Parents, Progressive PAC Weigh Lawsuits Against Schools That Refuse to Enact COVID Rules

Lawsuits against Wisconsin schools that don’t require masks could be filed soon following the death of at least two students who had tested positive for the coronavirus.

When the Fort Atkinson School Board voted on Sept. 16 to require face masks in school, Danielle Ralston felt a surge of dueling emotions. 

On one hand, Ralston breathed a sigh of relief. She was happy for her 10-year-old son Graham, who has a rare stomach condition that makes him more likely than his peers to contract COVID-19, and to suffer more serious health impacts if that does happen.

But Ralston felt deep frustration too. She was angry that board members were only willing to require masks two days after 13-year-old Fort Atkinson student Danny Rees died after testing positive for the contagious virus.

“For me, it was a huge relief,” Ralston told UpNorthNews. “But I was really angry too, because why did it take a kiddo dying for this to happen? It never should have gotten to that point. The school had an opportunity to do everything they could to protect our students, and they didn’t do that. And a child died because of that.” 

Ralston and her husband are among parents of children with health issues that make them especially susceptible to COVID-19 in Wisconsin and across the US. They are worried for their children’s safety and even their children’s lives, as many school districts refuse to adopt mask mandates while the number of virus cases in schools is surging, and more kids are being infected with and dying from the illness.

Parents in some states are filing lawsuits against school districts that refuse to require masks, and it appears that will happen in Wisconsin as well. 

Civil rights attorney Jeff Spitzer-Resnick told UpNorthNews Monday that he has been retained to take legal action against the Menomonie Area School District for its failure to enact COVID-19 mitigation measures. No such cases have been filed in the state so far. 

RELATED: A Mondovi High Schooler Died While COVID-Positive. The School Board Still Didn’t Require Masks.

The Menomonie School Board recently voted to relax the district’s quarantine rules for students considered to have had close contact with their peers testing positive for COVID-19. The board also voted twice against requiring masks in school despite recommendations from federal, state, and local health officials that doing so would reduce transmission of the virus. 

Spitzer-Resnick said he has been contacted by a couple dozen other parents who are considering possible lawsuits against schools for failing to provide their students with protections from COVID-19. More parents of children with disabilities or health issues that make them more likely to be impacted by the virus are considering legal action, he said.

“When I am contacted by people about an issue, I usually figure there are 10 times that many people who are really concerned,” Spitzer-Resnick said.  

That action follows an announcement Sunday by the progressive political action committee Minocqua Brewing Company SuperPAC that it plans to file federal lawsuits against districts that refuse to adopt COVID-19 safeguards such as face masks. The lawsuits will use a public nuisance argument in asking judges to “provide injunctive relief against all school boards actively promoting daily super spreader events by not forcing kids in schools to wear masks and socially distance,” Minocqua SuperPAC founder Kirk Bangstad wrote.

At the core of the legal matter is whether students at higher risk of being infected with COVID-19 have equal access to education under those conditions. Some districts are telling parents of medically vulnerable students that their children can open enroll to another district, Spitzer-Resnick said. Others say those students can learn virtually, even though few districts are offering virtual classes and masks are required in few districts in rural parts of the state. 

For students with significant health concerns making them more susceptible to COVID-19, “they have a right to a free, appropriate public education in the least restrictive environment,” Spitzer-Resnick said. 

DPI Letter

As a sign of concerns about the issue, the Wisconsin Department of Public Instruction (DPI) sent a letter dated Sept. 1 to the state’s public school districts warning them they may be in violation of the federal Americans with Disabilities Act if they fail to provide COVID-19 mitigation measures to protect students with medical concerns that make them more susceptible to the virus.

The letter, signed by DPI Deputy State Superintendent John Johnson, states decisions by school districts “must consider the needs of all students, including those with medical conditions that make them susceptible to COVID-19.”

The US Department of Education has opened civil rights investigations in five states—Iowa, Oklahoma, South Carolina, Tennessee, and Utah—to determine whether their banning of mask orders in schools discriminates against students with disabilities and health issues, making them more at risk of contracting COVID-19.

Victoria Frank, the mother of a daughter with Down syndrome who is at greater risk of medical problems if she is infected with the virus, said she understands why parents of children with such health conditions are considering legal actions against school districts related to COVID-19. 

“Absolutely, for sure we would back that action [lawsuit],” Frank said. “Kids are going to get sick and die from this.”          

Living in Fear

Every day Frank watches her 13-year-old daughter Asha Shukla leave home for school, she worries whether this will be the day the medically at-risk girl will get sick with COVID-19.

Asha is unusually small for her age, and she struggles with such activities as carrying her books and climbing steps. Because of her physical challenges, she takes a specialized bus to school in the Madison Metropolitan School District where she attends class.

Asha gets sick easier than others as her immune system struggles to fight off illness because of her medical condition. When she becomes ill, she gets sicker and stays that way longer than normal, Frank said.

“When she gets a cold, it lasts for a month,” Frank said of her daughter. “It is terrifying. I am waiting every day to get that call telling me that Asha has been exposed.”

Frank, who has two other children in addition to Asha, is grateful Madison schools require that face masks be worn. But that hasn’t completely prevented outbreaks of COVID-19. 

Sarada Weber, a teacher at Madison Memorial High School, faces a similar daily battle with her nerves. Her twin 8-year-old daughters, Niru and Anu, have cystic fibrosis, a medical condition that makes them more likely to be infected with COVID-19 and to suffer more severe health concerns with the virus. She closely monitors the COVID-19 dashboards in the Madison Metropolitan School District and the Sun Prairie district where her twins attend school. Because the girls are younger than 12, they are not yet eligible for the COVID-19 vaccine. 

Just days after the start of this school year, Weber heard the news she dreaded: One of the girls told her a classmate she sat near had gone home sick with symptoms of COVID-19.

“I broke down crying,” she said. “It’s such a hard way to live. We hold our breath if we hear the girls have a sniffle. The common cold could be dangerous to them, much less a contagious virus that has caused a pandemic.” 

Nicole Evans Estenson also lives with fear related to the virus and a medically vulnerable family member. Her husband, Dan, received a new kidney in September 2019 and currently is fighting cancer. Treatments for his illness suppress his immune system, placing him at higher risk of getting COVID-19 if exposed to it. 

The couple’s son Elliott attends Chippewa Falls Middle School and does not have compromised health. However, that district, like nearly all in northwest Wisconsin, did not require masks at the beginning of this school year, increasing the chances of being infected with the virus and unwittingly bringing it home.

“If he were to catch COVID, he would die,” Evans Estenson said of her husband. “This is a terrifying fact that Elliott has had to live with since COVID began.”

Prompted by an outbreak of COVID-19 cases, Chippewa Falls School District officials recently reversed course and decided to require masks.  While Evans Estenson appreciates the change, she said, masks should have been required at the beginning of the year. In addition, she said, other virus mitigation strategies, such as social distancing and washing hands frequently, aren’t a focus at school. 

Chippewa Falls Superintendent Jeffrey Holmes said the district is taking measures to keep students safe from COVID-19 transmission. However, on Friday the district joined a growing list of Wisconsin school districts deciding to do away with mandatory quarantining of students who have been exposed to others who have tested positive for COVID-19 and leave it up to parents whether to send asymptomatic students to school. 

Weber said teachers at Madison Memorial are doing what they can to enact strategies to reduce COVID-19 spread, but those practices are far from perfect, she said. 

“We are not three feet apart from each other. Our classrooms can’t do that,” Weber said. “Children have a hard time keeping their masks on.” 

Continued Concerns

Just three days after the school year started, Ralston, of Fort Atkinson, learned that Graham had been exposed to COVID-19. He was quarantined, and, Ralston said, thankfully he didn’t exhibit symptoms of the virus. 

But as virus cases remain high across Wisconsin, and as outbreaks in schools continue, she worries her son and other students with compromised immune systems may be exposed to the virus again. She said she contemplates quitting her job and staying home to limit exposure to Graham and his brother in kindergarten.

“For me, there has been a lot of guilt about it,” she said. “Right now we’re just hoping for the best.”

Frank said she often feels frustrated at others’ reluctance to wear masks in schools or elsewhere. She is tired of hearing how COVID-19 only affects people who are already sick or old. 

“Hearing people say only the really vulnerable, only those who are immunocompromised, will get sick or die from COVID … it is a constant state of frustration and infuriation,” Frank said. 

Beth Ivankovic gave birth 19 years ago to twin boys, TJ and Sam. TJ has cerebral palsy and has ongoing medical issues with his heart and lungs.

Ivankovic is thankful TJ attends special education classes in the Eau Claire Area School District, one of a handful of districts in northwest Wisconsin to require masks. But she still worries about him contracting COVID-19, and about other medically vulnerable students getting sick too given that many schools continue to refuse to mandate face coverings. 

“It’s only a matter of time before we have more and more outbreaks,” she said. “I hope there will be some lawsuits, and it will change people’s minds.”