Approximately 100 Timber Creek elementary students who had allegedly been ordered into quarantine by their school are returning to their education after a letter from the Kansas Justice Institute questioning the legality of the order.

On Sept. 18, 2020, Kansas Justice Institute litigation director Sam MacRoberts sent a letter to Timber Creek Elementary School in USD 229 Blue Valley, questioning the legality of a reported COVID quarantine of more than 100 students.  Kansas Justice Institute is a pro bono public-interest litigation center which, like the Sentinel, is a subsidiary of Kansas Policy Institute.

As previously reported by the Sentinel, parents had received an email the day before from Leasi Fry on behalf of Principal Pam Bakke, saying, “Your child must quarantine for 14 days through September 29, returning to schools on Oct. 5. Individuals in quarantine should stay home for the duration of the 14 days regardless of test results.”

The problem is, it’s not clear the school system had the authority to issue such an order.

KJI’s MacRoberts wrote in the letter: “Kansas Justice Institute has serious concerns with this purported quarantine Order. Given the nature of an Order purporting to quarantine students en masse, we request an immediate response, in writing.

“In Kansas, the quarantine process is outlined in KSA §§ 65-129b, 129c. The statute empowers a local health officer to issue quarantine orders under certain, limited, circumstances. The statue does not expressly or implicitly authorize school districts or school employees to issue such an Order.

“Moreover, a local health officer’s power to issue a quarantine order is not limitless. For example, KSA § 65-129b does not allow a local health officer to issue an isolation or quarantine order unless it is “medically necessary” and “reasonable to prevent or reduce the spread of the disease or outbreak.” This “129b Order” must be specific and must inform the public of their ability to contest the order. KSA 65-129c sets forth a procedure for challenging the order.”

After receipt of the letter, Blue Valley Superintendent of Schools Dr. Tonya Merrigan indicated she would not prevent students from returning to school.

MacRoberts said Friday that transparency is critical, especially during a COVID-related matter.

“During these times, it’s absolutely imperative parents understand who is issuing a quarantine order, and under what authority that person is purporting to act,” MacRoberts said. “The quarantine process is outlined in the state statutes. In my view, the statutes do not expressly or implicitly authorize school districts or school employees to issue a bona fide quarantine order.”

In response to questions about the quarantine, Blue Valley Schools issued a statement saying: “The Johnson County Department of Health and Environment made the quarantine decision. There are times, such as the Timber Creek incident, when the County asks the School District to communicate the quarantine information. The quarantine notice was prepared by the County Health Department.”

However, the actual letter from JCDHE does not order a mass quarantine, but rather makes a recommendation: “… Johnson County Department of Health and Environment recommended that the students who were exposed should quarantine for 14 days.”

Had there been an actual order, the parents would have been entitled to a hearing within 72 hours in which the county — not the school district — would have been required to prove it had a basis for the quarantine.

Rep. Sean Tarwater (R-Stillwell), whose district includes Timber Creek Elementary, said at the time of the order he was confused as well.

“I guess you can understand the overabundance of caution but this is sort of taking the law into your own hands,” he told the Sentinel I certainly don’t get why these children have to stay locked away in their room even if they test negative.”

District officials still resist transparency

Asked to comment about the district’s email ordering students to quarantine, Director of Communications Kaci Brutto wrote in an email to the Sentinel, “The Johnson County Department of Health and Environment made the quarantine decision.”

But that’s clearly not true.  The Johnson County Health Department said in their letter that they made a recommendation; the decision to do anything was made by district officials.

Brutto did not respond to our follow-up questions.

Kansas Policy Institute CEO Dave Trabert recommends that parents not accept anything at face value and to demand clear answers from school districts in situations of this nature.

“Always ask clarifying questions, like ‘what is the district’s legal authority to issue this order’? Any attempt to dodge the question probably indicates district officials are withholding pertinent information, as they did with Timber Creek parents.  And even if you get a direct answer, get verification from an independent authority such as Kansas Justice Institute.”

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