A couple of weeks ago Portage School District parents sued the Superintendent, the school board and the school district.  Now the Mattawan School District parents have sued their Superintendent, the school board and the school district for the mask mandate they have enforced for their schools and students.  The lawsuit was filed in the Van Buren County Circuit Court.

The current mask mandate at Mattawan schools is:

Masks are required for staff, students, and visitors in all grades, in all buildings, during the compulsory academic day. This will be in effect through January 28, 2022. At this time, the District will either a) extend the requirement, or b) adjust it based on the current data. Masks will not be required for any student-athlete participating in indoor athletic events or practices or for spectators; this is subject to change. Masks and social distancing are strongly recommended for all participating and attending indoor events or practices.

Among other claims the lawsuit contends that Superintendent Randy Fleenor does not have the authority to mandate the children wear masks at school because he is not an elected official.

Also, the Michigan School Code requires a majority vote of the school board, a vote that the Superintendent does not have.

Michigan's nondelegation clause states only the Legislature can delegate the ability to write a law to the executive branch.  Thus the legislative branch writes laws, not an executive branch in a school.  Therefore, the school code violates the separation of powers.

This suit does have an additional count that was not present in the Portage suit.  This suit also added a violation of the constitutional non-delegation clause. The nondelegation clause is:

a principle of constitutional and administrative law that holds that legislative bodies cannot delegate their legislative powers to executive agencies or private entities. In other words, lawmakers cannot allow others to make laws.

In the Portage lawsuit, the school claimed they have authority to implement a mask mandate under the "safety & welfare" statute in the Revised School Code.  That revised school code act 451 of 1976 section 380.11a(b) states the following; (b) Providing for the safety and welfare of pupils while at school or a school-sponsored activity or while en route to or from school or a school-sponsored activity.

The lawyer for the parents believes this statute “does not pass the constitutional nondelegation clause because the statute provides no sufficient limits, standards, and the statute provides no intelligible principles to guide the school's use of authority”.

David Delaney, the lawyer for the parents told me:

Last week, on January 13th, Government overreach induced by the Covid 19 era was once again checked by two separate courts. One was the Supreme Court of the United States, where in a 6-3 decision the OSHA vaccine and test/mask mandate was shot down because OSHA could not trace their mandate to any authority given to them by congress. The second was right here in Michigan where an Otsego County judge ruled that the statute that was used by MDHHS to shutdown tens of thousands of restaurants and the statewide school mask mandate during the 2020/2021 school year was unconstitutional and was severed from the Michigan Health Code.

The mask mandates being implemented by local school districts is another form of government overreach as they cannot trace their authority to any statute passed by the Michigan Legislature which is required in the separation of powers clause in the Michigan Constitution.

The suit will asking for a Declaratory Judgment claiming that the school is violating sec 1504 of the school code by requiring students to wear a medical device absent of parental consent.

As I stated on my show if a school can make their students wear a medical device (mask) what can't a school do under this statute?

I will be interviewing David on my show Thursday at 10:00 am.

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