Little Rock, Marion school districts sue state over statute that bans face mask mandates

Let schools keep students safe, suit says

A school bus passes as students head into the building for the first day of school at Little Rock Central High School on Monday, Aug. 24, 2020. 
(Arkansas Democrat-Gazette/Thomas Metthe)
A school bus passes as students head into the building for the first day of school at Little Rock Central High School on Monday, Aug. 24, 2020. (Arkansas Democrat-Gazette/Thomas Metthe)

The Little Rock and Marion school districts on Thursday sued the state of Arkansas and the governor to overturn a state law that prohibits mask mandates in schools and other state-supported agencies.

The lawsuit, which challenges the constitutionality of Act 1002 of 2021, was filed in Pulaski County Circuit Court. It asks that the act either not be enforced or, in the alternative, not enforced in regard to school districts.

"Arkansans are living through a worsening Covid-19 pandemic," the lawsuit begins. "The strong consensus of medical and public health experts is that requiring the wearing of masks in schools will significantly reduce the risk of contracting that highly contagious and virulent disease.

"No rational reason exists for denying public school students, teachers and staff, and the school boards which are obligated to keep them safe, the ability to ensure that all who work and learn in our public schools are as safe as possible," it also says.

[DOCUMENT: Read the Little Rock and Marion school districts' lawsuit »]

The suit was filed by attorneys Chris Heller, Khayyam Eddings and Cody Kees.

The 20-page suit is the second filed this week in Pulaski County Circuit Court challenging the ban on mask mandates. Tom Mars, a Rogers attorney, filed a lawsuit earlier this week on behalf of two parents, Veronica McClane and Ashley Simmons.

The McClane/Simmons case has been assigned to Pulaski County Circuit Judge Tim Fox and a 9:45 a.m. hearing is set today to determine whether a temporary restraining order is warranted to prevent the enforcement of the law.

The attorneys for the school districts asked Fox on Thursday to consolidate the two similar cases in advance of this morning's hearing. The Arkansas attorney general's office will defend the state in the lawsuits.

The Little Rock School Board voted 7-1 with one absent Wednesday night to pursue the lawsuit after reviewing its draft for several days before.

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The 3,911-student Marion district in east Arkansas was added overnight as a plaintiff in the case. The suit notes that despite efforts by Marion district leaders to encourage vaccinations and mask-wearing, the district had 10 cases of covid-19 among students and staff in the first week of school that started July 26. The district that week placed 168 individuals in quarantine -- necessary because they were exposed and had not been vaccinated.

"If all of the individuals merely exposed to, but not testing positive for, Covid-19 had been consistently and correctly wearing masks, only 12 individuals would have needed to quarantine," the lawsuit says.

The attorneys for the districts argue that because the Marion district cannot mandate mask wearing by employees and students, the number of people in quarantine is greater.

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"If MSD could issue its own policy requiring students and employees to wear masks, it could more effectively prevent transmission of an exposure to Covid-19 and its variants and avoid the necessity of a school closure," the the lawsuit states.

As of Thursday afternoon, the Marion district's website shows that a cumulative 56 students and staff members have tested positive for covid since the July 26 start date of school. A cumulative 839 students and 10 employees have been quarantined since July 26 for exposure to others who have covid-19. A total of 59 students and 18 staff have avoided quarantine by the fact that they are vaccinated, according to the district's website.

The district's covid-19 tallies are here:

"The situation in the Marion School District (MSD) in East Arkansas provides a window into the not-too-distant future for Arkansas school districts," the attorneys wrote. "In just over a week, if Act 1002 remains in effect, MSD's experience is likely to be repeated throughout the state, resulting in unnecessary exposure of students, faculty and staff to Covid-19, and unnecessary deprivations of educational opportunities."

The lawsuit notes that Hutchinson has declared a state of emergency in the state because of the escalating covid-19 numbers.

It also cites reports from medical personnel about the numbers of children and teens admitted to Arkansas Children's Hospitals in Little Rock and Northwest Arkansas with covid-19. Those include children under 12 who are ineligible to be vaccinated against the virus.

The lawsuit notes that classes start for more than 21,000 students in the Little Rock district on Aug. 16 but already extracurricular activities -- Pinnacle View football team practice and a Southwest High volleyball team trip -- had to be curtailed because of covid-19 outbreaks and affiliated quarantines.

"LRSD and MSD students, the vast majority of whom are unvaccinated, will suffer irreparable harm if they are required to gather in their classrooms with maskless classmates and needlessly expose themselves to an unnecessarily increased risk of contracting Covid-19," attorneys for the school systems wrote.

The lawsuit argues that Act 1002 violates several provisions of the state constitution, including Article 14 that requires "the State shall ever maintain a general suitable and efficient system of free public schools and shall adopt all suitable means to secure to the people the advantages and opportunities of education."

The suit also says, "[R]equiring students to risk their health and that of their families to receive the education they are promised in the Arkansas Constitution cannot survive even rational basis review."

Act 1002 also violates the Constitution's equal protection clause in that some state-supported agencies can mandate mask wearing and others cannot. The act will put the districts in conflict with federal directives -- from the Centers for Disease Control -- that employees and students must wear masks on school buses. And the act illegally restricts the governor in efforts to address a public health emergency and the authority of courts to manage proceedings in their courtrooms.

The attorneys cite U.S. Supreme Court rulings in which the court concluded that there are restraints that are necessary for the common good.

"Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy,"the Supreme Court said. And "Real liberty for all" cannot exist under the principle that each individual person can do whatever he or she wants "regardless of the injury that may be done to others."

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