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Judge overturns Bentonville School District’s mask mandate

by Tracy Neal | October 6, 2021 at 3:22 p.m.
Bentonville School District administration building.

BENTONVILLE — Masks will be optional in the Bentonville schools starting Thursday after a local judge ruled in favor of some parents who had filed a lawsuit over the district’s mask mandate.

Benton County Circuit Judge Xollie Duncan granted an injunction Wednesday to prohibit the School District from enforcing the mandate. She issued her ruling nearly a week after presiding over a hearing in the case.

Duncan found the district did not have the authority to issue the mask mandate. She noted neither Gov. Asa Hutchinson nor the secretary of health had issued a mask policy for schools. Duncan said each one has the authority to issue a policy requiring masks, but the power does not rest with individual school districts.

Matthew Bennett, Elizabeth Bennett and Matt Sitton were listed as plaintiffs in a lawsuit filed Aug. 18 against the district. All three have children attending Bentonville schools, according to court documents.

The lawsuit named Superintendent Debbie Jones and all seven School Board members as defendants.

Greg Payne, one of the attorneys for the plaintiffs, told the judge at last week’s hearing the district didn’t have a directive from Hutchinson nor the Arkansas Department of Health to issue the policy.

Marshall Ney, the district’s attorney, said at the hearing last week that parents have a right to send their children to a school district and a right not to send their children to a district. He said parents have the right to use online education, but don’t have the right to dictate what happens in classrooms.

He asked the judge to deny the request for the injunction.

Duncan’s ruling means the district can no longer enforce the policy once the judge signs the order, Payne said.

“I’m excited for the families,” Payne said. “It’s a redemption for them. The court recognizes that they have a fundamental liberty interest in the case.”

Payne noted the case was not about preventing every child from wearing a mask.

“Parents can still put masks on their children, but the ones that don’t want to are not required to mask their children,” he said.

Duncan said last week she was concerned about the idea parents could leave the district, noting some parents don’t have the option to stay at home and home-school their kids, and some parents can’t afford to send their children to other schools or districts.

The School Board approved mask mandates for both staff and students 3 and older on Aug. 11 by a 5-2 vote. The policy stated they must wear masks indoors and while riding in school vehicles, with some exceptions. The board agreed to reevaluate the policy monthly.

The board decided at its meeting Sept. 21 — again, by a 5-2 vote — to continue requiring masks for at least another month, with the stipulation Jones may relax the rules if reports of new, known covid-19 infections over a 14-day period drop below 30 per 10,000 district residents. The rate is currently at 30 in the district, according to the district’s website.

“We’re pleased to see the latest data which reveals covid-19 infection rates trending in the right direction,” said Leslee Wright, district director of communications.

The current data would have led the district to decide to suspend the mandate regardless of the judge’s decision, Wright said. Masks will be “strongly encouraged” but not required, she said.

The district Thursday reported 34 active cases of covid-19 among its students and staff members, representing about 0.2% of the 20,868 students and employees combined. A total of 148 students and staff were in quarantine Wednesday.

Public debate over mask mandates in schools has been widespread this year and led to legal battles in several states, including Arkansas.

Pulaski County Circuit Judge Tim Fox ruled Aug. 6 that Act 1002, a state law banning mask mandates for public institutions, appears to be illegal. Fox issued a preliminary injunction against it. Many school districts across the state, including Bentonville, then issued their own policies requiring masks.

The Arkansas Supreme Court last week denied the state’s request to remove the injunction ahead of a November hearing where the ultimate fate of Act 1002 could be determined.

Payne, during last week’s hearing in Benton County, said Fox’s authority is limited to Pulaski County and his ruling doesn’t apply to Benton County. He argued all mask mandates outside Pulaski County are illegal.

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