Federal court sides with Cherry Creek school board candidate in mask lawsuit

Judge orders district to allow Schumé Navarro without a mask at forum

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Unconvinced by Cherry Creek School District's interpretation of what is necessary for an exemption from Tri-County Health's school mask mandate, a federal court allowed a Cherry Creek school board candidate to attend a candidates' event without wearing a mask.

Schumé Navarro “has provided essentially unrebutted evidence that she has a mental health disability that limits her ability to concentrate, think, and communicate while wearing a mask,” Judge Daniel Domenico wrote in an Oct. 7 court order.

Navarro sued the school district in late September over its “refusals to provide accommodations that would allow her to participate fully in candidate forums” where mask wearing is required, according to a news release from the organization that filed the lawsuit.

The organization, the Public Trust Institute, is listed with a Lakewood address in the lawsuit complaint.

The complaint, filed in the U.S. District Court for the District of Colorado on Sept. 28, asked the court to require the school district to allow Navarro to participate in candidate forums “with accommodations adequate to place her on equal footing with other candidates.”

Navarro is running for the seat in District D, the eastern part of the school district, including parts of Centennial and Aurora.

Navarro did not attend the Sept. 21 candidates' forum at Eaglecrest High School because of an issue she says she has with masks.

At an earlier candidates' forum at Overland High School on Sept. 14, Navarro attended and wore a mask but was pulling it away from her face during the forum and while speaking.

“I've sent a letter trying to talk about the … issues that I've gone through with being abused, and I can't really think in this space,” Navarro said at the forum. She added: “I can't even gather my thoughts because of the amount of trauma that I am having to sit through.”

The Cherry Creek School District requires the wearing of masks as a COVID-safety measure inside its school buildings, under a mandate from the Tri-County Health Department, the public-health agency for Arapahoe County.

Students are sometimes present at the candidate forums or in the common areas of the facilities where the forums are held, the judge noted in the Oct. 7 court filing.

Navarro told Colorado Community Media that in pursuing a medical exemption from Tri-County's mask order, she provided the school district a letter from her therapist noting her suffocation trauma from childhood. Her therapist, based in the south Jefferson County area, wrote that Navarro "cannot medically tolerate a face covering due to a prior suffocation trauma that she has experienced."

Navarro said she included a "health summary" that noted a deviated septum and nasal deformity, nasal blockage sinusitis, and breathing issues. She sent CCM an image of the health summary, which also notes a trauma in childhood and appears to be from UCHealth's website.

"Unfortunately, my primary care (provider) is at UCHealth, and when I had reached out to them multiple times asking for a letter of exemption due to my physical health issues, they asked if I was vaccinated," Navarro told CCM. "Once I answered no, that I was not, they told me that they would not be writing a letter.”

The school district said Navarro submitted a request for a medical exemption but that it did not meet Tri-County Health's standards because she did not submit a letter signed by a doctor.

'Somewhat strangely'

The school district also expressed skepticism about the validity of Navarro's request in part due to statements she made on social media, according to the court documents.

Attorneys for Cherry Creek, in an Oct. 4 court filing, cited a video Navarro had posted where she said: “And I'm sorry. I get that you are offended that I do not wear a mask. I don't wear it because I don't want to comply to all of this.”

In January, Navarro had also posted on social media a photo of herself wearing a mask, captioned: “Who's with me on getting patriot fit? I hate the whole mask thing but I hate the thought of being weak and out of shape at the brink of civil war,” according to the court filing.

Navarro told CCM that her views on masks are influenced by how masks affect her personally.

“As a person who has been a survivor of abuse … having something forced on your body, that creates (an adverse) reaction,” Navarro said.

In his order, the judge argued Navarro's social media statements do not contradict her assertion that wearing a mask causes her psychological distress.

“Stating that 'I don't wear [a mask] because I don't want to comply to all of this' is not inconsistent with not wanting to wear a mask for medical reasons,” the judge wrote.

“And while Ms. Navarro did at one point post a photo of herself wearing a mask, the caption associated with that photo stated that she was 'desperate enough to comply' with her gym's mask mandate because she had not been able to work out … and that '[o]f course I got a headache bc I can't breathe and they make no accommodations for medical exemptions,'” the judge added.

The judge also noted that Tri-County Health's mask order requires “a statement provided by a Colorado-licensed medical provider” to support an exemption. But he wrote that under Colorado law, licensed professional counselors — such as the person Navarro identifies as her therapist — are mental health professionals licensed by the state to provide mental health and psychological evaluation, assessment, diagnosis and treatment.

Tri-County Health's frequently-asked-questions document regarding the mask order says “Colorado-licensed medical provider” means a physician, dentist, clinical psychologist or any person acting under the supervision of those positions.

“But the order itself only requires `a statement provided by a Colorado-licensed medical provider,'” the judge wrote.

He added: “It is only the Tri-County Health Department's Frequently Asked Questions document that, somewhat strangely, narrows that definition to a category of medical professionals listed in the Colorado Governmental Immunity Act.”

Navarro's attorney also argued the school district violated the Americans with Disabilities Act.

Regarding disability law, the judge noted that a public entity need not allow an individual to participate in programs or activities when that individual poses a “direct threat to the health or safety of others.”

But the fact that the district has granted mask exemptions to a small number of students and staff “undermines the District's argument that no modification or accommodation can eliminate the threat posed by unmasked individuals,” the judge wrote.

Judge's order

The judge's order granted Navarro's request for a preliminary injunction — a temporary order that prevents the other party from engaging in a type of conduct until the conclusion of a trial.

Under the order, Cherry Creek was prohibited from enforcing Tri-County's mask policy as to Navarro at its remaining candidate forums.

The school district held school board candidate forums on Sept. 14 at Overland High School, Sept. 21 at Eaglecrest High, Sept. 22 at Cherry Creek High, Sept. 28 at Grandview High and Sept. 30 at Smoky Hill High. The final forum occurred Oct. 7 at Cherokee Trail High.

In advance of the Sept. 28 forum, the school district arranged for Navarro to participate remotely via a video monitor on stage. Navarro did not to participate in that forum, but she did attend the Sept. 30 candidate forum by video, the judge noted.

The judge also ordered that Navarro must maintain a minimum of 6 feet between herself and any members of the public.

Transmission of COVID-19 from inhalation of the coronavirus in the air can occur at distances greater than 6 feet, and particles from an infected person can move throughout an entire room or indoor space, according to the U.S. Environmental Protection Agency's website. A person can be exposed by an infected person coughing or speaking near them, but they can also be exposed by inhaling aerosol particles that are spreading away from the infected person, the website adds.

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