A lawsuit over the Fox C-6 School District’s COVID-19 mitigation policies has been dropped, and a judge has issued a temporary restraining order against the Jefferson County Health Department to stop the agency from requiring parents, students and schools from following its quarantine and mask order recommendations.
State Rep. Mary Elizabeth Coleman filed the lawsuit against the Fox district on Oct. 20 with the Jefferson County Circuit Court on behalf of Shannon Otto of Arnold and Michael Gross of Imperial.
Coleman also filed a lawsuit against the Health Department on Oct. 8 with the county Circuit Court on behalf of Otto and Lori Bourgeois of Dittmer.
Coleman said she filed a motion to dismiss the lawsuit against the school district after its Board of Education voted unanimously Tuesday (Nov. 16) to recommend but no longer require students, staff and visitors to wear masks inside Fox buildings.
Previously, the district required all those in district buildings to wear masks if Jefferson County is in the red or orange levels – the highest levels on the Health Department’s COVID-19 four-color warning system. Those red and orange levels indicate a high or substantial transmission level based on a seven-day average of positive cases among 100,000 people and the county’s COVID-19 test positivity rate over a seven-day period.
“This is a win for students and parents against tyrannical bureaucrats who are desperate to hold onto power with the forced masking of students,” Coleman said after the district changed its mask policy. “These bureaucrats have decided their own petty power is more important than our children’s education.”
Jefferson County Div. 5 Circuit Judge Victor Melenbrink heard both cases, after Coleman filed a motion on Nov. 1 to change judges.
Jefferson County Div. 6 Circuit Judge Troy Cardona previously was assigned the cases and planned to consolidate them into one, but Coleman requested a different judge.
At a hearing in the case last month, Coleman asked Cardona if he was going to recuse himself because his sister-in-law, Tammy Cardona, is an assistant superintendent for the Fox district.
In addition, Coleman argued that the cases should have been heard separately.
“Judge Cardona said in court he was going to combine the cases, but he didn’t,” she said. “We filed a motion to change judges. In his (Cardona’s) order moving the case from his court to another court, he either asked the new judge (Melenbrink) or the clerk to consolidate the cases, but Judge Melenbrink declined to do that.”
Fox C-6
Fox school board president Judy Smith said the board did not change the district’s policy because of the court case.
“Their lawsuit has absolutely nothing to do with our decision,” she said. “It was never even considered. It was just what we felt what was best for our students.”
Fox began the school year Aug. 25 requiring masks be worn in buildings because the county had been in the red or orange for the two metrics the Health Department uses to determine the color for its warning system. Based on those metrics, the district changed from requiring masks to making masks optional and then back to requiring masks over a few weeks at the end of October and start of November before the latest policy was put in place.
Fox officials said they wanted a more consistent approach for students and to have more control over its mask requirements.
While Fox no longer requires masks, the board agreed that if the COVID-19 test positivity rate among students and staff at any district school rises above 2 percent, then masks will be required at that building.
If that happens, masks will be required in the building for at least 14 calendar days after the positivity surpasses 2 percent, and the positivity rate would have to fall below that threshold before masks are optional again.
Masks are still required on school buses, which is federally mandated.
The district’s new mask guidelines went into effect today (Nov. 18).
Coleman said Fox changing its masking policy is “a complete win.”
“Our legal actions forced Fox to reevaluate their policy, and my plaintiffs feel what the board did is what we were asking for all along,” she said. “They wanted a policy based on Fox, for Fox, voted on by those who are elected to lead in the Fox School District, and lets kids have access to the school without masks.”
Fox officials issued a written statement today that said the decision to adjust the district’s COVID mitigation plan was in no way based on pending litigation.
“Fox C-6 revised its COVID mitigation plan on Nov. 16 to utilize internal COVID data instead of data from the Jefferson County Health Department to guide its masking practices,” the statement said. “This revision allows for more consistency in the district’s masking practices and allows for Fox C-6 to be responsive to the needs of individual school buildings. We recognize that shifting from required masking to recommended masking based on a color metric that may change weekly can be confusing and frustrating to our students, staff and families. The district hopes that utilizing internal data to guide our masking practice will allow for additional consistency and transparency.”
In the lawsuit, the plaintiffs say the school district has not followed the requirement in a recently passed law that requires boards to vote on health orders every 21 days if there is not an emergency order in place.
Fox district officials say the district is required to vote every 30 days.
Health Department
Coleman said Otto and Bourgeois sought the restraining order and injunction against the Health Department because they are concerned “the rule of law” is not being followed regarding COVID-19 orders and guidance.
“The order is a win for students and for their rights to free education, because it is being hindered by these bureaucrats who are ignoring the statutes and the laws,” Coleman said. “It's very frustrating that we still have not yet heard when they plan on voting on an update on these policies.”
Health Department Director Kelley Vollmar would not comment about the case.
The Health Department has a special meeting set for 3 p.m. Friday (Nov. 19), and the agenda calls for its Board of Trustees to vote on quarantine and isolation procedures in collaboration with local schools during the meeting. The board also is expected to vote on a resolution that would remove a requirement for masks to be worn in all Health Department buildings.
Melenbrink issued the temporary restraining order Nov. 16 following a hearing on Nov. 12.
The “defendant does not dispute that it generated and disseminated the school policies to K-12 schools in Jefferson County,” according to the order. “However, the defendant asserts that the school policies were merely recommendations and were not mandatory or binding in any way.”
Melenbrink goes on to say that correspondence to parents did not make it clear whether COVID-19 mitigation measures were school district policy or Health Department orders.
“The form disseminated to the schools by (the Health Department) misleads parents as to whether they are being ordered to quarantine as a matter of school policy, or as the result of an order from a government agency,” he said in his order.
As a result of the order, the Health Department has to send clarification to all schools that quarantine procedures and protocols are guidelines.
Also, the quarantine order form should not be used anymore, although the Health Department could issue another form as long as it is clear the order is “made pursuant to the school’s authority, not (the Health Department’s).”
The plaintiffs also had to post a $25 bond, and a preliminary hearing in the case has been set for 1 p.m. Thursday, Dec. 9.
“My clients are very pleased and we look forward to having the case go forward,” Coleman said.
