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Judge issues temporary restraining order barring enforcement of Douglas Co. mask opt-out order

Temporary order will be in effect for 14 days as sides work out next steps on injunction sought by district
Douglas County School District
Posted at 9:49 AM, Oct 27, 2021
and last updated 2021-10-27 11:49:58-04

DENVER – A federal judge in Denver issued a temporary restraining order Tuesday temporarily barring the newly formed Douglas County Health Department and its board from enforcing its public health order allowing parents to opt their children out of the Douglas County School District’s mask requirements without a doctor’s note.

U.S. District Court of Colorado Senior Judge John L. Kane issued the order after hearing from witnesses during a hearing that lasted most of Monday and wrapped Tuesday morning. Witnesses for the district and nine district students with disabilities, who are the plaintiffs in the case, testified as well as witnesses for the board of health and health department.

“The balance of equities favors immediate relief, as it’s in the public interest to prevent the spread of COVID-19 among students with disabilities in Douglas County and to protect their rights to be free from discrimination,” Kane said in reading his order.

The temporary restraining order will be in effect until 3 p.m. on Nov. 8 unless it is dissolved earlier or extended by the court, Kane said. The plaintiffs are also seeking a preliminary and permanent injunction barring the order from being in effect. Kane said there will be a hearing on the preliminary injunction set for 10 a.m. Nov. 8, but he would extended the temporary restraining order if both sides decide to meet and consolidate the hearings for the injunctions into a later date.

"As a school district, we strive to do everything possible to protect the health, safety, and learning of every single child, especially our most vulnerable and those with significant health conditions who are particularly susceptible to COVID-19. Today's ruling allows us to do just that," said Douglas County School District Superintendent Corey Wise in a prepared statement following the hearing. "No parent should be forced to choose between sending their child to school and risking their child’s health, and no family should have to fear that their child may face life-threatening illness just to access their right to a great education. Today’s ruling was the right one. It will help us continue to make our schools safe for in-person learning."

In a letter to parents, Wise said Tuesday's ruling meant that, effective immediately, all safety protocols will be enforced throughout the district.

"This means that all students, staff, and visitors in all of DCSD’s PK-12 schools will be required to wear face coverings, except for students who have documented medical exemptions from wearing a mask by a Colorado-licensed medical provider," Wise said, adding the district will reinstate the quarantine practices set in place before the newly health department's public health order was implemented.

The board of health said in a statement it respectfully disagreed with the judge's decision.

"We remain confident that when we have more time to make a full case we will be able to demonstrate that the Douglas County Board of Health struck the proper balance of public health protection and parental involvement in health care decisions for their children," the board said in a statement. "...We would continue to encourage the Douglas County Board of Education to make partners of all parents in decisions that fundamentally impact their children."

The board of health passed the public health order on Oct. 8, and it went into effect the next day. It allows parents to sign a document allowing their child to opt out of mask requirements “due to the negative impact [of masks] on that individual’s physical and/or mental health” and removed the quarantine requirement for kids who are exposed to COVID-19 if they are asymptomatic and unless the quarantine is associated with a known outbreak.

Doctors testify masks should be mandatory

Elliott Hood, the counsel for the plaintiffs, argued the public health order put the district “between a rock and a hard place” in terms of deciding whether to potentially violate federal law for students with disabilities or open itself up to potential criminal violations if it violates the county’s public health order.

He said the public health order put the individual plaintiffs in the case at risk of immediate and irreparable harm because data showed mask-wearing had decreased in the six school days since the order went into effect and was putting the parents of the students with disabilities in a place where they have to decide between putting their kids at risk of catching COVID and having a more severe outcome, or taking them out of school and hampering their educations.

During Monday’s portion of the hearing, which lasted more than five hours, two Denver-area medical doctors, the district’s special education services officer, and a principal at a district school were among those testified on behalf of the plaintiffs as to why they believed the order did not follow the consensus of the medical and scientific communities when it comes to either masking or quarantines.

Dr. David A. Beuther, M.D., Ph.D., a pulmonologist at National Jewish Health and the chief medical information officer, testified Monday about the increased risk from the delta variant to people of all ages compared to prior strains and said there was no medical or scientific evidence that masks were harming children, though some people have anxiety-related reactions to them.

Dr. Lindsey Fish, M.D., an acute care urgent care physician with Denver Health, testified she was seeing 20-40 pediatric COVID-19 cases each week and that she and other urgent care doctors were seeing the most children with COVID-19 as they have seen the entire pandemic.

She noted that the incidence rates among kids ages 6-11 were the highest in Colorado and in Douglas County they have been in months and that they have been continually increasing – to above 10% – since the summer. She also discussed how Douglas County ICU beds were close to 100% capacity as of this week with both COVID-positive and non-COVID patients, and how that would mean people with emergencies might not get the quick and nearby care they need.

Hood said the health department and board of health’s argument that only one child has died of COVID-19 in the county, and only two are currently hospitalized, according to Tri-County Health Department data, “callously dismissed” the threat of the disease – especially to children with disabilities and underlying health conditions that could lead to a greater likelihood of them being hospitalized, having long-term side effects, or dying.

Fish and Beuther both said that with the delta variant, between 80% and 90% of people need to be fully vaccinated, and they said the 62% fully vaccinated rate among eligible children in Douglas County was too low to be decreasing in-school precautions by allowing kids to opt out of mask requirements without a doctor’s note and by removing quarantines.

As of Monday, more than 4,700 students and 500 staff had opted out of the mask requirement, which dropped masking in schools from about 97% during the TCHD mandate to about 81%. There are about 64,000 kids in the school district. Before the TCHD mask requirement went into effect earlier this school year – and before Douglas County left the department and formed its own health department – masking was about 22% in district schools, Douglas County School District Special Education Services Officer Sid Rundle testified. He said those numbers did not include charter schools, which account for about 25% of the district’s students, and he postulated that the numbers were even higher.

Hood used the witnesses and that data to argue to the judge that the share of students and staff opting out would increase and mask wearing would continue to decrease if the temporary restraining order was not issued.

He also admonished the board of health for not consulting any medical doctors beyond the radiologist who sits on the board before making the public health order, and noted that no licensed physicians had testified or submitted written comment in favor of the public health order.

“The defendants can’t show any harm would occur if this order was enjoined or that it was even sound policy in the first place,” he argued in his closing statements.

Defense calls man who wrote report, parent of student with disability

For the defense, Deputy County Attorney Kelly Dunnaway handled the arguments and examination of the witnesses. His arguments centered around the claimed threat to students’ physical and mental health posed by wearing masks, which county commissioners anchored their move to leave Tri-County around. He argued the district did not have standing in an ADA claim and, after Monday’s testimony, that the health department and district should get together and try to come to a solution without a temporary restraining order – something Hood rebuffed.

He said that getting two or three weeks before a preliminary injunction hearing in the case would show whether or not more students and staff would continue to opt out of the mandate and whether more kids would get sick with COVID-19 and would give the board more time to gather doctors and other parents to testify in their favor.

“The wait would not be likely to lead to irreparable harm,” Dunnaway argued.

He told the court that he also feared that if the judge issued the temporary restraining order, parents would struggle to find doctors who can sign off that their child had an “anxiety-based” disability and argued that they should be the decision-makers when it comes to their kids’ health.

During Monday’s witness testimony a mother of a nonverbal child with autism spoke as a health department witness about her son’s struggles with moving to high school and new teachers he is unfamiliar with, whose masks were among the reasons she believed her son was showing aggressive behaviors he had never shown before, as a reason she felt the ability to opt out should remain in place.

Another defense witness who testified was Dr. George Thompson, who proclaims himself as a toxicologist and psychopharmacologist of 50 years, who compiled a draft report the board of health has cited in court filings as reason why universal masking in schools should not be a requirement in Douglas County schools.

His report, which he said during testimony Monday was a compilation of other reports which he claims discredits evidence that masks help stop the spread of COVID-19 and other diseases, claims mandatory masking precautions “are not based in science and are dangerous to millions of individuals in the public arena,” that they can affect a person’s physiology over time due to decreased oxygen flows and that wearing them over long periods of time “leads to physiological and psychological impairments.”

But Beuther, the National Jewish pulmonologist, said if he were reviewing the article, he “would reject it outright and not publish it.”

“None of the claims in Dr. Thompson’s statement are really supported by evidence,” he said during his testimony when asked about the report’s claims. “…Almost all of them are patently false, not accepted by the scientific community, or are unsubstantiated by any credible evidence or literacy.”

Dunnaway also called Doug Benevento, the former executive director of the Colorado Department of Public Health and Environment and the current president of the new Douglas County Board of Health, as a witness, who said the intent of the public health order was to “narrowly tailor this order so we could avoid me sitting in federal court having to testify.”

He said he believed that parents were best to decide whether their children needed to wear a mask at schools and that he felt most parents who wanted an exemption for their kids had already applied for one and that the share of students wearing masks would not greatly decrease moving forward.

But during Tuesday’s closing arguments, Hood, the attorney for the district and plaintiffs, argued the risk to public health he says is caused by the public health order is indeed imminent.

“You don’t need to wait to get sick and die. The immediate risk of harm is enough,” he told the judge. “This is a Hobson’s choice: Comply with the health order and violate federal civil rights law or defy the health order and face the prospect of criminal prosecution. Being in this untenable situation constitutes irreparable harm.”

This is a developing news story and will be updated.