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This illustration provided by the Centers for Disease Control and Prevention in January shows the 2019 novel coronavirus (COVID-19). This virus was identified as the cause of an outbreak of respiratory illness first detected in Wuhan, China.

CHARLESTON — Three mothers are suing Cabell County and West Virginia education leaders, plus Gov. Jim Justice, over the state not setting minimum safety requirements regarding COVID-19 in public schools.

“The State has now delegated essentially all COVID-related decision-making to county school boards, without providing any required metrics or minimum planning standards for those lay decision-makers, thus leaving children without adequate or equitable risk-assessment metrics or Exposure Control Plans,” the lawsuit says.

“Children with special needs are especially vulnerable and totally unprotected without consistent, risk-based exposure control planning,” the lawsuit says.

Two of the mothers have immunocompromised husbands and children who need special education.

The third parent is Families Leading Change director Jenny Anderson, who was a 2020 Cabell County Board of Education candidate and part of a coalition last year that urged greater COVID-19 caution in schools.

“There seems to be no cohesive crisis prevention and management planning county-wide or for individual schools,” Anderson said in a statement, “such as setting expectations of what will occur if the school must shut down and return students to remote learning.”

The lawsuit, filed Tuesday, argues that online schooling, in lieu of in-person education, is “functionally unavailable” to Cabell students who need educational accommodations for their disabilities.

The parents, who are being represented by Beckley-based attorney Sam Petsonk, are asking Kanawha Circuit Court Judge Duke Bloom to declare that the Cabell school board is in violation of the West Virginia Human Rights Act.

However, after previously voting it down, Cabell County Board of Education members on Thursday voted in favor of a mask mandate for all students, staff and visitors in indoor spaces, regardless of vaccination status. Masks would not be required outdoors.

Petsonk did not want to provide a statement on the status of the lawsuit following the vote Thursday evening.

The parents are also asking Bloom to order the defendants to show why they shouldn’t be considered in violation of other laws and the state constitution. Defendants include the West Virginia Board of Education, the Department of Education, the School Building Authority and the state and Cabell schools superintendents.

None commented Wednesday on the allegations.

The lawsuit asks Bloom to provide any other relief he feels is “equitable and just.”

“Counties across the State face materially identical risks of disease transmission in schools, and yet county boards of education have adopted significantly disparate protective measures for the prevention of potential infections or transmission of COVID-19,” the lawsuit states. “Some of these counties, such as Cabell, have directly contradicted the medical guidance that they have received regarding adequate protection against such disease.”

The lawsuit alleges that the Cabell board’s earlier decision to keep masks optional violated a state school board policy requiring county school systems to “work cooperatively” with local health departments for “health promotion, disease prevention, control and containment of communicable disease in schools.”

Superintendent Ryan Saxe said Thursday’s vote by the BOE was not influenced by the filing of the lawsuit.

“There is no litigation that drives what we do. We do what is best for our students, and we are going to continue to do what’s best for our students every day,” Saxe said. “Sometimes what we find is that when we create a policy, we learn more after we implement that policy that requires us to go back, reflect upon it and make changes.”

State education leaders are failing, the lawsuit argues, to provide students their constitutionally guaranteed “thorough and efficient” education by not ensuring that Cabell children are protected equally to those in other counties facing comparable risks. The lawsuit criticizes the guidance document the state education department released last month.

“The document does not apparently require any ascertainable actions,” the lawsuit states. “It does not require the use of any standardized metrics by which the local boards (of education) must assess the risk of potential exposures. It does not specify any thresholds at which the boards must take certain minimum protective actions.”

This threatens the continuation of in-person learning, the lawsuit argues.

“Closure of classrooms, schools and entire school districts due to transmission of COVID in 2021 has already begun occurring,” the lawsuit states, “and such closures are reasonably likely to occur sooner and more extensively if Defendants do not ensure comparable minimum protections against potential infection that are consistent with the relevant medical recommendations across all counties.”

The Governor’s Office didn’t respond Wednesday, but the governor’s chief of staff, Brian Abraham, did respond to Petsonk’s notification last month that a potential lawsuit was coming.

Abraham noted the Republican governor’s past court victories over those who challenged his COVID-19 policies and pointed out that vaccines are available now for people ages 12 and older.

Abraham dismissed the request from Petsonk, the Democratic Party’s 2020 nominee for attorney general, for a dialogue to avoid litigation.

“You certainly possess political ambition,” Abraham wrote, “but to my knowledge are not an expert in medicine or health, epidemiology, vaccine development, logistics, strategic planning or any other area that may be a useful base of expertise from which to make sound recommendations to the Governor.”

Ryan Quinn covers education. He can be reached at 304-348-1254 or ryan.quinn@hdmediallc.com. Follow @RyanEQuinn on Twitter.

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