Trump Executive Order Provides School Choice Funding For Disadvantaged Students Lacking In-Person Schools

President Trump yesterday issued an Executive Order allowing states to use funds from Community Services Block Grants to provide scholarships to private or parochial schools, or for home schooling or or other educational services, for disadvantaged students whose public schools do not offer in-person classes during the COVID pandemic. As reported by Politico:

The move comes after the $900 billion coronavirus relief deal ... that Trump signed on Sunday excluded many of the school choice provisions that his administration and GOP lawmakers had sought to include in that sweeping legislation.

The Dec. 28 Executive Order on Expanding Educational Opportunity Through School Choice (full text) provides in part:

The Secretary of Health and Human Services shall take steps, consistent with law, to allow funds available through the Community Services Block Grant program to be used by grantees and eligible entities to provide emergency learning scholarships to disadvantaged families for use by any child without access to in-person learning.  These scholarships may be used for:

(i)    tuition and fees for a private or parochial school;

(ii)   homeschool, microschool, or learning-pod costs;

(iii)  special education and related services, including therapies; or

(iv)   tutoring or remedial education.

2nd Circuit Invalidates New York's Fixed Capacity Limits For Houses of Worship

Last month, the U.S. Supreme Court in a widely noted decision enjoined while appeals are pending New York's 10 and 25 person occupancy limits on houses of worship in red and orange zones of high COVID infections. (See prior posting.) Now the U.S. 2nd Circuit Court of Appeals has come down with a decision in that pending appeal.  In Agudath Israel of America v. Cuomo, (2nd Cir., Dec. 28, 2020), (in a decision that also covers the suit brought by the Catholic Diocese of Brooklyn), the court held that these limits imposed on houses of worship are subject to strict scrutiny, and that they are not narrowly tailored to stem the spread of COVID-19. It remanded the cases to the district court, instructing it to issue a preliminary injunction. It also ordered the district court to determine in the first instance whether alternative limits in the governor's Order of 25% and 33% of capacity can satisfy strict scrutiny. In reaching its conclusion, the court said in part:

[T]he [Governor's] Order does not impose generally applicable public-health guidelines, like requiring masks and distancing or limiting capacity by time. Instead, the Governor has selected some businesses (such as news media, financial services, certain retail stores, and construction) for favorable treatment, calling them “essential,” while imposing greater restrictions on “non-essential” activities and religious worship. That lack of general applicability is also subject to strict scrutiny.

Further, although the Governor asserts that “all” activities not restricted by the Order present lesser risks of COVID-19 transmission than religious worship, he has never claimed that the unrestricted category of “essential” activities was created based on transmission risk. Instead, “[t]he only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as ‘essential’ as what happens in secular spaces.”

Reuters reports on the decision.

Court Refuses To Enjoin Mask Requirement For Religious School Students

In Resurrection School v. Gordon, 2020 U.S. Dist. LEXIS 242315 (WD MI, Dec. 16, 2020), a Michigan federal district court refused to issue a preliminary injunction sought by parents of Catholic school children to eliminate the COVID face covering requirement for children attending K through Grade 5 at religious schools. Parents contend that the requirement interferes with the free exercise of the students' religion. Rejecting that claim, the court said in part:

The order is clear: individuals over the age of five must wear a mask when they are out in public. Therefore, given the near-universal mask requirement, the Court finds nothing in the contours of the order at issue that correlate to religion, and finds that the order "cannot be plausibly read to contain even a hint of hostility towards religion." ... The Court finds that the challenged face-mask requirement is neutral and generally applicable. Any burden on Plaintiffs' religious practices is incidental, and therefore, the orders are not subject to strict scrutiny.... Plaintiffs have failed to establish a liklihood of success on the merits of their First Amendment claim.

Court Again Refuses To Enjoin California's COVID Limits On Church Services

In a case in which the U.S. Supreme Court previously refused to grant injunctive relief, a California federal district court again denied a preliminary injunction against California's COVID orders to a church seeking to hold indoor services. In South Bay United Pentecostal Church v. Newsom, (SD CA, Dec. 21, 2020), the court said in part:

In drawing this difficult balance between religious liberty and public health, the Court must follow the higher courts’ precedents, when the precedents seem to change course as quickly as the various pandemic restrictions. Admittedly, this has been a rapidly evolving—and escalating—pandemic. And in this very case, the Supreme Court declined to intervene after the Court refused to enjoin California’s prior regulation. Now, by all measures, the pandemic is worse and more out of control in Southern California than when that decision was made. Nevertheless, the Court is tasked with deciding whether Chief Justice Roberts’ rationale for not intervening in this case has now “expired,” as Justice Gorsuch’s recent concurrence in another case suggests. See Roman Catholic Diocese of Brooklyn v. Cuomo...

California has carefully designed the different exemptions to match its goal of reducing community spread, based on a neutral, seven-factor risk analysis. The Court does not find that California’s Regional Stay at Home Order is underinclusive as to exceed the boundaries drawn by the First Amendment. Therefore, based on the record before the Court, Plaintiffs are not likely to show that the Regional Stay at Home Order restricts more than is necessary to advance the California’s compelling interest in reducing community spread.

Fox5 News reports on the decision.

1st Circuit: Church's Appeal of TRO Denial Is Dismissed

 In Calvary Chapel of Bangor v. Mills, (1st Cir., Dec. 22, 2020), the U.S. 1st Circuit Court of Appeals dismissed a church's interlocutory appeal of the district court's denial of a temporary restraining order against enforcement of the Maine governor's COVID Orders that prohibited the gathering of more than ten people for faith-based events. The court concluded that denial of a temporary restraining order-- before the district court rules on a preliminary injunction request-- here is not appealable, even though both parties contended that this case fell within an exception to that rule.  The court said in part:

The Chapel contends that the district court's decision to deny it a temporary restraining order functionally precluded any possibility of a preliminary injunction. This contention elevates hope over reason....

... [T]he absence of immediate appealability — like the denial of the temporary restraining order itself — will not cause serious harm. Given the gravity of the situation and the fact that events remained in flux, we discern no sufficient basis for finding that the Chapel can satisfy the second of the three requirements for immediate appealability of a temporary restraining order. In this regard, we deem it important that the Chapel retained other means to organize worship services for its congregants, including the sponsorship of online worship services, the holding of drive-in services, and the hosting of gatherings of ten or fewer people.

6th Circuit Refuses Injunction Pending Appeal Of Religious School Closure Order

 In Pleasant View Baptist Church v. Beshear, 2020 U.S. App. LEXIS 40077 (6th Cir., Dec. 21, 2020), the U.S. 6th Circuit Court of Appeals refused to issue a preliminary injunction pending appeal of a COVID Order by the Kentucky governor which, among other things, barred in-person instruction in  religious schools until January 4. The court said that the Order was about to expire of its own terms. Judge Donald filed a concurring opinion which expressed concern with one of plaintiff's arguments:

Fundamental to Christian School Plaintiffs' argument in this emergency appeal is that under the Free Exercise Clause of the First Amendment, EO 2020-969 burdens their "hybrid rights." That is, the order burdens both their Free Exercise rights and other constitutional rights, a combination that, they contend, triggers an exception to Smith and subjects even neutral laws of general applicability to strict scrutiny....

We have had no reason to re-consider our view that Smith's discussion of "hybrid rights" was anything but dicta.

The Constitution is not a mixing bowl for rights that when considered in the aggregate are entitled to a higher level of scrutiny compared to when those exact same rights are viewed in isolation.

... I provide the foregoing analysis ... to highlight what I see as a troubling trend in the use of the Court's emergency docket....

I do not see an emergency appeal as the proper forum to advocate for abrupt and sweeping change to well-settled federal law.

On Remand From SCOTUS, California COVID Limits On Worship Services Again Upheld

In Harvest Rock Church, Inc. v. Newsom, (CD CA, Dec. 21, 2020), a California federal district court, in a case on remand from the U.S. Supreme Court, upheld California's COVID restrictions on houses of worship. The Supreme Court had called for reconsideration in light of its recent decision in Roman Catholic Diocese of Brooklyn v. Cuomo. The district court, distinguishing both Supreme Court and 9th Circuit cases, said in part:

The law remains that courts must first assess whether a law is “neutral or generally applicable.” Smith, 494 U.S. at 881. The Court finds that California’s Blueprint is. The Blueprint offers something the New York and Nevada Orders did not: the ability to legally congregate in unlimited numbers for worship—so long as that worship occurs outside. In so doing, the Blueprint treats religious activity better than comparable secular activity and even better than essential services. This is distinct from both the New York and Nevada restrictions and compels the conclusion that the Blueprint is neutral....

California’s Blueprint is also painstakingly tailored to address the risks of Covid-19 transmission specifically....

The First Amendment has not taken a sabbatical. Californians may still worship, attend services, pray, and otherwise exercise their religious freedoms. They just may not do so in ways that significantly increase the likelihood of transmission of a virus which has claimed more than three hundred thousand American lives in less than one year. The Constitution is not a suicide pact. The First Amendment may not be used to make it one.

Courthouse News Service reports on the decision.

UPDATE: Over the objection of Judge O'Scannlain, the U.S. 9th Circuit Court of Appeals in Harvest Rock Church, Inc. v. Newsom, (9th Cir., Dec. 23, 2020), set a briefing schedule for the Church's motion for an injunction pending appeal that failed to grant temporary relief by Christmas.

Catholic Schools' Suit Against COVID Closings Is Moot

In Michigan Association of Non-Public Schools v. Gordon, (WD MI, Dec. 21, 2020), a Michigan federal district court dismissed as moot a challenge to Michigan's COVID-19 Order temporarily closing all high schools to in-person learning. The suit, brought by a group of Catholic schools, claimed that the Order violated their 1st and 14th Amendment rights. That Order expired on Dec. 20 and a new Order now allows high schools to reopen. Detroit Free Press reports on the decision.

Federal Court Refuses To Enjoin State COVID Enforcement Proceedings Against Church

In Calvary Chapel San Jose v. Cody, (ND CA, Dec. 18, 2020), a California federal district court, applying the Younger abstention doctrine, refused to issue a temporary restraining order against state court proceedings enforcing a state court's preliminary injunction against a church. The church "blatantly flouted" COVID restrictions on worship service, continuing to hold indoor services for large numbers of worshipers without effectively enforcing mask or social distancing requirements. In refusing the TRO, the court said in part:

Our Federalism properly places this dispute in the more-than-capable hands of the Santa Clara County Superior Court.

Courthouse News Service reports on the decision.

Supreme Court, 7-2, Refuses To Reinstate Injunction Against Kentucky School Closing Order

 In Danville Christian Academy, Inc. v. Beshear, (US Sup. Ct., Dec. 17, 2020), the U.S. Supreme Court by a vote of 7-2 refused to reinstate a district court's injunction against the Kentucky governor's November 18 COVID-related school closing order. The 6th Circuit had stayed the injunction. The governor's Order was challenged by a Christian school. The majority said in part:

The Governor’s school-closing Order effectively expires this week or shortly thereafter, and there is no indication that it will be renewed. The Order applies equally to secular schools and religious schools, but the applicants argue that the Order treats schools (including religious schools) worse than restaurants, bars, and gyms, for example, which remain open. For the latter reason, the applicants argue that the Order is not neutral and generally applicable....

Under all of the circumstances, especially the timing and the impending expiration of the Order, we deny the application without prejudice to the applicants or other parties seeking a new preliminary injunction if the Governor issues a school-closing order that applies in the new year.

Justice Alito filed a dissenting opinion that Justice Gorsuch joined. And Justice Gorsuch filed a dissenting opinion that Justice Alito joined. SCOTUSblog discusses the decision. (See prior related posting.)

DC Archdiocese Seeks Liberalized Capacity Rules For Its Churches

Last week, the Catholic Diocese of Washington, D.C. sued in federal district court challenging D.C.'s COVID-related 50-person cap on religious gatherings.  It seeks, instead, percentage-based limits similar to those imposed on numerous commercial establishments. The complaint (full text) in Roman Catholic Archbishop of Washington v. Bowser, (D DC, filed 12/11/2020), alleges that half of the churches in the Archdiocese can accommodate 500 or more worshippers, and the largest can accommodate thousands. It contends that the current limits violate its 1st and 14th Amendment rights. The complaint declares:

 Christmas should be a time for reconciliation and joy, and the Archdiocese simply wants to welcome its flock home. It respectfully requests that it be allowed to do so.

Catholic News Service reports on the lawsuit.

UPDATE: In order to resolve the litigation, D.C.'s Mayor on Dec. 16 issued modified rules (full text of Mayor's Order) that allow houses of worship to admit up to 25% of their capacity, not to exceed 250 persons, for worship services. Other events or programs at churches are limited to 10 persons indoors or 25 outdoors. Other safety protocols are also required for religious services. Washington Post reports on the new Order.

9th Circuit Orders Injunction Against Nevada's COVID Limits On Churches

In Calvary Chapel Dayton Valley v. Sisolak, (9th Cir., Dec. 15, 2020), the U.S. 9th Circuit Court of Appeals held that Nevada's COVID-19 restrictions on worship services violate the Free Exercise clause. The court said in part:

The Supreme Court’s decision in Roman Catholic Diocese compels us to reverse the district court. Just like the New York restrictions, the Directive treats numerous secular activities and entities significantly better than religious worship services. Casinos, bowling alleys, retail businesses, restaurants, arcades, and other similar secular entities are limited to 50% of fire-code capacity, yet houses of worship are limited to fifty people regardless of their fire-code capacities.

Nevada Independent reports on the decision.

Supreme Court Sends Two Cases On COVID Limits Back For Reconsideration

In two separate cases today, the U.S. Supreme Court vacated district court opinions (1, 2) denying churches or clergy injunctions against state COVID-19 orders. The Supreme Court ordered those courts to reconsider the cases in light of the Supreme Court's recent decision in Roman Catholic Diocese of Brooklyn v. Cuomo. In one of today's cases, High Plains Harvest Church v. Polis, (Sup. Ct., Dec. 15, 2020), challenging Colorado restrictions, Justice Kagan, joined by Justices Breyer and Sotomayor dissented on the ground that the case is now moot since the challenged capacity limits have already been lifted. In the second case, Kevin v. Murphy, (Sup. Ct., Dec. 15, 2020), challenging New Jersey restrictions, no dissents to the one paragraph order were recorded. SCOTUSblog has more on the decisions. [updated]

Michigan Catholic School Challenges COVID Closure Order

A private Catholic school has sued seeking a declaration that Michigan's latest COVID-19 order temporarily closing down in-person high school instruction violates its Free Exercise rights.  The complaint (full text) in Saint Michael Academy, Inc. v. Gordon, (WD MI, filed 12/11/2020) alleges in part:

The Declaration of Dr. Jayanta Bhattacharya, a world-renowned scientific expert, professor of Medicine at Stanford University, and author of 136 articles in peer-reviewed journals, attached to this Complaint as Exhibit 3, presents scientific analysis which shows that prohibiting in-person instruction for pupils in grades 9 through 12 as does Director Gordon’s current Order, is not warranted by either transmission or mortality data, and causes these students great harm....

Without in-person instruction, St. Michael Academy is unable to provide the Christ-centered, communal academic environment required for its students to grow and develop in accordance with its religious purpose, mission and vision....

The current Order is an arbitrary order that, while closing down St. Michael Academy’s high school, nevertheless permits many other types of gatherings that pose similar or greater risks of COVID-19 transmission and infection, and that are unprotected by the Free Exercise clause of the United States Constitution.

Thomas More Law Center issued a press release with more details on the case. MLive reports on the lawsuit.

Ohio County's School Closure Order Upheld

In Monclova Christian Academy v. Toledo- Lucas County Health Department, (ND OH, Dec. 14, 2020), an Ohio federal district court refused to issue a temporary restraining order against COVID-19 rules which bar in-person instruction at the high school level, and bar use of schools for various activities. The suit was filed by three Christian schools and an organization of Christian and Catholic schools.  The court said in part:

The nature of Plaintiffs’ arguments stems in part from their assertion that the educational courses they offer to their students are inextricably intertwined with their religious beliefs and, therefore, to prohibit Plaintiffs from holding classes in the manner in which they believe is most consistent with the tenets of their faith is to interfere with the free exercise of their faith....

While, as Plaintiffs note, TLCHD has not ordered gyms, tanning salons, or casinos to close, ... these are not the relevant “comparable secular activities.” Instead, the comparable secular activities are educational classes offered by all other schools in Lucas County. These specific environments have substantially similar groupings and movements of individuals....

Plaintiffs’ arguments ... would extend to prohibit the government from regulating any aspect of a Christian’s public life because, as Plaintiffs’ mission statements make clear, the purpose of providing “a biblical foundation for . . . students” is to prepare students “to exemplify Christ [and] make Biblically-based decisions” throughout an individual’s life, and not only during the schools years.

Court Refuses To Enjoin Kentucky Limits On In-Person Religious School Instruction

 In Pleasant View Baptist Church v. Saddler, (ED KY, Dec. 11, 2020, a Kentucky federal district court refused to issue a preliminary injunction against enforcement of Kentucky's COVID-19 orders that, among other things, ban in-person teaching at religious schools and limit the size of in-home social gatherings. Relying on 6th Circuit precedent, the court rejected free exercise challenges by Christian schools. It added, however:

Ultimately, the Supreme Court will decide this question. Danville Christian Academy, Inc., et al. v. Beshear, 20-6341 (6th Cir. Nov. 29, 2020), appeal docketed, No. 20A96 (Dec. 1, 2020). At this juncture, an injunction is not supported given the teaching of the Sixth Circuit, but that could change. And if it does, this Court will revisit Pleasant View’s request.

Street Preacher Planning Protest Lacks Standing In TRO Proceeding

In Gibson v. City of Vancouver, 2020 U.S. Dist. LEXIS 232408 (WD WA, Dec. 3, 2020), a Washington federal district court refused to issue a temporary restraining order to protect a street preacher who planned to hold a 20-person outdoor prayer protest at a public park to oppose the governor's COVID-19 orders. The court held that plaintiff lacks standing to sue, saying in part that plaintiff:

has not demonstrated that any of the Defendants he sued have communicated a specific warning or threat to initiate any proceedings against him if he carries out his plan...

Court Continues Injunction Allowing Medical Abortion Drug To Be Dispensed In Pharmacy Or By Mail

 In American College of  Obstetricians and Gynecologists v. U.S. Food and Drug Administration, (D MD, Dec. 9, 2020), a Maryland federal district court refused to stay its earlier preliminary injunction against enforcement during the COVID emergency of an FDA rule that prevents mifepristone, an oral medication used to induce abortion, from being received by mail or through a pharmacy. The rule mandates it be dispensed only in person at a clinic or doctor's office. The court said in part:

As the parties continue their ongoing dispute over the validity of the Preliminary Injunction and whether it should presently remain in effect, the Court notes that it is not open-ended. The Preliminary Injunction is slated to end 30 days after the end of the public health emergency declared by the Secretary. With the positive news relating to vaccines, there is reason to hope that day will come soon. At this time, however, as the entire nation goes through what the Coordinator of the White House Coronavirus Task Force has deemed the "most deadly phase of the pandemic,"... the Court concludes that Defendants have not identified changed circumstances sufficient to warrant a stay or dissolution of the Preliminary Injunction, in whole or in part.

Washington Post reports on the decision.

9th Circuit Hears Oral Arguments In Church's Challenge To Nevada COVID Rules

On Tuesday, the U.S. 9th Circuit Court of Appeals heard oral arguments in Calvary Chapel Dayton Valley v. Sisolak (video of full oral arguments). In the case, a Nevada federal district court upheld Nevada Governor Steve Sisolak's COVID-19 Order limiting worship services to no more than 50 people with social distancing. (See prior posting.) Subsequently, the U.S. Supreme Court by a 5-4 vote refused to grant an injunction pending the appeal that was argued this week. (See prior posting.) After that, plaintiff filed a petition asking the U.S/ Supreme Court to grant certiorari before the 9th Circuit decides the case. (See prior posting.) That petition is still pending.

Michigan Catholic Schools Sue Over COVID Order

A group of Catholic schools and parents of students in the schools filed suit this week in a Michigan federal district court challenging the state's latest COVID-19 Order which temporarily bars in-person instruction in high schools. The schools claim that the latest order violates their free exercise, freedom of assembly, due process and equal protection rights. The complaint (full text) in Michigan Association of Non-Public Schools v. Gordon, (WD MI, filed 12/7/2020), alleges in part:

Plaintiffs fully understand and appreciate the challenges of limiting COVID’s spread and of contributing to the common good. They are convinced that continuing in-person religious education contributes  to the well-being of Michiganders, rather than harming it. That is why they have gone to such extraordinary lengths to ensure in-person schooling can be done safely for everyone.

Despite all this, Defendant has shuttered Plaintiffs’ schools. At the same time, Defendant allows other activities with demonstrably higher risks to continue. These include professional and collegiate athletics, tattoo parlors and hair salons. Defendant’s prior three-week “pause” order has now been extended and Plaintiffs face the prospect of indefinite future extensions....

MLive reports on the lawsuit.