Missouri AG Eric Schmitt orders schools to drop COVID rules. They say he can’t do that

Missouri Attorney General Eric Schmitt has threatened legal action against school districts if they do not drop their COVID-19 mask mandates and quarantine rules.

But several Kansas City area school officials say Schmitt does not have the authority to enforce his demand because the rules were created by locally elected officials.

The attorney general is calling the school districts’ mitigation measures illegal in the wake of a court ruling last month that stripped local health authorities of their powers to issue disease-control measures.

“We encourage you to take immediate action to remove all unconstitutional and illegal orders,” Schmitt wrote in a letter Tuesday to public school officials across Missouri.

The court ruling was to go into effect late this month; Schmitt wrote that he was enforcing it immediately.

On Wednesday he took it a step further, releasing a statement encouraging parents to report to his office any districts that continue to enforce COVID-19 rules, setting up potentially more lawsuits by the state seeking to overturn locally enacted mitigation measures.

Several Kansas City area school districts have already said his letter, and the court ruling, don’t apply to them.

“We are going to continue to utilize all of the mitigation steps detailed in the 2021-2022 return-to-school plan that was approved by our Board of Education,” Kearney School District interim superintendent Todd White wrote in a letter to parents Tuesday evening after consulting with the district’s attorneys. “This includes universal indoor masking for all students, staff and visitors.”

Kansas City Public Schools, as well as the North Kansas City, Park Hill and Lee’s Summit school districts said their health rules, approved by elected officials, also remain in place for the rest of the semester.

Meanwhile, several districts throughout the Kansas City metro are reporting record numbers of COVID-19 cases this school year, as infections among children rise and vaccinations lag. Health officials have urged districts to continue requiring masks, especially as holiday gatherings are expected to lead to more cases.

Schmitt, who is running for U.S. Senate, has already attempted unsuccessfully to get school mask mandates statewide thrown out. His lawsuit against the Columbia district over its mask rules remains pending.

At issue is a ruling from a Cole County judge last month that threw out orders issued by local health departments across the state designed to reduce the spread of COVID-19, such as mask mandates and restrictions on business capacity. Schmitt’s office was defending the powers of health authorities in that case, but he refused Health Director Donald Kauerauf’s request to appeal the ruling.

Judge Daniel Green wrote that a decades-old state health department administrative rule, allowing it to delegate disease-control authority to local health departments, was unconstitutional because it gave rulemaking powers to unelected officials.

But many school district rules on masks and quarantines have been voted into place this year by locally elected school boards. In the case of Kansas City Public Schools, a requirement to wear masks in school buildings was enacted by the City Council.

A new public health law approved by the General Assembly this year allows public health orders to be instituted by local departments if they are approved by a governing body such as a county or city council. Another law, enacted in 1963, explicitly gives school officials the power to keep students home if they are at risk of transmitting an infectious disease.

“Attorney General Schmitt’s letter does not impact LSR7’s current quarantine and mask protocols,” Lee’s Summit district spokeswoman Katy Bergen wrote to families. “Board policies approved by elected officials enforce the district’s responsibility to protect the health of students and employees from the risks of communicable diseases, including adherence to local health guidelines such as quarantines.”

Green’s ruling “took away the authority for just these appointed folks to go issue orders,” said Chuck Hatfield, an attorney who worked in the office of former Democratic Attorney General Jay Nixon. “It does not take away the authority for the properly elected governments to make these orders.”

Still, the discrepancy may cause confusion for districts across the state.

At a state Board of Education meeting on Tuesday, Department of Elementary and Secondary Education officials expressed concern that cases are rising in schools following the Thanksgiving holiday weekend, which could lead to increased quarantines.

“It would be an understatement to say (the court ruling) has created quite a bit of additional confusion and questions for schools,” department spokeswoman Mallory McGowin said at the meeting.

Last week, McGowin said, DESE wrote to districts encouraging them to continue working with local health agencies and school boards on health measures.

“Suffice it to say this is an incredibly complex situation,” she said. “At this point our guidance from the department is for those schools to work closely with their district legal counsel on this court decision and where it stands right now.”

Schmitt’s office has doubled down, saying the court’s ruling still applies to all schools’ COVID-19 rules, regardless of who enacted them.

“State law does not delegate authority to school officials to issue mask mandates, quarantine orders or other public health orders,” he wrote in his letter to districts.

But Missouri statute prohibits students from being in school if they are “afflicted with any contagious or infectious disease, or while liable to transmit such disease after having been exposed to it.”

“For the purpose of determining the diseased condition, or the liability of transmitting the disease, the teacher or board of directors may require any child to be examined by a physician, and exclude the child from school so long as there is any liability of such disease being transmitted by the pupil,” states the 58-year-old law.

Asked whether it contradicts Schmitt’s statement, his spokesman Chris Nuelle said the law does not apply to COVID quarantine rules.

“Too many schools around the state have kept healthy children out of school and confined at home, school districts simply don’t have that power,” Nuelle said. “Keeping a child home from school because they’re sick is a completely different issue, it’s separate from a quarantine.”

This story was originally published December 8, 2021 at 3:03 PM.