Beahn v. Gayles

• Decision Date: 26 July 2021
• Docket Number: Case No.: GJH-20-2239
• Parties: John and Kimberly BEAHN, et al., Plaintiffs, v. Travis GAYLES, et al., Defendants.
• Court: U.S. District Court — District of Maryland

550 F.Supp.3d 259

John and Kimberly BEAHN, et al., Plaintiffs,

v.Travis GAYLES, et al., Defendants.

Case No.: GJH-20-2239

United States District Court, D. Maryland, Southern Division.

Signed July 26, 2021

Alyse Lauren Prawde, Timothy Francis Maloney, Joseph Greenwald and Laake PA, Greenbelt, MD, for Plaintiffs.

Bruce L. Marcus, Marcus Bonsib LLC, Sydney M. Patterson, MarcusBonsib LLC, Greenbelt, MD, for Defendant Travis A. Gayles.

Megan B. Greene, Silvia C. Kinch, Office of the County Attorney, Montgomery County, MD, Rockville, MD, for Defendants County Executive Marc Elrich, Maryland Montgomery County.

MEMORANDUM OPINION

GEORGE J. HAZEL, United States District Judge

Plaintiffs John and Kimberly Beahn, Clara I. Obermeier, Miriam Roth, James and Gem Lawson, Joshua and Penny Bortnick, and Christopher and Meagan Rizzo—individually and as parents and next friends of their minor children—as well as Brookewood School, Inc. and Avalon School, Inc. bring this civil action against Defendants Montgomery County, Maryland (the "County"), Dr. Travis Gayles, and Marc Elrich, asserting a claim for Declaratory Judgment and, pursuant to 42 U.S.C. § 1983, alleging violations of the First and Fourteenth Amendments to the Constitution stemming from now-rescinded directives preventing private and religious schools in Montgomery County from having in-person instruction due to the COVID-19 pandemic. ECF No. 1. Pending before the Court are Motions to Dismiss filed by Defendants County and Elrich, ECF Nos. 14 & 16, and by Defendant Gayles, ECF No. 15. No hearing is necessary. See Loc. R. 105.6 (D. Md. 2021). For the following reasons, Defendants’ Motions to Dismiss are granted.

I. BACKGROUND¹

A. Governor Hogan's Executive Orders

Following an influx of COVID-19 cases in the United States, on March 5, 2020, Governor Hogan declared a State of Emergency in Maryland under Md. Code Ann., Pub. Safety § 14-303, allowing the issuance of "reasonable orders, rules and regulations" designed to "protect life and property or calculated effectively to terminate or control the public emergency." ECF No. 11 ¶¶ 24–25. He also proclaimed a catastrophic health emergency under PS § 14-3A-02, which authorizes the governor to "order individuals to remain indoors or refrain from congregating" if "necessary and reasonable to save lives or prevent exposure to a deadly agent." Id. The Governor also issued a series of executive orders on gatherings and other precautions. Id. ¶ 26.

One of the executive orders issued by the Governor, Executive Order 20-04-05-02, delegated authority to local health officers to regulate "Unsafe Facilities." Id. ¶ 91. Executive Order 20-04-05-02, issued on April 5, 2020, authorized local health officers to close "an Unsafe Facility," defined as one "unable or unwilling to operate in a manner that does not pose an unreasonable risk of exacerbating the spread of COVID-19 (including, without limitation, as a result of non-compliance with Social Distancing Guidance)." Id. ; see also ECF No. 3-7 at 2.² The health officer could "require the Unsafe Facility to modify its operations to comply with Social Distancing Guidelines" or "designate all or part of the Unsafe Facility as a zone in which the occupancy and use of buildings may be controlled, and prohibit or limit the movement of individuals and/or vehicles into, in, or from the Unsafe Facility." ECF No. 11 ¶ 92; ECF No. 3-7 at 2.

Local or county health officers are state employees jointly appointed by the County and Secretary of Health for the State of Maryland, ECF No. 11 ¶ 81, and subject to the administrative and financial control of the Secretary of Health, id. ¶ 83, and they "act at the discretion of the Secretary of Health to enforce the State health laws and policies, rules, and regulations, adopted by the Secretary of Health," id. ¶ 40. They also enforce the " ‘rules and regulations’ of the County health boards," which, in Montgomery County, are issued by the County Council. Id. ¶¶ 40–41.

B. Montgomery County Schools

Authority over Montgomery County schools, public and private, rests with the state. Id. ¶ 38. Thus, although Montgomery County public schools are governed by a County Superintendent and Board of Education, the state's General Assembly possesses the "exclusive authority to regulate public and private schools and has designated that authority to the Maryland State Board of Education." Id. ¶¶ 38–39. Additionally, the State Department of Education conducts regulatory oversight over the county's nonpublic schools. Id. ¶ 38.

According to the Amended Complaint, there are 22,312 students enrolled in 180 private schools in Montgomery County. Id. ¶¶ 14–15. Of those students, there are 9,345 enrolled in religious schools, accounting for approximately 40 percent of total private school enrollment. Id. A corresponding 40 percent of Montgomery County's nonpublic schools are religious. Id. ¶ 15. By contrast, the Montgomery County public school system is one of the largest in the country, educating 126,680 students and employing 23,347 staff members. Id. ¶ 150.

C. Maryland and Montgomery County School Closures

On March 16, 2020, soon after COVID-19 hit the United States and Governor Hogan issued the State of Emergency, Montgomery County Public Schools Superintendent, Dr. Jack R. Smith, suspended in-person classes for public schools. Id. ¶ 54. Then, on May 6, 2020, the State Superintendent of Schools, Dr. Karen Salmon, closed public schools across the state for the rest of the school year. Id. ¶ 55. The State Department of Education encouraged—but did not require—private schools to close, leaving the decision to the discretion of each school's Legal Authority. Id. ¶ 56. None of the Governor's executive orders prior to August 1 explicitly referenced schools except for one that mentioned "self-defense schools;" instead, guidance and decisions concerning schools generally came from the State Superintendent. Id. ¶ 27.

In May 2020, R.J. Hawley, the director of two of the Plaintiff schools, contacted the Montgomery County Department of Health and Human Services regarding fall reopening plans for private schools. Id. ¶ 33. According to the Amended Complaint, Kenny Welch, a department representative, responded:

Thank you for contacting the Montgomery County Department of Health and Human Services regarding guidance for private schools. At this point, Montgomery County does not exactly know if local government will play a role if schools will be able to operate. It will depend on if the Governor and the Maryland Department of Education give power to the local authorities and what the status is regarding case load and potential surge of the virus moving into the fall.

Id.

In June 2020, the State Superintendent issued Maryland's Recovery Plan, which "detail[ed] extensive options and best practices" for school reopenings. Id. ¶ 58; see also ECF No. 1-4. The Plan gave public schools discretion over whether, when, and how to reopen but required face coverings and other preventative measures. ECF No. 11 ¶¶ 62–64. The Plan also stated that nonpublic schools’ decisions regarding reopening "will continue to be made by the school's Legal Authority." Id. ¶¶ 31, 59. Finally, the Plan requested that public school systems submit reopening plans for the fall by August 14, 2020, and "emphasized the importance of CDC guidelines and adherence to state health protocols." Id. ¶¶ 66–67; see also ECF No. 1-4 at 8–9; ECF No. 1-5 at 2. On July 15, 2020, the State Superintendent's office reaffirmed that private schools continued to retain the authority to decide whether to open. ECF No. 11 ¶ 61.

1. Public School Closure

Based on a parent survey and stakeholder input favoring in-person learning, on July 14, 2020, the Montgomery County Public Schools Superintendent, Dr. Jack Smith, issued a draft reopening plan for public schools that included a variety of precautions. Id. ¶¶ 68–69. On July 17, 2020, the teachers’ union issued a statement denouncing the draft plan as "inadequate to protect the health and safety of students and staff." Id. ¶ 71. On July 21, 2020, Montgomery County retracted the draft plan and announced that, based on advice from Dr. Travis Gayles, the County Health Officer, public schools would be virtual-only for the first semester. Id. ¶ 72. The announcement stated, "Working with Dr. Gayles and county elected officials, we will reassess at the end of the first quarter (November 9, 2020) to determine if we are able to implement a phased blended model in the second semester (beginning February 1, 2021)." MCPS To Provide Virtual-Only Learning for First Semester , MONTGOMERY COUNTY PUBLIC SCHOOLS (July 21, 2020), https://www.montgomeryschoolsmd.org/departments/publicinfo/community/school-year-2020-2021/community-update-20200721.html.³ The Montgomery County Board of Education met about the plan on August 6. ECF No. 11 ¶ 78.⁴ During the August 6 Board meeting, "Superintendent Smith stated that ‘if things change dramatically’ in the early fall as to COVID-19 transmission rates and cases in the County, then the public school system ‘might be able to accelerate’ physical reopening of the schools." Id. ¶ 79.

As a result of the County's decision to provide virtual-only learning in public schools, some Montgomery County parents decided to place their children in private schools, which were planning to be open for in-person instruction in the fall. Id. ¶¶ 74, 105. Over the summer, private schools had engaged in extensive retrofitting and reorganization of schools to enable social distancing and other preventative measures. Id. ¶¶ 105, 137. These efforts, taken at "considerable expense," included reducing classroom size; installing plexiglass between desks in classrooms and other facilities; investing in tenting to "utilize outdoor space"; introducing mandatory temperature readings; expanding the number of school entrances; increasing cleaning and handwashing; requiring masks; changing class schedules to limit hallway use, or,...