Saying former Laramie High School student Grace Smith has no grounds to sue over a mask mandate that expired two years ago, the Albany County School District No. 1 Board of Education is asking a federal judge to dismiss Smith’s lawsuit against it.
“The decision to not wear a mask — which comes with potentially deadly consequences for other students, particularly disabled and vulnerable students — is not protected speech in the high school setting or anywhere else,” wrote the board in a Friday filing in the U.S. District Court for Wyoming, asking the court to dismiss the recent lawsuit filed by Smith and her parents.
Smith and her parents, Andy and Erin Smith, have accused the school board of crafting an arbitrary mask mandate as a health order without authority from the state of Wyoming and in violation of Grace Smith’s rights against government-compelled speech while Smith attended Laramie High School in 2021.
Smith originally filed her lawsuit Aug. 8 in the Albany County District Court, but the past and present school board members she’s suing petitioned the federal court Sept. 1 to hear the case instead, since the case invokes federal civil rights laws.
Now those officials are saying Smith has no standing to sue and no useful claims.
A Girl Handcuffed
Smith refused to wear a mask in the autumn 2021 semester against a school district mandate, causing the school to suspend her, briefly, three times.
On the second suspension, the Laramie Police Department issued Smith a citation for trespassing because she refused to leave school grounds.
On the third suspension, she was arrested.
It was Smith’s refusal to obey school policy, not the mask mandate, that led to this “injury,” the board officials allege.
Dress Code Or Speech?
The crux of the board’s Friday response is that its September 2021 mask mandate – issued after Wyoming lifted its statewide mask mandate during the COVID-19 pandemic – was a lawful adjustment to the district’s dress code, made to protect students’ safety.
The Dress and Appearance Policy says a student’s dress should never “prove hazardous” to students’ safety, according to the board’s filing.
Smith, conversely, alleges that for the school board as a government entity to compel people to wear masks without the authority of a public health order is equal to government-compelled speech and therefore a violation of the First Amendment right.
Because, Virtual School
Another key point in the board’s Friday filing is that students who disagreed with its mask mandate had the option to attend school virtually.
“The elephant in the room is that the mask mandate never required (Smith), or any student, to wear a mask,” the filing says.
In Wyoming, students have a fundamental right to receive public education. Virtual school can also fulfill that right, says the filing, citing state statutes recognizing the practice.
The board accuses the Smith family of disregarding the virtual school option to make a statement.
“They were provided reasonable options that accommodated their beliefs about mask wearing and they chose to ignore those options in favor of public grandstanding,” says the filing. “That led to (Smith’s) suspension and arrest – not any action or inaction of Defendants. Defendants are not required to be the insurers of Plaintiffs’ poor decision making.”
A Mootness Claim
Smith withdrew from Laramie High School on Oct. 13, 2021, nearly a week after her arrest.
She is 18 or older now, according to the filing, and is not a student at the high school.
The board says there’s no reason for this lawsuit to continue since there’s no current harms a court of law can fix. Smith’s claims are “moot,” the filing alleges, adding that the mask mandate isn’t likely to happen again either.
“Plaintiffs have no legally cognizable interest in seeking redress for a mask mandate that has not been in effect for almost two years,” the filing says, adding that Smith’s alleged harms pertaining to her arrest and withdrawal from the school resulted from her own choices to disobey school policy and withdraw from the school, not from the school policy itself.
What Will It Be Now
The board claims that wearing a mask is not compulsory speech, but even if it were, the board had a compelling reason for mandating it.
Masks aren’t “plainly expressive” but serve a purpose beyond silencing or allowing one’s speech, says the filing. It says that lowers their value under First Amendment claims.
Furthermore, “school districts have a compelling interest in providing a safe learning environment for all students,” says the filing.
Parental Rights
Smith’s lawsuit accuses the board of violating her parents’ parental right to manage her care by imposing a medical treatment – masking – against their will.
The board characterized this claim as shapeshifting.
“If the mask mandate was a medical treatment it could not have been an utterance or a compulsion of speech,” says the filing. “It appears from the Plaintiffs’ Complaint that the mask mandate was whatever suits Plaintiffs’ purpose in the moment.”
The board cited a 2021 Oregon case in which a court held that a mask mandate is not medical treatment and therefore didn’t implicate parents’ right over their children’s health.
“Even if mask wearing constituted a medical requirement,” the filing continued, still quoting the Oregon court’s ruling, “parents do not have the unilateral right to make every decision relating to their children in public schools.”
The filing hearkens again to the virtual school option, calling it a reasonable accommodation.
No Spitting, No Licking
Smith’s lawsuit claimed that the board denied her of her due process right by enforcing against her a policy not founded on proper authority. It also claimed that the board exceeded its lawful authority.
The board rebuts both of these claims, saying it can craft mask mandates under its dress code policy without a health order.
The district can also ban other health dangers without a health order, such as students’ spitting on one another, says the filing.
“No (law or state order) exists barring students from licking or spitting on each other, whether consensual or otherwise, but undoubtedly the schools and the Board have authority to prohibit such conduct as unhealthy and unsanitary,” the filing says.
The board pointed to a 2022 Wyoming case in which the court declined to interfere with a school’s rulemaking authority.
Shocking The Conscience
As for Smith’s due process claim, the board says she has not risen to the high bar for showing government agents unleashed arbitrary processes against her.
“Conduct by a government actor will rise to the level of a substantive due process violation only if the act can be characterized as arbitrary or conscience shocking in a constitutional sense,” the filing says, quoting from 2013 federal case law.
Negligence is not enough to meet that standard, nor is recklessness, the filing claims.
“To shock the conscience, the government’s conduct must be so ‘brutal’ and ‘offensive’ that it did not comport with traditional ideas of fair play and decency,” it adds.
The school board met five times or more when crafting the mask mandate. It dispatched an operations plan rationalizing it publicly. It linked the mandate to its dress code policy.
These actions, the board claims, show that it didn’t behave brutally and arbitrarily, but reasonably to craft a sensible rule.
This Law Though
Lastly, the Smith family is asking the court to proclaim a Wyoming health law unconstitutional. That’s Statute 35-1-310, which gives smaller government entities, like town councils and other political subdivisions the authority to issue health orders, after their county health officer has done so.
The Smiths did not claim that the Albany County School District No. 1 Board acted under this statute, or was one of the “rogue agenc(ies)” listed in it, says the board’s filing, so their request for the court to void that law isn’t linked to factual allegations.
A Request
Through its attorneys Kathleen Chaney and Eric D. Hevenor, of Denver, Colorado, the school board is asking the U.S. Chief Magistrate Judge Kelly Rankin to dismiss Smith’s case altogether.
“(She) actively defied the authority of the Board and her school administration by repeatedly seeking to attend in person schooling without wearing a mask when virtual schooling options were available to her,” says the filing.
Clair McFarland can be reached at clair@cowboystatedaily.com.
