staff. A larger issue for schools has been the number of students and staff who must quarantine at home for weeks at a time when contact tracing determines they were in close contact with someone who has tested positive. 

Between one-third and one-half of all Michigan students were learning at home full time at the beginning of November – even before a surge in cases last month forced many schools to switch to online learning and before the state ordered all high schools in Michigan to close.

Early in the pandemic, Whitmer and Republican leaders in the Legislature reached agreement that, generally speaking, local school districts would be allowed to decide whether to hold in-class learning depending on the health circumstances in their communities. 

But that nod toward local control was overridden by state health officials as COVID cases, hospitalizations and deaths spiraled throughout Michigan last month.  

High schools were told to close while K-8 students could remain in classrooms because data suggested the coronavirus was spreading more quickly in high schools, where there are group gatherings such as sports teams.

The lawsuit is one of several around the country that ask courts to draw a line between government public health mandates and religious activities.

In Kentucky, religious groups have asked the U.S. Supreme Court to weigh in on a late November order by Democratic Gov. Andy Beshear to close all schools until January. More than three-dozen Republican U.S. senators filed a brief with the Supreme Court in support of the Kentucky religious schools. The Supreme Court hasn’t ruled on whether it will hear the case.

In the Kentucky case, Gov. Beshear argues his order isn’t discriminatory because it set the same restrictions on both public and religious schools.

In a separate case in November, the Supreme Court issued an injunction that blocked building capacity limits in New York from being applied to religious institutions.

The Michigan suit does not ask the court to strike down closures of all high schools, just for religious-affiliated high schools.

Currently, Michigan students in kindergarten through eighth grade are allowed to continue in-person instruction, but many public school districts have chosen to switch to fully remote learning for all grades. Many had announced plans in November to not return to classrooms until sometime in January, because a spike in cases had left districts with too many teachers in quarantine to hold  classes.