Benton County Circuit Court Judge Bans Bentonville School District From Enforcing Mask Warrant

BENTONVILLE – Masks will be optional at schools in Bentonville starting today after a local judge ruled in favor of parents who had filed a lawsuit against the school district’s mask warrant.

Benton County Circuit Judge Xollie Duncan granted an injunction on Wednesday barring the district from enforcing its mandate, which had been in effect since the start of the school year on Aug. 16. She delivered her decision nearly a week after presiding over a hearing in the case.

Duncan discovered that the district did not have the authority to issue the mask warrant. She noted that neither Governor Asa Hutchinson nor the Secretary of Health had issued a mask policy for schools. Both have the power to issue a policy requiring masks, but the power does not lie with individual school districts, Duncan said.

Matthew Bennett, Elizabeth Bennett and Matt Sitton have been listed as plaintiffs in an August 18 lawsuit against the district. All three have children who attend Bentonville schools, according to court documents.

Greg Payne, an attorney for the plaintiffs, said Duncan’s decision means the district can no longer enforce the policy once the judge signs the order.

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The ruling only affected the Bentonville School District and no other district in the state with policies requiring the wearing of masks, he said.

“I am thrilled for the families,” Payne said. “It is redemption for them. The court recognizes that they have a fundamental interest in the liberty in the case.”

Payne noted that the case was not about preventing every child from wearing a mask.

“Parents can still put masks on their children, but those who do not wish to are not required to mask their children,” he said.

The lawsuit named Superintendent Debbie Jones and the seven school board members as defendants.

Payne told the judge at last week’s hearing that the district did not have a directive from Hutchinson or the Arkansas Department of Health to issue the policy.

Marshall Ney, the district attorney, said at last week’s hearing that parents have the right to send their children to a school district and the right not to send their children to a district. He said parents can use online education, but don’t have the right to dictate what happens in classrooms. He asked the judge to dismiss the injunction request.

Duncan said Wednesday that the District of Bentonville had the authority to issue a mask warrant related to athletics and physical education, but noted that the district had not imposed one for those activities.

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She also discovered that the district could not impose the mask mandate simply because the district had accepted money from the American Rescue Plan Act. Duncan said there was no federal authority for the district to implement the mandate.

The school board approved mask mandates for staff and students ages 3 and up on Aug. 11 by a 5-2 vote. The policy stated that they were required to wear masks indoors and when riding in school vehicles, with a few exceptions. The board has agreed to reassess the policy on a monthly basis.

The board decided at its September 21 meeting – again, in a 5-2 vote – to continue requiring masks for at least a month, with the stipulation that Jones can relax the rules if any reports of new known covid-19 infections occurring a 14-day period falls below 30 per 10,000 district residents. The rate is currently 30 in the district, up from more than 50 just two weeks ago, according to the district’s website.

“We are delighted to see the latest data showing that covid-19 infection rates are moving in the right direction,” said Leslee Wright, district communications director.

The current data would have led the district to decide to suspend the warrant regardless of the judge’s decision, Wright said. Masks will be “strongly encouraged” but not mandatory, she said.

The district on Thursday reported 34 active cases of covid-19 among its students and staff, representing about 0.2% of the 20,868 students and employees combined. A total of 148 students and staff were in quarantine on Wednesday.

Public debate over school mask warrants has been rampant this year and has led to legal battles in several states, including Arkansas.

Pulaski County Circuit Judge Tim Fox ruled on August 6 that Law 1002, a state law banning mask warrants for public institutions, appeared to be illegal. Fox issued a preliminary injunction against him. Many school districts across the state, including Bentonville, then issued their own policies requiring masks.

The Arkansas Supreme Court last week rejected the state’s request to withdraw the injunction before a November hearing where the ultimate fate of Bill 1002 could be determined.

Payne, at last week’s hearing in Benton County, said Fox’s authority is limited to Pulaski County and his ruling does not apply to Benton County. He argued that all mask warrants outside of Pulaski County are illegal.

Hutchinson, in an emailed statement from his office, said he continued to support the authority of school districts to make decisions about the health of students and staff.

“Local school boards have the inherent power to make these decisions and the actions that have been taken are part of the reason our cases are down and we have a successful start to the school year,” Hutchinson said.

Senator Trent Garner, R-El Dorado, was the main sponsor of Act 1002. He described Duncan’s decision as a huge victory for parents’ rights in Arkansas.

“The reason I adopted the mandatory mask ban was to give parents the choice to make health care decisions that were best for their families,” he said. “Today’s decision is a step in asserting this right. I believe this case will become a model for other parents to sue their school district for their illegal actions.”

State Representative Joshua Bryant R-Rogers said he had only seen the headlines of the judge’s decision and had not had the opportunity to study it. Bryant said he wanted Duncan’s decision to have a statewide impact similar to Fox’s decision.

Bryant said he believed the ruling could help in future rulings at the state Supreme Court.

Founders Classical Academy, a charter school in Bentonville for K-12 classes, announced Wednesday that it will also make masks optional for staff and students starting today, in light of the judge’s ruling .

Some neighboring school districts, including Rogers, Fayetteville, and Fort Smith, also have some form of mask warrant.

Rogers’ mandate applies to staff and students in Kindergarten to Grade 6. Ashley Siwiec, director of communications for Rogers, said district officials are not yet sure what impact Duncan’s decision will have on them.

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Richard Dement

The author Richard Dement