On Thursday (Aug. 19), attorneys representing the Bentonville School District filed a notice of removal in a mask mandate lawsuit against the district in an effort to remove the lawsuit from Benton County Circuit Court to the U.S. District Court for the Western District of Arkansas in Fayetteville.
Three parents are suing over the school district’s decision Aug. 11 to require face masks after a judge blocked the state’s mask mandate ban. The requirement in Bentonville is for students ages 3 and up.
The parents argue that the school board did not have the authority to institute a mask requirement for school.The parents are asking a Benton County judge to temporarily block the district from enforcing the ban while they challenge it.
“We were made aware of this situation Thursday morning,” Bentonville Schools spokeswoman Leslee Wright said in a statement. “Our legal counsel is currently reviewing the matter and we look forward to a vigorous defense of our district.”
Marshall Ney, the district’s attorney who is a partner at Friday, Eldredge & Clark in Rogers, filed the notice of removal Thursday afternoon. He argues that the parents’ lawsuit asks the school board “to take actions contrary to federal policy and law,” the filing said.
“Arkansas schools have received billions of dollars in federal funding under the American Rescue Plan (ARP) to help reopen schools,” the filing said. “The ARP explicitly authorizes using these funds for ‘developing strategies and implementing public health protocols including, to the greatest extent practicable, policies in line with guidance from the Centers for Disease Control and Prevention for the reopening and operation of school facilities to effectively maintain the health and safety of students, educators, and other staff.’ As the Department of Education’s Interim Final Requirement makes clear, this specifically includes the CDC’s recommendation for universal indoor masking in K-12 schools.
“The Secretary of Education has stated that the Department of Education ‘will take any necessary action to ensure that nothing interferes with a school district’s discretion to make these critical investments.’ As such, resolution of this dispute involves matters of important federal law and policy.”
Ney provided this statement to the Northwest Arkansas Business Journal on Friday:
“The district believes it acted well within its authority to protect students in its care and to minimize disruption in their education as a result of excessive quarantines and illness by adopting its mask policy. While we would be comfortable with either our Benton County Circuit Court or the federal court deciding the issues presented by the lawsuit, the case was removed to federal court because the core of the parents’ complaint is that the district violated their fundamental liberty interest in parenting their children as provided by the Fourteenth Amendment to the US Constitution and a state constitutional provision. They ask the court to permanently enjoin the mask policy based on an alleged violation of these constitutional rights. These are quintessential federal questions for a federal court to resolve.”
Ney said the parents are fighting federal court jurisdiction and are trying to send the case back to state court.
Mask mandates have been put in place in more than 70 Arkansas school districts. That followed an Aug. 6 decision by Pulaski County Circuit Judge Tim Fox to grant a restraining order that temporarily blocked the state from enforcing a amask mandate ban, Act 1002, for the 2021-22 school year.
Act 1002, sponsored by Sen. Trent Garner, R-El Dorado, passed this spring prohibiting state and local governments, including schools, from requiring masks. Gov. Asa Hutchinson signed the veto-proof bill into law but then called legislators into special session Aug. 4, asking them to amend the law. He wanted to let school boards have the option of requiring masks to be worn by children under age 12 who are too young to be vaccinated against COVID-19. The bill failed to advance out of committee.
Arkansas Attorney General Leslie Rutledge said Aug. 13 she would appeal Judge Fox’s decision.