The blackjack tables remain open in Toledo, Ohio, but some middle schools and all high schools are required to close.

An order issued by Ohio’s Lucas County Regional Board of Health on Nov. 25 mandated that “education for Grades 7-12 (or 9 to 12 depending on school configuration) will be virtual from December 4th until January 11th” to prevent the spread of COVID-19. 

The order exempts elementary schools, without explaining why.

Due to anticipated issues with students in grades K-6 (unless the school
configuration is grades K-8 who can follow K-6 orders), schools may remain open, but may only open those facilities required to provide in-
person education for students in those grades.

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With liquor stores remaining open and the Hollywood Casino Toledo still operating, some Ohioans are crying foul over the Lucas County Regional Board of Health’s order. Toledo is the county seat of Lucas County.

“If you’re interested in playing a couple of hands of blackjack, just wear a mask, observe social distancing protocols, and good luck! If, however, you’re interested in preparing 11th graders for the SAT (or life after high school), your only option is to roll the dice with remote learning,” lawyer Brian Fox wrote in a letter to Lucas County Health Commissioner Eric Zgodzinski. 

Fox, who is representing the Ohio Christian Education Network, requested in a Nov. 30 letter that the Board of Health reconsider the resolution before the order takes effect Dec. 4. Citizens for Community Values, an Ohio faith-based public policy organization, oversees the Ohio Christian Education Network, a coalition of private religious schools.

Fox argued on behalf of the coalition that the order is a direct violation of the First Amendment rights of the network’s institutions.

“The Supreme Court has held, ‘[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury,’” he said. The religious schools within the coalition offer “students purpose, faith, and abiding hope,” but are unable to do so effectively when they’re not in the classroom, the attorney said. 

Fox noted that leading health experts do not see in-person education as a significant contributor to the spread of COVID-19: 

Comprehensive studies from UNICEF, the European Centers for Disease Control, and the [U.S. Centers for Disease Control and Prevention] have concluded in-person instruction is not an accelerant to transmission. 

On November 19, 2020, CDC Director Robert [Redfield] stated, “[t]he truth is, for kids K-12, one of the safest places they can be, from our perspective, is to remain in school” and that it is “counterproductive … from a public health point of view, just in containing the epidemic, if there was an emotional response, to say, ‘Let’s close the schools.'”

[On Nov. 29, National Institute of Allergy and Infectious Diseases] Director Dr. Anthony Fauci, during an interview now widely reported upon by the national media, stressed: “Close the bars and keep the schools open … . The default position would be to try as best as possible, within reason, to keep the children in school. If you look at the data, the spread among children (and from children) is not really very big at all—not like one would have suspected.”

The Lucas County Regional Board of Health did not immediately respond to The Daily Signal’s request for comment.

Ohio Attorney General Dave Yost also put pressure on the Lucas County Board of Health in a tweet on Wednesday, saying, “As the Supreme Court noted last week, the government may not treat religious organizations worse than similarly situated secular organizations.” He added, “This local health order needs some work.”

In response to the letter from the Ohio Christian Education Network’s attorney, the Lucas County Board of Health held an emergency hearing on Thursday morning. The board moved to amend the order to add the word “emergency” to its language to make it clear both legally and to the public that the order is being implemented under emergency circumstances. The board did not announce any plans to change the order to allow schools in Lucas County to remain open. 

“I personally feel we should go ahead and pass this amended order without substantive changes. That’s where I am coming down on it,” Johnathon Ross, the president of the Lucas County Regional Board of Health, said during Thursday’s hearing. 

Zgodzinski, the Lucas County health commissioner, clarified that the order was issued to “make sure that we capture the concerns during these holiday periods” and to mitigate the spread of the virus. He pointed out that the county board has the authority to issue closing orders for schools, but not for businesses. 

“This is an embarrassment,” Aaron Baer, president of Citizens for Community Values, told The Daily Signal in an email after the emergency hearing Thursday. “They’re keeping casinos, strip clubs, and liquor stores open, but closing schools. It’s shameful that they are playing politics with children’s futures.” 

The attorney’s letter on behalf of the Ohio Christian Education Network invites the board to have a conversation with coalition members to discuss how the county and schools can balance health risks with educational priorities.

While litigation in the constitutional context of this issue is always an option, 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.

Rather than resorting to that, [the Ohio Christian Education Network] and Member Schools prefer to sit down with the Board to discuss how to best balance competing interests to develop the most reasonable path forward for our students and the safety of our community. 

Please contact me at your earliest convenience to arrange a time to discuss. Obviously, time is of the essence.

In addition to the request for a meeting stated in the letter, Fox said he has had “a number of email interactions with the board, asking for the opportunity to sit down (remotely) to discuss our schools’ concerns with the orders, and they have refused to listen,” Baer said.