Documenting America’s Path to Recovery: August 27, 2020

Welcome to Documenting America’s Path to Recovery, where we track the status of reopening in all 50 states. Today we look at the extension of mask requirements in Alabama and Indiana, Hawaii Gov. David Ige’s (D) approval of a new stay-at-home order in Oahu, a lawsuit in California over in-person schooling, and much more. Want to know what happened yesterday? Click here.

Since our last edition

What is open in each state? For a continually updated article on reopening status in all 50 states, click here.

  • Alabama (Republican trifecta): Gov. Kay Ivey (R) extended the state’s mask mandate through Oct. 2. At a press conference, Ivey said, “I understand you don’t want to wear a mask; I don’t either . . . But we are seeing significant drops (in COVID-19 infections) that are no doubt due to the mask order.”
  • California (Democratic trifecta): Gov. Gavin Newsom (D) announced a $1.7 billion testing contract with diagnostics firm PerkinElmer. The company will set up a laboratory to report test results within 24 to 48 hours, allowing for tens of thousands of tests to be processed per day by November with a goal of 150,000 per day by March 1, 2021. Newsom said this testing capacity will give the state “the ability to make decisions in real time that will advance our efforts to reopen our schools . . .  reopen our businesses in a more effective and efficient manner, and a more sustainable manner.”
  • Georgia (Republican trifecta): Gov. Brian Kemp (R) said he was considering creating mobile testing units to deploy to schools and colleges across the state. Kemp said stationary testing site use was declining and creating mobile sites would allow the state to use the excess capacity.
  • Hawaii (Democratic trifecta): Gov. David Ige (D) approved Oahu Mayor Kirk Calwell’s order reimplementing a stay-at-home order in the county for two weeks, effective Aug. 27. Individuals can only leave their homes to conduct certain essential activities.
  • Indiana (Republican trifecta): Gov. Eric Holcomb (R) announced the state would remain in Phase 4.5 of its reopening plan and extended the statewide mask mandate for another 30 days.
  • Iowa (Republican trifecta): Gov. Kim Reynolds (R) closed bars, nightclubs, and breweries in Polk, Linn, Johnson, Story, Dallas, and Black Hawk counties through at least Sept. 5. Reynolds cited high positive test rates among young adults in those counties, which are home to the state’s major universities.
  • Michigan (divided government): On Aug. 27, Gov. Gretchen Whitmer (D) issued an executive order detailing the symptoms an employee must have to stay home from work and avoid disciplinary measures from his or her employer. The new order replaces a previous one that included a greater range of symptoms. The new order also stipulates that employees aren’t shielded from disciplinary measures if known medical conditions can explain the symptoms.
  • Nebraska (Republican trifecta): The Nebraska Department of Health and Human Services announced the directed health measures for Phase 3 set to expire Aug. 31 were extended through Sept. 13. Sixty-six counties are in Phase 3. The other 27 counties in Phase 4 will remain in Phase 4 through Sept. 30.
  • West Virginia (Republican trifecta): On Aug. 26, Gov. Jim Justice (R) announced students would be permitted to participate in marching bands and cheerleading activities at football games this fall.

Featured lawsuit

Once a week, we take a closer look at a noteworthy lawsuit involving governmental responses to the COVID-19 outbreak in the United States. We define a noteworthy lawsuit as one that has garnered significant media attention, involves major advocacy groups, or deals with unique legal questions. This week, we look at a lawsuit involving prohibitions against in-person instruction at private schools in California: County of Fresno v. Immanuel Schools.

County of Fresno v. Immanuel Schools

On Aug. 25, California Superior Court Judge D. Tyler Tharpe denied Fresno County health officials’ request to temporarily bar in-class instruction at a private Christian school, until the judge issues a ruling.

What is at issue?

The county’s lawsuit seeks to block the school from hosting in-person classes. In its complaint, Fresno County argued that the school’s reopening would violate state and local public health orders and constitute a public nuisance. The County alleges in-person class instruction presents “an immediate and serious threat to the health and safety of the students, parents, teachers and staff at Immanuel Schools,” as well as to “the surrounding area, which includes many of the vulnerable agricultural worker populations that are being heavily affected by the COVID-19 virus.”

How did the court rule?

Ruling from the bench, Tharpe refused to issue a temporary restraining order, saying the County failed to “make an affirmative factual showing and a declaration pertaining competent testimony based on personal knowledge of irreparable harm, immediate danger or any other steps or a basis” for blocking the school’s actions at this time.

What were the reactions, and what comes next?

A statement from the leaders of Immanuel Schools said, “We know today’s decision is not permanent. Therefore, we will continue our legal efforts defending our rights to remain open.” Daniel Cederborg, attorney for the county, also reacted to the decision, saying that, while the judge appeared to be “impressed with the schools’ opening plan,” the decision “doesn’t show anything about the merits of the case.” A preliminary injunction hearing is set for Sept. 15, and a separate case, Immanuel Schools v. Newsom, challenging the state-mandated school restrictions, is currently pending before the California Supreme Court.