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BSSD sued over school mask mandate

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Students sit at desks with physical barriers in place during the 2020-21 school year. For the 2021-22 school year the Big Sky School District School Board voted on Aug. 24 to return to 100 percent in-person learning with a mask mandate in place. The district is now a defendant in a lawsuit against school mask mandates that also includes Bozeman School District No. 7 and Monforton School District No. 72 as defendants. PHOTO BY BRITTANY SHIRLEY

By Gabrielle Gasser EBS STAFF

BIG SKY – The Big Sky School District is one of three Gallatin County districts recently named defendants in a lawsuit over whether the schools’ mask mandates violate personal and parental rights.

The suit, filed in Gallatin County District Court on Sept. 13, states that BSSD No. 72, Bozeman School District No. 7 and Monforton School District No. 72 face-covering rules “… infringe on the rights of Plaintiffs and their children to privacy, dignity, and free expression” and asks for a temporary restraining order as well as preliminary and permanent injunctions against defendants’ mask mandates.

Plaintiffs in the suit include Gallatin County-based nonprofit Stand Up Montana and 13 parents from the respective districts. 

Ahead of its Aug. 30 first day of school, the BSSD school board voted at an Aug. 24 emergency meeting to implement a mask mandate requiring all staff, volunteers, visitors and students ages 5 and older wear a mask over their nose and mouth while inside of any school building. During an extensive discussion and public comment period at the meeting, three members of the public voiced preference for an optional masking policy and 10 said they fully supported a mask mandate.

On Aug. 31, the Montana Department of Health and Human Services issued a temporary emergency rule, submitted as Exhibit A in the lawsuit, stating schools should take into account parents’ concerns over whether or not health-related mandates—masking in particular—are healthy for their children, citing “health, religious, moral, or other fundamental rights reasons.” 

Arguments in the lawsuit filed by Missoula-based attorney Quentin M. Rhoades on behalf of the plaintiffs include the assertion that making students wear masks is ineffective, parent concerns that forcing students to wear masks interferes with their ability to learn, and the argument that compulsory mask wearing infringes on the right to bodily integrity.

“There’s also a constitutional issue here,” Rhoades said in a Sept. 17 interview with EBS. “Montana Supreme Court has been very consistent that medical decisions are private and they’re protected by our constitutional right of privacy. And they’ve called it a fundamental right, which means that the government can’t infringe upon it unless it can show a compelling government interest, which means life or death or the survival of the Republic.”

On Sept. 21, plaintiffs filed a motion for temporary restraining order and for a hearing to show cause for why a preliminary injunction should not be granted. The plaintiff was denied a temporary restraining order on Sept. 21 and a hearing, which will be made available to the public via zoom, is set for Oct. 5 at 1:30 p.m. for a judge to rule on the plaintiff’s request for a preliminary injunction.

The defense was served with the summons and papers detailing the complaint on Sept. 22. Elizabeth Kaleva, attorney for the defendants, said she will file a response to the preliminary injunction.

“The school response to [the lawsuit] would be that we don’t believe [the mask mandate] violates any constitutional rights,” Kaleva told EBS. “In fact, school districts, by the Montana Constitution, have supervision and control of their schools as a constitutionally protected right.” 

Rhoades and Kaleva are also engaged in representing each side of a similar lawsuit filed against Missoula school districts.

Sheena Kidd, a Big Sky Parent Teacher Organization board member and parent of a fifth grader, third grader and preschooler in the district, supports the school mask mandate.

“The most important thing is having our kids in school 100 percent of the time and not being half virtual or 100 percent virtual,” Kidd said. “So, we fully support the school and the board. I think they’re doing the best they can in a super challenging situation.”

Gallatin County is currently in a high community transmission status for the COVID-19 virus and the Centers for Disease Control and Prevention recommend that everyone should wear a mask in public, indoor settings. The Delta variant of COVID-19 is more contagious than the original strain, according to the CDC, and some data suggests the variant causes more severe illness in unvaccinated people. According to data released by the American Academy of Pediatrics on Sept. 16, “child cases have increased exponentially, with over 925,000 cases in the past four weeks.” 

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