Mistreatment of children with mask mandates surfaced in district court this week in a lawsuit prompted by the Shawnee Mission school district allegedly refusing to follow state law. Parents of Shawnee Mission School District students asked a district court judge to hold the school board accountable to parents during an SB 40 hearing on Wednesday morning.  Judge David Hauber hopes to issue an opinion sometime next week.

Kristin Butler and Scott Bozarth sought hearings with the Shawnee Mission board of education under a revamped Kansas Emergency Management Act, known as Senate bill 40. The updated law requires school boards and other government entities to hold hearings for individuals harmed by COVID mitigation policies like mask mandates and emergency occupancy limits.

Butler and Bozarth both requested hearings saying mask mandates in the Shawnee Mission School District harmed their students. However, Shawnee Mission superintendent Michael Fulton rejected their hearing requests. 

“I just wanted (the board) to be accountable to tell us that what we’re putting on (students’) faces was not harming them,” Butler said of her request for a hearing. “They should prove why they’re doing this.”

District treats mask-exempt students like disease vectors, parent says

The district granted Butler’s request for mask exemptions for her kids and then treated her children like vectors of disease.

“And there was more psychological damage,” Butler said. “So they chose to deal with their physical issues and don masks so they wouldn’t be put in a corner and not allowed to participate. I don’t want them coming home and crying every night.”

After seeing how the district treated students with mask exemptions, he decided not to seek an individual exemption for his daughter. He said district officials claim the mask mandate is for safety, but they can’t prove that the masks make students any safer.

“I do not want a fragile 14-year-old girl being further ostracized and further damaged,” he said. “My argument is that they’re in fact hurting our children more by separating kids.”

Attorney says mask mandate predates KEMA update

When lawmakers updated the Kansas Emergency Act in March, they created a due process procedure with stringent deadlines. It includes timelines for when hearings can be requested. It creates deadlines for school districts and other government entities to respond. There is even a deadline for the amount of time a judge can take to issue an opinion on a hearing’s outcome. Fulton denied hearing requests from Bozarth and Butler based on deadlines. Specifically, the law says hearing requests must be made within 30 days of the board adopting the harmful policy.

“That action took place last summer on July 27, 2020,” Megan England, attorney for the Shawnee Mission School District told the judge.

That’s the date the board adopted its mask mandate. The school year ended in May, and the mask mandate remained in place the entire year.

By the time lawmakers updated KEMA, the district’s mask mandate was almost a year old, she argued. She quoted from a judicial opinion in a recently dismissed district court case. England said the law does not expressly reflect a legislative intent for retroactive application. Hauber was quick to note that he didn’t write the opinion from which she quoted.

KEMA update timelines are an issue, according to judge

Hauber took issue an SB 40 requirement that judges issue opinions SB 40 cases within seven days. 

“I have some difficulties with the short trigger the legislature has tried to impose on the courts,” Hauber said. “This is like a temporary restraining order on steroids. One of the difficulties I have is that in order to make a measured decision it may take longer than seven days.”

He said the courts are a separate, independent branch of government not under the control of the legislature.

“The short trigger…is probably a violation of the separation of powers,” he said.

While an attorney represented the district in the court proceeding, Bozarth and Butler, who are not attorneys, represented themselves.

Bozarth argued that an April 30 email to parents from district officials updated the district’s COVID-19 mitigation policies. The letter announced the continuation of mask mandates for graduation and throughout the remainder of the school year. Bozarth said the letter was a district response to Johnson County eliminating its mask mandate. 

“The COVID-19 policy measures by nature are supposed to be fluid and temporary. We see this as a renewal of the actual policy,” Bozarth said.

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