| The Detroit News
A west Michigan Christian school fighting the state in federal court over its mask mandate and contact-tracing provisions has been warned that its parents and the school’s associated church will suffer fines if COVID-19 rules aren’t followed.
The Ottawa County Health Department issued the warning to Libertas Christian School earlier this month, but it will be put to its first real test on Monday as students return to the Hudsonville school for the first time in almost three weeks.
The health department’s order threatened parents with a $250-per-day fine for sending their children to the school if the school failed to follow COVID-19 orders. The department levied the same fine on Beaverdam Christian Reformed Church if, as landlord to the school, it failed to prohibit the school from being used in a way that “facilitates the spread of disease.”
The church is liable to the fines, despite a carve-out in state law for religious services, because “it is acting as landlord, not church holding religious services,” said Douglas Van Essen, a lawyer for the health department.
As for the parents: “Libertas sometimes hides behind its parents, claiming it cannot control parents. There is shared responsibility here, and that is what the order recognizes,” Van Essen said.
Lansen Perron enrolled three of his children at Libertas in August, in large part because of the school’s Christian worldview but also because of the school’s emphasis on parents’ ability to make decisions for their children.
When the state issued a mask mandate that applied to students, each family was still able to decide whether their children would wear them. The school did emphasize mask usage was not to be looked down upon, Perron said.
When weighing the risks of the virus, Perron said he believes protective policies should be more focused on at-risk populations. The data, he said, showed many kids had less serious cases.
“For us, that was the main driver,” Perron said. “The data doesn’t show that our kids are at a risk. We felt very comfortable sending our kids to Libertas without a mask.”
When the school was closed in late October, Perron was frustrated by the decision given the school’s case rate at the time.
“They seemed like they cared more about compliance than the actual outcomes,” Perron said. “It does seem to me that they are targeting or singling out Libertas.”
Libertas Headmaster Bob Davis agreed, arguing other Christian schools across the state aren’t enforcing the mask mandate but encounter a fraction of the same punitive measures employed in Ottawa County.
“We feel that we’re being unequally treated under the order,” Davis said.
The school has asserted “a good-faith effort” to remind parents of state and local mask mandates, but state law allows schools to accept “a verbal representation” from students who are unable medically to wear a mask, said Ian Northon, a lawyer for Libertas whose bills are being paid by the Thomas More Society, a conservative nonprofit law firm based in Chicago.
“What the county is doing is unprecedented,” he said. “I’ve never seen any other county be so aggressive in the enforcement of these emergency orders.
“This is vindictive. This is retaliatory. It is unfortunate.”
Besides that medical exemption, the school should be excluded from the order because of constitutional religious protections and out of respect for parents’ rights, Northon said. And public school code prohibits a school from disciplining a student in such a way that restricts their breathing, he said.
“I’ve got a statute that says one thing, an emergency order that says another, and parents’ heads are on a swivel trying to figure it out,” Northon said. “They did what civilized people do and took it to court to figure it out.”
No relief in courts yet
The school filed suit against the state in October as the health department issued orders and threatened the school’s closure because students weren’t wearing masks and two teachers tested positive for the virus but wouldn’t release the names of their students.
The school argued it had a religious exemption because each class had a spiritual element to it and it argued that the two teachers at issue had not exposed students to the virus prior to testing positive.
Libertas Christian School grew from a home school group in a church basement to more than 250 students in a separate building in Hudsonville. Some home school families still attend part-time through a partnership program at the school. The school views itself as assisting parents in education and faith formation.
The curriculum centers around faith-based learning, with praise and worship at the beginning of each day, each class and sporting events.
The health department closed the school a few days after the federal lawsuit was filed and the school was denied immediate relief in early November from federal Judge Paul Maloney, a Republican-appointed judge in Michigan’s Western District court.
In a separate case, Maloney also denied immediate relief in October to a Lansing Catholic school, called Resurrection School, that sought an exemption to the requirement for kids over the age of 5 to wear masks. That case still is pending.
Libertas reopened Nov. 9 after the quarantine period had lifted for students allegedly exposed to the COVID-positive teachers but closed again on Nov. 11 when several families and teachers were forced to quarantine because of exposure outside the school. The health department said in its order that a Libertas teacher also tested positive around that time.
On Nov. 20, the 6th Circuit Court of Appeals again denied the school’s request for immediate relief from the state mandates.
The school plans to amend its complaint in federal district court to reflect the changes that have been made to the state’s epidemic orders, one of the issues prompting denial in the 6th Circuit, Northon said.
One of the challenges of filing suit against the state’s orders is the fact that they have changed every few weeks so that the order listed in a court filing one week isn’t the same on appeal, Northon said. Essentially, he said, it allows the state and local health laws to “evade review.”
“I expect at some point we’re going to be back in front of the 6th Circuit,” Northon said.
On Nov. 12, the county issued its fifth order to the school, noting that students continued to attend classes between Nov. 9 and Nov. 11 without masks.
The county ordered the school to require students to wear masks unless they have a “written medical mask waiver” from a physician, post signs informing people of the mask mandate, warn people upon entry of the order and hand out face masks to students without them.
If the school does not comply, it must close, the order said. If it submits a plan to the county indicating compliance, it must allow a health department employee on site to “spot check” the school’s compliance.
“The point is to ‘encourage’ Libertas from all angles to obey the mask mandate to protect the safety of their children and teachers, and of course the broader community which is experiencing a surge undoubtedly due in large part to gatherings without masks,” health department lawyer Van Essen said.
Case raises ‘key issue’
There aren’t many cases similar to Libertas’ throughout the United States, but not all of the actions taken are unique to the west Michigan school, said Peter Jacobson, professor emeritus of health law and policy at the University of Michigan’s School of Public Health.
Jacobson also is director of the Mid-states Region of the Network for Public Health and collaborates with the Michigan Department of Health and Human Services.
The action threatened against the parents has been employed in different instances throughout the country, Jacobson said, but there are few, if any, instances of a health department pursuing fines against a landlord.
That’s not to say Michigan’s public health code doesn’t allow for such action.
“The department has wide authority to confront the virus, and if there’s a scientifically valid reason, a public health rationale for holding landlords accountable, then yes,” he said.
“But we are skeptical that the church will be held responsible for this. It will be up to the state courts to decide if that goes too far.”
He also noted the state public health code does allow for “verbal representations” of medical conditions preventing mask usage in a school setting. It’s possible Ottawa County employs stricter standards though, he said.
“It’s going to be a key issue, whether the school should be expected to do more,” Jacobson said. “What I think the court is going to do is balance the need to comply with the order with not making compliance too burdensome.”
With the school planning to reopen Monday, Northon said administrators have communicated the COVID-19 orders to parents but argued state law allowed the school to continue to accept “verbal representations” of medical issues that conflict with mask usage.
“They’ve communicated to the parents that the county and state are demanding they comply with the rules,” Northon said. “They’ve informed them of the risks.”
The county’s cease and desist order, which expires Monday, “will have to be renewed,” Van Essen said.
“We are still a land where the rule of law needs to mean something,” Van Essen said.