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Oregon governor's changing COVID-19 rules prompts lawsuit from religious school

Policy threatens religious school operators with fines, jail time but allows public schools of same size to reopen

Monday, Oct 19, 2020
PENDLETON, Ore. – Alliance Defending Freedom attorneys representing a private, religious K-12 Oregon school filed a lawsuit in federal court Friday against Gov. Katherine Brown to challenge her order threatening private schools with 30 days jail time and $1,250 fines for reopening in-person instruction, despite allowing public schools of identical size in the same county permission to resume in-person classes.
After nearly two months of advising that Hermiston Christian School could provide in-person instruction to the 51 students enrolled in its K-12 program, Brown reversed course and, on July 29, ordered private schools in Umatilla County and elsewhere to remain closed while offering exemptions to public schools with 75 or fewer students. On the same day Brown extended the prohibition of in-person instruction to private schools, a spokesperson for the governor expressed a desire to prevent a “mass exodus” from public schools and emphasized that public schools could suffer a reduction in funding if students disenrolled to obtain education elsewhere.
“While responding to crises can be difficult, this case is not. There is no legitimate reason for allowing public schools with 75 or fewer students to provide in-person instruction while denying the same opportunity to small private schools, including religious ones,” said ADF Senior Counsel Ryan Tucker, director of the ADF Center for Christian Ministries. “Hermiston Christian School operates in the same county as a public school that is open, and it operates with the same number of students, who are performing the same type of activity, working in an even larger physical environment, and complying with the same health and safety protocols. Gov. Brown’s refusal to extend the same treatment to Hermiston Christian School as she does to small public schools violates the U.S. Constitution and discriminates against parents who choose to provide a religious education for their children.”
After receiving the governor’s assurance that in-person instruction would resume, Hermiston Christian retained its teachers and staff, made expenditures to meet or exceed the state’s health and safety protocols, and told parents that they could plan on in-person classes for their children. On September 16, the Oregon Department of Education granted Hermiston initial approval as an Emergency Child Care Facility for school aged children and, after conducting a virtual inspection of school facilities, noted that Hermiston Christian’s “facility is very clean and organized. [Staff] were very well prepared and are following the Health and Safety Guidelines.”  However, the Umatilla County Public Health Department has advised the school that it is not permitted to provide in-person instruction even if the students are in its facilities for childcare.
“Gov. Brown’s personal preference for public over private education does not permit her to discriminate against faith-based schools,” said ADF Senior Counsel David Cortman. “Oregon’s Department of Education has personally evaluated Hermiston Christian School and found that it is a safe place for school-aged children to spend full days, but the very same department threatens imprisonment and fines if the school dares to educate those very same children while they’re in the building. Public health crises do not suspend the Constitution or permit elected leaders to favor secular public schools by granting them unique exceptions.”
The complaint notes that Hermiston Christian serves some low-income families in its community who cannot simultaneously supervise their children’s remote education while working outside of the home to provide essential income. As the complaint explains, “Most distance-learning models rely on increased levels of parental involvement, which imposes unique burdens upon single parents or low-income families with two working parents.”
ADF attorneys filed Hermiston Christian School v. Brown in the U.S. District Court for the District of Oregon, Pendleton Division.

Alliance Defending Freedom is an alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith.
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ABOUT Ryan Tucker

Ryan Tucker serves as senior counsel and director of the Center for Christian Ministries with Alliance Defending Freedom. He oversees all litigation efforts to maintain and defend the constitutionally protected freedom of churches, Christian ministries and religious schools to exercise their rights under the First Amendment. Prior to joining ADF, Tucker engaged in private practice for over 16 years with a litigation boutique law firm in San Antonio, Texas, eight of those as a partner. His portfolio included all aspects of civil litigation, both state and federal, with a particular focus on commercial and complex business disputes. Tucker earned his Juris Doctor at Baylor Law School, where he was a senior editor of the Baylor Law Review. He obtained his bachelor of business administration in management at Texas A&M University, where he graduated cum laude. A member of the state bar in Texas and Arizona, Tucker is admitted to practice in the U.S. Supreme Court and multiple federal district and appellate courts.

ABOUT David Cortman

David A. Cortman serves as senior counsel and vice president of U.S. litigation with Alliance Defending Freedom. He has been practicing law since 1996, and currently supervises a team of over 40 attorneys and legal staff who specialize in constitutional law, focusing on religious freedom, sanctity of life, and marriage and family. Cortman has litigated hundreds of constitutional law cases including two victories at the U.S. Supreme Court. In Trinity Lutheran Church v. Comer, he secured a 7-2 victory that overturned Missouri’s denial of a religious school’s participation in a state funding program. Cortman also argued Reed v. Town of Gilbert, securing a 9-0 ruling that prohibits the government from discriminating against religious speech. A member of the bar in Georgia, Florida, Arizona, and the District of Columbia, he is also admitted to practice in over two dozen federal courts, including the U.S. Supreme Court. Cortman obtained his J.D. magna cum laude from Regent University School of Law.