The COVID-19 pandemic that has consumed our existence for the past year is finally showing some signs of retreat. Daily new case numbers are down from peaks of nearly 300,000 per day in the United States a few months ago to between 40,000 and 60,000 during the month of March as the effect of the vaccines takes hold. On Monday, March 22, Governor Kelly announced that one million doses of COVID-19 vaccines had been administered in the state of Kansas. All of this suggests that the end of our long nightmare may be in sight.
In light of improved conditions, legislators have begun debating ways to ease restrictions on schools, businesses and public entities. On March 18, the Kansas Legislature passed Senate Bill 40, legislation that gives local school boards the ultimate authority to make decisions concerning student attendance, educational models and safety interventions to combat the spread of COVID-19 in their individual districts. Specifically, the bill states that during the state of disaster emergency related to the pandemic, which is now slated to expire on May 28, 2021, the local board of education of each school district has full authority and responsibility over any decision that:
- Closes or has the effect of closing any school or attendance center of such district;
- Authorizes or requires any form of attendance other than full-time, in-person attendance at a school in the school district, including, but not limited to, hybrid or remote learning; or
- Mandates any action by any students or employees of a school district while on school district property.
Subparagraphs (A) and (B) apply to learning models and attendance centers. The broad grant of authority in subparagraph (C) covers masks, temperature screenings, distancing guidelines, and other interventions that have been in place during the school year. The bill passed after lengthy negotiation and with bipartisan support. Governor Kelly signed the bill into law on March 24. It became effective upon publication in the state register on Thursday, March 25.
With the law now effective, boards of education must consider its requirements and limitations when making decisions concerning attendance, masks and other requirements adopted for the purpose of protecting students, staff and patrons from the risks associated with the pandemic while conducting school activities. Boards have been making such decisions throughout the school year, of course, except where mandates from the governor or state or local health agencies superseded the board’s authority. SB 40 now bars the governor’s office and state and local health departments from directly intervening in local decisions on the issues listed above.
There is an important distinction baked into the new law, however. It will require districts to employ the “least restrictive means possible” to achieve the objective of maintaining a safe educational environment during the pandemic emergency. The legislature is concerned about overreach by local school boards, and it included a procedure in the bill for certain individuals to redress grievances against the board’s action.
Employees, students, and parents or guardians of students who are aggrieved by a board’s decisions concerning pandemic interventions may seek a hearing with the board of education within 30 days of the action being taken. After receiving a complaint, the board must conduct a hearing on the matter within 72 hours, and it must issue a decision within 7 days of the hearing. If the complainant is unhappy with the outcome of that process, a civil action may be filed in the district court. That petition must also be heard withing 72 hours and decided within 7 days of the hearing. The court must side with the individual making the complaint unless the board’s action is “narrowly tailored” to respond to the pandemic and uses the “least restrictive means” to do so. This is a demanding standard for boards, and the burden of proof rests with the board. Moreover, there appears to be a presumption in favor of the complaining party: If no decision is rendered after seven days, the relief requested by the complaining party will be automatically granted.
The statute does not make clear whether a student, employee, or parent or guardian of an aggrieved student may request a hearing only when the board enacts a new COVID-related rule or policy, or whether complaints may also be filed concerning long-standing policies and procedures, such as those adopted in school reopening plans in the Fall of 2020. Though statutes are normally prospective—meaning they regulate future activities, not those of the past—legislative intent in this instance is not clear. The statute grants employees, students, and parents or guardians the right to petition the board if they are “aggrieved by an action taken, order issued or policy adopted by the board of education of a school district pursuant to subsection (a)(1), or an action of any employee of a school district violating any such action.” A policy can generally be contested any time a person alleges that it has caused harm. Since administrators and other school employees enforce board policies daily, a complainant under this statute may argue that the actions of those employees to carry out the policy of the board caused harm, giving them standing to seek a hearing even for policies and procedures that have been in place for the duration of the school year. It is difficult to predict how a court may rule on this issue.
So, what does this mean about masks?
Each school board must decide whether masks remain a necessary aspect of maintaining a safe educational environment. If a less restrictive measure may be employed to achieve the same objective, the board must choose the less restrictive measure. It is difficult to conjecture whether a court would determine that masks are unduly restrictive, and the outcome of litigation will depend heavily upon the facts and expert opinions used to make the determination. Though the local health department, the governor and county commissions no longer have the authority to mandate mask wearing in school, county and local health professionals remain the best authority on current conditions, infection rates, and disease spread among the local population. Boards should consult with the health department and rely on its expertise before making any decisions concerning the potential removal of other measures put into place to limit the spread of COVID-19 and to ensure a safe environment in the schools.
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