Kansas judge strikes down law providing speedy challenge to mask mandates in schools

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TOPEKA — The Legislature’s attempt to promote “legal anarchy” in response to COVID-19 precautions in public schools is unconstitutional, a Johnson County District Court judge ruled Thursday.

District Judge David Hauber also determined the entirety of Senate Bill 40 is unenforceable, effectively wiping out a Republican-led charge to restrict the governor’s oversight of emergencies. The decision is a response to novel legal challenges filed by parents upset with mask mandates and other policies in the Shawnee Mission school district.


In a 27-page ruling, Hauber relentlessly criticizes the Legislature’s disregard for due process and separation of branches of government, as well as the attorney general’s “fantastical” legal arguments.

“Under the guise of giving local governments the authority to address specific pandemic issues, SB40 actually hobbled local pandemic measures by ensuring that lawsuits would be filed, aided by swift court action,” Hauber wrote. “Many local units of government simply capitulated under the pressure.”

SB40, a bipartisan compromise passed by the Legislature and signed by Gov. Laura Kelly in March, provided a new path for parents, students and employees to challenge remote learning or any school policy they don’t like. The law requires school boards to hold a meeting over complaints within 72 hours. If the board upholds a policy, parents can ask a court for relief.

Courts are required under the law to clear their docket and hold a hearing within 72 hours, and issue a ruling within seven days. The plaintiff in these cases is not required to show any harm caused by the policy in question, and if a court doesn’t meet the deadline, the plaintiff wins the case by default.

“It is difficult to fathom what the drafters of SB40 used as a legal template for this default provision, which seems to be unprecedented in the law,” Hauber wrote.

Attorney General Derek Schmidt ignored the law’s “glaring deficiencies” while trying to defend its constitutionality, the judge wrote. None of Schmidt’s arguments was convincing, he added.

Hauber noted that the Kansas Rules of Professional Conduct requires Schmidt to uphold the Constitution in accordance with his oath of office: “In other words, all attorneys, including the attorney general, are not apologists for unconstitutional legislation.”

The attorney general suggested SB40 protects school children, but the judge was favorable to the school district’s point of view that the law “did precisely the opposite.”

Instead of supporting public schools, the district argued, the Legislature “succumbed to the politics of COVID-19” and passed a bill that diverted attention from educational operations to SB40 hearings.

“The best interest of students, and student rights, is not addressed anywhere in SB40,” the district argued in legal briefs. “The sole focus … is adult, political concerns.”

Hauber said the law constricts the ways courts operate by dictating strict and short deadlines that preempt all other cases. In doing so, the law violates the separation between judicial and legislative branches.

This “legislative stick” is intended to supplant judicial rules and “promotes the equivalent of legal anarchy,” Hauber wrote.

Simply put: “The Legislature should stay out of a court’s decision-making process.”

“One can imagine the reaction from legislators if courts routinely demanded that a given legislative committee or chamber enact a law or report a bill out of committee within a certain timeframe,” Hauber wrote.

The judge said speed shouldn’t be the deciding factor in who wins a legal dispute, and time limits imposed by SB40 violate due process.

Schmidt compared the provision of the law that hands plaintiffs a victory if the deadline isn’t met to the dismissal of criminal charges for speedy trial violations, a comparison the judge dismissed.

“The analogy drawn between the incarcerated defendant languishing in jail and awaiting trial and school children is ironic,” Hauber wrote. “But schools are not penal institutions. School boards are not jailers. And being required to wear a mask to protect others is not the equivalent of a prison sentence.”

Hauber said every unit of government is linked in SB40 “to the same tainted enforcement scheme.” As a result, the entire law is unenforceable, he wrote.

The law updated the Kansas Emergency Management Act, including changes to the authority of local health officers and the authority and membership of the Legislative Coordinating Council. The attorney general could appeal the judge’s ruling.

“If left unchecked, this pandemic or the next one will result in judgments by omission, undermining judicial integrity and the public’s trust in the judiciary,” Hauber wrote. “It also would shift power to the Legislature to create a species of self-executing decree that evades judicial determination.”

Kansas Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: Follow Kansas Reflector on Facebook and Twitter.

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