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Fulton County Parents Sue Superintendent/School Board Over Last Minute Mask Mandate

October 18, 2021
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Fulton County Superintendent Dr. Mike Looney

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On September 17, 2021 parents filed a lawsuit against Fulton County Superintendent Dr. Mike Looney and the Fulton County School Board for implementing a mask mandate four days before the start of the 2021 school year. Fulton County School News announced their policy change August 5 on the Fulton County School News website:

‘As indicated earlier this week, FCS will make decisions based on local data taken from the Fulton County Board of Health (FCBOH) Epidemiology Reports and has determined schools and facilities located in municipalities where the rate of infection exceeds 100 per 100,000 residents will require all students, personnel, and visitors to wear masks until such time as the level of spread drops.

(For clarity - Municipalities are referring to cities in the county)

The resulting lawsuit countered:

“Our Clients have claims against the Fulton County Schools, the Fulton County School Board individually and in their official capacity and the Fulton County School Superintendent for invalid exercise of statutory authority in violation of the basic rights and a violation of state constitutional rights, including free public education, of the parents and their children.”

Fulton County Superintendent Dr. Mike Looney clarifies who had authority to make this decision in his August 3rd interview with Rose Scott on NPR. Ms. Scott asks Dr. Looney “what metric, what data did you all use to come up with a plan?”

We conferred with the Fulton County Board of Health, they have been invaluable partners. … we work with our partners at the Georgia Department of Public Health, our local hospitals, epidemiologist that we have access to, and then of course we continue to follow the changes the CDC is developing as time passes’

Dr. Looney further states:

CDC is looking at it from national perspective, and so one of the things we try and do at Fulton County is look at what’s happened here at Fulton County locally, here in Fulton County Schools specifically…

During the interview Dr. Looney never clarifies who he means when he refers to ‘we’. … However, an email exchange with Dr. Lynn Paxton, Fulton County District Health Director, clarifies:

Let me just explain that the guidelines for the school are set by the school systems themselves.  We at the FCBOH serve as consultants and work closely with them as does the Georgia Department of Public Health and the Georgia Department of Education.

School systems are run by their superintendents who answer to their school boards (See Fulton County Organizational Structure), thus the decision to make masks optional or mandatory land on Superintendent Looney and the Fulton County School Board.

Families choosing to fight against the mandate have hired Attorney Ray Smith III of Smith & Liss, LLC. Working alongside Mr. Smith is Florida based Attorney Jeff Childers who is successfully fighting mandates in Florida. The basis of their suit is twofold. First, force the county to prove masks do no harm to any child and is the least restrictive means by which to hold the Covid epidemic at bay. Second, the suit states Superintendent Looney and the school board do not legally have authority to mandate masks in the first place.

Each of the eleven families began by submitting affidavits stating how the masks have harmed their children. Jill Wright, mom of a Milton High schooler, is one of several families whose children are forced to wear masks although they have documented, long term medical conditions that make mask wearing harmful to their health. Mrs. Wright submitted a medical exemption on behalf of her son that was denied by Milton Principal Brian Jones. Families suing Fulton County list physical reactions to long days in masks to include headaches, dizziness, hypoxia, loss of energy, and blurred vision. Families are also reporting an increase in anxiety, decrease in willingness to attend school, and difficulty making new friends.

Learning has been made more difficult due to the mask mandates. Children report they cannot hear teachers and are chastised for asking them to repeat themselves. Hearing is especially difficult when the teacher is facing away from children, writing on a dry board. Many report a harder time concentrating and inability to focus as they cannot watch the teachers speak during lectures. Kids are reporting many classrooms have become undisciplined because teachers cannot clearly identify who is speaking out, much disruption goes without correction. The chaos and stress created by mask wearing cause the children to perform at a less than optimal level and creates a vicious cycle of stress and anxiety.

Finally, families state Dr. Looney does not have the authority to mandate medical decisions in the first place. Mask Mandates are a violation FCS’ own District Policy - JGC Student Health Services Board Policy:

“Student health services are not intended to replace parental responsibility. Medical and health care of the individual student is the responsibility of the parents/legal guardians. Student health services shall operate in accordance with the restrictions imposed by state law in code section 2-2-773.”

Furthermore, the Georgia assembly has not passed any law taking healthcare authority out the hands of parents/legal guardians. During a declared State of Emergency there are some unusual powers given to agencies, however Governor Kemp began pulling back on Georgia’s emergency powers April of 2020 and has since removed the State of Emergency (economic emergency remains but is unrelated to schools). Therefore, the school board is in no position to mandate any form of medical device or procedure usurping the decisions of parents/legal guardians.

Upon filing their lawsuit an emergency injunction was also filed asking the court to remove the mandate until the case is heard. The basis for this injunction is irreparable harm being done to the children thus a need for immediate relief. On October 1, Judge Eric Dunaway heard arguments and 4 days later ruled against allowing families to remove masks. Attorney Ray Smith III has filed an appeal to this denial which is waiting to be heard.

This lawsuit has more merit than many who have tried and failed in the past. First, with the assistance of Attorney Jeff Childers they are asking Dr. Looney and the school board to prove masks do NO harm. One cannot say a mandate of any kind that harms ‘only a few children’ is acceptable. Any harm done to a child due to outside force is unacceptable. The school district cannot prove no harm is being done because parents and doctors are reporting physical, academic, and emotional damage in the lawsuit. Finally, learning the laws and regulations of Fulton County and using them to push back government overreach is a strong approach to setting precedent to stop encroachment in the future.

To help support families fighting Fulton County Mask Mandate: Fight Fulton County Overreach.

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