Judge puts hold on Bentonville School District's mask mandate

Bentonville School District administration building.

BENTONVILLE -- Masks will be optional in Bentonville schools starting today after a local judge ruled in favor of some parents who had filed a lawsuit over the School District's mask mandate.

Benton County Circuit Judge Xollie Duncan granted an injunction Wednesday to prohibit the district from enforcing its mandate, which had been in effect since the school year started Aug. 16. 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. Both have the authority to issue a policy requiring masks, but the power does not rest with individual school districts, Duncan said.

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.

Greg Payne, an attorney for the plaintiffs, said Duncan's ruling means the district can no longer enforce the policy once the judge signs the order.

The ruling concerned only the Bentonville School District and not any other districts in the state with policies mandating masks, he 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.

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

Payne 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 last week's hearing 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 may 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 said on Wednesday the Bentonville district did have the authority to issue a mask mandate related to athletics and physical education, but noted the district had not imposed one for those activities.

She also found the district could not impose the mask mandate simply because the district accepted money from the American Rescue Plan Act. Duncan said there was no federal authority for the district to implement the mandate.

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, down from over 50 just two weeks ago, 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.

Hutchinson, in a statement emailed by his office, said he continues to support the authority of school districts to make decisions regarding the health of students and staff.

"The local school boards have inherent authority to make these decisions and the actions that have been taken are part of the reason our cases are trending down and we have a successful start to the school year," Hutchinson said.

Sen. Trent Garner, R-El Dorado, was the primary sponsor of Act 1002. He described Duncan's decision as a huge win for parents' rights in Arkansas.

"The reason I passed the mask mandate ban was to give parents the choice to make health care decisions that was the best for their families," he said. "Today's ruling is a step to affirm that right. I think that this case will become a model for other parents to sue their school district for their unlawful actions."

State Rep. Joshua Bryant, R-Rogers, said he had only seen headlines of the judge's decision and had not had a chance to study it. Bryant said he wished Duncan's ruling would have a statewide impact similar to Fox's ruling.

Bryant said he believes the ruling may help in future rulings at the state Supreme Court level.

Founders Classical Academy, a charter school in Bentonville for grades K-12, announced Wednesday it too would make masks optional for staff and students starting today, in light of the judge's decision.

Some neighboring school districts, including Rogers, Fayetteville and Fort Smith, also have some form of mask mandate.

Rogers' mandate applies to staff and students in prekindergarten through sixth grade. Ashley Siwiec, Rogers' director of communications, said district officials don't know yet what impact Duncan's ruling will have on them.

Tracy M. Neal can be reached by email at [email protected] or Twitter @NWATracy.

More News

School mask policies

Northwest Arkansas’ largest school districts and what requirements they have as far as face coverings:

Bentonville: None, as of Thursday.

Fayetteville: Masks required for all staff and students.

Fort Smith: Masks required for all staff and students.

Rogers: Masks required for prekindergarten through sixth-grade staff and students.

Springdale: None. School Board rescinded mask policy on Sept. 14.

Source: NWA Democrat-Gazette