Attorney and state Rep. Mary Elizabeth Coleman has filed lawsuit against the Fox C-6 School District, the second lawsuit she filed this month on behalf of parents who say their children have been denied access to free education because of orders and guidance issued to stem the spread of COVID-19.
Shannon Otto of Arnold and Michael Gross of Imperial are the plaintiffs in the case against the Fox district, which was filed on Oct. 20 in the Jefferson County Circuit Court.
Otto and Gross are seeking a permanent injunction to stop the Fox district from enforcing its COVID-19 mitigation plan, including its quarantine and masking policies.
The suit claims the school districts have implemented their plans without “complying with applicable Missouri statutes and the requirements of the Missouri Constitution.”
The other lawsuit was filed against the Jefferson County Health Department on Oct. 8 in the Jefferson County Circuit Court.
Otto and Lori Bourgeois of Dittmer are the plaintiffs in the case against the Health Department, and both claim their children were kept out of school because of quarantine orders or face mask recommendations the Health Department has issued.
The suit against the Health Department asks the court to issue a temporary restraining order and preliminary injunction to stop the Health Department from requiring the parents, their children and their children’s schools from following quarantine and mask orders and recommendations.
Coleman said none of the plaintiffs in either of the cases is asking for monetary damages right now.
“The intent is to try to get people to follow the law, not make money,” she said.
Fox suit
In the lawsuit against the Fox district, Gross, who has a senior and a freshman at Seckman High School and a son in kindergarten at Seckman Elementary School, said his son was wrongly sent home from school for not wearing a mask, according to an affidavit in the case.
The freshman reportedly refused to wear a mask at school on Oct. 18, and assistant principal Dave Black called Gross and told him he had to pick up his son from school. When Gross arrived at school, according to the affidavit, he took a photo of staff members and students not wearing masks or incorrectly wearing them.
Gross said Black told him his son was in violation of district policy and could not attend school unless he wore a mask, adding that sending him home was not a disciplinary action. Gross said he asked Black to write down why his son was being “denied access to an education,” but Black did not give him a written explanation.
Gross said he also asked school Principal Jeff Krutzsch for a letter, but was advised he would not get one because it could be used to show “injury and prove civil liability.” Gross also said Krutzsch told him his son would remain at school in a room by himself, return to class wearing a mask or go home, according to the affidavit.
Gross said he also spoke with Tammy Cardona, assistant superintendent of secondary education, who repeated the same options.
Otto made the same claims in the lawsuit against Fox as she had in the suit against the Health Department, claiming her daughter being denied access to free education as a result of Fox’s mask policy.
Mary Elizabeth Coleman said her plaintiffs only recourse is through the court.
“People are fed up with bureaucratic laws and rules that are limiting kids from having access to their education and passing things or purporting to pass things while not following the law,” she said.
In the lawsuit against Fox, the plaintiffs say the school district has not followed a requirement that’s part of 67.265.1(2) RSMo and calls for boards to vote every 21 days to implement and continue any health orders they are following if there is not an emergency order in place.
However, after the Fox Board of Education first voted on Aug. 17 to adopt its mitigation plan and has been renewing the plan on a 30-day window since then because of a different clause in the statute that says orders expire after 30 days unless renewed.
“That statute has different voting timelines for different types of public health orders,” Fox Superintendent Paul Fregeau said Oct. 20. “Orders issued outside of a declared state of emergency that close businesses, churches, schools and other locations are required to be approved and extended by a governing body within a 21-day time frame. Orders issued during a declared state of emergency that close or restrict access to businesses, churches, schools and other locations are required to be approved and extended by a governing body within a 30-day time frame. There is pending litigation at the state level and other levels that will determine this application to school districts and masking policies. Until that issue is resolved. the Fox School District intends for the Board of Education to vote on the current masking requirement every 30 days.”
According to court documents, the plaintiffs believe the school board’s quarantine and mask order “indirectly close all schools” in the district, and they argue there is currently no valid quarantine or masking order because the Fox board has not followed state law.
“When Defendant voted on October 20th to extend and revise the September 21st order, it did not pass by a 2/3 majority vote,” the lawsuit says. “Without a 2/3 majority, the expired September 21st order was not validly extended or approved by the School Board under Section 67.265.1(2).”
JP Prezzavento, Fox’s communications and instructional technology coordinator, said the board has been passing its COVID-19 policies, like other policies, by a majority vote.
“Fox C-6 is aware of the pending litigation at the state level that will determine the application to school districts,” he said. “Until that issue is resolved, Fox School District intends for the Board of Education to vote on the current masking requirement every 30 days with a simple majority required to approve the COVID mitigation plan.”
The board is expected to vote on the mitigation plan again Nov. 16. However, the board may revisit the issue Nov. 2.
Prezzavento said the district would not comment specifically about whether its insurance will cover the costs associated with the lawsuit, although he said the district “does maintain insurance coverage to mitigate costs associated with litigation focused on district operations,” he said.
Motion to consolidate cases
On Monday, Health Department attorney Christi Coleman filed a motion to consolidate the lawsuits against the Health Department and the Fox district.
In the motion, she called the suits “substantially similar” since Otto is a plaintiff in both cases, Mary Elizabeth Coleman is representing the plaintiff in both cases, and resolution of both cases will likely involve the Health Department and Fox district.
Mary Elizabeth Coleman filed an objection to consolidating the suits and wrote in court documents that the cases are “substantively different arguments.”
According to court documents, Otto and Bourgeois are represented by The Thomas More Society, with Mary Elizabeth Coleman and Mary Catherine Hodes as the counsel.
“Every political subdivision and legal entity in the state of Missouri has to follow state statute, as well as constitutional and federal constitutional law,” she said. “I think that there is going to be an attempt to try to say, ‘who is the binding authority to issue these types of rules?’ I think both may try to escape their responsibility by pointing to the other as being responsible, but both have the ability to issue orders.”
On Monday, Missouri Attorney General Eric Schmitt filed a brief supporting the plaintiffs in the Health Department suit.
“We think we have the law on the side, and we're pleased that the Attorney General agrees with us,” Mary Elizabeth Coleman said. “We are looking forward to a speedy hearing.”