FILING SUIT: The LRSD Board, including (from left) Board member Ali Noland, Superintendent Mike Poore and Board President Vicki Hatter. Courtesy LRSD

The Little Rock School District Board voted Wednesday to file a lawsuit challenging the state law that prohibits public mask mandates.

Attorney Chris Heller of Friday, Eldredge & Clark, representing the district, said the Marion School District is likely to join the suit, which will be filed tomorrow.

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Here’s a draft of the lawsuit.

Marion School District Superintendent Glen Fenter was at the state Capitol today pleading with legislators to amend the law. After a little more than a week of school, the district already has 730 students and staff out on quarantine and 43 with active COVID-19 infections. Despite Fenter’s testimony, there appears to be no momentum for a legislative remedy.

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Attorney Tom Mars has already filed a lawsuit on behalf of two parents challenging the law. That case was assigned to Pulaski County Judge Tim Fox, who will hold a hearing on whether to grant a temporary restraining order at 9:45 a.m. Friday. Here’s Mars’ brief arguing for the temporary restraining order. Heller said he’d worked with Mars and the two had shared ideas. He told the board it was likely that the Little Rock School District suit would also be assigned to Fox and included in Friday’s hearing and Fox would likely issue a ruling Friday.

Heller said that each lawsuit makes similar arguments, but where Mars’ brief asking for a temporary restraining order leads with an argument that the mask ban law violates constitutional separation of powers, the Little Rock School District suit begins with the education article of the Arkansas Constitution, the key language of the pivotal Lake View Arkansas Supreme Court decision. That ruling set the standard for K-12 education funding in Arkansas. The education article says, “the State shall ever maintain a general suitable and efficient system of free public schools and shall adopt all suitable means to secure to the people the advantages and opportunities of education.”

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“I think it’s important, now and in the future, for this district, if we could get a ruling that the education article protects students safety,” Heller said. “It seems pretty clear. Because in the Lake View case, those words — “general, suitable and efficient” — were held to mean that you have an adequate education. How can you have a suitable, efficient or adequate education if students have to risk their health and their families’ health in order to go to school?”

What if the suit reaches the Arkansas Supreme Court? What’s its likelihood of success there? Board member Jeff Wood asked. Heller laughed and said Mars had told him he believed it was 80% in their favor. Heller said he never went above 75% on anything, but thought the chances were better than even.

The board approved moving forward on the lawsuit 7-1 with Wood voting no. He said he would be supportive of masking if the lawsuits were successful, but said he thought the suit was duplicative and the district should be laser-focused on improving reading proficiency. Greg Adams was absent, but Superintendent Mike Poore said he wanted the board and public to know he was supportive of the lawsuit.

Heller said that the Fayetteville School District was considering a suit, but waiting to see how the complaints in Pulaski County Circuit Court fared, before potentially filing the case in Washington County.

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