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Parents sue over ESD mask mandate

by Caitlan Butler | November 14, 2021 at 12:00 a.m.
Local residents gathered on Aug. 30 at El Dorado High School to hear from parents, teachers and others about their thoughts on the district's mask mandate. (News-Times file)

The El Dorado School District is being sued by several parents over its mandate that students wear masks.

Superintendent Jim Tucker and all members of the El Dorado School Board are also named in the suit, which was filed on behalf of parents Luke Baston, Clifford O. Wilson III, Jamie Wilson and Karen Lynn Dunn by attorneys at Little Rock's Story Law Firm.

On Aug. 11, during a specially-called meeting, the El Dorado School Board voted 4-3 to adopt universal masking for students, staff, faculty and visitors on all ESD campuses. The policy hasn't been changed, although it is reviewed at every monthly school board meeting.

According to the district's Ready for Learning plan, which outlines COVID-19 protocols, all students and staff are required to wear masks in common areas, during class transitions, on buses and in classrooms when social distancing isn't possible; students can take their masks off when eating or drinking in the cafeteria and when they're outside.

The lawsuit alleges that the ESD's mask mandate was illegally imposed and that it violates the Arkansas Civil Rights Act.

Filed along with the suit was a request for a temporary restraining order that would prevent the district from enforcing its mask mandate until a judgment is issued for the case.

Tucker said the district hasn't actually been served with the lawsuit yet; however, the services of the Friday, Eldridge and Clark Law Firm -- also based in Little Rock -- have been retained.

"Once we are served and attorneys take control, they'll give advice, recommendations to me, and I'll take that into account and we'll go from there," Tucker said.

Lawsuit

The lawsuit seeks a permanent judgment that would bar the El Dorado School Board from enforcing its mask mandate, citing "the fundamental liberty interests of parents for the care, custody and management of their children."

The suit says the mask mandate has "required parents to choose between sending their children to school without masks and face disciplinary action, sending them with masks in violation of their fundamental rights as parents to make that decision, or to remove them for [sic] the school altogether though the school district has a constitutional obligation to offer free education to all children."

One parent involved in the suit, Karen Dunn, said during a specially-called school board meeting on Aug. 30 that she had already removed two of her four children from the ESD due to the mask mandate.

"I could not imagine sending them to school in a mask for a single day. The mandate was bizarre: masks inhibit breathing, do not stop viruses, encourage sickness, propagate fear, are used to break spirits and to torture," Dunn said in August.

The News-Times reached out to Dunn but didn't hear back by press time Saturday.

The suit goes on to cite the Arkansas Constitution, which includes a provision that the state is required to provide free education to Arkansans, as well as Supreme Court decisions outlining parents' right to control their children's education and raising.

Additional evidence cited in the suit includes a 2019 Arkansas Department of Health policy on communicable diseases that outlines the state's rights to quarantine and isolate individuals who could spread such a disease, or to limit travel and commerce to stop the spread of such a disease; Gov. Asa Hutchinson's statewide mask mandate, which took effect on July 16, 2020 and expired on May 30, 2021; a temporary ruling by a Pulaski County judge that declared a state law barring school districts from imposing mask mandates unconstitutional; Arkansas Department of Education COVID-19 guidance for the 2021/2022 school year; a letter from ADH Secretary Dr. Jose Romero to ADE Secretary Johnny Key about COVID mitigation measures in schools; the ESD's Ready for Learning plan for the 2021/2022 school year; and minutes from the Aug. 11 specially-called school board meeting.

The suit argues that the mask mandate is illegal on several grounds.

One such argument says that because the 2019 ADH policy details quarantine and isolation regulation powers the ADH has, but not other mitigation methods the department can utilize, and because Hutchinson cited emergency powers when imposing the statewide mask mandate, the school board doesn't have the power to mandate masks for people who haven't contracted or been exposed to COVID-19 .

Another cites Pulaski County Judge Tim Fox's Aug. 6 ruling that Act 1002, which would have prohibited all mask mandates imposed by state actors in Arkansas, was unconstitutional; the suit says that since Fox's ruling doesn't explicitly empower school districts to impose mask mandates, they can't. The suit notes that Fox's ruling "suggest(s)" that the law would have discriminated between private and public school children, since private schools would have been able to impose mask mandates since they aren't state actors.

The suit goes on to say that ADE guidance for the 2021/2022 school year assumes powers -- the ability for local school boards to impose mask mandates -- that it doesn't possess.

Additionally, the suit says Romero's letter to Key "cites no authority for a generally applicable mask mandate." The letter does note, however, that the United States Supreme Court has held that "when faced with a public health crisis, a state may implement measures that infringe on constitutional rights, subject to certain limitations" and ... "the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public demands."

From there, the lawsuit says that the ESD took into account the aforementioned state guidance, as well as Fox's ruling, to decide it had the authority to issue a mask mandate. "The El Dorado School District determined on its own that the lack of an express legislative prohibition of a mask mandated equated to permission to issue a mask mandate," the suit says, citing the minutes from the Aug. 11 school board meeting. The suit says that is a violation of state code, which dictates "that the directors of a school district possess only such power as if conferred upon them by statute."

The suit seeks a punitive damage award covering the cost of "reasonable attorneys' fees ... and for such other and further relief the Court deems just and proper."

Response

Neither the ESD, nor members of the school board, nor Tucker have yet responded to the suit.

"We did receive a lawsuit by email; we have not been served, so it's not technically official," Tucker explained. "Our legal team has been notified ... Once we get served, we'll determine steps from there."

Tucker did say, though, that he believes the district's mask mandate has had an impact on COVID cases among students and staff. He said that as of Friday, 367 ESD students had been quarantined this school year due to COVID exposure, whereas, without a mask mandate, that number would have been more than 1,300.

"I'm pleased with the (COVID case) numbers we have in our district. The numbers are trending down, whereas ... across the country, across the state, even in Union County, they're starting to trend up," he said. "I attribute that to the mask mandate."

According to a report on COVID cases in schools produced by the ADH on Thursday, Nov. 11, there were fewer than five active cases within the ESD that day. On Saturday, the state surpassed 100,000 pediatric COVID-19 cases -- cases found in children 17 or younger. The number of active pediatric cases in Arkansas also increased for the fifth day in a row on Saturday.

Tucker said that on Friday, 10 students and no staff members were in quarantine due to exposure.

"I understand parents that are involved in (the suit), they have to do what they think is right -- I understand that. But at the same time, I have to do what I think is right," Tucker said.

"I would much rather do too much to be safe than too little to be safe," he added.

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