Two leaders of public school district collaboratives on opposite sides of the state say they believe districts are on solid legal ground if Missouri Republican Attorney General Eric Schmidt sues them for requiring masks.
As some school districts continue or return to mask requirements due to record-high levels of positive COVID-19 tests, Schmidt announced Tuesday he would begin suing those districts by the end of the week.
“My Office is currently finalizing lawsuits against all non-compliant districts to end the forced masking of schoolchildren, which will be filed later this week,” Schmidt said in a media release. “It’s far past time that the power to make health decisions concerning children be pried from the hands of bureaucrats and put back into the hands of parents and families, and I will take school district after school district to court to achieve that goal.”
Paul Ziegler, the executive director of EducationPlus, a collaborative of 60 districts in the St. Louis region, quoted Missouri statutes prohibiting children with contagious diseases from attending school (167.919) and another allowing school boards to adopt rules and regulations (171.011). The latter statute reads, “The school board of each school district in the state may make all needful rules and regulations for the organization, grading and government in the school district.”
“I don’t know how much clearer you can be,” Ziegler said. “The school boards have the authority to make decisions to keep schools open. But I think those two statutes specifically speak to this.”
Kenny Southwick, executive director of the Cooperating School Districts of Greater Kansas City, a collaborative of 32 districts, said boards are aware of the law and legal implications when implementing or continuing mask mandates.
“They’re making individual decisions based on what’s best for their district and working with their attorneys,” Southwick said. “We would hope that the Attorney General would not sue districts and tie up public funds for our boards to defend themselves. But I think our districts are going to be prepared to do what’s right. We’ve spent all this time keeping kids safe. Everybody wants kids in school. Mitigation helps keep kids in school. We don’t need to lose any part of that mitigation when our numbers are the highest they’ve ever been in the state.”
The Missouri Department of Health and Senior Services COVID-19 dashboard on Tuesday showed 52,958 confirmed cases during the last seven days, an average of 7,565 per day. The positivity rate of those tested using PCR – a polymerase chain reaction test using a nasal swab – was 34%. Policies of some school districts use a single-digit positivity rate to trigger requiring masks.
Schmidt filed a class-action lawsuit in Boone County Circuit Court last summer against Columbia Public Schools and all districts with mask mandates. When a judge denied class-action status, litigation continued against Columbia Public Schools until, without an announcement from Schmidt’s office, it dropped the suit on Dec. 30, 2021. A spokesman said the case was dismissed when Columbia dropped its mandate, but it was prepared to refile if the situation changed.
In November, Schmidt notified all Missouri public schools of his intent to file suits if they violated a Cole County District Court decision. Judge Daniel Green’s ruling stated all health orders issued by local health authorities were “null and void.” In late December, St. Louis and Jackson Counties appealed Green’s ruling at the Missouri Court of Appeals.
Schmidt’s office accelerated monitoring of public school districts on Dec. 8, 2021, by setting up an email address where parents and others could send text and photography of students being required to wear masks. Eleven days later, Schmidt reported receiving 7,500 emails from parents and sent 52 cease-and-desist letters.
“School districts have never been given the authority by the legislature to enact public health orders like mask mandates or quarantine orders – the recent Cole County judgment just further affirms that fact,” Schmidt, a candidate for the seat of retiring Republican U.S. Senator Roy Blunt, said in today’s statement. “The decision to mask children in school should rest solely with parents and families. Last month, I informed a number of school districts that their decision to continue to enforce mask mandates is illegal and must be stopped immediately. Some school districts dropped their mask mandates and quarantine orders, but others continue to defy the law, despite the fact that COVID-19 poses very little risk to children.”
Ziegler and Southwick mentioned districts are experiencing high staff and teachers absences due to COVID-19 infections. Southwick said staffing shortages are causing an extended Martin Luther King Jr. holiday weekend, with some schools staying closed through Thursday. Springfield Public Schools on Tuesday canceled all in-person and virtual learning through the end of the week due to staffing shortages.
“We’re in a critical time where the health and well being of our students and staff needs to be first,” Southwick said. “Safety needs to be first. I don’t feel like we’re there right now. With some of our politicians, we’re not there.”
