Public records reveal that a local group has formed and is working with a team of attorneys to challenge the constitutionality of Oklahoma’s new ban on mask mandates by local schools.
The letter, sent Monday evening to the Tulsa school board’s vice president and attorney, preceded a Wednesday evening vote by the board.
That vote allows Tulsa Public Schools attorneys to respond to any related lawsuits filed against the district or to possibly join other legal challenges to new restrictions imposed by Oklahoma Senate Bill 658.
“The purpose of this email is to put you on notice that I am quite likely to sue Tulsa Public Schools for not imposing a mask mandate in the midst of a COVID crisis on behalf of people who have standing to challenge the constitutionality of Oklahoma’s ban on public schools imposing mask mandates in the midst of a COVID crisis,” wrote Gary Allison, professor emeritus at the University of Tulsa College of Law.
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The letter, which the Tulsa World obtained through a request under the Oklahoma Open Records Act, was emailed Monday evening to Board Vice President Suzanne Schreiber and attorney Eric Wade.
Reached by phone, Allison declined to comment because he has not been authorized to do so by his potential clients. Nothing has been filed in court yet.
In late spring, the Oklahoma Legislature passed and Stitt signed into law Senate Bill 658, which bars school districts from imposing mask mandates unless the governor declares a public health emergency. But Stitt has said repeatedly that this is something he won’t do despite the most rapid COVID surge to date.
Allison wrote that he is but one of a “lawyer team” who believe that Oklahoma’s ban on mask mandates violates the state constitution in two ways.
First, he said, Oklahoma’s new law is very similar to Arkansas’ ban, and that state’s new law suffered a legal blow on Friday when an Arkansas county circuit judge temporarily blocked the state from enforcing its ban on mask mandates. Allison quoted the judge’s order as stating that it “facially violates the equal protection provisions of Article 2 of the Arkansas Constitution, in that it discriminates, without a rational basis, between minors in public schools and minors in private schools.”
That state’s ban is being challenged by two lawsuits, including one by a school district where more than 900 employees and students are in quarantine because of a coronavirus outbreak.
Second, “besides the equal protection argument, I and the lawyer team I’m working with believe the Oklahoma ban on mask mandates violates Oklahoma’s Constitutional prohibition of special laws in that it treats two parts (private and public) of a class (pre-K through (grade) 12 students) differently,” Allison wrote.
Besides his career teaching at the TU law school, Allison previously served as special counsel to the Oklahoma Corporation Commission and was lead counsel on five state Supreme Court challenges to initiative petitions concerning state government reorganization, abortion rights, education reform and congressional term limits.
He is a past Democratic nominee for Oklahoma’s 1st Congressional District seat.
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