Can Kansas schools require masks? JoCo districts already face challenges under new law
Kansas school districts are bracing for challenges to their requirements that students wear masks, as a new state law empowers parents to quickly sue to overturn local board decisions.
In Johnson County alone, Olathe, Blue Valley and De Soto schools have already received complaints as teachers and students navigate the final weeks of the academic year. Educational leaders expect more to arrive under a process they fear could lead districts to abandon such COVID-19 precautions in the face of potentially costly court battles.
The pandemic forced district leaders to make agonizing decisions about everything from remote learning and sports participation to quarantine protocols and even whether to hold prom. The new state law means school boards may now have to defend their decisions to judges, not just parents and voters.
“It is a significant burden on our financial and personnel resources,” Spring Hill district spokeswoman Misty Eytcheson said.
The district hadn’t received any complaints as of last Friday, but Eytcheson said officials are expecting them.
Last month, the Republican-controlled Legislature passed and Democratic Gov. Laura Kelly signed a bill implementing a new system for fighting district, city and county mandates. The law mandates a strict timeline for getting cases resolved quickly.
School boards are now required to hold a hearing within 72 hours after a request from a student, teacher or parent who is “aggrieved” by a board decision.
After the hearing, boards have a week to make a decision, which can then be challenged in district court. If a challenge is filed, a judge must hold a hearing within 72 hours and rule against the district unless the judge finds the board’s actions were “narrowly tailored” to respond to the crisis and used the least restrictive means possible.
“These are new procedures to provide you some remedy and some accountability for the local decisions that might be made that affect your day to day lives, such as decisions made by school boards,” Sen. Kellie Warren, a Leawood Republican, said last month.
As of Friday, several districts, including Kansas City, Kansas, Shawnee Mission and Wichita, told The Star they had not received any complaints, even as some education officials expect more to come.
The public school provisions have so far attracted less attention than other parts of the new law that allow legislators to revoke executive orders from Kelly and make it easier for residents and businesses to challenge local public health mandates.
’Time and resources’
Blue Valley has set a hearing on its mask requirement for Tuesday at the district’s headquarters in Overland Park. The district has received complaints from two parents contesting the rule, but hinted in a statement it would uphold it.
“With 40 days remaining in the school year, masks continue to be an important part of the district’s COVID-19 mitigation efforts to keep all students in school full time,” the statement said.
Last Monday, the De Soto school district received five requests from parents asking for hearings to contest the school’s mask policy, which was enacted last summer.
But the complaints haven’t amounted to much, since before the district could schedule a hearing, three of the five parents withdrew their requests. Officials set a hearing for Wednesday morning, but the other parents did not show up, said Alvie Cater, assistant superintendent.
Officials called the hearing to order, read an opening statement and then adjourned.
Cater said the district is still navigating the process, and on Monday the school board will discuss adopting emergency procedures to comply with the law.
Even requests that are dropped, officials said, still place a burden on already strained districts. All students have only recently returned to classrooms five days a week, a goal districts achieved thanks to strict rules, like the mask requirement, that helped limit in-school transmission of the virus, they said.
“If an individual chooses to file suit in district court, then there would be additional legal costs. Of course, there will be time and resources involved in each hearing,” Cater said.
School boards have made unpopular but important decisions to keep students and teachers safe, including the use of remote learning, said Mark Desetti, a lobbyist for the Kansas National Education Association. Masks were mandated in consultation with local health officials to protect school staff and allow them to work with children in person.
“So if you want your kid in class all full time, you’re not going to get that if you don’t allow a school district to implement a mask mandate,” Desetti said.
No COVID-19 vaccine is currently approved for children, though teens 16 and older are eligible for shots. While children tend to have mild symptoms or none at all if they contract the virus, some have become seriously ill or even died.
The Centers for Disease Control and Prevention recommends children 2 and older should wear masks. As with adults, masks help protect both the people wearing them and those around them.
“Every family has a right to have their voice be heard, but this loud diversion from what could be a successful end to an upside down year is upsetting. Our kids deserve to finish the year in-person and with limited disruption, for those who choose to send their children,” Natasha Burgert, an Overland Park pediatrician, wrote in an email.
“Kids carry the virus. Kids spread the virus. Kids get sick from the virus. Kids get their families sick with the virus,” she wrote. “Repeated studies have confirmed decreased transmission and decreased illness when masks are correctly worn over the mouth and nose. The science is clear.”
‘We’ll follow the law’
Olathe Superintendent John Allison said the district received its first complaint last Friday morning. Allison said the new law lacks specificity, which is making it more difficult to navigate.
It is unclear whether mask requirements in Olathe and many other districts could be challenged under the law, considering the school board enacted it last summer. The law requires individuals to contest board actions and policies within 30 days from the time they were taken or adopted.
“One of the things, frankly, that I think is unclear and may ultimately have to be tested by the court is, what time frame does this apply to?” said Mark Tallman, a lobbyist for the Kansas Association of School Boards.
Tallman said his organization believes lawmakers intended to apply the grievance process only to decisions made after the law took effect.
“Because we’re just kind of getting the first round of hearings, we don’t know,” Tallman said.
In August, the Olathe school board approved requirements for schools to safely open. Staff and students must social distance when possible, stay in groups — cohorts — that don’t intermingle with others, and wear masks.
But because of class sizes and other logistical challenges, Allison said mask-wearing is the only strategy the district can truly rely on.
“We can’t guarantee social distancing. Having all kids back full-time in class, that’s just not always possible. And cohorting is not always possible,” Allison said. “So really one of the least restrictive, but highly effective methods of mitigation is masking. We decided that based on guidance from the CDC, the county health department and KDHE” — the Kansas Department of Health and Environment.
Still, parents have been speaking out against mask requirements at their children’s schools.
One mom on a Facebook group called “Olathe parents in support of in-person learning” responded to the district’s choice to continue requiring masks with this comment: “It’s a control issue. … When does it end?”
Allison said he believes the district meets the criteria of the law, which is that decisions must be fashioned in the least restrictive way possible.
Despite all the unknowns, he said the district will schedule a hearing if necessary.
“Having this happen in the last eight weeks of school — I wish we would have gotten through the school year first,” he said. “But we’ll follow the law and see what happens.”
This story was originally published April 5, 2021 at 5:00 AM.
