TOPEKA — The Legislature’s attempt to promote “legal anarchy” in response to COVID-19 precautions in public schools is unconstitutional, a Johnson County District Court judge ruled Thursday.
District Judge David Hauber also determined the entirety of Senate Bill 40 is unenforceable, effectively wiping out a Republican-led charge to restrict the governor’s oversight of emergencies. The decision is a response to novel legal challenges filed by parents upset with mask mandates and other policies in the Shawnee Mission school district.
In a 27-page ruling, Hauber relentlessly criticizes the Legislature’s disregard for due process and separation of branches of government, as well as the attorney general’s “fantastical” legal arguments.
“Under the guise of giving local governments the authority to address specific pandemic issues, SB40 actually hobbled local pandemic measures by ensuring that lawsuits would be filed, aided by swift court action,” Hauber wrote. “Many local units of government simply capitulated under the pressure.”
SB40, a bipartisan compromise passed by the Legislature and signed by Gov. Laura Kelly in March, provided a new path for parents, students and employees to challenge remote learning or any school policy they don’t like. The law requires school boards to hold a meeting over complaints within 72 hours. If the board upholds a policy, parents can ask a court for relief.
Courts are required under the law to clear their docket and hold a hearing within 72 hours, and issue a ruling within seven days. The plaintiff in these cases is not required to show any harm caused by the policy in question, and if a court doesn’t meet the deadline, the plaintiff wins the case by default.
“It is difficult to fathom what the drafters of SB40 used as a legal template for this default provision, which seems to be unprecedented in the law,” Hauber wrote.
Attorney General Derek Schmidt “strongly disagrees” with the judge and will appeal the ruling, said Clint Blaes, a spokesman for Schmidt.
“On its own volition, the district court created a controversy about the statute where none exists now that the state of emergency has ended,” Blaes said.
In his ruling, Hauber said Schmidt ignored the law’s “glaring deficiencies” while trying to defend its constitutionality. None of Schmidt’s arguments was convincing, the judge added.
Hauber noted that the Kansas Rules of Professional Conduct requires Schmidt to uphold the Constitution in accordance with his oath of office: “In other words, all attorneys, including the attorney general, are not apologists for unconstitutional legislation.”
The attorney general suggested SB40 protects school children, but the judge was favorable to the school district’s point of view that the law “did precisely the opposite.”
Instead of supporting public schools, the district argued, the Legislature “succumbed to the politics of COVID-19” and passed a bill that diverted attention from educational operations to SB40 hearings.
“The best interest of students, and student rights, is not addressed anywhere in SB40,” the district argued in legal briefs. “The sole focus … is adult, political concerns.”
Hauber said the law constricts the ways courts operate by dictating strict and short deadlines that preempt all other cases. In doing so, the law violates the separation between judicial and legislative branches.
