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Judge dismisses suit over mask opt-out after Douglas Co. school district, health department reach agreement

Board of health modified public health order to exempt Douglas County School District schools
Douglas County School District
Posted at 6:11 PM, Nov 19, 2021
and last updated 2021-11-19 20:12:41-05

DENVER – A federal judge on Friday dismissed the case that pitted the Douglas County School District and nine students against the county board of health over a school mask requirement after the two sides agreed the suit was now moot after the board of health modified its public health order.

U.S. District Court of Colorado Senior Judge John L. Kane agreed with a joint filing from the school board and board health that the case should be dismissed on Friday and terminated the case.

Kane had issued a temporary restraining order on Oct. 26 that prohibited the Douglas County Board of Health from enforcing its Oct. 8 public health order, which allowed parents to opt their children out of the district’s mask requirements without a doctor’s note.

The order came after the district and the nine other plaintiffs – Douglas County students who have disabilities – sued the newly created board of health and Douglas County Health Department on Oct. 20 over the health order, arguing successfully that the district could potentially violate federal civil rights law if it enforced the order and that allowing kids to opt out with simply a parent’s signature was putting the schools at a greater risk of COVID-19 spreading.

Kane extended the temporary restraining order on Nov. 8 through Nov. 22 while the district and other plaintiffs continued to seek a preliminary injunction against the order and as the two sides worked to come to a resolution.

The board of health met on Nov. 10 to try to rework the public health order to come into compliance with the judge’s order but could not. But two days later, it modified the order to exempt the district.

“Pursuant to the Order of the Federal District Court of Colorado, the Douglas County Board of Health cannot enforce this Order against the Douglas County School District,” reads the updated public health order that was passed Nov. 12. The board in a statement said at the time that modification was “the most prudent decision at this time.”

On Monday, the two sides gathered in Kane’s courtroom again to discuss the modified public health order and whether they would seek to dismiss the case. But the district’s attorney said he still needed to speak with the nine individual plaintiffs about whether they would continue their suit even without the school district.

The district said in a statement Friday that it had since met with the plaintiffs and their families, who agreed to drop the lawsuit.

“With the school district now exempt from enforcement of the October 8 PHO, plaintiffs have succeeded and have fulfilled the purpose of the lawsuit they brought and there is no need to further litigate the matter,” the district said. “As a result, today, the school district, the other individual plaintiffs, and the Douglas County Board of Health filed a Joint Stipulation of Dismissal seeking an order that the lawsuit brought to enjoin enforcement of the Douglas County Health Department’s October 8 PHO be dismissed as moot.”

Judge Kane agreed with the motion and terminated the case. The district board of education is also set to swear in a new slate of more conservative candidates to the school board who were elected earlier this month and who oppose mask requirements. They will be the majority on the board.