The school year has ended for some New Hampshire districts and is almost over for others, but a Salem father has taken legal action that he hopes will force students back to the classroom despite the state’s orders that closed schools for the rest of the year because of COVID-19.
Shawn Devine is seeking a preliminary injunction through a lawsuit filed last month against Gov. Chris Sununu, the state Department of Education, the Salem School District and School Administrative Unit 57.
The action targets Sununu’s state of emergency declaration and other emergency orders that prevented students from returning to school and forced them to learn remotely.
Devine’s daughter is 15 and is completing her sophomore year in high school.
At a hearing Tuesday in Rockingham County Superior Court, Devine’s lawyer, Robert Fojo of Bedford, argued that Sununu exceeded his statutory authority and that the orders are invalid and students should return to school immediately.
While public health officials have maintained that the coronavirus poses a significant threat if social distancing and other precautions aren’t taken, Fojo argued that the coronavirus never created an emergency in New Hampshire that warranted such a declaration and that the virus “resembles something more like the flu” and doesn’t impact children as it appears to target older populations.
“A disaster has not occurred in this state if you look at the numbers,” Fojo said.
As of Tuesday, New Hampshire has reported 4,749 cases of COVID-19, the disease caused by the coronavirus, and 256 deaths.
Judge Andrew Schulman reminded Fojo of information shared by health officials who have stated that while children may not become as sick as an older adult, they could still catch the virus, show no symptoms, and potentially bring it home and spread it to others, including the elderly and more vulnerable individuals.
The suit claims there is no “‘emergency’ in New Hampshire, let alone the threat of one; and, under the governor’s purported ‘emergency’ declaration, the New Hampshire Department of Education and Governor Sununu fundamentally altered the way in which school districts (including the Salem School District) educate our children — seemingly overnight without a hint of explanation or notice to the public. Their conduct violates both applicable statutory authorities and the department’s administrative rules as well as the plaintiff’s fundamental right to an education under the New Hampshire Constitution.”
Fojo pointed out how the school closure has impacted all students, including Devine’s daughter.
“She has received nowhere near the same amount of instruction and extent of instruction that she used to. She has been pulled out of an entire social dynamic of her high school experience. She has been deprived of pursuing sports and other extracurricular activities that had a profoundly positive impact on her life and we have now isolated all of these children in a way that has brought them down, has depressed them, and has deprived them of their social interaction and the guidance and instruction of expert educators,” Fojo said.
Judge Schulman, who has yet to issue a ruling in the case, said there was “no question that there was something widely considered to be an emergency and that swift action was necessary because we were all sent to our respective homes on an emergent basis…”
He also noted the challenges of social distancing in schools.
“Younger kids could never understand social distancing,” he said.
New Hampshire Solicitor General Daniel Will, who represented the state, argued that the emergency steps the governor has taken were within his power, noting that there are ongoing debates regarding a virus that still has many unknowns.
“The governor in his executive orders is relying on the experts. He’s relying on Dr. Fauci. He’s relying on the CDC. He’s relying on the World Health Organization…,” Will said.
He added, “It’s very tempting to enter into this debate about whether there is a curve that needs to be flattened or whether there’s a pandemic or not, but again your honor, that’s something that maybe we could all do casually, but it’s something that none of us really has the expertise to do…”
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