Update: Johnson County District Judge Robert Wonnell on Friday granted the Blue Valley School District’s motion to dismiss Johnson County Commissioner Charlotte O’Hara’s lawsuit.
Wonnell agreed with the district’s contention that O’Hara had no standing to sue.
Original story continues below:
The Blue Valley School District is asking a Johnson County judge to dismiss a lawsuit filed by Johnson County Commissioner Charlotte O’Hara, who alleges she was unlawfully prevented from attending a hearing about the district’s mask policy earlier this week.
O’Hara says she and three other women went together to the hearing the morning of Tuesday, April 6.
The hearing had been scheduled after a handful of parents lodged complaints about Blue Valley’s requirement that masks be worn inside district buildings. A new Kansas law, Senate Bill 40, allows some district patrons to challenge school districts’ COVID-19 restrictions, including mask mandates.
According to O’Hara’s suit, neither she nor any of her three companions wore masks to Tuesday’s hearing because they all have exemptions from the countywide requirement that masks be worn in public spaces.
O’Hara says she told district staff she was exempt from wearing a mask because she is hearing impaired with tinnitus.
Johnson County’s health order does exempt the “deaf or hard of hearing” from masks “where the ability to see the mouth is essential for communication.”
After being told by a district attorney that they needed written copies of their exemptions as proof, O’Hara says she and her companions were prevented from entering the hearing room and left.
The hearing that morning was ultimately postponed after another attendee not wearing a mask refused to leave the board of education’s hearing room. The subsequently rescheduled hearing was held virtually Wednesday.
On Thursday, the Blue Valley Board of Education voted to uphold the district’s mask requirement.
O’Hara was elected to her first term in District 3 on the Board of County Commissioners in November.
She lives in Overland Park within the boundaries of the Blue Valley School District and has grandchildren who attend Blue Valley schools.
In her suit, she argues the Blue Valley Board of Education took “several unjustified steps to limit or preclude public participation” in the Senate Bill 40 hearing Tuesday, including ultimately postponing it and holding a virtual hearing instead.
She also alleges that the board’s rule that attendees must show written exemptions for not wearing masks was “arbitrary and capricious” and that it had not been clearly communicated to the public prior to the hearing.
She also alleges that mask requirements were inconsistently applied between the board’s hearing room and the public lobby just outside where, she says, people were “not required to wear masks and there was no social distancing.”
In total, she called these actions by the district “unreasonable, unlawful and discriminatory.”
“This is a substantial restriction on my freedom to observe and participate in the functions of local government,” O’Hara’s suit says. “The Board’s willingness to take such actions can have a chilling effect on public participation.”
O’Hara’s suit asks the judge to rule in order to prevent Blue Valley from enforcing such rules at future public hearings related to Senate Bill 40.
In a brief interview Friday morning, O’Hara said, “I’m very concerned about them [the district] changing their rules on the fly and being consistent.”
The district’s response
On Friday, lawyers for the Blue Valley district filed a petition, seeking to dismiss O’Hara’s suit.
In it, they argue that O’Hara suffered no harm from being prevented from entering the hearing Tuesday since that hearing was postponed.
“This is yet another example of performative litigation,” the district’s lawyers argue,” filed to make a political point or garner publicity for a cause, without regard to the suit’s legal merit.”
The district’s lawyers argue O’Hara could have watched the subsequent virtual hearing Wednesday as it was livestreamed on a local TV station’s Facebook page.
They also argue that O’Hara lacks standing to challenge the district’s policies under Senate Bill 40 because she is not an “employee, student or parent or guardian of a student,” the groups explicitly included in the law who are permitted to file grievances against districts.
The district also argues that since the district’s mask requirements have been in place since summer 2020, Senate Bill 40 cannot be applied retroactively to allow for challenges such as O’Hara’s.
It also says that O’Hara’s complaint about not being accommodated because of her tinnitus is not covered by Senate Bill 40.
“Plaintiff has several avenues to pursue complaints over accessibility to meetings she might lawfully be entitled to attend in the future, but this case is not one of them,” the district’s petition says.