A group of parents has filed a lawsuit seeking to overturn a Johnson County health order requiring masks for students through the sixth grade who are enrolled in public and private schools.
About 20 parents and their children, who are not named, are asking that a judge block the order on a wide range of grounds from it being too broad to the county not having the authority to tread on school responsibility.
It would be the third lawsuit that has been filed since the Kansas Supreme Court stayed a lower-court ruling that found that the state’s new emergency management law was unconstitutional.
The new lawsuit is similar to one that was filed against Johnson County last week, arguing that the health order was not a narrowly tailored response to address the latest surge in COVID-19 cases.
The lawsuit lists 10 ways that the order is not narrowly drawn up as required by the new emergency management law passed by the Legislature, including the fact that the mask mandate would last for 295 days.
The lawsuit also contends that the County Commission does not have the authority to order healthy kids to wear masks at school.
The litigation argues that local school boards are granted powers under the state constitution to operate in the best interest of the district under limits imposed by the Kansas State Board of Education and the Legislature.
The county mask order, the lawsuit says, “thwarts the authority of a board of education of public schools and the respective governing bodies of private schools in Johnson County to make decisions for the schools they are elected to represent.”
The lawsuit argues that the health orders violate the state constitution, which gives the Kansas State Board of Education general supervision of public schools.
“The Legislature is authorized to pass legislation to facilitate the powers of the state Board of Education,” the lawsuit states.
“However, it is unconstitutional to provide the local boards of county commissions the power to issue compulsory orders impacting students, visitors, faculty and staff within school buildings under the jurisdiction of the state Board of Education.”
The lawsuit also argues that the county’s health order violates the plaintiff’s right to due process and free speech.
“Plaintiffs as individuals have a fundamental right to make decisions concerning whether they, as a healthy person, will wear a medical device or to take preemptive medical intervention steps,” the lawsuit states.
The lawsuit says there are no uniform guidelines or procedures for requesting an exemption to the health order and similarly no standards for appealing a decision on an exemption to the mandate.
The lawsuit also says there are no uniform standards for how the health order should be enforced.
“While the enforcement provision of (the health order) places the burden on local school districts to enforce compliance, there are other statutory penalties plaintiffs face for refusing the unconstitutional mandate,” the lawsuit states.
“There is no effective due process for plaintiffs to object” to the health order, the lawsuit states. “It is up to the whim of the local school boards to determine whether an individual qualifies for a delineated exemption.”
The plaintiffs are asking a judge for a permanent injunction blocking the county from enforcing the health order.
If the mandate remains in place, the lawsuit says, “plaintiffs do not have an adequate remedy to keep them from being punished for a violation of the unconstitutional provisions.”
“The injunction, if issued, would not be averse the public interest,” the lawsuit says.
“Those who want to wear mask can still wear a mask and it is consistent with the interest of the public to deny enforcement of a void order.”
Last week, lawsuits were filed against two counties, contending that the health orders were overly broad under a new state emergency management law passed by the Legislature earlier this year.
One lawsuit was brought against the Johnson County health order.
The lawsuit was brought on behalf of a Blue Valley middle school student who claimed the mask mandate interfered with their learning ability, completing their class work or interacting with their friends.
Another lawsuit was lodged against Morris County by a Council Grove man and former Marine who believes in “personal freedom and choice.”
The Morris County health order requires all businesses and organizations to mandate masks for all customers, employees and visitors inside public spaces.
In both cases, the lawsuits are seeking to narrow the window for the health order to 30 days so it will be reviewed monthly to account for changing health conditions.