Equal Protection attack on school COVID policy fails

Where parents argued that a Fairfax school policy violated the Equal Protection Clause by treating their unvaccinated children differently from their vaccinated classmates, but the defendants relied on public health experts like the CDC in developing their quarantine policy, the equal protection claim failed.

Background

Eric and Jenny McArthur and their four minor children challenge a now-defunct Fairfax County Public Schools or FCPS, COVID-19 quarantine policy, which plaintiffs allege treated vaccinated students more favorably than unvaccinated students whom plaintiffs claim were naturally immune because of a recent COVID-19 infection.

Plaintiffs sued two FCPS officials as well as Dr. Gloria Addo Ayensu, the Director of the Department of Health for Fairfax County. The FCPS defendants and Dr. Ayensu filed separate motions to dismiss plaintiffs’ amended complaint. After hearing argument on those motions, the court granted Dr. Ayensu’s motion from the bench and took the FCPS defendants’ motion under advisement.

Standing

Defendants correctly argue that M.J.M. and M.D.M. lack standing to challenge the quarantine policy because the complaint fails to allege that either student was quarantined under the policy. Plaintiffs concede this point by failing to address it in their opposition to defendants’ motion.

Mootness

There is no longer any need for an injunction because defendants’ current and anticipated future policies give plaintiffs the prospective relief they wanted: M.M. and M.H.M. will no longer be prevented from attending school in-person, assuming they are not actually ill.

Plaintiffs nevertheless argue is that the new policy still treats M.M. and M.H.M. differently than vaccinated students by requiring unvaccinated students to test negative and wear a mask for five days in the event of an exposure. The court finds that wearing a mask for five days is a de minimis burden.

Plaintiffs also argue that injunctive relief is not moot because FCPS’s quarantine policy is “capable of repetition, yet evading review.” But, in the event of a future COVID-19 surge, however, defendants have already announced their intention to implement a “test to stay” policy, which would allow unvaccinated children like plaintiffs to stay in school. Plaintiffs have shown nothing more than “a mere physical or theoretical possibility” that FCPS will renege on its stated intention.

Because plaintiffs specifically requested nominal damages in the complaint, however, it is not entirely moot. Finally, plaintiffs seek declaratory relief, and such relief can be awarded retrospectively.

Equal Protection

Count One alleges that defendants violated the McArthur children’s rights under the Equal Protection Clause by treating them differently from their vaccinated classmates without adequate justification. Plaintiffs’ claim fails because, as plaintiffs acknowledge in their complaint, defendants relied on public health experts like the CDC in developing their quarantine policy, and the CDC had essentially stated that the efficacy of natural immunity as it related to COVID-19 reinfection was still being studied at the time.

Virginia claim

Plaintiffs next allege that the FCPS quarantine policy violated their fundamental right to an education guaranteed by the Virginia Constitution. Plaintiffs appear to allege both an outright denial of education and unequal quality of education. But plaintiffs had access to remote education during their mandatory quarantines. Any difference between remote and in-person education amounts to a difference of quality, and the elimination of any “substantial disparity” in quality is “simply not required by the Constitution.” To the extent plaintiffs allege an outright denial of their education, there also is no basis in Virginia law supporting that argument on the alleged facts.

Due process

Count Three alleges that defendants have violated the McArthur children’s due process rights under the United States and Virginia constitutions. Plaintiffs appear to allege violations of procedural due process, substantive due process and the unconstitutional conditions doctrine in the same count. Each claim fails as a matter of law.

Right to parent

Count Four alleges that both federal and Virginia law recognize a parent’s fundamental right to make decisions concerning the education and care of his or her child, and that defendants have deprived the McArthur parents of this right. This claim fails for multiple reasons.

First, the government has the authority to mandate vaccinations in the interest of promoting public health. Second, the facts alleged in the complaint show that the McArthur parents’ right to determine their children’s upbringing has not been infringed at all. Third, defendants acted within the constitutional authority of the state in crafting the FCPS quarantine policy, which rationally relied on CDC guidance.

Emergency use

Count V alleges that defendants’ quarantine policy is in conflict with, and therefore preempted by, the federal Emergency Use Authorization, or EUA, statute, which provides that recipients of products approved for use under it must be informed of the “option to accept or refuse administration.” But the McArthurs have not been deprived of their so-called-right under the EUA to decline the vaccine, as all of the McArthur children remain unvaccinated, and the quarantine policy has not caused such a loss of education to rise to the level of deprivation. Even if the complaint alleged sufficient facts to make out such a claim, moreover, any proceeding must be brought “by and in the name of the United States,” and not as private actions.

FCPS defendants’ motion to dismiss granted.

McArthur v. Brabrand, Case No. 1:21-cv-1435, July 7, 2022. EDVA at Alexandria (Brinkema). VLW 022-3-293. 31 pp.