Kansas Attorney General defends emergency powers law SB 40 in SMSD mask case

SB 40

Kansas Attorney General Derek Schmidt says the emergency powers law SB 40 was constitutional when it was used by two parents to challenge the Shawnee Mission School District's face mask policy this past school year. The law expired earlier this month, but a Johnson County judge asked Schmidt to weigh in on the law's legality over concerns it proved an unfair burden to districts. Above, students at Rhein Benninghoven Elementary earlier this year wearing masks. File photo.

In a brief filed this week in a case involving the Shawnee Mission School District, Kansas Attorney General Derek Schmidt defended SB 40, a law passed this spring that aimed to curtail local government’s emergency powers during the COVID-19 pandemic.

Why it matters: SB 40 expired earlier this month when legislative leaders allowed Kansas’ statewide emergency declaration to end, but legal fights over the law’s impacts on Johnson County school districts continue.

In his brief, Schmidt argued that the law as applied in the SMSD case was constitutional and did not infringe on the district’s due process rights.

However, Schmidt also said that because SB 40 is now “moot” with the expiration of the state of emergency, there is no need to conduct a hearing on its constitutionality.

Case history: Schmidt weighed in on a case involving two parents’ challenge to SMSD Superintendent Mike Fulton’s decision not to give them public hearings regarding the district’s face mask policy towards the end of the 2020-21 school year.

SB 40, passed by Kansas lawmakers and signed into law by Gov. Laura Kelly this spring, laid out a process by which families, students and staff could challenge local school districts’ COVID-19 restrictions.

The law prompted multiple hearings and lawsuits against Johnson County public school districts in recent months, all of which aimed to challenge districts’ mask requirements.

In the SMSD case, the parents argued that the district’s requirement that all students and staff wear masks inside district buildings caused their children “psychological harm” and that their children felt forced to wear masks in order to not be ostracized.

But earlier this month, Johnson County District Court Judge David Hauber sided with SMSD, saying that Fulton’s reasoning for not granting the parents a hearing was sound.

One of the parents’ children had been granted exemptions from wearing masks, Hauber pointed out.

The judge also said that since the district’s COVID-19 policies went into effect last summer, months before SB 40 became law, the law could not be applied retroactively to challenge the mask rules.

Judge’s SB 40 concerns: Hauber’s ruling also raised bigger concerns about SB 40’s constitutionality.

Hauber’s main concern centered on SB 40’s accelerated timeline, which forced school districts to hold public hearings within 72 hours of receiving a complaint and local courts to take up legal challenges to district polices within 7 days.

Hauber argued that gave an advantage to plaintiffs and put an undue burden on defendant districts.

For that reason, he called on the Kansas Attorney General to weigh in on the law, which prompted this week’s brief from Schmidt’s office.

Schmidt’s response: In this week’s brief, Schmidt’s office defended SB 40 as constitutional, comparing its requirements to speedy trial statutes. Such laws allow for dismissal of the state’s case if a defendant is not brought to trial within a specified period of time.

In the SB 40 cases, however, the parties requesting a speedy process are reversed. Plaintiffs bringing suit — parents, in the SMSD case — are essentially asking for a speedy trial against a defendant, like a school district.

But the same reasoning applies, Schmidt argued.

The Attorney General’s office’s contended that if a school board was not able to justify its COVID-19 restrictions within the timeframe laid out by SB 40, then “judgement should be entered in favor of school children.”

“If actions taken by local school boards are well-reasoned and supported by evidence, there should be no problem with a court finding those actions to be justified within seven days,” Schmidt’s brief said.

What happens next: Hauber still could conduct a hearing on SB 40’s constitutionality, despite Schmidt’s contention that one is not necessary now that the law has expired.

An administrator for Hauber’s court says both the parents and SMSD have a chance to file briefs following Schmidt’s opinion and oral arguments would be scheduled after that.

In his earlier ruling, Hauber gave the parents 10 days to present additional evidence to show the negative impact SMSD’s mask policy had on their children or their case would be dismissed.

According to an online court docket, the parents have not filed any new briefs in the more than two weeks since the judge’s ruling.

SMSD did not immediately respond to a request for comment about the Attorney General’s opinion on the district’s case.

Since the end of the 2020-21 school year, the district has modified its mask policy for summer school.

Read Attorney General Derek Schmidt’s full brief below: 

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