A Johnson County judge on Tuesday denied Kansas Attorney General Derek Schmidt’s request to stay the judge’s earlier ruling that a law passed this spring putting limits on local governments’ ability to impose COVID-19 restrictions is unconstitutional.
Why it matters: For now, Judge David Hauber’s ruling means local governments, including the Shawnee Mission School District, may feel freer to enact new COVID-19 restrictions at a time when the Delta variant is causing a surge in new cases around Kansas and students are preparing to return to in-person learning.
The background: The case originated with two parents’ lawsuit against SMSD this past spring challenging the district’s requirement that students wear masks at school.
In ruling for the district, though, Hauber went further in declaring that SB 40 — the law that laid out the process by which the parents could challenge SMSD’s COVID-19 limits — was unconstitutional.
Hauber ruled that the law’s accelerated process for allowing citizens to raise grievances against COVID-19 policies like SMSD’s would lead to “legal anarchy” by allowing people to raise challenges against locally enacted emergency measures in a truncated timeframe. (Local governments were given 72 hours to respond to citizen complaints and had to rule on those complaints within a week.)
SB 40 is no longer in effect, having expired with the end of Gov. Laura Kelly’s statewide COVID-19 emergency in June, but Hauber contended in his initial ruling that its provisions could become active again if a new COVID-19 emergency were declared.
What the district says: In a statement to the Post Tuesday, the Shawnee Mission School District quoted Hauber’s ruling in saying:
Judge Hauber’s ruling on the constitutionality of SB 40 “restored the baseline constitutional rights of the District that was [SIC] hampered by SB 40’s enforcement provisions.” This decision is good for Shawnee Mission, and for districts across the state.
As the Delta variant of COVID -19 continues to spread rapidly, the Shawnee Mission School District and all other Kansas school districts and local governmental entities need to be able to develop response plans, without the pressure of an unconstitutional law infringing on their ability to responsibly respond to the emergency.
Effects on coming school year: Hauber’s decision to deny a stay came less than 24 hours after the SMSD Board of Education approved a new COVID-19 mitigation plan for the 2021-22 school year.
That plan requires elementary students to wear masks at school and encourages middle and high schoolers who are not vaccinated to do so. SMSD is currently the only public school district in northern Johnson County to have a mask rule for any students as they prepare to return to in-person learning in August.
Though Schmidt argued that SB 40 is now “moot” with the expiration of Kelly’s prior COVID-19 order, Hauber argued that the law’s language would allow for more challenges to local governments’ restrictions if a new COVID-19 emergency is declared before the end of 2021.
Tuesday’s ruling, for the time being, appears to give local governmental bodies like the SMSD board of education the leeway to enact pandemic-related measures without the possibility that they could be challenged through the process laid out by SB 40, which led to multiple complaints and lawsuits in Johnson County school districts this spring.
What happens next: The office for Attorney General Schmidt said Tuesday it plans to appeal Hauber’s ruling denying the stay to the Kansas Supreme Court.
“We are disappointed, but not surprised, by the judge’s ruling. We will proceed with our appeal and stay application to the Kansas Supreme Court,” spokesperson John Milburn said in an emailed statement to the Shawnee Mission Post.
That appeal process to the state’s highest court is likely to take weeks, if not months.