GCPS ISC_Gwinnett Schools file photo

Parents who are trying to end Gwinnett County Public Schools’ face mask mandate have faced a setback after a judge rejected their request to bar the district from enforcing the mandate.

Gwinnett County Superior Court Judge Deborah Fluker denied the parents’ request for a temporary restraining order to block district from enforcing the mask mandate and dismissed their case to have the mandate declared illegal. The parents had sued the school system and Superintendent Calvin Watts over the mandate, which was actually established by Watts’ predecessor, J. Alvin Wilbanks.

The judge’s decision hinged on a debate over the sovereign immunity of the district to require anyone who enters a GCPS facility to wear a face mask.

“As the plaintiff’s declaratory judgment action is brought against defendants that are not subject to the waiver of sovereign immunity set forth in Article I, Section 2, Paragraph V(b) of the Constitution of the State of Georgia, the plaintiffs have failed to carry their burden to establish a waiver of the defendants’ entitlement to sovereign immunity, and the court is required by the Constitution of the State of Georgia to dismiss the plaintiff’s claims against the defendants,” Fluker wrote in her decision.

Fluker’s ruling is the latest chapter in an ongoing battle between district leaders and a group of parents over the mask mandate. Her decision came after a Gwinnett school board meeting ended early on Oct. 21 after a standoff over the mandate resulted in the board loosing a quorum to continue the meeting during public comment.

The implementation of the mask mandate — which is actually the second such mandate that the school system has had in place since the COVID-19 pandemic arrived in Georgia in March 2020 — was one of the final acts that Wilbanks put in place before his tenure as superintendent ended in late July. Several school districts in Georgia instituted new mask mandates as the school year began while the Delta variant of COVID-19 was spreading around the world.

The variant’s spread has ebbed substantially, however, and districts in the state — including some in metro Atlanta, such as Fulton County schools — have begun to relax their mask mandates.

Gwinnett, Newton and Rockdale Health Districts reported Gwinnett County had a seven-day COVID case positivity rate of 4.8% in the week after the Oct. 21 school board meeting. As of Friday, the county had a two-week new case ratio of 103 cases for every 100,000 residents, according to the Georgia Department of Public Health.

A month earlier, on Oct. 5, the two-week new case ratio for Gwinnett was 430 cases for every 100,000 residents.

A group of parents represented by attorney and former Fulton County Commission Chairman Mitch Skandalakis then filed a lawsuit against the district, and asked for a temporary restraining order or injunction to prohibit the district from enforcing the mandate, in August.

Fluker’s order states the parents tried to have a school nurse added as a defendant as well in October.

The district responded to the lawsuit in September by arguing it had sovereign immunity to enact the mandate and that Fluker therefore lacked the jurisdiction to prohibit its enforcement.

“Defendants argue that sovereign immunity bars all of the plaintiff’s claim in this case,” Fluker wrote.

The parents attorney did argue in a Sept. 9 Motion in Abatement that the Georgia Constitution’s Article I, Section 2, Paragraph V(b) waived the district’s sovereign immunity, but Fluker said she decided, after reviewing that section, that the Constitution did not waive the school system’s sovereign immunity.

“The waiver of sovereign immunity set forth in Ga. Const. Article I, Section 2, Paragraph V(b) applies to declaratory judgement actions against four entities or types of entities,” Fluker wrote. “Specifically, the waiver appies to declaratory judgement actions against: (1) the state of Georgia; (2) counties; (3) municipalities; and (4) consolidated governments.

“As the plaintiff’s lawsuit is not brought against the state of Georgia, a county, a municipality or a consolidated government, the plaintiff’s lawsuit is not authorized by the provision. In fact, since the plaintiff’s have attempted to proceed against an officer and an entity to whom the waiver does not expressly apply, the provision is clear that the plaintiff’s action ‘shall be dismissed.’ “

I'm a Crawford Long baby who grew up in Marietta and eventually wandered to the University of Southern Mississippi for college. Earned a BA in journalism (double minor in political science and history). Previously worked in Florida and Clayton County.

(2) comments

RetiredMCO

Just another black robe tyrant.

xphactor1

Geez... That darn constitution. You could enroll your children into a Troup County School though.

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