Judge rules argument ‘unpersuasive’

THE DALLES — A federal lawsuit filed Nov. 16 by four The Dalles parents alleging North Wasco County School District 21 (NWCSD21) board of directors and superintendent acted unlawfully in requiring students wear masks as mandated by the state has been dismissed.

A federal judge in Portland ruled the board “acted properly in complying with the state’s pandemic requirement that masks be worn in schools,” according to a Dec. 29 story by the Oregon School Boards Association.

In a decision signed Dec. 22, U.S. District Judge Michael H. Simon ruled that the North Wasco County School Board and Superintendent Carolyn Bernal had not violated parents’ constitutional rights to due process. Parents Jennifer Rae Gunter, Robert Jay Schwartz, Holly Lynn Gove and Chelsea Elizabeth Perritt had sued the district, contending that the board’s enforcement of a state school mask mandate had violated their rights under the 14th Amendment and Oregon Constitution.

Parents had sought a court order preventing the mask mandate from being enforced. Instead, the judge dismissed the suit.

Stephanie Bowen, director of communications and community outreach for NWCSD21, said the district was pleased with the outcome and looking forward to serving district students in the new year. “School districts across the nation are facing such suits, and while we empathize with the concerned parents of our district, our focus is on the education and safety of our students and staff,” Bowen said. “Our goal is to provide a safe and equitable learning environment and ensure that every student is able to attend school in-person.”

In addition to masking, North Wasco County School District has implemented other efforts in a layered strategy against COVID-19 that includes extra cleaning protocols, increased air ventilation, student cohorting and on-site testing, Bowen added.

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The new ruling is consistent with other Oregon court decisions regarding the pandemic, including the Oregon Supreme Court’s June 2020 ruling upholding Gov. Kate Brown’s authority to issue executive orders to protect public health.

During an August school board meeting to plan a return to in-person instruction, the ruling noted, the school board chair explained that board members were bound by oath to follow state laws.

The parents contended that masks are harmful to children by increasing carbon dioxide levels and are ineffective in preventing the spread of COVID. Parents asked that the board hire a specialist to test classroom air quality, which the board refused to do.

In their court filing, the parents (who were not represented by attorneys) also argued that children would be subjected to “harassment, bullying, intimidation, isolation, and potential discipline” for not wearing masks properly, and that allowing teachers to enforce the use of masks constituted the practice of medicine without a license, contrary to state law.

Furthermore, the parents contended that because schools’ back-to-school plans are tied to the release of federal funding, forcing children to wear masks was in effect placing children into “slavery” or “servitude.”

The judge disagreed with the suit’s mask-related allegations across the board, most strongly in the assertion that children were being placed into slavery or servitude. "The Court finds this argument unpersuasive and finds Plaintiffs’ allegation that requiring masks equates to slavery or placing children into servitude utterly without merit,” Simon wrote. “Indeed, it reflects a serious misunderstanding of what constitutes slavery.”

The constitutional question raised by the suit was the parents’ contention that the mask mandate infringes on their rights to direct their children’s education and make health and safety decisions for them.

In part, the judge relied on a New York federal judge’s ruling earlier this year that parents do not have a “fundamental right” to refuse having their children wear masks during a public health emergency. Simon also concluded that a mask requirement doesn’t equate to a medical treatment, and that “even if wearing masks could be considered a medical requirement, parents do not have a fundamental right unilaterally to make every medical decision relating to their children in schools.”

Portions of this article are being reprinted with the permission of the Oregon School Boards Association.