Case Against D21 mask mandates dismissed on procedural error; case could be re-filed

By Tom Peterson 

US District Judge Michael H. Simon

US District Judge Michael H. Simon has dismissed a suit on a procedural error after local parents claimed the 14th-Amendment rights of several North Wasco County School District students were violated via school mask mandates.

The case may well go before another judge in months to come if the parents choose to refile the case within 30 days of his judgment on Dec. 22.  

Parents of the students Jennifer Rae Gunter, Robert Jay Schwartz, Holly Lynn Gove and Chelsea Elizabeth Perritt asked the courts for a temporary restraining order to prohibit the enforcement of mask-wearing mandates at all schools in the district.

They contend they should be making choices on behalf of their children in regard to “health care” such as masks.  

The parents asserted that the Board’s compliance with a statewide regulation requiring that schools implement a mask mandate for all school staff,  students, and other attendees violates their children’s rights under the U.S. and Oregon Constitutions.

Simon never made a formal judgment on the parent’s assertions of constitutional right violations. Rather, he dismissed the case based on his finding that the parents could not bring the suit on behalf of their children without an attorney.

But Simon did discuss at length the merits of the complaint, and while he did not rule on it, he only found case law supporting the District’s decision to mandate masks. 

“I can tell you that it will be filed again whether that is in state or federal court, it will be filed again,” said parent Jennifer Gunter on Monday, Jan. 17.  “A lot of people consider this a loss. I do not consider it a loss. I consider it a lot of valuable information. It’s not a loss unless I give up, and I am not that person.”

Gunter said she and the other three parents will discuss their options and may re-file the case possibly with an amended complaint. She would not say if they would name the Oregon Health Authority or Gov. Kate Brown as targets of it. 

“If we so choose to amend it,” she said. “I am not getting a lawyer. I am not paying $275 an hour when I can defend this myself.” 

The Suit 

The School District argued that the parents, who are all proceeding pro se (without an attorney), cannot represent other people, even their own children, without a lawyer according to federal rules of civil procedure. 

So, the claims against the school district should be dismissed.  The School District also argued that the parents failed to state a claim for violation of their own rights under either the U.S. or Oregon constitutions.

Ultimately, Simon found the Parents “may not vicariously bring claims on behalf of their children without representation by counsel.”

He based his decision on the precedent set by the 9th Circuit Court of Appeals. 

Minors must be represented by an attorney

In the opinion released on Dec. 22, Judge Simon of the Oregon U.S. District Court in Portland, wrote the Ninth Circuit agreed with other Circuits in holding “that a non-attorney parent must be represented by counsel in bringing an action on behalf of his or her Child.”... 

The Court explained: “The choice to appear pro se (without legal counsel) is not a true choice for minors who under state law cannot determine their own legal actions.” The court continued: “It goes without saying that it is not in the interest of minors… that they be represented by non-attorneys. Where they have claims that require adjudication, they are entitled to trained legal assistance so their rights may be fully protected.”

At the same time, Judge Simon did not prohibit the case from being heard again. He dismissed the case with prejudice, meaning the parents and children could gain legal representation and re-file the suit. 

The merits of the case can still be heard.

In his analysis, Simon states that the School Board had several rational basis for the decision to mandate masks. The Oregon Health Authority is given authority via state statute to create such administrative rules that “schools must ensure” that students, staff, contractors and visitors wear masks indoors.

The judge also wrote that the suit missed the target by not taking aim at The Oregon Health Authority, which created the law.

That decision, in turn, left no live dispute for the court to resolve in regard to the temporary restraining order request to prohibit mandated masks at The Dalles Schools.

In other words, it was rendered moot.

Simon Provides Legal Discussion on Merits of Case

But Simon did not stop the legal discussion there. 

And while he did not rule on the merits of the case, he went on to address all of the plaintiff’s allegations in the 30-page opinion. 

He addressed the oral argument presented by Gunter that equated masks to slavery.

According to the ruling, Gunter contended that “certain federal COVID-19 education relief funds are tied to having an approved back-to-school plan in place, which she asserted must include a mask mandate. Thus, argues Gunter, schools are requiring masks be worn by children so that the schools can continue to receive federal funds, which, Gunter asserts, equates to placing children in servitude for money.”

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

Violation of 14th Amendment Rights

Simon went on to discuss the legal theory behind the complaint that US and Oregon constitutional laws were being broken as claimed by the parents.

The 14th Amendment of the US Constitution states that “nor shall any State deprive any person of life, liberty, or property, without due process of law.”

Simon wrote that the parents in the case allege that their fundamental liberty interests as parents both to direct their children’s education and to make health and safety decisions for their children are being infringed by the mask mandate. 

Parent’s Power over Education limited once school is chosen

In his discussion, Simon quotes case law that holds parents do have the right to choose the school their children attend but once the choice is made “their fundamental right to control the education of their children is, at the least, substantially diminished and they do not have a fundamental right generally to direct how a public school teaches their child.”

Simon goes further to reiterate the opinion of the 9th Circuit Court of Appeals, stating, “that such direction from parents would make it difficult or impossible for any school authority to administer school curricula responsive to the overall educational needs of the community and its children.”

“What is true for curricular requirements is just as true for other educational regulations like the Mask Mandate,” he quoted from a New York case decision on mask mandates in 2021. “Parents do not have the fundamental right to refuse such regulation. Indeed, like a physician with a patient, a parent may justifiably be expected to act in the child’s best interest. But it is that very motivation - laudable (or commendable) in itself - that might lead the parent to misjudge what is best for the health of the community as a whole. That is precisely why we, as a society, have entrusted public institutions to make such decisions.”

“Plaintiff’s general right to direct their children’s education is an insufficient basis to show that their right to preclude their children from wearing masks during a pandemic is a fundamental right…

Masks similar to laws requiring shoes in public places

Simon also addressed the parent's right to make medical and health care decisions for their children and the position that mask mandates impairs their ability to do so.

“The argument fails because the mask mandate no more requires a medical treatment than laws requiring shoes in public places,” he wrote quoting a 2003 case in the Sixth Circuit. 

Further, 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. In the context of public education, courts regularly uphold restrictions relating to medical requirements. 

In Prince V. Massachusetts in 1944, Simon quotes that “Neither rights of religion nor rights of parenthood are beyond limitation. Acting to guard the general interest in youth’s wellbeing, the state as parens patriae (the government, or any other authority, regarded as the legal protector of citizens unable to protect themselves) may restrict the parent’s control by requiring school attendance, regulating or prohibiting the child’s labor, and in many other ways.

Liberty to expose the community or the child to communicable disease?

Its authority is not nullified merely because the parent grounds his claim to control the child’s course of conduct on religion or conscience. Thus, he cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.”

Simon again utilizes court precedent out of California, stating “To the extent Plaintiffs allege their children have a fundamental right not to wear a mask or a fundamental right not to be screened for COVID-19 before entering their schools, the Fourteenth Amendment does not recognize such rights.”

“In summary, the Court concludes the Plaintiff’s fail to allege a violation of their fundamental rights,” Simon wrote.

To read the entire opinion, click here.