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Judge sides with Shawnee Mission School District in mask lawsuit

SB 40 still under scrutiny
Posted at 4:24 PM, Jun 10, 2021
and last updated 2021-06-10 17:24:50-04

KANSAS CITY, Mo. — A Johnson County, Kansas, District Court judge has sided with the Shawnee Mission School District regarding its masking policies after two parents sued the district, citing “psychological harm” and objecting to the policy itself.

In a ruling filed Thursday, District Court Judge David Hauber said the children of one parent named in the suit, Kristin Butler, were given exemptions from the district’s mask mandate.

“However, because they were distanced under CDC protocols from other masked children, she contends that they suffered psychological harm and ended up wearing masks so they would fit in,” Hauber wrote.

The second parent, Scott Bozarth, according to Hauber’s ruling, did not seek an exemption “because of ostracism concerns if his child did not wear a mask.”

Butler and Bozarth filed their petition on May 28 – after the school year had ended.

“Thus, it is apparent the plaintiffs offer a Catch-22 dilemma that can only be resolved by abolition of any mask policy,” Hauber wrote.

Bozarth, according to Hauber’s ruling, made it clear the issue at hand was the masking policy itself rather than “just the effects of granting exemptions or the need for social distancing.”

In the initial petition, Bozarth provided an email that he sent to the Board of Education, stating that he took “grievance” with its COVID-19 response.

“He then requests a hearing over his daughter’s required use of a mask,” Hauber wrote in his ruling, “claiming it borders on ‘wreckless [sic] endangerment and/or assault. My child is being harmed physically, mentally and emotionally by the SMSD policy requiring masks.’”

Butler and Bozarth both objected to the continuation of the district’s mask policy, but supplied a district email in their petition that stated the district is maintaining “all mitigating procedures, including mandatory mask-wearing, in place. This is consistent with the advice we received yesterday from Dr. Sammi Areola, Director of the Johnson County Department of Health and Environment.”

“As the Court learned at the hearing, Ms. Butler’s children are exempt from the masking policy but did not like the social distancing requirement that attended their exemption,” Hauber wrote. “Mr. Bozarth likewise indicated he could have obtained the same exemption but chose otherwise because he objects to the policy itself. If the legislature intended to directly challenge existing policies in school districts, it should have stated that plainly.”

The parents also had been denied a hearing under S.B. 40, Kansas law that allows challenges to public entity COVID-19 mandates.

“A hearing is usually something that seeks some individualized or adjudicative response by a complaining party regarding something specific that has happened to them,” Hauber wrote. “Neither of the plaintiffs here seek individual relief from the policy, the denial of which would be a decision or ‘action’ from which a hearing and appeal might be necessary. They apparently already had appeared in front of the school board and made their displeasure known with the mask policy.”

Hauber requested a hearing with the attorney general before finalizing its order, but has still denied “any relief” to the plaintiffs as “being moot and untimely.” If the attorney general agrees to interview, an oral argument will be scheduled.