The attorney representing parents of 16 students fighting for individual mask exemptions says the Blue Valley and Olathe school districts are spending $100,000 of taxpayer money defending the mask lawsuit.

Linus Baker, the attorney representing parents in the case, said the mask lawsuit was moved from district court to federal court at the request of school attorneys. The move scuttled a hearing set for Thursday in state district court and prolongs the timeframe for a resolution in the case. The suit alleges that the district violated the equal protection clause in the U.S. Constitution, enabling the districts to request a hearing in federal court. 

“They made a federal case out of it,” Baker said. “They’re burning up taxpayer dollars like you can’t imagine trying to keep 16 students wearing masks. They’re going to spend $100,000 in attorney fees to fight it. I don’t get it.”

Senate Bill 40, adopted in March, updated the Kansas Emergency Management Act to allow parents, students, and school employees to file grievances over school districts’ COVID restrictions. Baker says he filed the suit after parents unsuccessfully challenged the restrictions with the school boards. SB 40 allows aggrieved parents to file a civil suit if the local district doesn’t provide relief.

In the court filing, Baker asks the court to declare that the districts’ SB 40 hearing procedures are contrary to the new legislative requirements. Specifically, he writes that the Blue Valley school board utilized a hearing officer for SB 40 hearings that board members did not attend. He said the hearings should be before a quorum of the board.

Some lawmakers share the sentiment.

Case seeks ruling on whether boards followed SB 40 correctly

“I would say the legislature’s intent was to provide due process and a fair opportunity to be heard. We are seeing that is not happening from certain local governmental bodies,” Sen. Kellie Warren, a Leawood Republican who helped draft SB 40, told the Sentinel in April.

Lawmakers may attempt to tweak the law during the veto session, in advance of Baker’s case receiving a day in court.

Baker’s suit also asks the court to clarify exactly when an action of the board is taken. SB 40 allows individuals the right to request a hearing within 72 hours of a governmental entity imposing emergency restrictions, like mask mandates and gathering limits. The law requires individuals to contest the restrictions within 30 days of the mandate adoption. Many government entities adopted mask mandates and other emergency restrictions last summer. The Blue Valley district argued in one hearing that because the mask mandate is several months old, SB 40 cannot be retroactively applied.

Baker argues in the suit that “each day a school requires a student to wear a mask is child is an action taken by the board of education.”

Baker says his clients aren’t demanding a repeal of the Blue Valley and Olathe mask mandates. The parents are simply requesting exemptions for their students.

“They’re not asking the district to blow the mandate up. They’re saying it interferes with our learning, so let us go to our school without a mask,” Baker said. “In the end, the districts are going to spend $100,000 in federal court. Why?”

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