As winter illnesses rise, so do mask controversies

News analysis

’Tis the season for colds and flu and increased Covid-19 infections, which also means it’s the season for school masking controversies and possible lawsuits.

Over the past month, as traditional winter illnesses have begun to take hold, and rising Covid infections have pushed community infection levels from low to medium to (in some cases) high, a few school districts around the country have begun to reimpose mask mandates, potentially opening last year’s cans of litigious worms.

In New Jersey, two school districts have imposed masking requirements for the new year, while in Boston a voluntary but strongly advised masking protocol has been adopted. In a sign of what might be to come on a larger scale, The Atlantic ran an article this past week entitled, “Should Everyone Be Masking Again?”

So far no new lawsuits have been filed, as far The Lakeland Times can tell, and the mandates are but a trickle, but they are at least an echo of what did happen nationally a year ago, and a reminder of what might happen again — intense controversies, particularly over masking in schools, and a spate of lawsuits, the majority of them designed to overturn masking requirements.

In Wisconsin, that latter scenario was flipped on its head when the Minocqua Brewing Company’s (MBC) Super PAC and MBC owner Kirk Bangstad backed lawsuits in federal court against two school districts for not imposing adequate Covid masking mitigation strategies. 

Bangstad and the MBC PAC filed lawsuits in October 2021 against the Waukesha school district, the school board, its members, and the district superintendent on behalf of parent Shannon Jensen and against the Fall Creek school district, the school board, its members, and the district superintendent on behalf of parent Gina Kildahl. Bangstad aggressively raised money to support the lawsuits, by his own account raising somewhere around $50,000, he wrote in an October 6, 2021, MBC Facebook post.

“We raised over $50K last week to pay lawyers, infectious disease experts, and epidemiologists to work around the clock to prepare this case,” Bangstad wrote. “If we get a temporary injunction in a few weeks, that money we raised might be enough and could buy Wisconsin schools a few months until the FDA approves the vaccine for children, at which point we wouldn’t need to continue the lawsuit. If we don’t get an injunction and this case drags on longer, it could require more resources.”

In his post, Bangstad said he hoped the action would give “sane school board members and superintendents the courage they need to stand up to the anti-masking Trump Cult being fomented by conservative talk radio and alt right media ….”

In a November 7 post, Bangstad repeated the fundraising claim.

“You all collectively donated close to $50K (average donation $40) to fund two class action lawsuits in Wisconsin to stop an unhinged vocal anti-intellectual minority of Tucker Carlson acolytes from imposing their anti-masking beliefs on school boards across the state,” Bangstad wrote.

Sure enough, the lawsuits did not survive past the following March, not because temporary restraining orders against the districts were obtained but because the MBC PAC — and the parents on whose behalf the lawsuits were filed — asked the court to dismiss their own cases, ostensibly because Covid infections had dropped and the CDC had changed its guidance.

“As of March 14, 2022, the CDC has determined that Covid-19 infection rates in Waukesha County indicate that the risk of Covid-19 to the community is low,” the motion to dismiss in the Waukesha case stated. “Given this determination and the new guidance from the CDC, plaintiff believes that the Waukesha County School District Covid-19 Mitigation Policies are in line with the CDC guidelines and Plaintiff’s claims for relief have become moot.”

In late February, the CDC had dropped its recommendation that masking be required in schools in communities even with low to medium risk of Covid-19 spread and severity, and instead advised that schools should follow general community masking guidelines, which recommended universal in-door masking only at high levels.

The court granted the dismissal, and similar action occurred in the Fall Creek case. But, in each case, the dismissals were necessarily granted without prejudice, meaning they could be resuscitated or refiled if community transmission again reached levels where the CDC recommended masking. Some courts in other jurisdictions refused to dismiss similar cases — or lawsuits challenging mask requirements — precisely because the policies at issue could be reinstated based on changing conditions.

As of this week, Waukesha’s level of community transmission was rated as medium.

The complaint
In the Waukesha lawsuit, filed on behalf of plaintiff Shannon Jensen, who has a child in the school district, the plaintiff accused the Waukesha board of education and its individual members of recklessly refusing to implement reasonable and scientifically supported Covid-19 mitigation strategies recommended by the Wisconsin Department of Public Instruction and the Centers for Disease Control. 

“The failure by this class of defendants to take adequate Covid-19 related safety measures has needlessly and recklessly placed Wisconsin school children and their communities at risk of serious illness and death,” the complaint stated. “This plaintiff class vs defendant class action seeks injunctive and declaratory relief to remedy the failure of Wisconsin School Districts to adequately protect their students and communities.”

Because it was a class action lawsuit, the action aimed much more broadly than just the Waukesha district but defined a defendant class “of school boards, school board members, superintendents and school districts refusing to implement the face mask requirement recommended for K-12 Schools by the DPI and CDC ….”

At the time of the action, the complaint stated, there were three different vaccines available, only one of which was available to children from ages 12-17, with none available to children under 12.

“The Covid-19 pandemic drastically effected [sic] K-12 schooling during the spring of 2020,” the complaint stated. “All Wisconsin schools were shut down by order of Gov. Evers and most students were taught virtually. During the 2020-21 school year, schooling throughout Wisconsin was either conducted virtually, or in person with Covid-19 mitigation strategies in place including universal masking.”

Then, when the 2021-22 school year began, many school districts, including Waukesha, did not have adequate Covid-19 mitigation measures in place, instead bringing students back to school without mandatory face masks, social distancing, or contract tracing, the complaint asserted, creating what the plaintiffs called a dangerous learning environment.

“On August 10, 2021, the Wisconsin Department of Public Instruction released a publication entitled Covid-19 Infection Control and Mitigation Measures for Wisconsin Schools 2021/2022,” the complaint states. “In the Covid-19 Infection Control and Mitigation Measures for Wisconsin Schools 2021/2022, the Wisconsin Department of Public Instruction makes several recommendations for steps Wisconsin schools should take to limit the spread of Covid-19.”

Specifically, the complaint states, the DPI recommended that schools encourage children and staff who have been exposed to Covid-19 to stay home and get tested, encourage good hand hygiene, promote vaccination to eligible students and staff, maintain a policy of physical distancing between students and staff, limit non-essential visitation to the schools, establish contact tracing programs, improve ventilation where possible and disinfect surfaces within the school on a daily basis.

Finally, the DPI recommended that all Wisconsin schools institute mandatory masking policies for students and staff. On August 5, 2021, the complaint continued, the CDC recommended the same thing.

“The CDC has found that universal masking policies drastically reduce the rate of Covid-19 infections in schools,” the complaint stated. “Wisconsin school districts are all implementing different Covid-19 mitigation policies, many of which recklessly ignore DPI and CDC recommendations. The school districts refusing to implement Covid-19 mitigation strategies in their schools are functionally hosting daily ‘super spreader’ events.”

During the spring of 2020, the school district of Waukesha held classes remotely, the complaint asserted, and that policy continued into the 2020-21 school year, but the district returned children to in-person schooling in October 2020, with a robust Covid-19 mitigation strategy that included mandatory masking.

“During the 2020-21 school year, [Jensen’s children] attended Rose Glen Elementary School which had several different Covid-19 infection mitigation strategies in place,” the complaint stated. “Theses strategies included universal masking, regular body temperature checks, and plexiglass dividers.”

However, the complaint continued, in May 2021 Waukesha voted to end many of its Covid-19 mitigation policies, including the universal masking requirement.

“When the 2021-22 school year began, [one of the students, Jensen’s child] returned to school and wore a mask daily,” the complaint stated. “Many of [Jensen’s child’s] classmates chose not to wear masks to school. On September 16, 2021, one of [Jensen’s child’s] classmates came to school with Covid-19 symptoms. On September 17, 2021, that same student visited the school nurse twice and was eventually sent home due [to] his Covid-19 symptoms.”

Jensen’s child was seated next to his sick classmate on both days, the complaint asserted, adding that the sick classmate did not wear a mask to school.

“On September 19, 2021, [Jensen’s child] became symptomatic and tested positive for Covid-19,” the complaint stated. “On September 18 and 19, 2021, [Jensen’s child] attended multiple community events likely spreading Covid-19 to members of the community.”

After [Jensen’s child] tested positive for Covid-19, plaintiff chose to quarantine him in the basement of her home and quarantine her two other children in their shared bedroom, the complaint continued. That quarantine period lasted 10 days and the student missed six days of school. 

“The plaintiff was responsible for providing schooling for her children during this period of quarantine as [the district] no longer had a plan in place to provide educational assistance to children missing school due to Covid-19,” the complaint stated.

The complaint alleged three counts. One was that the board and district had an affirmative duty to keep their students safe from Covid-19 and those similarly situated have a cognizable right under the Fourteenth Amendment to the United States Constitution to be safe from state-created dangers while in school.

“By bringing students back to class, re-instituting extracurricular activities, and allowing potentially contagious visitors and volunteers into the schools without masks, the district and the board threw students into a Covid-19 ‘snake pit,’ creating an affirmative duty to keep their students safe from Covid-19,” the complaint states. 

The plaintiff also alleged that the student and those similarly situated have a cognizable right under the Fourteenth Amendment to be protected from Covid-19 by the district and board due to the special relationship between students and school administration created by the initial response to the Covid-19 pandemic, which the board and district breached.

Finally, the complaint alleged that the board and district maintained a public nuisance and endangered public health, causing special injuries to the plaintiff and the student.

“[Jensen’s child] became infected with Covid-19 which forced plaintiff to quarantine him and her other children within their home, care for her sick child, take responsibility for her children’s educational needs, isolate herself and her husband and caused her and her family to miss several family outings and events,” the complaint stated.

The response
In its response to the claim, the school district argued that there was no “state-created” danger because the U.S. Supreme Court has held that the Due Process Clause of the Fourteenth Amendment generally does not impose upon the state a duty to protect individuals from harm by private actors. 

“The constitution typically provides negative liberties and does not impose affirmative duties on the government,” the response stated. “The Due Process Clause is phrased as a limitation on the state’s power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the state itself to deprive individuals of life, liberty, or property without ‘due process of law,’ but its language cannot fairly be extended to impose an affirmative obligation on the state to ensure that those interests do not come to harm through other means.”

The school district acknowledged two exceptions: the “state-created danger doctrine” and the “special relationship exception.” 

“Under the ‘state-created danger doctrine,’ when the state affirmatively places a particular individual in a position of danger the individual would not otherwise have faced, the Due Process clause of the Fourteenth Amendment imposes upon the state a duty to protect that individual from harm by private actors,” the response stated. 

But under that exception, the district argued, the plaintiff must prove the state, by its affirmative acts, created or increased a danger faced by an individual “as if it had thrown him into a snake pit,” as the defense quoted Bowers v. DeVito.

While the plaintiff said throwing students into a snake pit is just what occurred in Waukesha, the defense said the facts fell far short of any such reality.

“First, the state-created danger qualification to the general principle that private violence does not violate the Due Process Clause is narrow, calling for protection only if the state disables people from protecting themselves, such as by arresting or imprisoning them or putting them in foster care,” the response stated. “Here, the facts plaintiffs allege did not take place in the context of the prison system nor foster care, but rather in a school.”

And though individuals may be “required” to attend school, they are not required to physically enter a specific school district’s facility, the district and board argued.

“By remaining open for optional in-person educational instruction, the state (i.e., defendants in this case) is not preventing individuals from protecting themselves, or making an informed choice according to their personal risk tolerance,” the response stated. “Making in-person classes optionally available to students is completely unlike the prison or foster care context where individuals are required to go to a specific prison or foster family and where they have no escape or alternate option.”

Extending a duty to public schools previously reserved to limited and unique circumstances created by a custodial prison sentence or a foster care placement is overreach and is wholly unsupported by case law, the response stated. 

“In this case, defendants do not require the physical presence of students in the district’s classrooms,” the response stated. “Defendants merely provide optional in-person educational instruction where students are free to come and go at will and free to wear any form of PPE they desire. A virtual option is available to anyone who does not wish to be physically present within the district’s classrooms. Home schooling and open enrollment are other options. Under no circumstances are any individuals ‘forced’ by a state-actor to be physically present or to remain at a location run by a state-actor.” 

Second, defendants did not create nor increase nor render individuals more vulnerable to the danger of Covid-19 illness than to the public at large, the defense argued. 

“Plaintiffs refer to the mere act of making available optional in-person educational instruction as akin to placing a child ‘in a snake pit,’” the response stated. “But, in this case, defendants did not dig a pit, fill it with snakes, and drop in the students. Defendants did not create the global Covid pandemic. Defendants did not create the danger of contracting Covid-19. Covid-19 has been affecting the public at large for almost two years now. Additionally, defendants did not increase the danger of the harm of Covid-19 illness nor render individuals more vulnerable to it than they otherwise would have been. Defendants have merely provided optional in-person educational instruction.”

What’s more, the defense argued, in doing so, the district followed the guidelines of the CDC, DPI, and DHS by recommending masking at school for in-person instruction. 

“Moreover, defendants also offer the option for students to attend school virtually,” the response stated. “Such reasonable Covid-19 mitigation measures cannot possibly be said to increase the risk of harm of the Covid-19 illness where students are not even required to be on school property.” 

The risk of harm of Covid-19 was no greater at school than in any other public location, the defense argued.

“Plaintiffs have alleged nothing in their amended complaint that would prevent this court finding,… that defendants’ conduct could not increase the risk of harm to the plaintiff beyond that which he would have faced had the defendants taken no action,” the response stated.

In addition, the district argued, the plaintiffs could not possibly show that defendants failed to protect them from the danger of Covid-19 illness or infection when they provided reasonable mitigation measures in accordance with federal guidance and when there were many other sources from which plaintiffs could have contracted the illness.

The courts have also found that school administrators do not have a “special relationship” with students, that is, they “are not like mental patients and prisoners such that the state has an affirmative duty to protect them,” and, even if they did, the schools district did exactly that, the defense argued.

“Defendants in this case actively worked to form a responsive policy to the Covid-19 threat for this academic year,” the response stated. “Defendants followed the guidelines of the CDC, DPI, and DHS by recommending masking at school for in-person instruction. Defendants even offer an alternate option by providing virtual learning for those who elect to not attend instruction in person. Those options provide the elective freedom, and responsive action, exclusively to parents and families of the district.”

Finally, the plaintiffs accused the district of creating a public nuisance.

“However, the school remaining open without a mask mandate does not ‘create’ a public nuisance for a variety of reasons,” the response stated. “First, anyone entering the school is free to wear a mask or any other PPE he/she sees fit, without restriction. Second, no one is required to enter the school grounds; the school gives the option of virtual education and parents also have the choice to home school their children or open enroll their children in a district that requires masking. Finally, there are other Covid mitigation strategies at play within the district that minimize the risk of contracting Covid.”

With the dismissal of the case — the defendants did not object to the plaintiff’s motion to dismiss — the merits of each side’s arguments were never addressed. They were also dismissed without prejudice precisely because the courts did not rule on the merits of each side one way or another.

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.