Federal judge dismisses lawsuit challenging Oregon school mask mandate enforcement

An Oregon school board and superintendent acted properly in complying with the state’s pandemic requirement that masks be worn in schools, a federal judge in Portland has ruled.

The new ruling is consistent with other Oregon court decisions around the pandemic, including the Oregon Supreme Court’s June 2020 ruling upholding Gov. Kate Brown’s authority to issue executive orders to protect public health. 

In a decision signed Dec. 22, U.S. District Judge Michael H. Simon ruled that the North Wasco County School Board and Superintendent Carolyn Bernal had not violated parents’ constitutional rights to due process. Parents Jennifer Rae Gunter, Robert Jay Schwartz, Holly Lynn Gove and Chelsea Elizabeth Perritt had sued the district, contending that the board’s enforcement of a state school mask mandate had violated their rights under the 14th Amendment and Oregon Constitution. 

Parents had sought a court order preventing the mask mandate from being enforced in North Wasco schools, based in The Dalles. Instead, the judge dismissed the suit.

During an August school board meeting to plan a return to in-person instruction, the ruling noted, the school board chair explained that board members were bound by oath to follow state laws.

The parents contended that masks are harmful to children by increasing carbon dioxide levels and are ineffective in preventing the spread of covid. Parents asked that the board hire a specialist to test classroom air quality, which the board refused to do.

In their court filing, the parents (who were not represented by attorneys) also argued that children would be subjected to “harassment, bullying, intimidation, isolation, and potential discipline” for not wearing masks properly, and that allowing teachers to enforce the use of masks constituted the practice of medicine without a license, contrary to state law.

Furthermore, the parents contended that because schools’ back-to-school plans are tied to the release of federal funding, forcing children to wear masks was in effect placing children into “slavery” or “servitude.”

The judge disagreed with the suit’s mask-related allegations across the board, most strongly in the assertion that children were being placed into slavery or servitude.

“The Court finds this argument unpersuasive and finds Plaintiffs’ allegation that requiring masks equates to slavery or placing children into servitude utterly without merit,” Simon wrote. “Indeed, it reflects a serious misunderstanding of what constitutes slavery.”      

The constitutional question raised by the suit was the parents’ contention that the mask mandate infringes on their rights to direct their children’s education and make health and safety decisions for them.

In part, the judge relied on a New York federal judge’s ruling earlier this year that parents do not have a “fundamental right” to refuse having their children wear masks during a public health emergency. Simon also concluded that a mask requirement doesn’t equate to a medical treatment, and that “even if wearing masks could be considered a medical requirement, parents do not have a fundamental right unilaterally to make every medical decision relating to their children in schools.”