Missouri AG has sued 45 school districts with mask rules. What about charter schools?

Missouri Attorney General Eric Schmitt filed nine additional lawsuits against school districts with mask mandates this week, bringing the total number of systems targeted to 45.

Schmitt, a Republican candidate for U.S. Senate, has cast school mask mandates as government intrusion on private family decisions.

But left untouched in the wave of litigation are charter schools, including some in Kansas City, that also require masks for students. Charters are publicly funded like traditional public schools.

Schmitt’s spokesman did not explain what separates charter schools from the long list of school systems defending the attorney general’s lawsuits.

“We’re currently evaluating our legal options on mask mandates in charter schools, but the Attorney General has been eminently clear that parents, not school districts or bureaucrats, should be able to decide what’s best for their children,” Schmitt’s spokesman Chris Nuelle said Tuesday in response to questions about how the office chose which schools to sue.

The attorney general’s office also said it will not intervene in private school mask mandates. Nuelle said the office’s jurisdiction “specifically relates to public institutions.”

Missouri Republicans have sought expansion of charter schools, currently limited to Kansas City and St. Louis, as part of their push for school choice. A bill seeking to correct what charter advocates call a funding “glitch” that allows charters to receive fewer public dollars than traditional public schools is awaiting debate on the House floor.

The discrepancy in Schmitt’s choice of defendants drew criticism from Democrats in the legislature. Sen. Doug Beck, a St. Louis Democrat, wrote on Twitter that charter schools appeared “immune to the AG’s bullying tactics.” Beck has filed legislation to require school districts sued by the attorney general’s office to be reimbursed for legal fees if they win the case.

“Should all our public schools put ‘Charter’ in their name so the Attorney General will stop these harmful lawsuits?” Beck wrote.

Schmitt last Friday filed lawsuits against three dozen districts seeking to overturn their mask mandates as schools struggle to remain open amid record COVID-19 cases and severe staffing shortages. He added more lawsuits on Monday, including against his home school district of Kirkwood and the Special School District of St. Louis, which serves students with disabilities.

Twelve of the districts sued are in the Kansas City area, including Park Hill, which announced on Tuesday it would close schools on Thursday and Friday due to staff shortages.

This month, at least 62 districts have closed for a day or more, the state education department has said.

Within the boundaries of Kansas City Public Schools, which requires masks and was sued by Schmitt, there are also 20 charter school systems. Several have mask requirements enacted by their governing boards, including Academie Lafayette and Alden Village School. In addition, all schools in the Kansas City limits are covered by a city ordinance requiring masks in school buildings.

The Missouri School Board Association said Schmitt should treat the schools the same.

“While there are differences in governance, we can think of no legal reason why the attorney general would sue our community public schools and why he would choose to not sue charter schools,” said Melissa Randol, MSBA executive director.

Doug Thaman, executive director of the Missouri Charter Public School Association, said that for both charter schools and school districts, pandemic protocols are “a board decision. And they’re all following the guidance of the Kansas City department of health.”

“They are the medical professionals. And so that’s who the charter schools, just like Kansas City Public School district, that’s who they’re relying on for that guidance for their boards to make a decision they believe is best for the safety of students.”

Out of all of the public districts in the state, Thaman said, “it’s a tiny percentage of school districts (being sued by the AG), yet there’s this focus on these 36 charter schools and why they aren’t being sued. ... Why are we grabbing on to this as a reason to try to be critical of charters? That to me is disingenuous.”

Several KC charter schools did not respond to requests for comment Tuesday.

Schmitt has called school districts’ mitigation measures illegal in the wake of a Cole County court decision that stripped local health authorities of their powers to issue disease-control measures. The judge wrote that a decades-old state health department administrative rule, allowing it to delegate disease-control authority to local health departments, was unconstitutional because it gave rulemaking powers to unelected officials.

“In Missouri, public school board members are elected and are residents of the school district. Charter board members are not elected and are not even required to be residents of Missouri,” Randol said. “If the AG is leaning on the Cole County court case that says that these decisions should be made by elected officials, public school boards are elected and charter boards are not.”

Many school districts’ mask mandates and COVID rules have been voted into place this year by local school boards, and some systems in the Kansas City metro, such as Lee’s Summit, have maintained the Cole County decision did not touch school boards’ right to enact rules in their own districts.

Some Kansas City charter schools came to the same conclusion in December, when Schmitt sent letters to school districts threatening litigation if they did not drop their mask mandates.

“Charter public schools continue to have the authority to put measures in place to protect the health and safety of students,” said officials of the Allen Village School in a statement last month in response to the letters.

“In addition, our Board’s determination to put these measures into place is based on public health orders passed by the City’s Mayor and City Council. At this time, Allen Village School will continue operating under our Board approved mask and mitigation measures.”