Douglas County School District, parents sue new county health department over mask exemption

A prolonged battle over masks in schools landed in federal court Wednesday, the latest twist in a months-long standoff in Douglas County that has brought throngs of angry parents to school board meetings and led to the unraveling of a 73-year-old public health agency.

The Douglas County School District, along with the parents of nine students with disabilities, sued the county’s new health department over a public health order it issued earlier this month that allows parents to get an exemption from the district’s requirement that all students and staff wear masks to slow the spread of COVID-19.

The plaintiffs claim the mask exemption and Douglas County’s decision to tighten the protocols around quarantining violate their children’s civil rights under the Americans with Disabilities Act, and are “illegally forcing the parents of these students to choose between their child’s education and their health and safety.”

They are asking a judge to issue a temporary restraining order halting the county from enforcing its public health order, claiming it violates the ADA.

The lawsuit, filed in U.S. District Court for the District of Colorado, says the children on whose behalf the complaint was filed have health conditions like asthma, cystic fibrosis, epilepsy, diabetes and Down syndrome that make them more susceptible to more severe illness, or death, should they contract COVID-19.

“Universal masking and targeted quarantining of individuals exposed to COVID-19 are reasonable and necessary accommodations to enable these students to access their public education equally to their non-disabled peers,” the suit reads.

The lawsuit claims that since the mask exemption went into effect on Oct. 9, a total of more than 4,500 students and more than 500 staff in the 64,000-student district have chosen to remove their face coverings in school. Children 11 and younger are not yet eligible to receive a COVID-19 vaccine.

“The school district fears that it will not be long before the rate of mask-wearing in DCSD schools will reach the extremely low levels the school district experienced at the beginning of the school year,” the complaint reads. “This is alarming, especially when (Douglas County’s public health order) prohibits certain quarantining efforts that work to mitigate the spread of COVID.”

Doug Benevento, president of the Douglas County Board of Health, responded to the lawsuit Wednesday by saying “we are confident that our order strikes the appropriate balance with respect to mask mandates in our schools.”

Douglas County broke away from the Tri-County Health Department last month and formed its own public health department in large part because of the school mask mandate the agency handed down in late August. Adams County announced on Tuesday that it would also split from Tri-County.

“Our order allows for masking but provides exemptions for parents with children that would be negatively impacted from a health or psychological standpoint from a blanket mask requirement,” Benevento said in a statement.

Critics of masks have argued that covering the faces of children, especially young ones, has deleterious effects on their cognitive and social development — blocking vital facial and emotional cues that are key to how young children understand and learn from those around them.

Last year, Dr. Manfred Spitzer, chair of the psychiatry department at the University of Ulm in Germany, wrote a scholarly article for the journal Trends in Neuroscience and Education that concluded that a mask “reduces the ability to communicate, interpret and mimic the expressions of those with whom we interact.”

The lawsuit contends that claims of harm from masks are overstated. It cites a statement from Children’s Hospital Colorado saying there are “no valid reports or scientific studies linking masks to mental health problems in children or any other group.”

Mask mandate opponents also point to the fact that the scientific data show clearly that COVID-19 largely spares young people from severe illness and death. More than 18 months into the pandemic, those 19 and younger account for just a quarter of 1% of all COVID-19 deaths in Colorado and only 3.2% of all hospitalizations, according to the state’s COVID-19 online dashboard.

Only one person under the age of 18 has died of COVID-19 in Douglas County since March 2020.

And while COVID-19 has killed 637 people 18 and younger in the United States over the course of 19 months, according to the Centers for Disease Control and Prevention, influenza has also been deadly among children yet spurred no mask mandates in schools. In the 2019-2020 flu season, the CDC reported 199 official pediatric deaths though it extrapolated that 434 children actually died of influenza.

But according to the lawsuit, the more contagious delta variant means more young people are catching the disease and potentially transmitting it to others. In Douglas County, there is now an average of 103 cases per day, up 31% from the average only two weeks ago.

David Ray, president of the Douglas County School District board, said it is critical that the district “ensure that every student has an inclusive, accommodating public education.”

“The message is simple: in these very complex times, our most vulnerable children cannot be left behind,” he said. “Everyone wants a return to normal, but a return to normalcy cannot come at the expense of those with chronic and severe health issues. That’s why this legal step is being taken.”

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