McArthur v. Brabrand
| Decision Date | 07 July 2022 |
| Docket Number | 1:21-cv-1435 (LMB/IDD) |
| Parties | ERIC MCARTHUR, et al., Plaintiffs, v. SCOTT BRABRAND, et at, Defendants, |
| Court | United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia) |
In this civil action, plaintiffs Eric and Jenny McArthur and their four minor children (“plaintiffs”) challenge a now-defunct Fairfax County Public Schools (“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-Scott Brabrand, the Superintendent of FCPS, and Stella Pekarsky, the Chair of the Fairfax County School Board (together “defendants”)-and a public health official-Dr. Gloria Addo Ayensu, the Director of the Department of Health for Fairfax County (“Dr. Ayensu”). 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 defendants' motion under advisement. For the reasons stated in this Memorandum Opinion, defendants' Motion to Dismiss Amended Complaint (“Motion”) [Dkt. No 32] will be granted.
Eric and Jenny McArthur have four minor children, all of whom attend FCPS. They are M.J.M. (11th grade), M.D.M. (9th grade), M.H.M. (5th grade), and M.M. (2nd grade). [Dkt. No. 20] at ¶¶ 23-25. As of the briefing of the pending Motion, none of the McArthur children had been vaccinated against COVID-19. Id. at ¶ 6.
On Friday, October 29, 2021, 5th grader M.H.M. and Mr. McArthur tested positive for COVID-19. Id. at ¶ 31. After Ms. McArthur notified M.H.M.'s elementary school, which M.M. also attended, the assistant principal notified the family that M.M. would have to quarantine for 14 days, beginning on Monday, November 1, because she was in close contact with M.H.M. [Dkt. No. 24-1] at Att. A ¶ 7; Id. at Ex. 4. The email informed the McArthurs that during M.M.'s quarantine, she could access asynchronous assignments from her teachers each day and a livestream or video recording of classroom instruction by “[n]o later than the third day” of her quarantine; however, she could not participate in those classroom discussions, because her audio and video would be off. Id. at Ex. 4.
On Sunday, October 31, 2021, M.M. and Ms. McArthur began experiencing symptoms associated with COVID-19. [Dkt. No. 20] at ¶¶ 32,34; [Dkt. No. 24-1] at Att. A ¶ 9. M.M.'s symptoms included nausea, sore throat, fatigue, and a low-grade fever. [Dkt. No. 20] at ¶ 32. Although Ms. McArthur took an at-home test that confirmed she was COVID-positive, M.M. was not tested.[1] Id. at ¶ 34. As a result of their quarantine, M.H.M. missed about four days of in-person learning and returned to class on Monday, November 8,2021.[2] Id. at ¶ 31. M.M. missed about eight days of in-person learning and returned to class on Monday, November 15. [Dkt. No. 24-1] at Att. A ¶¶ 6-8.
On the evening of Thursday, December 2, 2021, the McArthurs were notified that M.M. had been identified as “a potential close contact” of another individual who had tested positive for COVID-19 and would therefore have to quarantine again. [Dkt. No. 20] at ¶ 40. Under FCPS's quarantine policy at the time, a fully vaccinated student who was identified as a “potential close contact” of a COVID-positive individual could return to school as soon as the Fairfax County Health Department (“FCHD”) verified that the student was vaccinated and asymptomatic. Id. at ¶¶ 42-43. In contrast, an unvaccinated student who was identified as a “potential close contact” had to quarantine for 10 days, regardless of whether the student tested negative, was asymptomatic, or had recently recovered from a COVID-19 infection.[3] Id. at¶45; [Dkt. No. 24-1] at Att. A ¶¶ 15-20. Accordingly, the notice informed the McArthurs that M.M. could return to school on Monday, December 13,2021. [Dkt. No. 24-1] at Ex. 7. This news upset M.M., who cried when she learned she would miss more school. [Dkt. No. 20] at ¶ 56. During the quarantine, M.M. had temper tantrums and difficulty focusing on remote learning. Id. at ¶ 57.
On Monday, December 6,2021, FCPS updated its quarantine policy “[g]iven the importance of in-person instruction, recognized quarantine alternatives by the Centers for Disease Control and Prevention (CDC) and Virginia Department of Health (VDH), and a decrease in community transmission.” [Dkt. No. 24-1] at Ex. 9. The updated policy allowed an unvaccinated student who was identified as a “potential close contact” to return to school after seven days of quarantine if the child remained asymptomatic and provided a negative COVID-19 test taken on or after the fifth day of quarantine. Id. FCPS notified the McArthurs that “this new return option is immediately available” to M.M, id.; however, the McArthurs did not take advantage of it, because they believed that M.M. might have tested positive given the recentness of her previous illness. [Dkt. No. 20] at ¶¶ 52-54. Consequently, M.M. returned to school on Monday, December 13,2021, after having missed six days of in-person learning. Id. at ¶ 55.
That same month, although on an unspecified date, the two older children, M.J.M. and M.D.M., contracted COVID-19; however, there is no allegation in the Amended Complaint that either M.J.M. or M.D.M. were required to quarantine or missed any in-person instruction. Moreover, there is no allegation that the two younger children, M.M. and M.H.M., had to quarantine because of this exposure. [Dkt. No. 20] at ¶¶ 6,68.
On January 31, 2022, the McArthurs were notified that M.M. and M.H.M. had been identified as “potential close contacts” of an infected person and had to quarantine for five days under further updated quarantine guidance. Id. at ¶ 60. At the time, the revised FCPS quarantine policy provided an exemption for unvaccinated students who had been infected with COVID-19 within the last 90 days; however, neither M.M. nor M.H.M. were eligible for that exception, because it had been more than 90 days since M.H.M. had COVID-19 and since M.M. had an illness that the family suspected was COVID-19. [Dkt. No. 20] at ¶ 61. Nonetheless, M.M. was allowed to return to school on February 1,2022, because five days had apparently passed since the “potential close contact.” Id. at ¶ 63. M.H.M., who had been exposed to a different COVIDpositive individual, returned to school on February 3,2022. Id.
As of March 1, 2022, FCPS stopped identifying “close contacts in association with school-related exposures.” [Dkt. No. 36-2] at ¶ 15.[4] Under the new policy, FCPS notifies parents of positive cases at school, but non-infected students may continue attending school as long as they remain symptom-free, regardless of vaccination status. Id. Accordingly, “factors such as whether an affected student is vaccinated or unvaccinated, or whether the student has previously contracted COVID-19 more or less than 90 days ago, will not play a role in the determination of whether a student may attend school in-person.” Id. As of March 14, 2022, FCPS expected to implement a “test to stay” program, where in the event of a COVID-19 outbreak at a school, asymptomatic unvaccinated students may remain in school as long as they wear a mask and test negative using a “home-self test” for five days after the exposure. Id. at ¶ 17.
On December 23,2021, after M.M.'s second quarantine, Eric and Jenny McArthur filed a Complaint on behalf of themselves and M.M. against defendants and Dr. Ayensu.[5] [Dkt. No. 1]. The Complaint alleged that M.M. was naturally immune from COVID-19 because of a recent infection and that, because of her natural immunity, there was no legitimate basis to treat her differently from a vaccinated student. Id. at 1. In five counts, the Complaint alleged violations of the Equal Protection Clause of the United States Constitution (Count I); the right to receive an education under the Virginia Constitution (Count II); substantive and procedural due process rights under the United States and Virginia Constitutions (Count III); the right of parents to make decisions concerning the care of their children under the United States Constitution and Virginia Code § 1-240.1 (Count IV); and the Emergency Use Authorization statute, 21 U.S.C. § 360bbb-3 (Count V). The Complaint requested declaratory and injunctive relief, as well as nominal damages. Id. at 28-29.
In January 2022, defendants and Dr. Ayensu filed motions to dismiss the Complaint. [Dkt. No. 12,15]. On February 1,2022, the day after the McArthurs were notified that M.M. would have to quarantine for the third time, plaintiffs moved for a temporary restraining order to prevent the school from excluding M.M. yet again [Dkt. No. 18]; however, plaintiffs withdrew the motion that same day after they learned that, because five days had passed since the exposure, M.M. could attend school the next day [Dkt. No. 19].
On February 7, 2022, plaintiffs filed the pending Amended Complaint (the “Complaint”) that added the other three children, M.J.M., M.H.M., and M.D.M., as plaintiffs and moved for a preliminary injunction. [Dkt. No. 20,25]. Defendants and Dr. Ayensu filed renewed motions to dismiss. [Dkt. No. 28,32]. On March 7,2022, after FCPS revoked its policy requiring unvaccinated students to quarantine if exposed to a COVID-positive individual, plaintiffs withdrew their motion for a preliminary injunction, recognizing that it was “no longer necessary.” [Dkt. No. 38].
Defendants have moved to dismiss the Complaint under Fed.R.Civ.P 12(b)(1) and 12(b)(6). A motion to...
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