Few mask lawsuits remain as Missouri AG asks legislature to clarify law behind legal blitz
Eric Schmitt has refused to drop three of his 47 lawsuits against school districts, while the Lee’s Summit district filed a counterclaim against the attorney general
Out of the 47 lawsuits Attorney General Eric Schmitt filed against schools mask mandates, only a few remain where Schmitt and the Lee's Summit School District want questions on schools' authority settled once and for all (photo by Madeline Carter).
Three months after Attorney General Eric Schmitt launched a legal blitz against 47 school districts across the state, nearly all the cases have petered out as COVID infection rates plummeted and mask mandates were lifted.
But four cases live on.
While he’s moved to drop nearly every lawsuit he filed, Schmitt has opposed attempts by Columbia Public Schools and the St. Charles R-VI School District to have their cases dismissed. He argues that even though the districts don’t have mask mandates in place now, they could reimpose them in the future. Another lawsuit targets University City Schools, which still has a mandate in place.
Meanwhile, Lee’s Summit R-7 School District has refused to let Schmitt dismiss his suit against the district, filing a counterclaim asking a judge to declare the attorney general overstepped the limits of his authority by ordering schools to end masking requirements.
Both sides say they continue to fight on to answer the underlying questions once and for all of whether state law permits school districts to require masks and the extent of the attorney general’s authority.
“The Missouri Constitution does not establish the attorney general as an autocrat-in-chief, whose orders on any topic of the day must be obeyed,” Lee’s Summit argued in a March filing.
Chris Nuelle, a spokesman for Schmitt, accused Columbia Public Schools of playing games by “imposing and rescinding mask mandates, and we’re going to put an end to those games once and for all.”
While the controversy continues to play out in the courthouse, the attorney general’s legal strategy is being called into question in the statehouse.
The Senate overwhelmingly refused to restore $500,000 it cut from Schmitt’s budget in retaliation for the lawsuits, and the chamber’s GOP leaders suggested the attorney general was motivated by his campaign for U.S. Senate.
And a Republican lawmaker who worked on legislation last year that has become the basis for Schmitt’s legal crusade said the attorney general’s office approached him to clarify the law to ensure it actually does apply to school districts.
“I had my doubts as to whether or not it applied to local school districts,” Jim Murphy, a St. Louis Republican who sponsored legislation last year to restrict the scope of public health orders, said of the definition of political subdivision cited in the law.
“I didn’t think that the statute really defined it well enough,” he said. “So I kind of agree with the school districts on that.”
School districts and Schmitt have been engaged in a long-running tango that’s grown to follow a familiar pattern.
Rising cases prompted districts to enact mask mandates, sparking litigation by the attorney general’s office. As the wave of cases fell, so did masking requirements, leading to lawsuits being dismissed and Schmitt’s office declaring victory.
No district exemplifies that more than Columbia Public Schools.
The district was the first to be sued by Schmitt in August over its mask rules. In September a Boone County Circuit Court judge declined to allow Schmitt to use the case as a class action lawsuit against all districts with mask requirements, and it was later dismissed by Schmitt when the district allowed its mask mandate to expire.
A new round of litigation soon followed when Schmitt’s office once again sued the district in January after a new mask mandate was enacted.
Out of the 47 lawsuits Schmitt filed, he has made a motion to dismiss in all but three. Columbia is one of those three.
Michelle Baumstark, a spokeswoman for Columbia Public Schools, said continuing the case, “is a waste of time, energy, resources and public dollars for all sides.”
“Why would the AG continue the lawsuit against our district when he has dismissed his other cases against school districts who don’t have a mask requirement?” Baumstark said. “A court decision in one county court has no legal impact on decisions by other school districts in other counties throughout the state.”
It’s a similar point the St. Charles School District has raised, arguing the court should dismiss the case for lack of a mask mandate.
But the attorney general’s office has opposed that motion, arguing in a filing last month that “whether school districts can force students to wear masks to limit the spread of COVID-19 is clearly a matter of public importance” and that with COVID cases expected to increase in the future, the issue will only recur.
A hearing on St. Charles’ motion to dismiss is set for Thursday, while a three-day trial is scheduled for October in the lawsuit against CPS.
Lee’s Summit School District isn’t ready to give up, either.
In February, the district filed a counterclaim against Schmitt, arguing that his December letter ordering schools to cease mitigation measures was unlawful and that the district has no obligation to comply.
Schmitt’s letter threatened legal action against districts if they failed to abide by its demands. It was sent in the wake of a November court ruling in which a Cole County judge invalidated certain state health regulations regarding the control of infectious diseases.
But Lee’s Summit argues in its counterclaim that the ruling did not apply to school districts, despite Schmitt’s claims otherwise.
After the attorney general’s office failed to respond to the district’s counterclaim under court rules, the district argued the court should enter a default judgment against the state.
“The Attorney General’s blithe disregard for court rules, along with his voluntary dismissal of those suits before he could be proved wrong in court, gives credence to the notion he filed this suit and all the others just to improve his political fortunes, caring not what happened in the cases once the sugar rush of publicity dissipated,” Joseph Hatley, an attorney representing the district, wrote in a March filing.
Schmitt’s office has argued the case is over since the attorney general moved to dismiss it. In a filing last month, the attorney general’s office said the district’s counterclaim is “too insubstantial — nothing more than smoke, mirrors and legerdemain.”
Jackson County Circuit Court Judge Marco Roldan ruled against the district’s motion for a default judgment and against the attorney general’s office’s motions to strike and dismiss the counterclaim.
“School districts are the ones who have been changing policies to avoid a ruling on the merits,” Nuelle said.
Hatley said if another variant were to take hold, the district needs to know where the lines of authority stand. And there’s an even larger issue at stake, he said.
“If the attorney general can go around and issue orders that people mistakenly believe he has the authority to enter on something like masks,” Hatley said, “well what’s to stop him from thinking he has that authority when it comes to curriculum or the books that the school puts in the library or all the other hot button issues.”
Whether school districts are subject to recent law
Multiple school districts have argued the state law Schmitt relies on in his lawsuits doesn’t apply to them — a point the attorney general’s office tacitly acknowledges may be the case.
House Bill 271, which was signed into law by Gov. Mike Parson last year, imposed time limits on how long health orders could endure and required a vote of a local health authority’s governing body in order to extend them.
The definition of “political subdivisions” the law relied on only cited school districts that are located “in any county of the first classification without a charter form of government with a population of one hundred thousand or more inhabitants which contains all or part of a city with a population of three hundred fifty thousand or more inhabitants.”
Meanwhile, other bills passed last year in response to the COVID pandemic — such as Senate Bill 51, which shielded businesses, healthcare providers and houses of worship from most COVID-related lawsuits — specifically included reference to “any school district or charter school.”
Schmitt’s office has opposed districts’ arguments in court filings, but Murphy said the attorney general’s office approached him with suggested changes to the law to ensure it applies to schools.
If it was the legislature’s intent to have the law apply to school districts, then it needs to specifically state that, Murphy said. He filed a bill this year that would make clear that masking orders do not fall under the scope of health orders House Bill 271 regulates and create new provisions on mask rules that specifically apply to boards of education.
The bill has not yet been debated by the full House.
“I agree with the school districts, it’s very loose,” Murphy said. “And obviously, the attorney general thinks it could be tighter, or he wouldn’t have brought us language.”
Last week, Sen. Bob Onder, R-Lake St. Louis, proposed an amendment to a House bill that would have altered the definition of a political subdivision in last year’s law by striking the statute reference, setting an expiration date for mask orders and prohibiting schools from enforcing students wear masks.
Onder said he had worked on the language in conjunction with Schmitt’s office and described it as “clean up” language to House Bill 271. It was eventually withdrawn before it could be voted on.
Nuelle, Schmitt’s spokesman, declined to elaborate on why the attorney general’s office felt the legislative fix was needed.
“We will use whatever legislation the legislature does give us to fight back on entities continuing to impose illegal mask mandates,” he said.
To Hatley, the attorney representing the Lee’s Summit School District, “it seems to me to be an implicit admission by him that we were right that the law doesn’t apply to school districts.”
“Why would he go to the legislature and ask to have the law amended to fix something that he has argued in court didn’t need to be fixed?” Hatley said.
Parents as plaintiffs
Schmitt’s office has vowed to launch new lawsuits against schools if mask mandates return, and he’s continued to harness incensed parents’ advocacy by encouraging them to submit info on their kids’ curriculum and whether it touches on the academic concept of critical race theory.
It’s a similar tactic Schmitt employed when he launched an “illegal mandates” tip line in December to collect evidence of schools enforcing mitigation measures. Emails sent to the inbox and obtained through an open records request by The Independent show that at least 46 parents who were plaintiffs in the lawsuits against districts had sent in emails passing along district announcements, sharing their frustrations with their schools and urging Schmitt to take action.
“Enough is enough,” one parent wrote in a December email to the inbox. “Can I be added as a plaintiff to any suit coming forward against the Parkway School District on this matter?”
That parent was later one of three plaintiffs in Schmitt’s lawsuit against the district.
Christine McDonald, a spokeswoman for EducationPlus, a nonprofit that fosters collaboration with over 50 school districts in the St. Louis area, said Schmitt’s tiplines can erode a school’s community and trust with parents.
“If there are real concerns, they should be raising it with their school leaders, and not the AG so that they can be addressed,” McDonald said.
But Mike Gross, who had been among the thousands who had reached out to the attorney general’s office, said Schmitt has been one of the few officials who he feels has stepped up to help parents.
Before Gross was a plaintiff in Schmitt’s lawsuit against the Fox C-6 School District, he had been part of a lawsuit with another parent against the district last year. It was eventually dismissed when the district’s mask mandate had lapsed.
“We saw it as an ineffective practice,” Gross said of mandatory masking. “It wasn’t doing anything except exerting control over the students.”
Gross, who has three children in the Fox School District, said one of his children was sent home for not wearing a mask. Ultimately, he doesn’t believe school boards have the ability to require masks and he would like to see parents have a choice in whether their kids wear them. Parents in the area formed an advocacy group, Parents Advocating Change for Kids, or P.A.C.K., and Gross said he’s lost friends and received hate mail over his efforts.
“It’s not been a pleasant experience,” Gross said. “But in the end, I do all of it for my kids and I would do it all the same way over again tomorrow.”
Nuelle declined to elaborate on how parents were chosen as plaintiffs for the lawsuits, and said the office wanted to include concerned parents, “to ensure that their voices are heard.”
As part of the recently-launched “Students First Initiative,” Schmitt has sent open records requests to school districts, including asking Springfield Public Schools for a decade’s worth of textbook titles, the Springfield News-Leader reported.
Asked if the attorney general’s office similarly plans to use submissions it receives through the new initiative as the basis of future legal action, Nuelle said its aim “is to shine a light on objectionable curriculum and practices in Missouri’s schools, and work with the legislature to increase transparency in Missouri’s schools.”
Republican senators have been vocal in their criticism in recent weeks.
“I don’t like our tax dollars being used to essentially sue our own citizens and our own elected local officials,” said Sen. Lincoln Hough, a Springfield Republican who pushed to cut the extra $500,000 out of Schmitt’s budget.
Senate President Pro Tem Dave Schatz, a Sullivan Republican and one of Schmitt’s opponents for the Republican nomination for U.S. Senate, said “it’s well within the rights of the Attorney General to go down that path” and sue schools.
“But whether this was more of an ability to draw attention to himself and his office for that purpose,” Schatz said, “I think the attorney general has made it adamantly clear that he has done some things that I think draws attention.”
For Gross, it’s a thought that’s crossed his own mind.
“On this hot button issue,” he said, “are we being used as a pawn for his political gain?”
“But I believe that he’s serious,” Gross added. “He’s got kids that go to school here in Missouri. I’d like to believe that these lawsuits are real and the ones that are moving through right now in St. Charles and Columbia are, in fact, good cases, and they’re gonna make a difference.”
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