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Missouri AG ‘doesn’t have the authority’ over school COVID measures, lawyer says

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File photo / Ryan Delaney
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St. Louis Public Radio
In recent days, the Missouri attorney general has sent cease-and-desist letters to school districts regarding their COVID-19 safety protocols.

An attorney hired by a Lee’s Summit school district wasted little time responding to Missouri Attorney General Eric Schmitt last week after Schmitt threatened legal action against the district.

Schmitt had sent letters to school districts across Missouri, ordering them to cease and desist their COVID-19 safety measures. Joe Hatley, a partner with the law firm Spencer Fane, fired back at Schmitt on Dec. 10, strongly defending the R-7 School District’s coronavirus-related efforts.

On Wednesday’s St. Louis on the Air, Hatley explained why.

“The first reason is that he simply doesn’t have the authority under state law to tell the school board to cease and desist its COVID mitigation efforts,” he told host Sarah Fenske. “He’s simply wrong about that. And more fundamentally, I think the feeling was that his letter encroached on the authority of the board of education, which is a locally elected body, to make its own decisions, and to follow the law, which state law allows it to do.”

Hatley took issue with Schmitt’s invocation of a Nov. 22 Cole County Circuit Court ruling. The Cole County decision, he said, is not binding on school districts.

The 2020 lawsuit challenged COVID-19 precautions promulgated by county health departments. Schmitt, ironically, was on the losing side, as attorneys for his office represented the Missouri Department of Health and Human Services. Schmitt then announced his office would not appeal, despite the state health department’s entreaties.

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Joe Hatley is a partner with the law firm Spencer Fane.

“So then he’s trying to turn that loss into leverage, trying to say that school districts no longer have the authority to adopt COVID mitigation measures,” Hatley said. “And that’s simply not what that case was about.”

There is some suspicion, Hatley said, that Schmitt “didn’t put up as strong a fight as he could have” in the Cole County case, “because it was an effort to challenge the COVID mitigation measures that local health departments had been putting in place.”

Even so, Hatley emphasized that school districts’ power to set health-related policies was not at issue in the litigation.

“They weren’t involved in the case,” he said. “And the case really turned on the fact that unelected people [in local health departments] were making those decisions. Our point is that a school board is an elected body, has the legal authority to make the decisions, and that the Cole County case simply doesn't apply.”

In his Dec. 10 response to the attorney general’s cease-and-desist letter, Hatley cited Missouri laws that give boards of education broad authority over district affairs and also outline safety measures districts should take in the event of a pandemic.

“This law speaks for itself,” he wrote. “Not only may a school district exclude from school a child who has COVID, it may exclude from school a child who has been exposed to COVID and who is liable to transmit it pending a medical test or examination to confirm that the child is not afflicted with the disease.”

Hatley added that the fact that Schmitt is the Missouri attorney general doesn’t matter.

“In the eyes of the court, the attorney general is just another lawyer with an opinion,” he said. “His opinions aren’t binding. He doesn’t have the authority to force school boards to do anything like this. And we made that point back to him in the letter.”

Schmitt has since responded to Hatley, writing Monday that the district “has an obligation to follow the law — not flout it [in] an arbitrary and illegal matter” and arguing with Hatley’s interpretation of the law, as reported by KCUR. (Said Hatley: “We believe that the statutes are very clear in our favor. We cited those statutes to him. He didn't bother to address them in his response.”)

Pushback follows Missouri AG Eric Schmitt’s threats to schools
Listen as attorney Joe Hatley digs into the legal matters with host Sarah Fenske.

But as Hatley acknowledged, some public health departments may be on a slippier slope. Rob Gatter, a professor at St. Louis University School of Law, previously told St. Louis Public Radio that chartered counties (which include St. Louis and St. Louis County) likely have the ability to keep their own COVID policies. Gatter believes smaller counties may be out of luck.

Scott and New Madrid counties, among others, have stated that they have been "forced to cease all COVID-19 related work.”

Hatley said the counties are viewing the Cole County decision “pretty conservatively.”

“[They] do not want to take a chance of being found in contempt of court, because the decision said that the local health departments lack the authority to implement certain orders, if those orders are made by what the judge called ‘bureaucrats’ — unelected officials,” he said. “So I think the local health departments are being very cautious here. And that’s why we’re seeing them back away.”

Local health departments, Hatley added, “have been under siege for the last two years.”

“And this may just be the cherry on top of that,” the lawyer said. “It’s given certainly people a feeling that they can push back aggressively against some of the local health department orders. And I think they’ve decided [to] back off for now.

“Unfortunately, in some cases we’re seeing that they’re even refusing to provide guidance to, say, school districts about what they should do, even if they lack the authority to issue an order. They’re simply going into radio silence on some of these issues.”

The legal drama is ongoing. Jackson County and St. Louis County on Monday filed a motion to intervene in the Cole County case to appeal the ruling that Schmitt’s office wanted to let stand.

Hatley said he believes they have a chance. “I think they’ve done it in time, and it remains to be seen what that judge will do and then what their options are, depending upon what the judge does,” he said. “I think we would all hope that at a minimum, they will be in a position to be able to appeal that judgment and get some guidance from the appellate courts as to whether that decision is correct or not.”

St. Louis on the Air” brings you the stories of St. Louis and the people who live, work and create in our region. The show is hosted by Sarah Fenske and produced by Alex Heuer, Emily Woodbury, Evie Hemphill, Lara Hamdan and Kayla Drake. Jane Mather-Glass is our production assistant. The audio engineer is Aaron Doerr.

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Evie is a producer for "St. Louis on the Air" at St. Louis Public Radio.

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