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Ohio Christian Education Network lawyer urges Lucas County health department to rescind coronavirus health order, calls resolution unconstitutional

Attorney Brian Fox said the group would prefer to sit down with county health leaders to discuss ways to balance competing interests. But, litigation is an option.

An Ohio attorney sent a letter Tuesday to the Toledo-Lucas County Health Department, requesting reconsideration of the school order issued last week. 

The letter was sent on behalf of the Ohio Christian Education Network (OCEN), a network of private religious institutions facilitated by Citizens for Community Values with "member schools" in the community.

On Wednesday of last week, the Toledo-Lucas County Regional Board of Health voted in favor of an order requiring students in grades 7-12 to learn virtually, beginning Dec. 4 at 4 p.m. and ending Jan. 11 at 8 a.m. However, students in grades K-6 were allowed to continue in person at the discretion of the district. The order also prohibited all sports and extracurricular activities from utilizing any school building interior space for practice or contests during that period.

RELATED: Health board orders virtual learning for all 7-12 graders in Lucas County starting Dec. 4; sports, extracurriculars can't use buildings

In the letter, attorney Brian W. Fox, said OCEN leaders take issue with the following aspects of the order:

  • Member schools cannot remain open to provide in-person instruction for students in grades 7-12 unless the school has a K-8 configuration (in which case they may remain open for in-person instruction for all grades)
  •  Member schools may remain open to provide in-person instruction for students in grades K-6. 
  • Member schools may open their buildings "to hold religious educational classes or religious ceremonies...to hold exams, [for] staff to provide virtual instruction, and for special needs education requiring in-person instruction."
  • Member schools cannot open the interior space of their buildings for sports practices and games or extracurricular activities.

"Well-intended as the restrictions may be, the Resolution is unconstitutional because it lacks a narrowly tailored, compelling governmental interest to violate the First Amendment rights of Member Schools to freely exercise their religion," the letter read.

Fox claimed that if the health order is enforced, member schools would be effectively barred from: 

  • Providing daily in-person mentorship and training of religious values for several grade levels
  • Engaging in corporate prayer throughout the day
  • Collectively sharing musical worship and communal recognition
  • Spiritually encouraging and praying for individual students 

"Each of these religious rights and responsibilities is sacred to Member Schools and the families who choose private religious education, and — as a consequence — are guaranteed by the First Amendment," Fox wrote in the letter.

He went on to claim that studies indicate a negative impact on the grade levels targeted by the order when they are forced into quarantine or isolation.

Fox accused the health board of cherry-picking data and "exaggerating concerns over in-person instruction's impact upon transmission."

The letter pointed out that other sectors and businesses have not been shuttered, despite concerns surrounding community spread of COVID-19.

Leaders with OCEN have requested that the board rescind the order before it goes into effect on Friday, or to "at the very least, postpone the Resolution's enforcement date until Member Schools have been provided with an opportunity to be heard."

Fox said that litigation is an option, but claimed, "we are all stakeholders in the shared future of how the Lucas County community handles this virus and the education of its children in grades 7-12."

He said that rather than taking the issue to court, OCEN leaders hope to discuss ways to balance competing interests.

Members of the Toledo-Lucas County Health Department have not returned requests for comment, but are expected to hold a special meeting Thursday at 10 a.m. addressing orders impacting the county's schools. 

The meeting comes as Lucas County is expected to be put on state's coronavirus advisory map "watch list," meaning it may be at risk of elevating to the highest designation - Level 4 (Purple) - next week.