Attorney General’s opinion says county commissions, school boards can opt out of Governor’s school order

Attorney General Derek Schmidt issued a formal opinion Tuesday that county commissions can modify or repeal Gov. Laura Kelly’s executive order dealing with masks and other requirements in K-12 schools, and that local school boards can make their own decisions in those areas. 

On July 20, Kelly issued executive order 20-59, which requires all K-12 schools, public and private, to follow four requirements to mitigate the spread of COVID-19: masks or face coverings for all persons with limited exceptions, social distancing in most areas of the school, and hand sanitizing and temperature checks for all persons upon first entering school. It took effect Monday. 

A group of state legislators asked the Attorney General whether counties and school boards can modify or opt out of the Governor’s order. Although the new opinion is not a ruling by a court, it could be influential in whether the order is actually enforced, because enforcement of such executive orders is the responsibility of local district or county attorneys, or the attorney general’s office. 

Regarding counties, the opinion notes that during the special session, the 2020 Legislature amended state law to allow, until January 26, 2021, the board of county commissioners of any county to issue an order relating to public health that contains provisions that are less stringent than the provisions of a statewide executive order issued by the Governor. For example, a number of counties voted to opt out of or modify the Governor’s general order requiring masks to be worn in public. 

The Attorney General says that the Governor’s school order is clearly a statewide order concerning public health, and that counties may modify the order if their commissions follow procedures required by state law, including a finding that, after consultation with local health officials, “implementation of the full scope of the provisions in the governor’s executive order are not necessary to protect the public health and safety of the county.” 

Concerning school districts, the attorney general noted that under the Kansas Constitution, “Local public schools under the general supervision of the state board of education shall be maintained, developed and operated by locally elected boards,” and that the Legislature has statutorily granted school boards powers commonly referred to as “home rule.” 

K.S.A. 2019 Supp. 72-1138, sates in part: (e)(1) The board may transact all school district business and adopt policies that the board deems appropriate to perform its constitutional duty to maintain, develop and operate local public schools. (2) The power granted by this subsection shall not be construed to relieve a board from compliance with state law. 

The new opinion states that requirements included in Executive Order 20-59, such as wearing masks, social distancing, washing hands, and temperature takings, appear to be matters that fall within the local school board’s authority to “adopt policies” appropriate to “maintain, develop and operate local public schools.” This means school boards already have the authority to adopt or not adopt such requirements. 

The opinion then says that E.O. 20-59 does not properly apply to school districts because the order does not comply with several provisions of the state law giving the Governor to authority adopt such orders. The emergency management law requires the Governor to specify which statutes are being suspended by an executive order, and E.O. 20-59 does not specify that it is overriding school home rule authority. In addition, the Attorney General says it does not appear that school board home rule authority is the kind of law can be overridden by the Governor under the emergency management powers granted by the Legislature. 

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