The Douglas County School District and at least nine families are suing the county’s newly formed health department, alleging its order allowing students to go maskless violates the civil rights of at-risk children.

The lawsuit, filed in federal court Wednesday, aims to block the Board of Health’s Oct. 8 order, which gave every parent and staff member the ability to opt out of the district’s mask requirement. The suit is the latest development in a masking saga that has stretched over the past two months, fracturing the Tri- County Health Department and now pitting an elected school board against its new health agency, and, by extension, the county commission that established it.

The suit was filed “to help protect the district’s most vulnerable students from COVID-19 and guarantee their right to equal access to a quality public education,” the district said in a news release announcing the suit Wednesday afternoon. Joining the district in filing the suit are several families whose children are either at a higher risk for severe COVID-19 or “rely on in-person learning for special-education services.”

The litigation seeks to have the new order blocked by a judge and declared a violation of federal law, including the Americans with Disabilities Act, on the basis that it affects medically disadvantaged students from learning safely and in person.

County officials, including county attorney Lance Ingalls, told the Gazette earlier this month that the health order supersedes district policies and that the district was expected to allow people to opt out.

In a statement sent Wednesday, president of the county’s Board of Health, Doug Benevento, said the board was “confident that our Order strikes the appropriate balance with respect to mask mandates in our schools” and defended it as “more proactive” than any requirement from the state. He pointed to a pending lawsuit against the district, brought by an asthmatic student, as evidence that the “blanket

mask mandate” from the district “does not strike that balance.”

The state has not instituted any topdown measures to prevent the spread of COVID-19 in Colorado schools. Unlike during the 2020-21 academic year, those decisions were left up to local authorities. Gov. Jared Polis has repeatedly said school boards and local health departments should decide what policies to implement to blunt the spread of COVID-19, though he and the state Department of Public Health and Environment have urged masking as a basic step. But the ongoing spat in Douglas County shows that even local authorities can disagree — to the point of filing lawsuits and establishing new governmental agencies — on those decisions.

In a separate statement Wednesday afternoon, Kallie Leyba, the executive director for the Colorado chapter of the American Federation of Teachers, said her organization supported the suit.

District leadership “is prioritizing the health and safety of our most vulnerable students, following the advice of medical and scientific experts, and keeping the politics of this issue out of the schools,” Leyba said. “The Douglas County Federation supports providing a safe academic learning environment for all students, all the time.”

The conflict began in August, when the Tri-County Health Department voted to institute a mask mandate for younger children and the staff working with them in Arapahoe, Adams and Douglas counties. Douglas County’s commission quickly voted to opt out of the order, while the county school district decided to keep the requirement in place.

At the end of August, Tri-County then issued another order making masking universal across schools, and it removed the option for counties to opt out.

Douglas County’s commission then voted to leave Tri-County and make its own health department and board. Shortly after it was created, the new health board voted unanimously to allow any parent or staff member to opt out of the district’s mask order, which had remained in place even after the county left Tri-County’s umbrella, and its weakened quarantine requirements.

In its statement announcing the suit, the district wrote that the county’s optout order “ignores well-settled science and guidance regarding COVID-19 mitigation and puts the health and learning of vulnerable students ... in jeopardy.”

It quoted Children’s Hospital Colorado, which provided the same statement at the Douglas County Board of Health meeting earlier this month, as saying there have been “no valid reports or scientific studies linking masks to mental health problems in children or any other group.”

“The choice is this: are we going to ignore the recommendations of medical experts everywhere and put the lives of vulnerable students in jeopardy? Or are we going to give all children a fair shot to succeed in person, in school, where they belong?” Douglas County School District Superintendent Corey Wise said in a statement, adding the district needed to come together to help children.

“That is why we are taking these legal steps to ensure every child has the opportunity to receive a public education, which is their right as Americans.”

The decision to allow students to go maskless violates medically at-risk or disadvantaged students’ civil rights, the suit alleges, by jeopardizing their ability to learn in person and remain healthy. The suit likens masks to building ramps or making other “reasonable accommodations” taken to ensure an equitable education for students with disabilities.

“Because the (Douglas County Health Department’s order) allows individuals to be easily exempted from the School District’s mask requirement and effectively minimizes the ability to effectively quarantine students to mitigate against the spread of COVID19, Defendants are illegally preventing the School District from complying with” federal law, the district alleged.

The order, the suit continues, deprives medically at-risk students named in the suit “of Equal Access to Their Public Education in Violation of” federal law.

The suit pushes back directly on much of the public debate that has taken place about masks in Douglas County, including that children are not getting sick and that masks are ineffective.

“Contrary to the belief of some, children are getting sick and dying from COVID, too,” lawyers for the district and parents wrote. “... According to the American Academy of Pediatrics, ‘ the Delta variant has created a new and pressing risk to children and adolescents across this country.’ September ‘was the country’s worst month for new cases and deaths’ among children. In Colorado, children now account for over 18% of all COVID-19 cases.”

In September, the district states, 97% of students were wearing masks in school. Since the new order creating an opt-out provision went into effect a week ago, that number has fallen to 83%, with 4,500 students and 500 staff members seeking to exempt themselves.

The district wrote that it feared its masking numbers would continue to decline in the weeks to come.