The Little Rock School Board on Wednesday authorized district leaders to sue the state to stop the enforcement of Act 1002 of 2021 that prohibits school systems from mandating masks to prevent the spread of covid-19.
"I think it is really important for us to do this because we need the same tools to protect our students and our staff that private schools and private businesses in our community already have," School Board member Ali Noland said in making the motion, which was seconded by Evelyn Callaway.
Chris Heller, an attorney for the Little Rock School District, told the board that the district's legal team will file the lawsuit -- drafted last week -- in Pulaski County Circuit Court today and that a decision from a judge could come as soon as Friday.
The district's lawsuit will be the second this week challenging the state ban on public agencies -- including public schools -- requiring the wearing of face masks.
Tom Mars, a Rogers attorney, filed a lawsuit late Monday on behalf of two Pulaski County families against the act. That lawsuit has been assigned to Pulaski County Circuit Judge Tim Fox who has scheduled a hearing for a temporary restraining order for 9:45 a.m. Friday.
Heller said the Little Rock School District suit will likely be assigned to Fox and that the district should be able to participate in the Friday hearing.
The board vote was 7-1 with one member, Greg Adams, absent.
Board member Jeff Wood voted against the motion authorizing the case, saying in part that the district's case was duplicative of the Mars case and that the Mars lawsuit was sufficient to overturn the act without the Little Rock suit.
Heller told the board that he expects the Marion School District and possibly the Fayetteville School District to join the Little Rock district as plaintiffs.
The Marion School District started classes for students last week and at this point has had to quarantine more than 700 students and employees because of exposure to other students and staff who have contracted covid-19.
The Little Rock board approved the filing of the case after hearing from one parent in person who urged the district to take steps to require students to wear masks to defend against the highly contagious and sometimes life-threatening virus.
About 17 others submitted written comments to the board, many in support and some opposed to the idea of the district mandating mask-wearing by students.
Heller told the board that the district's case and the Mars lawsuit are similar -- that both ask for local school boards to have the authority to mandate masks.
However, the district's case emphasizes that Act 1002 deprives students of their rights under Article 14 of the Arkansas Constitution to "a general, suitable and sufficient system of free public schools."
"How can you have a suitable, efficient and sufficient education if students risk their health to go to school," Heller said, adding later, that if the education provision "means anything, it means kids should have a safe place to go to school."
In contrast, the Mars case places a greater emphasis on the argument that Act 1002 violates constitutional provisions separating the powers of the executive, legislative and judicial branches of government. That includes in part restrictions in the act on the power of the governor to address public health emergencies and the power of the state court judges to manage proceedings in their courtrooms.
Asked by Wood about the chance of success should the district's case go to the Arkansas Supreme Court for a final decision, Heller said it "was better than even, more likely to win than not to win."
The Little Rock district lawsuit seeks an injunction to stop the enforcement of Act 1002. Heller said a judge has options on how to respond to that. Those include declaring the law unconstitutional for school districts or striking down the law in its entirety.
The draft suit -- prepared by Heller and Khayyam Eddings both of the Friday, Eldredge & Clark law firm -- argues that Act 1002 would prevent the Little Rock district from requiring the protective face coverings in science classes such as chemistry, or in stagecraft, welding and other industrial arts courses, and in athletic activities such as football and baseball.
The attorneys further argue that Act 1002 makes "irrational distinctions between similarly situated public entities in violation of the equal protection clause of the Arkansas Constitution."
The draft gives examples: state-owned or state-controlled health care centers and prisons can require masks to be worn in those facilities but county hospitals and county or city detention systems cannot.
Similarly, the state Division of Youth Services education program can require students and staff members to wear masks while the Little Rock district and other public school districts cannot under the law.
"These irrational distinctions deprive LRSD and other Arkansas public school districts of 'equality... before the law' in violation of Article 2 ... of the Constitution," the proposed lawsuit argues.
The draft lawsuit also contends that Act 1002 puts the district in conflict with the federal Centers for Disease Control and Prevention's requirement from earlier this year that passengers and drivers on school buses must wear masks in defense of the virus. The state law prohibits that mandate.
The Little Rock board vote on legal action was made on a day in which there were 2,838 new covid-19 cases in the past 24 hours and the number of active cases statewide surpassed 20,000 for the first time since Jan. 22.
The vote also came on the first day of a special legislative session called by Gov. Asa Hutchinson to address Act 1002 so that masks can be required for students under age 12 who are not eligible to receive covid-19 vaccines.
In seconding the motion to sue, Callaway called the lawsuit a lifesaving measure and that the district has no choice but to proceed "to save our community."
School Board member Michael Mason said he was voting for the lawsuit in the interest of preventing disease, preserving life and improving the quality of life.
Board President Vicki Hatter said the capital city district is sometimes criticized but also looked to, statewide, for its leadership.
Wood told his board colleagues that he was "extremely torn" in making a decision on the lawsuit before deciding that it wasn't necessary in light of the Mars case.
"If and when we are given an opportunity to institute a mask requirement, I will work earnestly with this board to craft a reasonable mask mandate that I think will protect our students and give us hope that masks are not the new normal."
He said the true "five-alarm fire" in the district is the low reading levels of students. All of the district's energy should be directed toward raising the percentage of students who are reading at appropriate "ready" levels on the ACT Aspire exams. He said only 26% of the students scored at that level last spring. He cited the July issue of the British Journal of Medicine as saying that students with learning disabilities have an eight times greater of chance of dying of covid than those without the disabilities.
Board member Leigh Ann Wilson responded that she has stood at the bedside of ill children who had to be put on a ventilator and on heart and lung bypass machines, and all should be done to prevent that.
"It's a person's life. They can't read if they are dead," Wilson said. "My responsibility as a School Board member -- I am going to do everything I can to make sure every kid .... gets home from school as healthy as they came to school."
Noland said she agrees with the importance of improving reading achievement scores and that it is also important that the district provide a safe environment so that students can be in school.
She also said that there are arguments that the school district has standing to make in court that parents would not have standing or authority to make.
Superintendent Mike Poore has said that the lawsuit could cost the district less than $10,000 unless there is an appeal.
Classes start Aug. 16 in Little Rock and most other schools in the state.