St. Louis County abandoned on Thursday its effort to maintain a mask mandate as Attorney General Eric Schmitt’s crusade to crush out all such orders statewide continued.
Some school districts said they would not comply with “cease and desist” letters from Schmitt after his office began soliciting complaints about mask rules, citing their legal authority. But at least one school district succumbed to the pressure exerted by Schmitt in a letter sent Tuesday to all districts. And a health department in southwestern Missouri decided it could not continue to do case investigations and reporting.
“While this is a huge concern for our agency, we have no other options but to follow the orders of the Missouri Attorney General at this time,” the Laclede County Health Department wrote in a Facebook post, which was first reported by The Springfield News-Leader.
Schmitt is using his interpretation of a Nov. 22 court ruling issued by Cole County Circuit Court Judge Daniel Green to push school districts and local health departments to end all restrictions related to COVID-19. Green ruled that state health department regulations giving local health departments the power to issue orders violated the Missouri Constitution.
Health orders issued unilaterally by local health authorities under the regulations were declared “null and void.”
Schmitt is seeking immediate compliance with the order, which does not take full effect until Dec. 22 under the rules governing civil cases. School districts that are refusing to comply cite state laws giving districts the power to set rules for their operations and take steps to keep infectious diseases out of their classrooms.
Green’s ruling has wrought confusion at a time when cases are on the rise statewide, and the first case of the Omicron variant has been detected in Missouri, in a St. Louis resident.
Schmitt refused the state health department’s request to appeal the decision. And he is threatening school districts and health departments with legal action if they don’t act immediately.
Green’s ruling is still subject to appeal, former Missouri Supreme Court Judge Mike Wolff said.
While the state health department was the defendant, other potential parties have until Dec. 22 to file a motion to intervene and appeal.
“There are other people who are affected by this order, who don’t agree with the plaintiffs position and they have a real stake in it ― like counties and cities and maybe even school boards,” Wolff said. “They ought to be permitted to intervene and see if the appellate courts agree with Judge Green.”
St. Louis and St. Louis County officials said that possibility is under review.
St. Louis County’s decision came as attorneys were going back to court for a hearing in Schmitt’s lawsuit challenging the local mandate. County Executive Sam Page wrote on Twitter Thursday that Green’s ruling, plus Tuesday night’s action in the St. Louis County Council, where a vote to continue the mandate was blocked by opponents, led to the action.
“I continue to strongly recommend that St. Louis County residents and guests wear masks indoors in public spaces. Masks save lives,” Faisal Khan, the acting director of the St. Louis County Department of Public Health, wrote in his order rescinding the mandate.
Schmitt claimed credit for the decision in a news release.
“This is a huge win for the citizens of St. Louis County and the people of Missouri,” Schmitt said in the release. “Although we have consistently held that St. Louis County’s mask mandates were illegally imposed in the first place, this is the right move and is consistent with the recent judgment from the Cole County Circuit Court.”
The abandonment of the mandate comes as the county is seeing a surge of new coronavirus cases.
So far in December, St. Louis County has a daily average of 37.6 additional COVID-19 cases per 100,000 residents, state health department data shows. That is higher, for the county, than at any point since January and higher than when the current mask order was issued in July.
Cases in St. Louis County are, however, below both the statewide average for the month and the rates in surrounding counties.
In response to Schmitt’s letters, school districts have pointed to a variety of laws they said give them authority to write rules for district operations and control infectious disease. The authority is unrelated to the regulations struck down by Green, they said.
In Kansas City, for example, the requirement for masks in schoolrooms is mandated by city government.
“We have consulted with our legal counsel, whose opinion is that public schools have the authority under state law to issue mask rules,” Sedalia School District wrote in a statement posted to its website.
At least one school district, Marshall Public Schools, ended quarantines for students Tuesday following Schmitt’s initial letter to districts.
Wolff said school districts were not directly named in the ruling, and Schmitt might not have as much legal standing as he thinks.
“[Schmitt] says the statute doesn’t authorize the school district to do that,” Wolff said, regarding the mask mandates. “But where’s the statute that prohibits the school district from it? I don’t see one.”
The districts’ stance follows a ramped up effort by Schmitt to enforce Green’s order, including enlisting parents to send in videos and photos of schools continuing with health orders and launching investigations into districts.
Schmitt has sent cease and desist letters to 33 school districts as of Thursday afternoon, said Chris Nuelle, a spokesman for Schmitt. In the letters posted online, Schmitt included records requests for emails and indicated there may be “possible future litigation” against districts.
Schmitt set up an email address at “email@example.com” to receive complaints.
“Yet even now, with a court order reinforcing [parents’] right to determine what is best for their own children, they are once again running headlong into a bureaucratic intransigence,” Schmitt wrote in his cease and desist letters. “They are tired of this stonewalling and as their elected Attorney General, so am I.”
District health protocols remain unchanged
The Rockwood School District, which received one of the cease and desist letters, said Wednesday that it will comply with the records request, but won’t change the district’s mitigation strategies.
Mary Lapak, a spokeswoman, pointed to a provision in state law that grants school boards authority for “all needful rules and regulations for the organization, grading and government in the school district.”
Lapak also noted district policy delegates authority to the superintendent and others give the district the authority to exclude students and staff from school if they have a contagious disease or may transmit it after being exposed.
The district’s policies mirror a provision in state law that makes it illegal for children to attend public school “while afflicted with any contagious or infectious disease, or while liable to transmit such disease after having been exposed to it.”
Wolff said that statute gave school officials authority to exclude children who are sick, “and that happens almost always on an emergency basis.”
Despite the law, Nuelle said “school districts simply don’t have that power,” arguing that too many districts had kept children out of school.
The Sedalia School District, which also received a cease and desist letter from Schmitt, also pointed to the law as its authority. The district’s face covering requirement will remain in place until Dec. 23, the district said.
Many districts also said they’re following guidance from both the Department of Elementary and Secondary Education and state health department that said there’s a 30-day period before Green’s ruling becomes final.
District attorneys are still trying to make sense of the ruling that came out two and a half weeks ago.
“There is significant disagreement about how and if the Cole County decision even applies to public schools,” Stephen Hall, spokesman for Springfield Public Schools, said Thursday. “A full review by attorneys for Missouri public school districts, including SPS, is currently underway.”
Springfield schools also received a cease and desist letter from Schmitt. It has previously said it plans to end the masking requirement in January, “once our youngest students have had an opportunity to be fully vaccinated,” Hall said.
“Our intention remains unchanged,” he said.
The district will continue its health protocols through the end of the semester and determine if modifications are needed following legal review.
Districts across the state are taking a similar stance. St. Louis Public Schools has said it will follow the lead of the city’s health department, who said a mask mandate was still in effect. Kansas City Public Schools, Columbia Public Schools and Liberty Public Schools have said their mitigation measures will not be changing for now. Other districts in the Kansas City area also echoed that position, The Kansas City Star reported.
“After consultation with legal counsel, there is no immediate action necessary at this time,” Liberty Public Schools said in a message to parents Tuesday.
The confusion surrounding Green’s ruling persists at a state level as well.
Mallory McGowin, a DESE spokeswoman, said Tuesday during a State Board of Education meeting that it had been an “incredibly complex situation.” The department recommends schools work with their legal counsel as Green’s ruling continues to be examined.
“It would be an understatement,” McGowin said, “to say that has created quite a bit of additional confusion and questions for schools and [local public health agencies].”
This article by Tessa Weinberg and Rebecca Rivas is published from The Missouri Independent via a Creative Commons license.