The Douglas County School District is suing its county health department over orders that make masks optional for students

The Douglas County School District is suing its new county health department over a mask and quarantine order the county approved earlier this month.

The lawsuit states that the Douglas County Health Department order allowing mask exemptions and restricting quarantines in schools violates the federal civil rights of students with disabilities. It asks the U.S. District Court in Denver to block the order and uphold the school district’s previous mask mandate requiring face coverings and allowing it to quarantine students who could be potentially infected with COVID-19.

The suit is filed on behalf of families of students with high-risk health conditions. The school district says it is suing in order to guarantee the students’ right to equal access to a quality public education.

“The choice is this: Are we going to ignore the recommendations of medical experts everywhere and put the lives of vulnerable students in jeopardy?” said Douglas County School District Superintendent Corey Wise in a statement. “Or are we going to give all children a fair shot to succeed in person, in school, where they belong? That is why we are taking these legal steps to ensure every child has the opportunity to receive a public education, which is their right as Americans.”

Wise said he appreciates there may be many families who don’t want their children wearing masks but that mask mandates are a temporary measure to ensure that every child can attend and thrive in school.

The newly created health department issued a public health order two weeks ago that allows parents to opt their children out of wearing masks at school by signing a written declaration asking for the exemption “due to the negative impact (of masks) on that individual’s physical and/or mental health.” The mask opt-out also applies to adults.

The public health order also states that no children in the county would be required to quarantine “because of exposure to a known COVID-19 positive case unless the exposure is associated with a known Outbreak.” If someone is required to quarantine, it must be lifted after a minimum of seven days of exposure, if after five days from exposure they have a negative test result.

The district says without being able to implement COVID health precautions, it is powerless to protect others if students or staff come to school knowing they have been exposed to COVID-19.

“The 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 district said.

Douglas County Board of Health President Doug Benevento said the board is confident that the order strikes the appropriate balance on mask mandates. He said it allows students to wear masks but provides exemptions for parents with children who would be negatively impacted by masks.

 “The pending lawsuit against the school district by an asthmatic student claiming they have violated the ADA demonstrates that a blanket mask mandate does not strike that balance,” he said.

The district says its student body includes thousands of children with disabilities who are at greater risk of experiencing severe, life-threatening illness if they contract COVID-19.

Those include asthma, diabetes, compromised immune systems, sickle cell disease, cystic fibrosis, severe respiratory conditions, seizure disorders, heart conditions, and more, it said.

Federal law requires school districts to “reasonably accommodate” students with disabilities to provide them equal and safe access to public education. The district says that includes universal masking of students except for limited, medically necessary exceptions, and “quarantining asymptomatic individuals exposed or potentially exposed to COVID.”

Accommodations under federal law require some students to have intensive in-person support. 

Plaintiffs named in the suit include a student with cystic fibrosis —who the suit says is at greater risk of serious health complications, even death, if he contracts COVID-19 — and a student with a rare joint and muscle disease that limits her ability to wear a mask. Other students named in the suit have severe respiratory challenges or developmental delays that leave them reliant upon other students to wear masks to protect them.

The Douglas County School District's teachers union, the Douglas County Federation, expressed its support for the lawsuit in a statement.

"The leadership of Douglas County School District is prioritizing the health and safety of our most vulnerable students, following the advice of medical and scientific experts, and keeping the politics of this issue out of the schools. The Douglas County Federation supports providing a safe academic learning environment for all students, all the time," the statement read.

When the Douglas County Health Department issued the public health order, health department board member and Douglas County Commissioner George Teal said there was “insufficient data to suggest that schools and childcare facilities — including those that do not require students to be masked — are significant drivers of community transmission of COVID-19.”

Board members said they were also concerned about the growing mental and emotional health issues for children as a result of wearing masks.

“The overall physical and mental health of every child should drive consideration of COVID-19 mitigation measures and all available and credible COVID-19 science and guidance should be relied upon to this end,” said Abe Laydon, another county commissioner.

The school district points to information from Colorado Children’s Hospital that states “[t]here are no valid reports or scientific studies linking masks to mental health problems in children or any other group.”

The district said it was also spurred to act because of a sharp increase in reported cases, hospitalizations, and deaths due to COVID-19 across Colorado, including in Douglas County, which it says has a high test positivity rate. Children now account for approximately 18 percent of all COVID-19 cases in Colorado.

“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,” said Douglas County School District board president David Ray.