As he had promised, and just a few weeks before public schools begin a new year, attorney Tom Mars on Tuesday (Aug. 3) filed a lawsuit in the Pulaski County Circuit Court seeking a temporary restraining order against a state law that includes a ban on school districts from mandating the use of face masks.
Act 1002 was passed by the Arkansas Legislature earlier this year and signed into law by Gov. Hutchinson. It prohibits statewide or local mandatory face-covering requirements.
Gov. Hutchinson on Tuesday called legislators into special session, with only two items on the agenda – one being an amendment to Act 1002 that would give school districts the flexibility to implement mask use. Hutchinson said local control is a conservative principle and believes the legislature will see the wisdom in protecting “the most vulnerable.”
Not only is Mars not waiting on an amendment, but the Rogers-based attorney also maintains in the 25-page filing the Act is “constitutionally defective on several grounds.” Farmington-based attorney John Everett and Hot Springs-based attorney Ryan Culpepper joined Mars on the filing.
“Plaintiffs are the parents of K-12 public school children from across Arkansas who are representative of thousands of similarly situated parents whose children’s health is threatened by a legislative ban on mask mandates that removes from local officials the authority to decide what measures are needed to protect K-12 school children,” noted the filing. “Knowing that many more children will get infected with COVID and that more will likely die if the ban on mask mandates is not lifted, Plaintiffs respectfully turn to the Arkansas judiciary for protection from an irrational act of legislative madness that threatens K-12 public school children with irreparable harm.”
The filing list three constitutional violations the attorneys believe exist in Act 1002.
• Act 1002 violates the separation of powers doctrine established in Article 4 of the Arkansas Constitution.
• Act 1002 violates the guarantees of due process and equal protection, as established by Article 2 of the Arkansas Constitution.
• Act 1002 violates the rights of K-12 public school children by preventing Arkansas and local school districts from “maintain[ing] a general, suitable and efficient system of free public schools” and “adopt[ing] all suitable means to secure the people the advantages and opportunities of education.”
Because COVID-19 vaccinations are not now available to those younger than 12, the filing also asserts that Act 1002” irrationally” creates various classes of citizens.
“(Act 1002) advances no conceivable legitimate government interest, is overbroad, fails to satisfy the ‘rational basis’ standard of constitutional scrutiny, and creates nonsensical and irrational exemptions that deprive certain classes of citizens and organizations of the health and safety measures provided to others,” according to the filing.
Sen. Trent Garner, R-El Dorado, one of the legislative leaders behind Act 1002, has pushed back against calls to amend or block the act.
“The Mask Mandate ban in Arkansas was one of the most important laws we passed. The left wants more control over YOU and your children’s lives. Masking is now about power, not public safety. The left is attacking because they know we are winning,” Garner wrote in a July 21 tweet.
And in a report published by Little Rock ABC affiliate KATV, a content partner with Talk Business & Politics, Garner said Act 1002 is about giving people personal choices.
“If the person wants to make their kid wear the mask, if they want to be vaccinated if they’re above the age of 12, if they want to do remote learning – if those two options aren’t available to them – that is your choice as a parent to make, but you can’t force other people to do that as well. This is about personal choices,” he said.