December 13, 2021
Attorney General of Missouri Eric Schmitt
December 13, 2021
W. Joseph Hatley
Attorney for Lee’s Summit R-7 School District
1000 Walnut, Suite 1400
Kansas City, MO 64106-2140
RE: School District – Mask Mandates
Dear Mr. Hatley:
My office has received your letter declaring that your school district client has no intention of complying with state law, as detailed in the letters 1 sent on December 7th and 9th. The school district should come compliance into state law immediately.
I am honored to serve as the chief legal officer for all six million Missourians. You ignore well-settled precedent that the Attorney General enforces the law and protects the public from injury to the general welfare. For example, as Supreme Court of Missouri has explained, “l’he attorney general has the authority ‘to seek enforcement of the legislature’s statutory purpose.'” State ex rel. Hawley v. Pilot Drivel Centers, LLC, 558 S.W.3d 22, 30 (Mo. bane 2018) (internal quotation omitted). The “Attorney General” both because of his statutory and common law powers, is a proper party to bring an action for the state … which would prevent injury to the general welfare.” State ex. rel. Taylor v. Wade, 231 S.W.2d 179, 182 (Mo. bane 1950). In addition, the Attorney General has common law authority to seek equitable relief and enforce statutory provisions. “If there were no other remedy for great wrong, and public justice and individual rights were likely to suffer for want of a prosecutor capable of pursuing the wrongdoer and redressing the wrong, the courts would … find authority for the attorney general to intervene in name of the people.” Stale ex rel. Nixon v. Am. Tobacco Co., 34 S.W.3d 122, 135 (Mo. bane 2000) (quoting Stare ex. rel. McKittrick v. Missouri Public Service Comm’n. 175 S.W.2d 857, 864-65 (Mo bane 1943)). If you want to avoid a situation that “invites lawlessness,” districts like your client must follow the law.
Even if you arc unpersuaded by the binding effect of the judgment in Robinson v. Missouri Department of Health and Senior Services, 20AC-CC00515, Judgment (Cole Cnty. Cir. Ct. Nov. 22, 2021) on you, general statutes describing the powers of school boards, allowing for general housekeeping rules, and giving a limited authority to exclude children at risk of spreading a disease do not, and cannot, authorize health orders of the type you have issued in response to COVID-19. See, e.g., Wright v. Bd. Of Educ. of St. Louis, 246 S.W. 43, 45 (Mo. 1922); Op. Mo. Ally G. 236, at 2-3 (1971). Indeed, such a reading would mean school districts have near-plenary power to issue public health orders. But placing “unguided and unbridled power in the hands of a public official” would render those statutes unconstitutional for the same reasons as DHSS regulations were found unconstitutional in Robinson. See Slip. Op. at 5. There is no reason to adopt your constitutionally problematic reading of state law. See, e.g., Case. v. Beam, 594 S.W.2d 942, 946-47 (Mo. bane 1980) (“a court should avoid a construction which would bring a statute conflict with constitutional limitations.”). Aside from clear legal reasoning, it is my firm belief that health decisions and mask decisions are best left to parents, not school administrators or government bureaucrats.
Nor are your arguments persuasive on their own terms. For example, your claim to be “guided by science” (besides conflating process with conclusions) is undermined by relying on a statute that makes it “unlawful for any child to attend any of the public schools of this state … while liable to transmit” COVID-19. § 167.191, RSMo. (emphasis added). Science, law and common sense tell us that mere proximity to COVID-19 does not automatically make a child “liable to transmit” it. To claim an exposure is equivalent to being “liable to transmit” COVID-19 ignores science.
Ultimately, your client has an obligation to follow the law—not to flout it in an arbitrary and illegal manner. That principle is all the more powerful where those rights are guaranteed by the Constitution of this State, see, e.g., MO. CONST. ART. IX, § 1(a). and have always been regarded “as matters of supreme importance which should be diligently promoted.” Meyer v. Nebraska, 262 U.S. 390, 400 (1923). The need for citizens to balance freedom and responsibility does not give you the right to do the balancing for parents and their schoolchildren. You may believe that the public welfare calls for balancing away students’ freedoms for control measures; but that approach invites true lawlessness by “permit[tingl agencies to act unlawfully even in pursuit of desirable ends.” Alabama Ass’n, of Realtors v. Dep’t, of Health & Hum. Servs., 141 S. Cl. 2485, 2490 (2021). The constitution and laws of this State, as well as the fundamental principles of morality and dignity, demand more.
Very Truly Yours,
Eric S. Schmitt