Kansas Attorney General Defends SB 40 Emergency Powers Act In SMSD Mask Case

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In a brief filed this week in a case involving the Shawnee Mission School District, Kansas Attorney General Derek Schmidt defended SB 40, a law passed this spring that sought to curtail the emergency powers of the local government during the COVID-19 pandemic.

Why is this important: SB 40 expired earlier this month when legislative leaders authorized an end to the statewide declaration of Kansas emergency, but legal battles over the law’s impacts on school districts in the Johnson County are continuing.

In his brief, Schmidt argued that the law as applied in the SMSD case was constitutional and did not infringe the due process rights of the district.

However, Schmidt also said that since SB 40 is now “moot” with the expiration of the state of emergency, there is no need to hold a hearing on its constitutionality.

Case history: Schmidt has weighed in on a case involving two parents challenging SMSD Superintendent Mike Fulton’s decision not to give them public hearings regarding the district’s face mask policy towards the end of the 2020 school year. 21.

SB 40, passed by Kansas lawmakers and enacted by Gov. Laura Kelly this spring, set out a process by which families, students, and staff could challenge local school district COVID-19 restrictions.

The law has sparked several hearings and lawsuits against public school districts in Johnson County in recent months, all of which were aimed at challenging the districts’ mask requirements.

In the SMSD case, parents argued that the district’s requirement that all students and staff wear masks inside district buildings caused their children “psychological harm” and that their children felt compelled to wear masks so as not to be ostracized.

But earlier this month, Johnson County District Court Judge David Hauber sided with the SMSD, saying Fulton’s reasoning for not granting a hearing to the parents was sound.

One of the parents’ children had been granted exemptions from wearing masks, Hauber said.

The judge also said that since the district’s COVID-19 policies came into effect last summer, months before SB 40 became law, the law could not be applied retroactively to challenge mask rules. .

Concerns of Judge SB 40: Hauber’s decision also raised greater concerns about the constitutionality of SB 40.

Hauber’s main concern centered on the fast-track SB 40 schedule, which required school districts to hold public hearings within 72 hours of receiving a complaint and local courts to take legal action against police in district within 7 days.

Hauber argued that this gave the plaintiffs an advantage and placed an undue burden on the defendant districts.

Because of this, he called on the Kansas attorney general for a ruling on the law, which prompted this week’s brief from Schmidt’s office.

Response from Schmidt: In this week’s brief, Schmidt’s office defended SB 40 as constitutional, comparing its demands for swift hearings of complaints against COVID-19 policies to swift trial statutes.

These laws allow the state’s case to be dismissed if an accused is not brought to justice within a specified time frame.

In SB 40 cases, however, the parties requesting a speedy process are reversed. The plaintiffs who bring a lawsuit – the parents, in the SMSD case – are essentially asking for a speedy lawsuit against a defendant, such as a school district.

But the same reasoning applies, argued Schmidt.

The attorney general’s office claimed that if a school board was unable to justify its COVID-19 restrictions within the time limit set by SB 40, then “the judgment should be handed down in favor of school children.”

“If the actions taken by local school boards are well motivated and supported by evidence, there should be no problem with a court finding these actions justified within seven days,” Schmidt’s brief said.

What happens next: Hauber could still hold a hearing on the constitutionality of SB 40, despite Schmidt’s assertion that a hearing is not necessary now that the law has expired.

A Hauber court administrator said parents and SMSD have the option to file briefs following Schmidt’s notice and oral argument will be scheduled after that.

In its previous ruling, Hauber gave parents 10 days to present additional evidence to show the negative impact of SMSD’s mask policy on their children.

According to an online court record, the parents did not file any new cases in the two weeks following the judge’s initial ruling.

SMSD did not immediately respond to a request for comment on the attorney general’s opinion on the district’s case.

Since the end of the 2020-21 school year, the district has changed its mask policy for summer courses.

Read Attorney General Derek Schmidt’s full brief below:

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