May 27, 2024

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Attorneys say school districts can opt out of mask mandate

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Johnson County’s Legal Director, an attorney in private practice, and arguably a State Attorney General opinion all say school districts have home rule authority to opt out or modify a mask order for school children in Johnson County.  But the attorney for USD 230 in Spring Hill disagrees, giving cover to school board members to blame the mandate on the county health department.

The initial draft of Johnson County’s school mask mandate even included a section giving school districts a process to opt out. 

“This order shall apply to all public and private K-12 schools within Johnson County unless such school(s) opt-out of this order through action taken by … the board of education,” section two of the draft copy reads.

In a private meeting that included Johnson County Commission Chair Ed Eilert and county health director Sanmi Areola, school superintendents received the draft copy of the mandate. A few days later, county commissioners adopted a mandate for masking in schools that scrapped the optional language.

“I still never got a clear answer on why it was changed,” Spring Hill School District Superintendent Wayne Burke told his board of education during a lengthy meeting earlier this week.

The Sentinel asked Eilert why the order changed between the time superintendents received a copy and final approval.

He responded, “Legal department had not made final review. That’s one reason it was titled, ‘draft,’” Eilert said in an email to Sentinel. Sentinel also asked for clarification on whether school districts can opt out of the mandate. Eilert did not answer that question.

Prior to the county’s mandate, the Spring Hill school board decided to make masks optional. Board members reconsidered after the county issued its order.

The school district’s attorney, Greg Goheen, told board members that the order is now law in Johnson County.

“It is something this board doesn’t have the authority necessarily to overrule or challenge,” he told the board. 

Whether Johnson County school boards can exercise home rule authority to exempt their elementary students from masking is debatable.

An opinion issued by Attorney General Derek Schmidt’s office last year concluded that school boards have the flexibility to set their own policies in matters like wearing masks, social distancing, washing hands, and temperature checks. The opinion clarifies that school board members hold sole constitutional authority over schools. However, the SH attorney said that opinion applies to orders from the Governor, not from county commissioners acting as the county board of public health.

However, legal counsel for the Johnson County Board of County Commissioners told commissioners that school boards could opt-out. During agenda review, commissioner Becky Fast asked Peg Trent, Johnson County Legal Department chief counsel, point-blank that exact question. Can school boards opt-out even if mandated?

“That is correct. There is home rule,” Trent said. She said the law allows school boards to adopt less restrictive policies. 

“It sounds like if the school districts are interested in what you, the public board has to say, it could come back less restrictive… but at least it starts the conversation,” Trent said.

It all adds up to immense confusion, says attorney Ryan Kriegshauser of Kriegshauser Ney Law Group.

“The rule of law seems to be out the window. Last year, it was clear that the school boards had ultimate constitutional ‘home rule’ authority. That’s why there were all these fights with the school boards. And now school boards are trying to pretend that now it’s the county with the authority,” he said. “It was pretty clear last year that school boards could opt-out. This seems like politicians playing political games in a school board election year.”

How the county enforces a mask mandate within school walls also raises questions. Goheen told the Spring Hill board that the county’s order carries a stick that puts teachers and school staff in an awkward position if the board attempts to opt out of the mandate.

“It is the sort of stick that violations of the order, if they occur, are subject to civil penalties and potentially criminal penalties for individuals who violate those orders,” he warned. He said teachers, school staff, and volunteers could face jail time.

However, Johnson County Sheriff Calvin Hayden said there’s no law enforcement mechanism to the order.

“It’s a civil deal,” he said. “This mandate has nothing to do with law enforcement. There is nothing criminal behind it. And they know that. All of them. The county. The schools. Everybody knows it.”

Goheen warned the board that a county health inspector could close the schools if the district doesn’t comply with the mask order. However, the county’s mask mandate specifies that school districts are responsible for its enforcement.

“The Board of Education for each unified school district within Johnson County… shall be responsible for enforcement of this order,” the mandate reads.

According to Kriegshauser, this means the school board determines the process by which students can be exempted. For instance, he said the board could agree to comply, but offer blanket mask exemptions according to their own policies.

“If school boards are responsible for enforcement and they choose how to enforce it, then it’s over,” he says. “The county passed it over to them to enforce it.”

The county order allows unmasking on the playground and while eating and drinking. And it defines face covering as anything covering the nose and mouth secured by straps over the ears or wrapped around the lower face. 

“A mask or face covering may be factory-made, sewn by hand, or can be improvised from household items such as scarfs, bandanas, t-shirts, sweatshirts, or towels,” the order reads.

Board member Ali Seeling said during the meeting that the debate is no longer about whether face coverings are effective or whether they protect students.

“Every kind of face-covering is approved in the order including a towel or bandana,” she said. “That right there is what makes this order egregious.”

Ultimately, the Spring Hill School Board refused to vote. Seeling moved to opt-out of the county order. However, her motion died for lack of a second. The next day, the district sent out updated mask guidelines requiring face coverings for students in K-8th grade.

Dozens of parents asked the district to reject masking during Monday’s meeting. Seeling worried that the school already issued its guidance prior to enrollment, and then parents enrolled their students thinking masks would be optional. 

“I think it’s time we stand up for these people and make sure we are aware of the possible repercussions,” Seeling told the board. “There’s a lot of conversations about vouchers and money following the kids…If we don’t stand up to this now, we should be implicated in the demise of the public school system. This is the time to take a stand.”

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