Blue Valley family sues Johnson County over order mandating COVID masks in schools
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A Blue Valley parent and middle school student are suing the Johnson County Board of Commissioners over its mask mandate in some schools, arguing that the pandemic health order is overly restrictive as it lasts through the end of the school year.
Attorney Ryan Kriegshauser is representing the Blue Valley student, who is only identified by the initials M.M.C. in the lawsuit. The child’s parent is identified as B.C.
The child attends a school affected by Johnson County’s health order, which mandates masks in private and public schools serving children as old as sixth grade. The Blue Valley school district went beyond that and mandated masks for all grade levels, worried that classrooms of unmasked and unvaccinated children would lead to COVID-19 outbreaks and possible closures.
The lawsuit claims that the mandate has interfered with the student’s “ability to complete schoolwork, interact with her friends and receive instruction from her teachers.”
“Disputes over the ‘proper’ wearing of face masks have resulted (in) conflict between school officials and M.M.C. which was not present prior to the imposition of such masks. Further, school enforcement of the order has caused teachers and administrators to discriminate against and punish unmasked students that otherwise have had no disciplinary action.”
The action is the latest in a string of lawsuits across the region challenging pandemic health orders. Missouri Attorney General Eric Schmitt filed a class action lawsuit last month seeking to block school districts statewide from mandating masks. Schmitt had already sued Kansas City, Jackson County and other localities over their mask requirements.
In addition, a new nonprofit group, representing parents in the Northland, is suing seven school districts, along with elected officials in Kansas City and North Kansas City, over their mask mandates and quarantine policies.
The latest Johnson County lawsuit comes as major revisions to Kansas emergency management law are challenged in court. Earlier this summer, a Johnson County judge ruled Senate Bill 40, which limits health officials’ emergency powers, unconstitutional. The Kansas Supreme Court granted Attorney General Derek Schmidt’s request that district court judge David Hauber’s ruling be stayed until the higher court has considered his appeal.
The stay restores a procedure that allows individuals “aggrieved” by a public health order to file a complaint in district court. Actions by local school districts cannot be challenged at this time. But local government actions, such as Johnson County’s mask mandate for schools, are subject to appeal.
The government agency that issued the order is required to prove they had protected public health in the least restrictive means possible. If the court fails to hold a hearing within 72 hours and rule within seven days, the policies are removed in a default judgment.
On Friday, the Blue Valley family apparently filed the first challenge to Johnson County’s health order since the state’s Supreme Court granted the stay.
Kriegshauser wrote that the student has become afraid of discipline during the school day, harming the student’s education and “emotional and mental wellbeing.”
He argues that Johnson County did not issue the health order in the least restrictive means possible, as the mandate extends through May 31, around the end of the school year.
The lawsuit asks the court to require the Johnson County Board of Commissioners to review the health order every 30 days, meaning it would expire at that time if it is not extended.
“Government should not be able to issue an order that lasts 295 days — no one can claim to know conditions almost a year in the future,” Kriegshauser said in an email to The Star. “This is a disingenuous attempt by the Johnson County Board of Commissioners to hide behind an essentially year-long order and thereby prevent citizens any recourse. There is no compelling rationale that such an extended order meets the legal requirement to be narrowly tailored.”
A spokeswoman for Johnson County declined to comment on pending litigation.
Acknowledging that the law is being challenged in court at this time, Kriegshauser waived adherence to statutory timelines under Senate Bill 40, including the requirement that a decision be issued within seven days of a hearing. But he requested that the matter be heard as soon as possible.
This past spring, school districts and other municipalities throughout Kansas and Johnson County were bogged down with legal fees and petitions challenging mask mandates filed under Senate Bill 40. In April, for example, a judge dismissed a lawsuit filed by Johnson County Commissioner Charlotte O’Hara against the Blue Valley school district after she was refused entry into a district hearing because she wouldn’t wear a mask.
Most Kansas City area districts are requiring masks this fall, as health officials warn that the delta variant is causing more COVID-19 cases among children, as well as hospitalizations. Health experts agree that masks, along with cleaning, testing, social distancing and other mitigation strategies, will help prevent transmission in schools.
Districts that have left masks optional already are struggling to stay open.
The Lathrop school district, which has not mandated masks, has closed an elementary school after seven classrooms were quarantined and 14 students tested positive for COVID-19. Lathrop is about 38 miles northeast of Kansas City.
And the Wellington district in south-central Kansas faced outbreaks in three of its six buildings, after just eight days of bringing maskless students back to classrooms. It became the first district in Kansas to temporarily shutter classes and activities due to outbreaks. When students return after Labor Day, they will be required to wear masks.
This story was originally published September 6, 2021 at 1:21 PM.
