Return of Senate Bill 40 means Kansans can oppose COVID-19 restrictions, including masking

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SHAWNEE, Kan. — It was in. Then out and now back in, at least, for now.

We are talking about the beleaguered Senate Bill 40. The Kansas Supreme Court said once again it is the law of the land.

What this means is that parents can again start demanding school districts hold hearings on COVID-19 rules including masking. Those hearings can lead the way to lawsuits.

The Shawnee Mission School District is at center of the lawsuit before the Kansas Supreme Court. The wider implication to the high court’s decision is that other districts could now face a deluge of challenges as students enter the new school year.

Johnson County District Judge David Hauber laid out his issues with Senate Bill 40 back in June. He said the hearings are on tight deadlines and so are the court challenges.

Seventy-two hours is the magic number. If a deadline is missed, there is a default judgment for the challenger-bringer, according to Senate Bill 40.

“Now, I have some difficulties with the short trigger the legislature has tried to impose on the courts because it doesn’t recognize that we have many other things that we have to do at the same time,” Hauber said.

His ruling’s conclusion was that “SB 40 tips the scales of justice toward the plaintiff as a judicial goad.”

But as the Kansas Supreme Court now mulls over the matter, it granted Attorney General Derek Schmidt’s request that Hauber’s ruling be stayed. That means, once again in Kansas, individuals or businesses aggrieved by a public health order can file a complaint. Then a government agency, like a school board, must prove they are protecting public health in the least restrictive means possible.

Again, all within 72 hours.

Schmidt called the ruling welcome and said: “The district court’s ruling had created unnecessary confusion about Kansas emergency management laws at a time when the rise in COVID cases makes certainty and stability in the law even more critical.”

Senate Bill 40 went into effect at the end of the last school year so the challenges somewhat petered out as kids got off for the summer and as COVID-19 numbers dipped. But now it is a whole new world and these challenges could be the next area of vigor for the masking vs unmasking debate in Johnson County.

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