Judge extends temporary restraining order in Douglas County School District lawsuit

Case might be dismissed if health board rescinds its order this week, attorneys say

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A federal judge has extended a temporary restraining order against the Douglas County Health Board’s first public health order, which had let students opt out of Douglas County Schools’ masking mandates. The restraining order was extended for another two weeks.

But the entire federal lawsuit might be dismissed by Friday, attorneys said in a Nov. 8 court hearing, because the board of health could consider rescinding the health order at its meeting on Wednesday.  

“We’re also in agreement that if the board does meet on the 10th and rescinds its order then it will moot the issue, and only time will tell that,” Douglas County’s defense attorney Kelley Dunnaway said.

U.S. District Court Judge John Kane said he would dismiss the case if the health board rescinds its order, and asked attorneys to let him know by Thursday what the public health order’s status is.

The initial restraining order was set to expire at 3 p.m. today. Kane temporarily halted enforcement of the health board's opt-out order at the request of the Douglas County School District. The district joined several families of children with disabilities and medical conditions in a federal lawsuit, alleging the health board’s order violated civil rights.

A health order allowing people to opt out of masking mandates increases risk for students vulnerable to COVID-19 and diminishes their access to safe education, the suit alleges.

Once the temporary restraining order went into effect, the district resumed its policy requiring people to mask inside its buildings unless they have a medical exemption.

The restraining order was extended while attorneys prepare for future hearings, if those go as scheduled. A status hearing is set for Nov. 12. The case will proceed to preliminary and permanent injunction hearings if it continues. Kane and attorneys noted the nature of a temporary restraining order requires parties to attend court quickly, before they can extensively prepare to argue a case. 

Attorneys did not discuss during the hearing why the board of health might rescind the order.

Douglas County Commissioner and board of health member George Teal spoke to Colorado Community Media after the hearing and said there is no concrete plan to rescind the agency's opt-out public health order, although a discussion along those lines might take place  Wednesday. 

Teal said he's open to modifying the order passed on Oct. 8, adding "I want to keep faith with the members of the public" whose feedback helped spur the public health order to begin with. In September, community members opposed to masking mandates attended board of health meetings, urging the board to let people opt out of masking requirements in schools. 

"I'm not in favor of rescinding without a better idea, better legal advice," Teal said. "I'd like to take us through a process to perhaps revise the public health order so that it is more legally sustainable."

Teal said the judge's extension of the temporary restraining order is positive for the county health department.

"The court is giving us the time we're going to need to properly argue the lawsuit," Teal said. 

In the hearing that lasted less than 30 minutes, Kane noted the case has been of high public interest. The court has received letters and calls from members of the district community, he said, adding there appeared to be confusion about what the temporary restraining order does.

He closed the hearing by reemphasizing that the restraining order only prohibits the Douglas County Health Department from enforcing the public health order that allows people to opt out of masking.

Somehow in the process it seems to have been misunderstood, and I want to make it very clear that what that order did was, and nothing more than this really, is that it in no way requires the school board or any other entity to enforce the Tri-County Health Department mask mandate,” he said.

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