Masks will need to go back on the faces of just about every student and staff member in the Douglas County School District after a federal judge on Tuesday ruled that a mask exemption issued by the county’s new health department violated the rights of students with disabilities.
U.S. District Judge John L. Kane issued the temporary restraining order from his courtroom in downtown Denver following a full-day hearing on Monday, during which both sides called witnesses to the stand to argue their cases before the judge.
Kane on Tuesday called Douglas County’s public health order a violation of the American With Disabilities Act.
“I find the risk of irreparable harm to plaintiffs is significant and they have sufficiently demonstrated that the public health order denies student plaintiffs reasonable accommodations in the form of science-backed masking and quarantine requirements,” he read from his order.
Kane said his restraining order will last until Nov. 8, at which time a hearing on a preliminary injunction in the matter will be held if the issue hasn’t been settled. Kane ordered the school district to notify all students of his ruling.
Some students with existing medical exemptions will continue to be able to go without masks in Douglas County schools, but the policy of parents signing off on mask exemptions for their kids is no longer permitted.
Shortly after the ruling was issued, the Douglas County Board of Health said “we respectfully disagree” with it and pledged to continue fighting to reinstate its policy in the weeks ahead.
“We remain confident that when we have more time to make a full case we will be able to demonstrate that the Douglas County Board of Health struck the proper balance of public health protection and parental involvement in health care decisions for their children,” the statement said. “Our order allowed the school district to continue its mask mandate even though (state health department) lifted its statewide mask mandate for students in July.”
From the other side, Douglas County Schools Superintendent Corey Wise said Tuesday’s ruling “is about giving every child — no matter their circumstances – a fair shot to succeed and an equal opportunity to thrive in school.”
He said all students, staff and visitors would have to mask up again, except for students with medical exemptions.
“No parent should be forced to choose between sending their child to school and risking their child’s health, and no family should have to fear that their child may face life-threatening illness just to access their right to a great education,” Wise said. “Today’s ruling was the right one. It will help us continue to make our schools safe for in-person learning.”
The battle over mask mandates in schools has been fierce throughout the country, and in Colorado, the primary showdown over the issue has occurred in Douglas County, where leaders of the conservative county south of Denver split last month from the Tri-County Health Department after 55 years over a mask requirement that was put in place for all students and school staff.
On Oct. 8, the newly formed Douglas County Health Department issued its first public health order, allowing parents to opt their children out of wearing a mask if they felt that covering their faces was doing them more harm than good. The order also made it more difficult for school officials to quarantine students suspected of being exposed to the virus.
The Douglas County School District responded with a federal lawsuit last week, claiming on behalf of nine students with disabilities that a lack of universal masking and the easing of quarantine protocols in its schools put those students who are at high risk for severe disease, should they catch COVID-19, in unnecessary danger. The highly contagious delta variant of the coronavirus has only compounded the danger, the plaintiffs argued, as Colorado sees a surge in cases and hospitalizations.
At its core, the school district’s lawsuit claimed the Douglas County mask exemption violated the students’ rights under the federal Americans With Disabilities Act, which guarantees equal access to education for everyone.
During Tuesday’s hearing, an attorney for the plaintiffs said Douglas County’s public health order had put the school district in an “untenable situation,” forcing it to choose to either disregard federal civil rights law or face criminal prosecution in state court for ignoring the county’s health order.
The attorney, Elliott Hood, said it’s likely that fewer and fewer students will be wearing masks as time goes on, given the fact that only about one in five students had their faces covered at the start of the school year — before Tri-County had handed down its mask order.
Since the exemption went into effect two weeks ago, Hood said compliance with the Douglas County School District’s mask mandate has already fallen from 97% of students to around 80%.
“That is the direction we are headed,” he said. “The trend is deeply concerning.”
That prospect, Hood said, necessitated a temporary restraining order from the judge.
Already this school year, he said, there have been around 1,300 documented coronavirus cases among the 64,000 students in the district. On Monday, a state health official said that with Colorado seeing its highest COVID-19 hospitalization numbers since late December, it may be time to put in place statewide mandates, like masks or vaccinations.
Defenders of the county’s health order say it’s necessary because masks are not without their negative impacts on students’ ability to learn — a concern voiced by the World Health Organization last year when it issued mask guidance that urged against covering the faces of young children and balancing among those age 6 to 11 the “potential impact of mask-wearing on learning and psychosocial development.”
An attorney for Douglas County, Kelly Dunnaway, argued against a restraining order Tuesday, saying that the county health department’s mask exemption had not led to a precipitous drop in mask-wearing in the district.
“That claim is based largely on speculation,” Dunnaway said.
And he re-cast a presentation last month by state epidemiologist Dr. Rachel Herlihy that showed that students in Colorado school districts that declined to institute mask mandates are infected with COVID-19 at higher rates than in districts that have face-covering requirements.
He said the actual difference — 300 cases per 100,000 people in school districts that do not require masks versus 250 per 100,000 in districts that mandate masks — translates to three kids in a 1,000-student school district as opposed to 2.5 kids in a similar-sized district getting COVID-19, respectively.
“It’s a very slight difference,” Dunnaway said.
Douglas County Commissioner Abe Laydon criticized the Douglas County School District on Tuesday for fighting against “parent choice in the face of virtually zero severe COVID impacts to kids in all of Douglas County.”
“While Douglas County continues to remain virtually without any pediatric COVID hospitalizations, including students with disabilities, this school board refuses to relinquish their militant grip on kids’ and parents’ personal health care choices in order to maintain senseless, one-size-fits-all authoritarian policies,” Laydon said. “I have no doubt that Douglas County parents will be responding en force to this outrage at the ballot box this coming Tuesday.”
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