Douglas County health board, faced with lawsuit, excludes schools from COVID mask opt-out option

The new Douglas County Board of Health on Friday amended its first public health order, which had allowed parents to opt their children out of COVID-19 masking mandates, so that the order no longer applies to the Douglas County School District, which had sued over the order.

The revised order is written so it still applies to private businesses and private facilities such as child care centers and private schools. The amended heath order allows parents to opt their children out of masking rules at those facilities with a note declaring their children have a medical or mental health exemption. Adults can opt themselves out.

“There’s nothing left to sue us about,” health board President Doug Benevento said.

The Douglas County School District had joined several families in suing the Douglas County Health Department, alleging its public health order allowing opt outs violated civil rights by limiting safe access to education for students at risk of COVID-19.

The county board of health adopted its first public health order on Oct. 8, allowing opt-outs of masking mandates in the county and limiting quarantines for COVID-19 exposures not associated with an outbreak, at the urging of parents opposed to mandates.

In response to the school district's suit, U.S. District Judge John Kane has issued a temporary restraining order again the county's masking opt-out provision through Nov. 22. 

During a Nov. 15 status conference,  legal counsel for the plaintiffs said attorneys had not had adequate time to brief their clients on the amended public health order, passed late on Nov. 12.

The parties agreed to have another hearing once the Douglas County School Board and families who joined the district in suing were able to discuss the changes with attorneys. 

Benevento said the changes to the Douglas County agency’s order aim to bring the policy in line with the judge’s directions, and to avoid further legal costs of defending the order in court.

The amended order acknowledges that Kane halted enforcement of the public health order in Douglas County public schools. It now recommends the district make masking a personal choice, instead of ordering that it allow people to opt out.

Benevento also said the county health department plans to swiftly set up a meeting with the new Douglas County school board once it is seated.

Four newly elected school board members — Becky Myers, Mike Peterson, Christy Williams and Kaylee Winegar — have vowed to make masking a personal choice in district schools. They have also expressed interest in killing the district’s involvement in the federal lawsuit.

The four will assume a majority of the school board when they are sworn in on Nov. 29.

It's not clear so far whether the lawsuit will live on if and when the district is no longer involved.

“To run up legal fees between now and when that new school board has an opportunity to make a decision,” Benevento said, “I don’t think is the most productive way for us to spend taxpayer dollars.”

Benevento said he hopes the amendments passed Friday will take the pressure of handling litigation off incoming school board directors.

Several people offered public comment at the board of health meeting, some in favor of the health order and others in support of masking mandates. Parents who supported the public health order thanked the board for fighting against mandates.

James Poplawski said severe illness from COVID-19 among children may be rare, but transmission is not, and they can expose adults.

“You guys also have responsibility for the parents of these kids too,” he said.

Board of health member and county Commissioner George Teal said the amendments passed Friday make the lawsuit less legally vulnerable but uphold the principals that led to the board passing the original order.

“We all still have the ability to choose our own healthcare decisions,” he said.

This  story has been updated with details of  a Nov. 15 court hearing.