IN THE CIRCUIT COURT OF BENTON COUNTY, ARKANSAS CIVIL DIVISION

MATT SITTON and MATTHEW AND ELIZABETH BENNETT, PETITIONERS V. Case No. _____________________ BENTONVILLE SCHOOLS, DR. DEBBIE JONES, Superintendent, in her official capacity, ERIC WHITE, School Board President, in his official capacity, KELLY CARLSON, board member, in his official capacity, BRENT LEAS, board member, in his official capacity, MATT BURGESS, board member, in his official capacity, WILLIE COWGUR, board member, in his official capacity, JOE QUINN, board member, in his official capacity, and JENNIFER FADDIS, board member, in her official capacity. RESPONDENTS

PETITION FOR DECLARATORY JUDGMENT AND FOR DAMAGES FOR DEPRIVATION OF RIGHTS

COMES NOW, the Petitioners, Matt Sitton and Matthew and Elizabeth Bennett, and in

support of their Petition for Declaratory Judgment pursuant to A.C.A. § 16-111-101 et seq., and

for Deprivation of Rights pursuant to A.C.A. § 16-123-101 et seq., states and alleges as follows:

PARTIES

1. Petitioners, Matt Sitton and Matthew and Elizabeth Bennett, are residents of Benton

County, Arkansas, who are the natural parents of school-age children attending Bentonville

Schools and who allege that the provisions of the Bentonville Schools Emergency Policy EP

1.3.21 entitled Wearing of Face Masks and Face Coverings, dated August 11, 2021, generally

applicable to all school-aged children who have neither contracted or been exposed to the

COVID-19 virus, issued without legal authority infringes on their fundamental liberty interests

of parents.

ELECTRONICALLY FILEDBenton County Circuit Court

Brenda DeShields, Circuit Clerk

2021-Sep-10 09:25:0704CV-21-2181

C19WD05 : 74 Pages

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2. Respondents are the Bentonville Schools and members of the Bentonville School

Board that promulgated EP 1.3.21, with offices located at 500 Tiger Boulevard, Bentonville, AR

72712, each named in their official capacities who enacted the Bentonville Schools Emergency

Policy EP 1.3.21 entitled Wearing of Face Masks and Face Coverings, dated August 11, 2021 as

an ultra vires act.

STANDING

3. Petitioners’ allegations of violation of their fundamental liberty interests as parents

confers upon them standing given that one whose rights are affected by a statute or regulation, or

in this case a school policy, has standing to challenge it on constitutional grounds. Magruder v.

Arkansas Game and Fish Commission, 287 Ark. 343, 698 S.W.2d 299, 300 (1985).

4. Moreover, that the Bentonville School Board, through passage of Emergency Policy

EP 1.3.21 has required parents to choose between sending their children to school without masks

and face disciplinary action, sending them with masks in violation of their fundamental rights as

parents to make that decision, or to remove them for the school altogether though the school

district has a constitutional obligation to offer free education to all children. Therefore,

Petitioners are irreparably harmed. See, Walker v. Arkansas State Board of Education, 2010

Ark. 277, 365 S.W.3d 899, 908 (2010).

5. Since every parent of school-aged children within the Bentonville School District are

entitled to the services Respondents are constitutionally obligated to provide, and absent the

illegal mask mandate issued by Respondents and the resulting deprivation of parental rights

would be using, pursuant to A.C.A. § 16-12-105, as parents within said jurisdiction Petitioners

are entitled to legal and equitable relief or other proper redress.

JURISDICTION AND VENUE

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6. Jurisdiction and venue are proper in this Court pursuant to the Arkansas Declaratory

Judgment statutes, A.C.A. § 16-111-101, et seq., that states “Courts of record within their

respective jurisdictions shall have the power to declare rights, status, and other legal relations

whether or not further relief is or could be claimed.” Moreover, every affected person within the

jurisdiction, in this instance the Bentonville School District, can seek relief in the circuit court

under A.C.A. § 16-123-105(a).

INTRODUCTION

7. Pursuant to Article 14, § 1 of the Arkansas Constitution of 1874, the State has an

affirmative duty to provide to the citizens of Arkansas a free and suitable education:

Intelligence and virtue being the safeguards of liberty and the bulwark of a free and good government, the State shall ever maintain a general, suitable and efficient system of free public schools and shall adopt all suitable means to secure to the people the advantages and opportunities of education. The specific intention of this amendment is to authorize that in addition to existing constitutional or statutory provisions the General Assembly and/or public school districts may spend public funds for the education of persons over twenty-one (21) years of age and under six (6) years of age, as may be provided by law, and no other interpretation shall be given to it. 8. The Arkansas Supreme Court, while not holding that the above language established a

fundamental right to an adequate education, it did hold that “the clear language of Ark. Const.

art. 14 imposed upon the State an absolute constitutional duty to provide an adequate education

to its children.” Walker v. Arkansas State Board of Education, 2010 Ark. 277, 365 S.W.3d 899,

908 (2010).

9. While it is the sole constitutional function of the various school districts to carry out

the state’s duty to education its children, “a parent has a liberty interest . . . in shaping a child’s

education.” Linder v. Linder, 348 Ark. 322, 342–43, 72 S.W.3d 841, 851–52 (2002).

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10. Likewise, it is the opinion of the Arkansas Supreme Court that “[a] parent's right to

the care and control of his or her child is a fundamental liberty . . . .” Tuck v. Arkansas Dep't of

Hum. Servs., 103 Ark. App. 263, 266, 288 S.W.3d 665, 668 (2008).

The Arkansas Department of Health

11. On April 26, 2018, assuming power conferred to it by the Arkansas General

Assembly appearing in A.C.A. § 20-7-109, and as “general measures for the control of

communicable diseases,” the Arkansas State Board of Health adopted Rules and Regulations

Pertaining to Reportable Disease, property promulgated under the Arkansas Administrative

Procedures Act, approved by the Arkansas legislature and made effective January 1, 2019 (the

“2019 Rules”), that states as its purpose, “to provide for the prevention and control or

communicable diseases and to protect the public health, welfare and safety of the citizens of

Arkansas,” said 2019 Rules are attached hereto as Exhibit A and incorporated herein by

reference.

12. Assuming, arguendo, that the 2019 Rules apply to COVID-19 or any of its numerous

variants without the specific enumeration of that particular family of viruses included within

Section V of the Rules given that COVID-19 does not appear in said list, the 2019 Rules

authorize the Director of the Arkansas Department of Health (“the ADH”) in Section X, only to

“impose such quarantine restrictions and regulations upon commerce and travel by railway,

common carriers, or any other means, and upon all individuals as in his judgment may be

necessary to prohibit the introduction of communicable disease into the State, or from one place

to another within the State.”

13. Section I of the 2019 Rules defines of the terms “quarantine” and “isolation” for the

powers delegated to ADH exclusively. The term “quarantine” is bifurcated between “complete

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quarantine,” defined as “the limitation of freedom of movement of such well persons . . . as have

been exposed to a communicable disease, for a period of time not longer than the longest

incubation of the disease, in such manner as to prevent effective contact with those not so

exposed,” and “modified quarantine,” meaning “a selective, partial limitation of freedom of

movement or persons . . . commonly on the basis of known or presumed differences in

susceptibility, but sometimes because of danger of disease transmission.”

14. The term “isolation,” as it appears in Section IX of the 2019 Rules, is “the duty of the

attending physician, immediately upon discovering a disease requiring isolation, to cause the

patient to be isolated pending official action by the Director.”

15. In short, quarantine rules apply only to persons who have contracted one of the list of

reportable diseases from Section V, those who have been exposed to a communicable disease, or

selectively otherwise based on susceptibility. In no instances do the rules account for

indiscriminate, arbitrary or capricious quarantine measures, including but not limited to generally

applicable mask mandates, i.e., applicable to otherwise healthy people who have not eiher

contracted, been exposed to, or who have been deemed particularly susceptible to COVID-19,

and certainly not by a local school board.

16. Nevertheless, Section X of the 2019 Rules holds the authority delegated to the ADH

Director, and to him alone, by the Arkansas legislature to impose such quarantine restrictions

upon individuals as in his judgment may be necessary to prevent the introduction of

communicable diseases into the State, or from one place to another within the State.

17. On July 16, 2020, Governor Hutchinson, by Executive Order 20-43, based on ADH

recommendations, ordered the Secretary of the Department of Health to issue a directive

“requiring every person in Arkansas to wear a face covering over the mouth and nose in all

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indoor environments where they are exposed to non-household members and distancing of six

(6) feet or more cannot be assured . . . ,” a directive that exempted persons younger than 10 years

of age.

18. In order to issue his mask mandate in EO 20-43, the Governor cited authority

purportedly vested to him under [the Arkansas Emergency Services Act], A.C.A. §§ 12-75-101

et seq., and A.C.A. § 20-7-110 “in consultation with the Secretary of Health . . . .” Said

Executive Order EO-20-43 attached hereto as Exhibit B and incorporated herein by reference.

19. The Governor’s mask mandate expired on May 30, 2021 and has not been renewed,

nor has another similar executive order or ADH directive been issued, so there is currently no

mask mandate existing in the State of Arkansas other than the ultra vires acts of school districts

like Respondents.

20. Respondents attempt to exercise here the power to mandate the wearing of face

masks by simple majority vote of the Board, an act that required the Governor of this State to

take the extraordinary act of exercising his purported emergency authority by Executive Order

pursuant to the Emergency Services Act.

Judge Fox’s Temporary Restraining Order of Act 1002

21. On August 6, 2021, the Circuit Court of Pulaski County entered an Order for

Declaratory Relief in Case No. 60CV-21-4763 in which it declared Act 1002, that prohibited

mask mandates passed by the Arkansas legislature earlier this year, unconstitutional as in

violation of the separation of powers doctrine by infringing on the power of county judges, the

state Supreme Court, and the emergency authority of the Governor. While said court order did

not recognize any inherent power residing in public school boards, the Court did suggest Act

1002 discriminated between private and public school children. But private schools are not state

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actors, and, regardless, parents send their minor children to private schools voluntarily and,

therefore, consent to the conditions attendant to private school enrollment, said Order is attached

hereto as Exhibit C and incorporated herein by reference.

22. However, given that Judge Fox’s decision in Pulaski County Circuit Court Case No.

60CV-21-4763 was the result of a claim filed under the Arkansas Declaratory Judgment statute,

by operation of law appearing in A.C.A. § 16-111-01, it has effect only within that court’s

respective jurisdiction. Judge Fox, as a circuit court judge for Pulaski County ,therefore, was

without authority to make any declaration affecting the applicability of Act 1002 outside his

jurisdiction, whereby Act 1002 is still the law for every county outside Pulaski County, including

Benton County and any mask mandate in Benton County is illegal.

The Arkansas Department of Education

23. The Arkansas Department of Education has issued its “2021-2022 COVID-19

Guidance for Schools, dated August 10, 2021, said Guidance attached hereto as Exhibit D and

incorporated herein by reference.

24. On Page 2 of said Guidance is referenced like CDC guidance that states, “When

teachers, staff, and students consistently and correctly wear a mask, they protect others as well as

themselves.” Other than a providing talking points, the CDC, of course, cannot empower a local

school district to mandate mask wearing.

25. On page 3 of the Guidance is noted that:

On August 6, 2021, Judge Tim Fox issued a temporary order that prohibits the enforcement of Act 1002 of 2021 pending continuing court proceedings. Under the order, there can be no enforcement action taken against any school district or charter school that adopts or implements a requirement to use face masks/face coverings. It is recommended that districts and charter schools consult district legal counsel when considering the adoption or implementation of mask/face covering requirements and the applicability of current local policies.

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26. In other words, the Arkansas Department of Education has not authorized local

school boards to issue mask mandates since it has no jurisdiction over health policy which is the

exclusive province of the Department of Health. Rather, it suggests that a temporary restraint on

a legislatively enacted ban equates to permission. In other words, they take the position that

since Judge Fox said the legislature cannot ban mask mandate, school boards can enact them

regardless of the lack of an affirmative grant of authority, an incorrect statement of law.

27. Nevertheless, Respondents have no power to issue a mask mandate based on any

purported grant of authority from the Arkansas Department of Education.

Bentonville School Board

28. The State’s interpretation of the 2019 ADH rules in the context of school board mask

mandates is provided in a September 3, 2021 letter from ADH Secretary Jose Romero to

Secretary Johnny Key of the Arkansas Department of Education, that while referencing the

proposition that “ADH and ADE should continue to urge schools to maintain as many mitigation

measures as possible, or risk increased spread within the school setting,” it cites no authority for

a generally applicable mask mandate since there is none. In fact, only those persons subject to

isolation or quarantine may be restricted, i.e., those who are known to be infected or those who

have been exposed, not otherwise healthy children, said letter openly acknowledging that:

Generally, isolation is a temporary separation, for the period of communicability, of a known infected person in such places and under such conditions as to prevent or limit the transmission of the infectious disease. Quarantine is the temporary restriction of the activities of persons who have been exposed to a communicable disease, during its period of communicability, to prevent disease transmission. [Emphasis added]

Said letter attached hereto as Exhibit E and incorporated herein by reference.

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29. No school board within the State of Arkansas has been delegated, directly or

indirectly, with isolation or quarantine authority by the Arkansas legislature, the Governor under

his emergency authority, or the ADH.

30. The Bentonville Safe Schools Plan for 2021-22, as amended by the School Board on

August 11, 2021, the precursor statement providing notice to parents of Respondent’s intent to

issue a mask mandate, states that as its authority on Page 4, that “the Arkansas Department of

Health Rules Pertaining to the Control of Reportable Diseases provides for the prevention and

control of communicable diseases to protect the public health, welfare, and safety of the citizens

of Arkansas. Local public schools are granted the authority to quarantine and isolation as

designees of the Secretary of Health,” said Plan attached hereto as Exhibit F and incorporated

herein by reference.

31. Clearly, that statement is nonsense, factually false, and based on no legal authority.

32. Policy EP 1.3.21 that evolved from the aforementioned Safe Schools Plan and

entitled “Wearing of Face Masks and Face Coverings” issued August 11, 2021 by Respondents,

mandates the wearing of face masks generally applicable to “[a]ll students age three (3) through

the 12th grade.” As a tacit admission of the lack of legal authority to issue said mask mandate

none is expressly cited, said Policy is attached hereto as Exhibit G and incorporate herein by

reference.

33. There are only two (2) references to the responsibilities of public schools contained

in the 2019 ADH Rules, neither of which endow those schools with the authority to isolate or

quarantine students.

34. Section III of the 2019 Rules, entitled “Responsibility for Reporting,” provides that it

is “the duty of every superintendent of a public school district of such person(s) he designates, to

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report immediately to the Department on the Toll Free Disease Reporting System any outbreak

of three (3) or more cases of any of the conditions declared notifiable.”

35. Likewise, Section XIV of the 2019 Rules states that “[i]t shall be the duty of the

principal or other person in charge of any public or private schools, or child care facilities, at the

direction of the Department, to exclude therefrom any child, teacher or employee affected with a

communicable disease until the individual is certified free of disease, by written notice from a

physician, school nurse, public health nurse or the Department,” i.e., the isolation of an

individual student, teacher or employee.

36. Therefore, the Bentonville Schools, acting of its own volition and without the

express authority or the Arkansas legislature, the Governor, or the Arkansas Department of

Health, pursuant to EP 1.3.21 issued August 11, 2021, as it affects Petitioners and their children,

arbitrarily and illegally issued its own generally applicable mandate for Face Coverings, thereby

ordering that “[a]ll students age three (3) through the 12th grade shall be required to wear a mask

or face covering (a) while attending school or an indoor school function in any school building,

District facility, or (b) when riding in school-provided transportation.”

37. Fundamentally, the police power of the state resides in the state legislature, not in the

Governor or the Arkansas Department of Health unless circumstances as they have been

anticipated by legislation have occurred and been delegated to an administrative agency, and

certainly not with any local school board.

COUNT I. DECLARATORY JUDGMENT

38. Petitioners restate and incorporate the allegations contained in Paragraphs 1-37

herein as if set forth in full.

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39. The Bentonville School board had no authority to issue a generally applicable face

coverings mandate for children that ignores that infringes upon the individual liberties

guaranteed to citizens of the State of Arkansas and in particular to Petitioners, in the care,

custody and management of their children recognized by the Arkansas Supreme Court as a

fundamental liberty interest and under Article 2, Section 29 of the Arkansas Constitution.

40. The mask mandate for students issued by the Bentonville School District is illegal as

not based on any authority delegated by the Arkansas legislature that holds sole police power in

the state, or of the Governor of the State of Arkansas under his delegated emergency authority, or

of the Arkansas Department of Health pursuant to its 2019 Rules for Communicable Diseases

and are, therefore, unconstitutional and illegal as applied to Petitioners and their children, as well

as being arbitrary and capricious in nature as made generally applicable to all students in

Bentonville schools in violation of the fundamental liberty interests of Petitioners in the care,

control and maintenance of their children.

41. The mask mandate issued by Respondent is, therefore, illegal and unenforceable by

the schools as “[s]tudents who refuse to wear a mask of face covering at school or at a school

function under this Emergency Policy shall be subject to discipline consistent with District

Policy and exclusion from on-site instruction.”

42. That Petitioners have the constitutional right to refuse to place face coverings on

their well children in their absolute discretion and enforcement of the face coverings mandate as

contained in the Board of Education Policy EP 1.3.21 dated August 11, 2021 should be

permanently enjoined.

43. It is incumbent upon this Court in determining the rights of Petitioners under the

Arkansas constitution to declare that the fundamental liberty interests of parents for the care,

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custody and management of their children shall not be infringed by the Bentonville School Board

by a face coverings mandate issued without legal authority and that said Emergency Policy EP

1.3.21 dated August 11, 2021 should be enjoined.

44. A.C.A. § 16-111-110 provides that the Court may make such award of costs as may

seem equitable and just.

COUNT II. VIOLATION OF THE ARKANSAS CIVIL RIGHTS ACT OF 1993 (“ACRA”)

45. Petitioners restate and reallege the allegations contained in Paragraphs 1-44 herein as

if set forth in full.

46. As heretofore stated, Petitioners as parents have a fundamental liberty interest in the

care, custody and maintenance of their children, and “[i]t is cardinal with us that the custody,

care and nurture of the child reside first in the parents, whose primary function and freedom

include preparation for obligations the state can neither supply nor hinder.” Linder v. Linder,

348 Ark. 322, 72 S.W.3d 841, 852 (2002).

47. Moreover, “so long as a parent adequately cares for his or her children (i.e., is fit),

there will normally be no reason for the State to inject itself into the private realm of the family

to further question the ability of that parent to make the best decisions concerning the rearing of

the parent’s children.” Id., at 853.

48. The Arkansas Civil Rights Act, A.C.A. § 16-123-105, provides that “[e]very person

who, under color of any statute, ordinance, regulation, custom, or usage of this state or any of its

political subdivision subjects, or causes to be subjected, any person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities by the Arkansas Constitution

shall be liable to the party injured in an action in circuit court for legal and equitable relief or

other proper redress.

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49. The Bentonville Schools Emergency Policy EP 1.3.21 that mandates the wearing of

face coverings for all students within its schools deprives Petitioners the rights to the sole

decision making authority regarding the health care and custody of their children and imposes

penalties if they choose to exercise that freedom.

50. By threatening to exclude students who refuse to abide by the unlawful mask

mandate they not only infringes upon Petitioners constitutional rights as parents, Respondents

deny to those students and their parents the rights and privileges of a free and adequate education

that is Respondents’ sole constitutional obligation under Article 14, § 1 of the Arkansas

Constitution.

51. Pursuant to A.C.A. § 16-123-105(c) of ACRA, an Arkansas court may look for

guidance to state and federal decisions interpreting the Civil Rights Act of 1871, which decisions

shall have persuasive authority only.

52. The damage to the constitutional rights of Plaintiff acting in their capacity as parents

making health and safety decisions in the best interest of their children is presumed given that

“[v]iolations of constitutional rights are deemed irreparable harm for purposes of injunctive

relief. See Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Planned

Parenthood of Minn., Inc. v. Citizens for Community Action, 558 F.2d 861, 867 (8th Cir.1977)

(interference with constitutional rights “supports a finding of irreparable injury”); see

also Overstreet v. Lexington–Fayette Urban County Gov't, 305 F.3d 566, 578 (6th Cir.2002)

(“denial of an injunction will cause irreparable harm if the claim is based upon a violation of the

plaintiff's constitutional rights”); Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir.1996)

(presumption of irreparable injury flows from a violation of constitutional rights).” Aaron v.

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Target Corp., 269 F. Supp. 2d 1162, 1173 (E.D. Mo. 2003), rev'd, 357 F.3d 768 (8th Cir. 2004),

overturned on appeal for other reasons.

53. Under Article 2, § 21 of the Arkansas Constitution, “[n]o person shall be taken, or

imprisoned, or disseized of his estate, freehold, liberties or privileges; or outlawed, or in any

manner destroyed, or deprived of his life, liberty or property; except by the judgment of his

peers, or the law of the land; nor shall any person, under any circumstances, be exiled from the

State.”

54. The deprivation of Petitioners’ fundamental liberty interests in the parenting of their

children by Respondents without legal authority or due process is unconstitutional.

55. Likewise, Article 2, § 29 of the Arkansas Constitution reserves to the citizens of the

State rights not otherwise granted the State, stating that “[t]his enumeration of rights shall not be

construed to deny or disparage others retained by the people; and to guard against any

encroachments on the rights herein retained, or any transgression of any of the higher powers

herein delegated, we declare that everything in this article is excepted out of the general powers

of the government; and shall forever remain inviolate; and that all laws contrary thereto, or to the

other provisions herein contained, shall be void.

56. Petitioners, as citizens of the State of Arkansas, are entitled to their fundamental

liberty interests as parents in making the ultimate decisions regarding the health and well-being

of their children, which rights are being denied or disparaged by Respondents.

57. As set forth above, violation of the parental rights of Petitioners by Respondents has

cause Petitioners irreparable injury.

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58. Under A.C.A. § 16-123-106, an aggrieved party, as Petitioners are here, is entitled to

damages, including punitive damages, and in the discretion of the court to an award of the costs

of this action, and a reasonable attorneys’ fee in an amount to be fixed by the Court.

WHEREFORE, Plaintiff prays for the judgment of this Court that given it is the

fundamental right of Petitioners in the care, custody and management of their children as

recognized by the Arkansas Supreme Court and Article 2, Sections 21 and 29 of the Arkansas

Constitution that, therefore, the face coverings mandate EP 1.3.21 of the Bentonville School

District is void and unenforceable as having been issued without legal authority and in violation

of the constitutional rights of parents, for a permanent injunction of said mask mandate or any

similar generally applicable mask mandate issued by the school district, for actual and punitive

damages for violation of the Arkansas Civil Rights Act, for an award of costs including

reasonable attorneys’ fees as set forth in A.C.A. § 16-111-110 and A.C.A. § 16-123-105, and for

such other and further relief the Court deems just and proper.

Respectfully submitted, STORY LAW FIRM, PLLC By__Travis W. Story____________ Travis W. Story (2008274) By_Gregory F. Payne___________ Gregory F. Payne (2017008) 3608 N. Steele Blvd., Suite 105 Fayetteville, AR 72703 (479) 443-3700 travis@storylawfirm.com greg@storylawfirm.com ATTORNEYS FOR PETITIONERS