February 20, 2024

Keeping Media and Government Accountable.

Governor, KJI, Chamber, school boards weigh in on SB 40 lawsuit

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Kristin Butler and Scott Bozarth wanted school officials to listen to their concerns, but they refused. Left with few other options, the duo–parents of children who attend school in the Shawnee Mission School District–sued, hoping to eliminate mask mandates in their schools. 

“After months of asking for answers and receiving none, we knew we had serious decisions to make and very soon,” Bozarth said. “We felt there was harm being done to our children.”

Bozarth said community members, concerned parents, policy experts, and elected officials presented information to school board members at dozens of public meetings.

“The school board ignored a lot of what the community presented,” he said.

Initially broadcast on YouTube, the streaming service eventually removed one of the district’s school board meeting broadcast over what the web service deemed to be “misinformation.” The district no longer streams the public comments portion of its board meetings.

“Was our school board upset that a serious discussion affecting our children was censored?” Bozarth said. “No, they celebrated it.”

Lawmakers update Kansas Emergency Management Act

Lawmakers adopted Senate bill 40, an overhaul of the Kansas Emergency Management Act, last March. It passed the Kansas House and Senate with overwhelming majorities. The Senate passed it 37-0. The House passed it 123-1. And the Governor signed it into law in late March, though she said she opposed some portions of it.

The new law outlined a way for average citizens to address grievances. Bozarth, frustrated with the lack of response from his local school board, used the process to seek a hearing from the school district. 

The district denied the hearing request, saying a provision in the new law only required hearings within 30-days of initiating the policy at issue. The district’s mask mandate pre-dated SB 40 by several months.

 “We weren’t hopeful of the outcome, but we did not expect being prevented from stating our case,” Bozarth said.

SB 40, however, provided the ability for those aggrieved by COVID-mitigation policies to file a lawsuit in district court.

“Our lawmakers recognized the importance of giving working-class citizens the ability to be heard regardless of resources,” Bozarth said. 

Without SB 40, Bozarth faced three choices, he said. He could force his kids to a mask policy that he believed harmed them, pull his kids from school without an alternative plan to educate them, or hire an attorney and file an expensive lawsuit to litigate a billion-dollar school district.

“The latter was not feasible,” Bozarth said. “Sb 40 allowed Kristin and I to challenge the Shawnee Mission School District who ignored us, silenced us, and eventually denied us.”

Judge rules new law unconstitutional

Johnson County District Court Judge David Hauber denied the requests of Butler and Bozarth and ruled that the law that allowed the lawsuit is unconstitutional.

In Hauber’s virtual courtroom, Bozarth alleged that the school district’s masking policy and enforcement violated federal statutes and basic human rights. 

“Those violations were listed in our petition, and we had a plethora of evidence to back our claims,” he said. “Our serious allegations, however, weren’t the issues the court chose to focus on.”

Instead, the Judge asked whether Bozarth and Butler had legal standing to contest the policy. And he asked whether a law limiting government and empowering citizens passed constitutional muster.

“It was disheartening seeing these issues raised, yet avoiding the reason for the suit to begin with. Kristin and I tried to get answers and tried to get a resolution for the harm we were seeing done on our children,” Bozarth said.

Butler and Bozarth filed their case pro se, meaning they represented themselves. They won’t be attempting to answer Hauber’s questions to the Kansas Supreme Court. Instead, a bevy of attorneys that reads like a who’s who of Kansas’s top legal minds politicians are weighing in with legal briefs to the state Supreme Court.

“I never expected to be in the middle of a statewide debate. So many times throughout this journey I was disappointed. So many times I was upset this debate didn’t address my personal grievance. Taking a step back from my personal feelings and absorbing and reflecting on what has transpired though, is absolutely stunning,” Bozarth said. “From the beginning, Kristin and I were motivated by standing up for our children. We didn’t think we would prevail, but we could no longer stand on the sideline either.”

Hauber requested that Attorney General Derek Schmidt’s office intervene in the case. The AG did so, but Hauber ruled SB 40 unconstitutional, striking down the law. A legal back-and-forth followed. Schmidt’s office asked the district court to allow SB 40 to be enforced until the appeals process ended. Hauber denied the request. Schmidt’s office made the ask again, this time to the Kansas Supreme Court. The high court issued a stay, allowing enforcement until it reaches a final decision on the law.

Top political and thought leaders ask to submit legal briefs 

The Attorney General and Kansas Justice Institute have already filed briefs.  The Kansas Chamber of Commerce has been approved to submit a brief, and Gov. Laura Kelly, the Kansas Association of School Boards, and the Blue Valley School District have requested permission to file.

“This case has generated so much interest because it forces everyone to think about the age-old question—what’s the role and purpose of the government, especially during a pandemic. Should the government be able to impose health orders without any public recourse, for example?” said Samuel MacRoberts, litigation director for the Kansas Justice Institute. “From our vantage point, we have said—time and time again—the public has a right to be heard—even during a pandemic. SB 40 created a statutory hearing process that places the burden on the government to defend their actions. It’s no great surprise that some governmental entities have taken exception to that.”

Though Bozarth found Hauber’s initial ruling disheartening, he’s glad it is providing the basis for a crucial discussion about the powers of government versus the people. 

“While Kristin and I were sad to see our grievance wasn’t the matter at hand, we are happy that our grievance wasn’t in vain,” Bozarth said.

He hopes the high court upholds the law because it provides citizens with a voice. 

“This case opened the door to so many different points of view being heard. It has presented an opportunity for Kansas to decide whether our government will be accountable to us or shall we be accountable to them,” he said. “I hope to see SB 40 prevail. I hope to see the vision our lawmakers had in SB 40 grow. I want to see my elected officials shield and solidify my rights, not subdue and suppress them.”

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