Little Rock district draws up suit on mask law

Ban on mandate, illogical, it states

FILE — Little Rock School District headquarters are shown in this 2019 file photo.

Superintendent Mike Poore is recommending that the Little Rock School District challenge in court the constitutionality of Act 1002 of 2021 that prohibits school systems from requiring students and employees to wear masks.

Poore said Friday that he is asking the School Board for the 21,000-student capital city school system to vote on whether to pursue the lawsuit at a special meeting at 7 p.m. Wednesday at Hall High School.

A draft of the lawsuit -- which alleges constitutional violations in four areas -- was released by the school system Friday so it can be reviewed and discussed by board members and the public in advance of the meeting Wednesday.

The draft lawsuit that has been prepared for Pulaski County Circuit Court names the state and Gov. Asa Hutchinson as the defendants.

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"No rational reason exists for denying public school students, teachers and staff, and the school boards that 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," the lawsuit states.

Poore acknowledged that the governor is seeking to convene the General Assembly next week to attempt to amend Act 1002 to give school boards the flexibility to decide whether to require the wearing of masks as a defense against the coronavirus that is surging in the state.

"But I'm not confident that will occur," Poore said in a video message about the potential for legislative action."We need every single tool" including mask wearing to fight the virus, Poore also said.

Classes start Aug. 16 in Little Rock and most other schools in the state.

Poore was complimentary of the governor's efforts, saying Hutchinson "has done everything in his power" to aid schools and the medical community.

[DOCUMENT: Draft of LRSD lawsuit on face masks »]

Hutchinson had noted in announcing his plans earlier this week that getting the Legislature to modify the law was going to be "a heavy lift."

An amendment to the law would require a majority of both the Senate and the House of Representatives. An emergency clause to permit any amendment to go into effect immediately would require a two-thirds majority vote.

The governor has said he will seek an amendment only to the ban on districts mandating masks in schools.

The proposed lawsuit seeks an injunction on the enforcement of the entire act.

The 14-page draft lawsuit contends that "requiring 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" and that "Act 1002 deprives students of their constitutional right to a general, suitable and sufficient system of free public schools."

[DOCUMENT: Summary of proposed LRSD lawsuit » ]

A general, suitable and sufficient system of free public schools is mandated in Article 14 of the state constitution.

The draft suit -- prepared by attorneys Chris Heller and Khayyam Eddings of the Friday, Eldredge & Clark law firm -- further points out that Act 1002 would prevent the Little Rock district from requiring the protective face coverings in science classes such as chemistry, or in stagecraft, welding and other industrial arts courses, and in athletic activities such as football and baseball.

The attorneys on behalf of the district further argue that Act 1002 makes "irrational distinctions between similarly situated public entities in violation of the equal protection clause of the Arkansas Constitution."

The draft gives examples: state-owned or state-controlled health care centers and prisons can require masks to be worn but county hospitals and county or city detention systems cannot.

Similarly, the state Division of Youth Services education program can require students and staff members to wear masks while the Little Rock district and other public school districts cannot under the law.

"These irrational distinctions deprive LRSD and other Arkansas public school districts of 'equality... before the law' in violation of Article 2 ... of the Constitution," the proposed lawsuit argues.

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The draft also argues that Act 1002 puts the district in conflict with the federal Centers for Disease Control and Prevention's requirement from earlier this year that passengers and drivers on school buses must wear masks in defense of the virus. The state law prohibits that mandate.

The draft also contends that Act 1002 "has unconstitutionally restricted the the power of the governor to address public health emergencies" and "the power of the state court judges to manage proceedings in their courtrooms."

Even the Arkansas Supreme Court cannot require its employees or the people who appear in hearings before the high court to wear masks, the draft lawsuit notes.

That violates the separation-of-powers provision in Article 4 of the state constitution, the attorneys wrote.

In conclusion, the draft suit asks for an injunction to stop the enforcement of Act 1002.

In response to news of the potential lawsuit, Stephanie Sharp, a spokeswoman for Arkansas Attorney General Leslie Rutledge said: "The Attorney General will defend challenges to Arkansas law."

Kimberly Mundell, a spokeswoman for the Arkansas Division of Elementary and Secondary Education, said the agency is not involved in the issue.

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"We are not involved in the lawsuit," Mundell said. "We also are not involved in the Legislature's upcoming decision. If the Legislature changes the law, the decision as to whether or not to require masks will be made on the local school district level."

The governor's office did not response to a request for comment by early evening.

Poore said Friday that he and others have been working for about two weeks on the lawsuit. They were moved to act after hearing from medical personnel about the increase in virus cases in hospitals, including among children, and the increasingly heavy demand for medical services, he said.

"I have the responsibility as superintendent of this district to do everything I can to set us up so we are able to protect our students and our staff," he said. "To that end we have prepared this lawsuit for our board to review. We do need local control to determine what is best for our community and to ensure protection of our students and staff. With the delta variant being so intense right now ... masks are another tool in our belt we can use to protect our students and our staff."

Poore noted that an estimated 70% of district employees but possibly less than 10% of students eligible for the vaccinations have received any.

Children 12 and older are eligible for the Pfizer shots but there are no vaccines approved for children under age 12 who make up the enrollment at elementary schools.

Poore said Friday in a memorandum to the School Board that the cost of the lawsuit is likely to be less than $10,000.

The announcement of the possible lawsuit was made in the same week that the district's School Board passed a resolution calling on Hutchinson and legislative leaders to "immediately" convene a special session of the General Assembly "to suspend, amend, or repeal Act 1002 and allow public school districts in Arkansas the flexibility to implement mask requirements as each locally elected school board deems necessary."

The resolution passed Monday night noted that Arkansas is experiencing a public health emergency and is the "epicenter of the highly contagious new Delta variant" of the virus that is causing illness among a growing number of children, including children younger than 12 who are as yet ineligible for covid vaccinations.

"The Little Rock School Board believes that local communities should be empowered to implement common-sense public-health precautions, including requiring masks, in order to keep their students and employees safe," the resolution stated.

"[B]ut for Act 1002, the Little Rock School Board would immediately institute a mask mandate for employees and students in all K-12 schools within the district," it also stated.

In addition to the resolution, the Little Rock district has instituted a $300 incentive to all employees who are fully vaccinated by Oct. 1 and it has hosted and will continue to host vaccination clinics for employees, students and community members.

The district also conducted an online survey of parents to which it received more than 4,000 responses. A large majority of those said they were comfortable with their children wearing masks at schools.

The district has continued to be affected by virus cases. In the past week, the Pinnacle View Middle School football team had to quarantine after exposure as did part of the Southwest High School volleyball team.

The district's proposed lawsuit would not have possible a month ago. The district was prohibited at the time by the state Board of Education from initiating significant lawsuits by state-imposed "guardrails". The guardrails were placed on the district as a result of the district being in the Level 5/in need of intensive support category of the state's school accountability system.

The Education Board at its July 8 meeting reclassified the district as a Level 4 system and lifted the restrictions.

On Friday, School Board member Ali Noland, an attorney and parent of two elementary-age children, said she fully supports and is grateful for Poore's aggressive stance in support of local decision-making on masks.

"We are facing a public health emergency and should be empowered to use all available tools, including masks to keep our students safe," she said in a text message. "Act 1002 is unconstitutional and it puts children at risk. No one ever wants to end up in litigation, but we have an obligation to do everything in our power to protect our students and staff."

Act 1002 doesn't apply to private organizations, including private schools -- some of which already have announced mask-wearing requirements for their students for the coming school year.

Pupils and staff members in Arkansas' nearly two dozen Catholic elementary schools will be required to wear masks, Theresa Hall, superintendent for the Diocese of Little Rock schools, said in a statement reported in the Arkansas Catholic newspaper.