Minnesota judge skeptical about push for school mask mandate

Published 3:15 pm Thursday, September 9, 2021

By Brian Bakst, Minnesota Public Radio News

A lawsuit seeking required masking in schools statewide got a skeptical response Thursday from a judge who said he was unsure he had the authority to order that and that such a move would open the door to much more.

A group calling itself Parents Advocating Safe Schools (PASS) sued Gov. Tim Walz and the state in an attempt to force a new peacetime emergency order and a school mask mandate. A hearing before Ramsey County District Court Judge Thomas Gilligan and a packed virtual gallery centered around arguments over who has the power to act versus the notion that lack of COVID-19 mitigations could deny some children their constitutional right to an adequate education.

The judge said he would issue a ruling “expeditiously” given that classes have begun around the state.

Gilligan, who has presided over past cases around Walz’s use of executive authority, said flatly that he was “troubled” with the judicial branch being asked to order the executive branch to do something the legislative branch might be better suited to do.

The judge said there could be a precedent set if he grants the request, such as allowing members of the public to petition for a vaccination mandate.

“I’m trying to figure out the consequences of what you are asking me to do because it is unprecedented,” Gilligan said. “I cannot just think about this case. I have to think about what comes next.”

Gilligan said there is no prior case where a court ordered a Minnesota governor to declare an emergency. He said it could lead to a flood of lawsuits or put school districts in an untenable position of enforcing a mandate.

Michael Vanselow, who argued on behalf of PASS, said that scenario shouldn’t drive the outcome.

“You cannot deny students their right to an adequate education and force them to be sitting ducks in unsafe schools because it’s possible that some school districts would violate the governor’s orders and refuse to institute a mask policy,” Vanselow said.

He cited a first-week COVID-19 outbreak in the Albert Lea school district that forced hundreds of students and staff into quarantine.

Last year, all schools were covered by a mask mandate while Minnesota was in a peacetime emergency posture. That declaration lapsed in July and each school district has set its own policy.

A judge can issue an injunction only if there’s belief the party seeking one is likely to prevail in the underlying lawsuit.

Nearly 500 people were logged into the virtual gallery, many expressing their masking views in their screen names.

“No Mandate!” was common; “My Child, My Choice,” blared another. “Yes for masking,” another shot back.

A court clerk tried at the outset to change the monikers to something neutral but that was futile and some people just changed theirs back. Others posted emojis expressing disgust or agreeing with a comment during the hearing.

The case might not even be decided on the merits. The judge could also determine that the parents group lacked standing or listed the wrong party as defendants.

“You didn’t sue the right party,” Gilligan told Vanselow at one point.

The constitutional clause around education adequacy puts that burden on the Legislature, not the governor, Gilligan said.

He said local school and health officials could find ways to ensure student safety, from pushing masking and vaccines to improving ventilation in school buildings.

“The entire thrust of the defense here is that: ‘It’s not my problem,’ the governor of the state is saying. ‘It’s someone else’s problem. It’s the Legislature’s problem. It’s the school districts’ problem,’” Vanselow said, adding, “They recognize it’s a problem.”

Minnesota Solicitor General Liz Kramer argued on behalf of the state and Walz against an injunction requiring masks. She said the court can’t violate the constitutional separation-of-powers clause by exercising a power exclusive to him.

“The governor agrees that COVID-19 is a continuing concern in Minnesota and that the health and safety of school children is of paramount interest. Nobody disputes those things,” Kramer told the court. “Nevertheless the plaintiff motion fails because of a structural problem.”

Previous lawsuits around the governor’s COVID-19 actions have almost universally gone Walz’s way. But that was before the peacetime emergency was wound down.