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Attorney General is preparing new round of school mask lawsuits

Missouri Attorney General Eric Schmitt is preparing for a new round of lawsuits challenging school mask rules if districts reinstate orders in the face of an uptick in COVID-19 cases.

During a hearing Tuesday in Boone County Circuit Court, assistant attorney general James Atkins said the new cases would involve districts that have policies triggered by the number of students who are ill or by the prevalence of cases in their communities.

Schmitt’s office is again sending letters to districts seeking justification for the policies and warning them that local agencies have no authority to issue public health orders. 

“Every time a mask goes on a kid, the attorney general is going to look at filing another lawsuit,” Atkins told Circuit Judge Josh Devine, who was hearing arguments over the ongoing case against Columbia Public Schools.

Classes will end in a few weeks in most districts across the state. In January, classwork resumed after the Christmas break as daily COVID-19 cases were peaking at 12,000 cases per day. That month, Schmitt filed 47 cases accusing districts of overstepping their authority with mask mandates.

Cases fell to their lowest levels since June 2020 in the second week of April, and most of the lawsuits have been dismissed as the district mask mandates were removed. Many cases have been dismissed at Schmitt’s request and critics have accused him of filing them to generate headlines in the competitive Republican U.S. Senate primary. 

The lawsuits cost Schmitt a House-approved increase of $500,000 for his office’s budget, stripped out in the Senate Appropriations Committee, by Sen. Lincoln Hough, R-Springfield, who complained Schmitt had sued “most of the citizens of this state.”

Some schools are re-imposing mask mandates because COVID-19 cases have increased to about four times the level of mid-April. In the most recent data, reported last week by the state Department of Health and Senior Services, cases were averaging about 800 per day.

The Columbia district dropped its mask requirement Feb. 10 and is seeking to dismiss the lawsuit. Schmitt opposes dismissal because the district policy, Atkins said, would allow the mask rule to be reinstated without a new vote from the Columbia Board of Education.

Devine heard arguments for more than 2½ hours Tuesday. He gave the attorneys two weeks to file post-hearing briefs and said he would likely take as much as 15 additional days to reach a decision.

The case is scheduled for a trial in October but that date could be pushed back, Devine said. 

The Columbia schools attorneys, Natalie Hoernschemeyer and Grant Wiens, argued two separate reasons for seeking dismissal — that the case is moot because the district is not currently requiring masks and that the case should be dismissed because Schmitt is misapplying the law.

“If there is no live controversy, the court has no authority,” Hoernschemeyer said. 

Devine questioned Hoernschemeyer about whether masks could be required in the future and if the requirement was dropped to avoid a court reckoning. 

All of the decisions about whether the district students must wear masks have been based on the advice of health authorities and the prevalence of COVID-19 in the community, Hoernschemeyer replied.

“To say there will be masking in the future is purely speculative,” Hoernschemeyer said.

Of the 47 lawsuits, all but three have been dismissed. Along with the Columbia case, the other active cases are against Lee’s Summit School District, which has filed a counterclaim asking a judge to declare the attorney general overstepped the limits of his authority, and University City Public Schools, which requires masks in classrooms.

A case against St. Charles Public Schools was dismissed May 5 by Circuit Judge Daniel Pelikan, who ruled it was moot because the district was not requiring masks.

Columbia Public Schools was the first to be sued by Schmitt in August over its mask rules. In September a Boone County Circuit Court judge declined to allow Schmitt to use the case as a class action lawsuit against all districts with mask requirements, and it was later dismissed by Schmitt when the district allowed its mask mandate to expire.

If Schmitt was serious about testing whether the law allows districts to require masks, he could have continued the original case against Columbia schools, Hoernschemeyer said. 

“If they truly wanted this case litigated, they have had a year,” she said.

Devine asked Atkins why it wouldn’t be better to wait for a decision in the University City case, where the mask issue “is more of a live controversy.”

A decision in St. Louis County would not be binding on Columbia schools, Atkins replied. He also argued that districts were dropping masks to get cases dismissed.

“Every time we get into the courthouse these mask mandates drop and the case is mooted and dismissed,” he said.

The other argument for dismissing the case — that Schmitt lacks the authority for his lawsuits — hinges on whether school mask mandates are public health orders as defined in state law and whether the law governing health orders includes school districts in the definition of political subdivisions.

Schmitt asked lawmakers to change state law this year to ensure rules limiting health orders pertained to school districts, but it failed in the legislative session that concluded last week. The legislation was noted in Tuesday’s court hearings but not discussed extensively.

The orders have no impact outside school buildings and are an “internal safety protocol,” Wiens said.

Michael Talent, an assistant attorney general who argued on the issue of health orders, said the orders clearly address health issues. They also exceed the powers granted to districts to prevent sick children from attending school, he said.

Masks do not work to prevent the spread of disease and wearing them causes “psychological harm to students,” Talent argued Tuesday.

COVID-19 for most children is no worse than seasonal flu, Talent told Devine. 

“For most people, except for the old and very frail,” he said, “it is not really a disease to be scared of.”

This article by Rudi Keller is published by permission of The Missouri Independent.

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