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UPDATE 10/26: A federal judge has granted the Douglas County School District's request, issuing a temporary restraining order blocking enforcement of the county's public health order allowing opt-outs from COVID masking rules for 14 days. "I find the risk of irreparable harm to the plaintiffs is significant and they have sufficiently demonstrated that the public health order denies students (and) plaintiffs reasonable accommodations of science-backed mask and quarantine requirements," U.S. District Judge John Kane ruled Oct. 26.
The Douglas County School District and families of students at high risk of COVID-19 are suing the county's new health department in federal court, alleging a public health order allowing people to opt out of masking rules in the county violates civil rights of students with disabilities.
The lawsuit (download here) asks the courts to block enforcement of the county's health order, which also limited quarantines for people exposed to COVID-19.
The school district’s goal is to go back to its policy requiring universal masking among people 2 and older in its buildings as a COVID safety measure. That policy allows medical exemptions to masking.
“No parent should be forced to choose between sending their children to school and risking their health, and no family should have to choose between access to learning and putting their child’s life in jeopardy,” district Board President David Ray said in a statement. “The message is simple: In these very complex times, our most vulnerable children cannot be left behind.”
The lawsuit was filed Oct. 20 in U.S. District Court for the District of Colorado.
Plaintiffs include nine families of students with conditions ranging from cystic fibrosis, autism and Down syndrome to rare genetic disorders, severe respiratory disorders and asthma. Some plaintiffs have multiple conditions that place them at high risk if they contract COVID-19.
The fledgling Douglas County Health Department was formed this year after the county left the Tri-County Health Department amid long-running disagreements over COVID safety rules.
The Douglas County agency passed its first public health order on Oct. 8. The order allowed parents and guardians to opt children out of masking mandates in the county with a note saying masks negatively affected a student’s mental and physical health. Adults can opt themselves out.
The health order also placed more limits on how people without COVID symptoms could be quarantined if exposed to COVID-19.
Douglas County Board of Health President Doug Benevento provided a statement saying the health department is still reviewing the lawsuit. The board is "confident that our order strikes the appropriate balance with respect to mask mandates in our schools" by allowing people to opt out.
He pointed to another pending lawsuit by a student against the district's masking mandate as evidence that "a blanket mask mandate does not strike that balance."
"Our order is also more proactive than any requirement the State of Colorado currently has in place," his statement said.
Ray told Colorado Community Media he was not aware of a lawsuit against the district's masking mandate as of Oct. 20.
The school board president said the district was more-or-less blindsided by the public health order. To his knowledge, the board of health and county health department did not solicit input from the district as it drafted the public health order, he said.
"That's sort of baffling because the answer is, 'No.' We really found out about it just like everybody else," Ray said.
He hoped the legal action could bring more clarity regarding managing COVID-19 in schools. Although the new board of health's order changed masking and quarantining rules, it contradicted Tri-County Health's protocols, he said.
That sparked confusion because Tri-County Health is still providing public health services in Douglas County through an intergovernmental agreement with the county, including guidance to the school district about who should isolate and quarantine, Ray said.
He's optimistic the lawsuit will go in DCSD's favor. He doubts the courts would tell district to "just tell your special needs population to stay home if they don't feel safe."
He also stressed masking is a temporary solution and won't be required forever.
The district's lawsuit says in the course of five days, its "rate of mask-wearing dropped from 97% to 83%, and over 4,500 students and over 500 staff were exempted from wearing a mask" after the health order passed.
The lawsuit says DCSD is concerned mask-wearing will reach the "extremely low levels" experienced at the beginning of this school year, when DCSD estimates less than 25% of people masked voluntarily.
"This is alarming, especially when the (Douglas County Health Department public health order) prohibits certain quarantining efforts that work to mitigate the spread of COVID," the lawsuit says.
Masking rules have been the subject of a fierce debate in Douglas County, with some families pushing for universal masking and others urging personal choice. The issue has cropped up in the race to fill four seats on the school board in the election that ends Nov. 2.
In the district's statement today, Superintendent Corey Wise said that “we deeply appreciate there may be families who don’t want their children wearing masks in school.” The lawsuit is about the district coming together to take the “temporary measure of masking,” he said, so every child “has the ability to thrive in our classrooms.”
“The choice is this: Are we going to ignore the recommendation of medical experts everywhere and put the lives of vulnerable students in jeopardy? Or are we going to give all children a fair shot to succeed in person, in school, where they belong,” Wise’s statement said.
The district’s statement cited the federal Americans with Disabilities Act and Section 504 of the Rehabilitation Act, which prohibits discrimination based on disability and requires districts to provide students with disabilities safe and equal access to public education.
“The (county health department) order ignores well-settled science and guidance regarding COVID-19 mitigation and puts the health and learning of vulnerable students — those with chronic conditions, respiratory issues and other serious health challenges — in jeopardy,” the statement said.
The Centers for Disease Control and Prevention, the American Academy of Pediatrics, the Colorado Department of Public Health and Environment, the Tri-County Health Department and Children’s Health Colorado all recommend universal masking, the statement said.
Newly reported cases, hospitalizations and deaths “have all increased sharply” in the state and county, the release said, while test positivity rates in Douglas County remain high, “suggesting that cases may be undercounted.”
The Douglas County School District is the state’s third largest district, serving about 64,000 students. The district’s announcement said enrollment numbers include thousands of students with disabilities who are at greater risk of severe illness from COVID-19.
More than 700 students require “intensive support in a special setting in order to fully benefit from their educational programming,” the statement said. Remote education is not as effective for them and providing a safe in-person experience is “of paramount importance.”
A spokeswoman for the Douglas County Health Department did not immediately respond to requests for comment from the county health board President Doug Benevento.
A spokesperson for the Douglas County School District said they were working to fulfill Colorado Community Media’s request for an interview with Wise.
This story has been updated with a statement from the Douglas County Health Department board president and the Douglas County School Board president
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