IN THE STATE OF MICHIGAN

COURT OF CLAIMS

Benjamin Royal in his official capacity as Executive Board

member of the Detroit Federation of Teachers, Teacher at
DPSCD, Union Building Representative at Maybury
Elementary School, Member of the Equal Opportunity CLASS ACTION
Now/ By Any Means Necessary (EON/BAMN), and
Member of the Coalition to Defend Affirmative Action, Case No. 20-
Integration, and Immigrant Rights and Fight For Equality Hon.
By Any Means Necessary (BAMN); Brian Peck as Teacher
at DPSCD; Kenshawn Seibert as Bus Driver at DPSCD;
Famika Edmond as Parent of Autumn Carr; Autumn Carr Case classification
as Student at DPSCD; and Tiffany Jackson as Clerical Code: MM
Level 3 at DPSCD and Parent of Tavares Jenkins; Tavares
Jenkins as Student at DPSCD; Equal Opportunity Now/By
Any Means Necessary; and The Coalition to Defend
Affirmative Action, Integration, and Immigrant Rights and
Fight for Equality By Any Means Necessary (BAMN), all
on behalf of themselves and a class of all others similarly
situated,
PLAINTIFFS’
Plaintiffs,
MOTION
vs. FOR EX PARTE
TEMPORARY
Governor Gretchen Whitmer in her official capacity, the RESTRAINING
State of Michigan, acting through the Governor’s Office, ORDER
Michigan Department of Health and Human Services
AND ORDER TO
(MDHHS), Michigan Department of Education (MDE),
and MDHHS Director Robert Gordon, MDE SHOW
Superintendent of Public Instruction Michael F. Rice in CAUSE WHY A
their official capacities, Detroit Mayor Michael E. Duggan PRELIMINARY
in his official capacity, and the Detroit Public Schools INJUNCTION
Community District (DPSCD), and DPSCD Superintendent SHOULD
Nikolai Vitti in his official capacity,
NOT BE ISSUED
Defendants.
___________________________________________________/

Shanta Driver (Michigan P65007)

Driver, Schon & Associates PLC
19526-B Cranbrook Dr. Detroit, MI 48221
Telephone: (313) 683-0942
shanta.driver@ueaa.net
Counsel for Plaintiffs

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Now come the Plaintiffs, by and through counsel, and, for the reasons outlined in

the accompanying Brief, hereby move this Honorable Court under MCR 3.310(B)

to enter a temporary restraining order and/or preliminary injunction requiring

Defendants and any agent of Defendants to:

1. Stop providing in-person instruction within DPSCD

2. Governor Whitmer must issue an executive order saying it is premature to

resume in-person school instruction in Michigan, suspending school

openings until the science supports reopening;

3. Order Defendants to show cause as to why this temporary restraining order

should not be replaced by permanent injunction.

Respectfully submitted,

By: ____________________________
Shanta Driver (Michigan P65007)
Driver, Schon & Associates PLC
19526-B Cranbrook Dr.
Detroit, MI 48221
Telephone: (313) 683-0942
shanta.driver@ueaa.net
Counsel for Plaintiffs

Dated: July 14, 2020

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 IN THE STATE OF MICHIGAN
COURT OF CLAIMS

Benjamin Royal in his official capacity as Executive Board

member of the Detroit Federation of Teachers, Teacher at
DPSCD, Union Building Representative at Maybury
Elementary School, Member of the Equal Opportunity CLASS ACTION
Now/ By Any Means Necessary (EON/BAMN), and
Member of the Coalition to Defend Affirmative Action, Case No. 20-
Integration, and Immigrant Rights and Fight For Equality Hon.
By Any Means Necessary (BAMN); Brian Peck as Teacher
at DPSCD; Kenshawn Seibert as Bus Driver at DPSCD;
Famika Edmond as Parent of Autumn Carr; Autumn Carr Case classification
as Student at DPSCD; and Tiffany Jackson as Clerical Code: MM
Level 3 at DPSCD and Parent of Tavares Jenkins; Tavares
Jenkins as Student at DPSCD; Equal Opportunity Now/By
Any Means Necessary; and The Coalition to Defend
Affirmative Action, Integration, and Immigrant Rights and BRIEF IN SUPPORT
Fight for Equality By Any Means Necessary (BAMN), all
on behalf of themselves and a class of all others similarly OF
situated, PLAINTIFFS’
MOTION
Plaintiffs, FOR EX PARTE
TEMPORARY
vs. RESTRAINING
Governor Gretchen Whitmer in her official capacity, the ORDER
State of Michigan, acting through the Governor’s Office, AND ORDER TO
Michigan Department of Health and Human Services SHOW
(MDHHS), Michigan Department of Education (MDE), CAUSE WHY A
and MDHHS Director Robert Gordon, MDE PRELIMINARY
Superintendent of Public Instruction Michael F. Rice in INJUNCTION
their official capacities, Detroit Mayor Michael E. Duggan
in his official capacity, and the Detroit Public Schools SHOULD
Community District (DPSCD), and DPSCD Superintendent NOT BE ISSUED
Nikolai Vitti in his official capacity,

Defendants.
___________________________________________________/

Shanta Driver (Michigan P65007)

Driver, Schon & Associates PLC
19526-B Cranbrook Dr. Detroit, MI 48221
Telephone: (313) 683-0942
shanta.driver@ueaa.net
Counsel for Plaintiffs

1
 As described in more detail in the Verified Complaint, unless this Court

intervenes, DPSCD’s decision to reopen the district with little to no planning to

protect the people associated with the school reopening from contracting COVID-

19 will result in some of the young people of Detroit being be killed by COVID-

19, countless numbers of Detroiters being infected with Coronavirus/COVID-19,

and about 10 percent of those people dying from the virus.

ARGUMENT

Under MCR 3.310(B)(1)(a), a Court may issue an ex parte temporary

restraining order (TRO) if it clearly appears from specific facts shown by affidavit

or by a verified complaint that immediate and irreparable injury, loss or damage

will result from the delay required to effect notice or from the risk that notice will

itself precipitate adverse action before an order can be issued.

To obtain preliminary injunctive relief, a plaintiff must prevail under “a

four-factor analysis:[1] harm to the public interest if an injunction issues; [2]

whether harm to the applicant in the absence of a stay outweighs the harm to the

opposing harm if a stay is granted; [3] the strength of the applicant’s demonstration

that the applicant is likely to prevail on the merits; and [4] demonstration that the

applicant will suffer irreparable injury if a preliminary injunction is not granted.”

Mich. State Employees Ass’n v Dep’t of Mental Health, 421 Mich. 152, 158-159

(1984).

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 I. Plaintiffs Will Suffer Irreparable Injury if a TRO Is Not Granted

COVID-19 leads to serious illness and death, and there is no vaccine or cure.

It spreads through water droplets and is possibly airborne. Children, especially

young children, are not able to comply with CDC recommendations of social

distancing. As indicated in affidavits, DPSCD teachers and staff have not been

adequately trained to teach children to wear masks, practice safe hygiene, or

practice social distancing.

DPSCD’s guidelines only recommend COVID-19 testing of students,

teachers, and staff after they begin to show symptoms of COVID-19. But the CDC

says that after COVID-19 makes contact with a person, it will be 2-14 days before

symptoms appear. After a test is conducted, it can be days to get the results back.

In an indoor congregate setting like a school, where students, teachers, and staff

spend seven hours a day indoors with recycled air, by the time one gets a positive

test result, that person already has had contact with scores of other people who

themselves would need to quarantine to contain the virus.

With regard to COVID-19 in jails and prisons, the Eastern District of the

U.S. District Court of Michigan rejected a regime of testing only symptomatic

inmates and detainees because it exposed them to an outbreak of COVID-19: “Nor,

given the percentage of asymptomatic COVID-19 cases and the virus’ incubation

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period of up to fourteen days, can Respondents reasonably assert, as they do, that

there are no COVID-19 cases in CCCF; they can only allege that there are no

confirmed cases. By the time a case is confirmed, it will almost certainly be too

late to protect [a detainee’s] constitutional rights.” Malam v. Adducci, Case No.

5:20-cv-10829, (E.D. Mich. Apr. 5, 2020), at *36 (emphasis added).

It is certain among the 2,000 students and hundreds of school stuff in

DPSCD summer school, that some have the virus and are asymptomatic and will

pass it on to others, and that in weeks’ time the first positive results will emerge

from DPSCD summer school. By the time positive test results come from DPSCD,

it will already be “too late.” And months of shutdown to contain the spread of

COVID-19 in Detroit will have been squandered.

II. Granting a Preliminary Injunction Will Advance the Public Interest

Preventing exposure of children, teachers, and staff and their families to the

global pandemic of COVID-19, a disease that leads to serious illness and death,

prevents an outbreak within DPSCD which in turn prevents a renewed outbreak of

COVID-19 among the people of Detroit.

III. Harm to the Plaintiffs in the Absence of a TRO Outweighs the Harm

to Defendants if a TRO Is Granted

The harm to the Plaintiffs if a TRO is not granted is discussed in the Verified

Complaint and in this Brief above. The harm to Defendants if a TRO is granted is

4
minimal. Defendants can broaden the online component of their summer-school

curricular plans.

IV. Plaintiff is Likely to Succeed on the Merits

"The due process guarantee of the Michigan Constitution is coextensive with

its federal counterpart." Grimes v. Van Hook-Williams, 302 Mich. App. 521, 530,

839 N.W.2d 237 (2013). Washington v. Glucksberg, 521 U.S. 702, 720 (1997) ("In

a long line of cases, we have held that, in addition to the specific freedoms

protected by the Bill of Rights, the ‘liberty’ specially protected by the Due Process

Clause includes the right[ ] ... to bodily integrity...."). The U.S. Supreme Court has

recognized a liberty interest in bodily integrity in circumstances where state action

exposed residents of Flint, Michigan to unsafe drinking water. Mays v. Snyder, 323

Mich. App. 1, 62 (Mich. C. App. 2018).

Defendants are being deliberately indifferent toward the bodily integrity of

Plaintiffs by reopening the schools during a new rise in daily new cases of

COVID-19 and without plans that protect children, teachers, staff, and their

families from exposure to COVID-19 in accord with prevailing public-health

guidelines. Defendants are failing to implement the plans that do exist.

When the COVID-19 epidemic was less widespread than it is now,

Michigan closed its schools. The recent spike in COVID-19 infections in Michigan

has prompted Governor Whitmer to express “concern” about reopening Michigan

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schools in the fall. There is knowledge on the part of the defendants of the danger

posed by reopening schools.

REQUEST FOR RELIEF

Plaintiffs respectfully request the Court immediately enter an ex parte

temporary restraining order (TRO) and order to show cause why a preliminary

injunction ordering Defendants and any agent of Defendants to:

1. Stop providing in-person instruction within DPSCD

2. Governor Whitmer must issue an executive order saying it is premature to

resume in-person school instruction in Michigan, suspending school

openings until the science supports reopening;

3. Order Defendants to show cause as to why this temporary restraining order

should not be replaced by permanent injunction.

Respectfully submitted,

By: ____________________________
Shanta Driver (Michigan P65007)
Driver, Schon & Associates PLC
19526-B Cranbrook Dr.
Detroit, MI 48221
Telephone: (313) 683-0942
shanta.driver@ueaa.net
Counsel for Plaintiffs

Dated: July 14, 2020