bozeman school district masks

Gallatin High School students wear masks before watching a volleyball match against Billings West on Thursday, Sept. 9, 2021.

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A Bozeman nonprofit and a group of local parents are suing school districts in Gallatin County, including Bozeman School District, over their policies requiring masks for students, staff and visitors.

The nonprofit Stand Up Montana and 13 parents, represented by Missoula attorney Quentin Rhoades, filed a lawsuit against Bozeman, Monforton and Big Sky school districts on Monday, arguing the districts’ mask requirements are unconstitutional and asking a judge to end them.

The case filed in Gallatin County District Court is similar to one filed against school districts in Missoula County in late-August by Stand Up Montana and a group of Missoula County parents, also represented by Rhoades.

Stand Up Montana, an organization whose stated mission is to encourage residents “to stand up for the constitutionally protected liberties” during the pandemic, has previously filed lawsuits against mask mandates — one against former Gov. Steve Bullock for his administration's mask mandate, which was dismissed when now Gov. Greg Gianforte rescinded the order, and another pending against the Missoula City-County Health Department.

The three district superintendents in Gallatin County said they were unable to comment on pending litigation.

Missoula-based attorney Elizabeth Kaleva is representing all three Gallatin County district school boards in the lawsuit. In an interview Thursday morning, Kaleva said the school districts have yet to be served.

“The districts feel very strongly that their right of local control is paramount in this and they are adopting rules pursuant to Montana law that address student health issues,” she said.

Kaleva is also representing the school districts in the Missoula County case. For that lawsuit, there is an injunction hearing on Sept. 29 and a bench trial — in which a judge decides a verdict, not a jury — scheduled for March, she said.

She anticipates the Gallatin County case will follow a similar path.

The lawsuit says the mask mandates are unconstitutional and each of the parents feel masks should be optional and left to parental choice. The lawsuit says, “COVID-19 is not much of a threat to schoolchildren.”

There is one parent of a child from Monforton involved in the lawsuit, while Bozeman and Big Sky districts each have six parents represented.

“Defendants’ mask mandates infringe on the rights of Plaintiffs and their children to privacy, dignity, and free expression without the necessary showing of a compelling government interest in doing so,” the lawsuit states.

“We don’t believe there’s any science to support the idea that forcing students to mask in a school setting has any statistically significantly effect on the spread of COVID-19 in the school or in the community,” Rhoades said in an interview on Thursday.

He said it came down to parental rights and masking should be up to the parents.

While he didn’t ask for a “temporary restraining order” against the mask requirements in the Missoula case, which was filed before the start to school, Rhoades said he is asking for one in the Gallatin County case since the school year has already started.

Rhoades is also asking for repayment of attorney fees and other costs by the school districts as part of the judgment.

The school districts carry liability insurance for instances like this but each district will still be responsible for paying their individual deductibles, Kaleva said.

The lawsuit also says the mask requirements will be in violation of Senate Bill 400, when it goes into effect Oct. 1. The Montana Legislature passed the bill earlier this year that limits government entities from interfering with parental rights.

Bozeman School District’s interim Superintendent Casey Bertram said the district’s mask requirement remains in place and that the district continues to actively manage COVID-19 in the school system using a variety of mitigation strategies.

“Our biggest celebration continues to be that all of our schools are open five days a week, we have visitors and community members back in our buildings and our co-curricular, extracurricular, club, and arts activities are all forging ahead with few restrictions,” Bertram said in a statement.

The Bozeman School Board passed its mask policy on Aug. 23, which allows the superintendent to implement and remove a mask requirement based on COVID-19 transmission data for elementary, middle and high schools.

With transmission high according to the Centers for Disease Control and Prevention, the district has had a mask requirement at all schools and administrative buildings since the Aug. 30 start to school.

Big Sky School District also started its school year on Aug. 30 with a mask requirement for all students, staff and visitors.

Monforton School District, the K-8 district west of Bozeman, initially started school on Aug. 26 with a mask optional policy. Following a COVID-19 outbreak that forced two grade levels and a handful of classes to go remote in early September, the school board required masks on Sept. 7.

The CDC has said the delta variant spreads faster and can cause more severe illness than other versions of the coronavirus. There are also signs it is impacting more children than the virus’s original lineage.

For the week ending Sept. 9, 28.9% of the reported weekly COVID-19 cases were among children, per the American Academy of Pediatrics. Children under 18 make up 22.2% of the total U.S. population.

After declining in early summer, cases in children have increased exponentially, with about 500,000 cases in two weeks, according to the report.

This story has been updated to better specify separate Stand Up Montana lawsuits challenging mask requirements.

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Liz Weber can be reached at lweber@dailychronicle.com or 582-2633.

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