Bentonville Sch. Dist. v. Sitton

• Citation: 2022 Ark. 80,643 S.W.3d 763
• Decision Date: 14 April 2022
• Docket Number: CV-21-498
• Parties: BENTONVILLE SCHOOL DISTRICT ; Dr. Debbie Jones, Superintendent, in Her Official Capacity; Eric White, School Board President, in His Official Capacity; Matt Burgess, Board Member, in His Official Capacity; Kelly Carlson, Board Member, in His Official Capacity; Brent Leas, 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, Appellants v. Matt SITTON, Matthew Bennett, and Elizabeth Bennett, Appellees
• Court: Arkansas Supreme Court

2022 Ark. 80

643 S.W.3d 763

BENTONVILLE SCHOOL DISTRICT ; Dr. Debbie Jones, Superintendent, in Her Official Capacity; Eric White, School Board President, in His Official Capacity; Matt Burgess, Board Member, in His Official Capacity; Kelly Carlson, Board Member, in His Official Capacity; Brent Leas, 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, Appellants

v.Matt SITTON, Matthew Bennett, and Elizabeth Bennett, Appellees

No. CV-21-498

Supreme Court of Arkansas.

Opinion Delivered: April 14, 2022

Friday, Eldredge & Clark, LLP, Rogers, by: Marshall S. Ney, and Katherine C. Campbell, for appellants.

Story Law Firm, PLLC, by: Gregory F. Payne and Travis W. Story, Fayetteville, for appellees.

JOHN DAN KEMP, Chief Justice

Appellants Bentonville School District and Dr. Debbie Jones, Superintendent, Eric White, Matt Burgess, Kelly Carlson, Brent Leas, Willie Cowgur, Joe Quinn, and Jennifer Faddis, in their official capacities (collectively "the District"), have filed an interlocutory appeal from a Benton County Circuit Court order enjoining the enforcement of the District's mask policy in favor of appellees Matt Sitton, Matthew Bennett, and Elizabeth Bennett (collectively, "the parents"). For reversal, the District argues that the circuit court abused its discretion in ruling that (1) the District's mask policy violated the parents’ constitutional rights to care for their children pursuant to article 2, sections 21 and 29 of the Arkansas Constitution ; (2) the District lacked authority to issue its school policy; (3) the parents suffered irreparable harm; and (4) a justiciable controversy existed. We reverse the circuit court's temporary restraining order (TRO) and remand to the circuit court for the entry of an order consistent with this opinion.

I. Facts

During the summer of 2021, the highly contagious Delta variant swept across the country, and COVID-19 cases increased dramatically in Arkansas.¹ On August 11, 2021, the Bentonville School District Board ("Board") convened to consider implementing a mask policy to combat the spread of COVID-19 among its students. According to the sworn affidavit of the superintendent, Dr. Debbie Jones, the Board heard statements from parents, students, physicians, medical professionals, and representatives of the Arkansas Department of Education (ADE) and the Arkansas Department of Health (ADH). After deliberations, the Board promulgated Emergency Policy EP 1.3.21 ("the policy"), entitled "Wearing of Face Masks and Face Coverings," for the 2021–2022 school year. Specifically, the policy stated:

All 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. All masks and face coverings must cover the nose and mouth of the student. Students shall wear masks and face coverings at all times except for the following:

• Students may remove masks and face coverings while outdoors;

• Students may remove masks and face coverings for eating or drinking;

• Students may remove masks and face coverings when appropriate physical distancing measures are in place as determined by a Bentonville Schools staff member;

• Students may remove masks and face coverings on a case-by-case basis for specific instructional needs, including physical education activities, as determined by a teacher, in which case the teacher will require appropriate physical distancing measures to the extent possible;

• Students may remove masks and face covering while participating in athletic activities where a six feet distance is not achievable, but a mask is inhibitory to the activity or Students[’] active exercise;

• May be exempted from this Emergency Policy due to special behavioral or individualized needs as determined by the Executive Director of Special Services or the Executive Director of Student Services. *A physician's note stating the student should not be required to wear a face covering due to a medical condition or disability shall be provided to the school principal to allow for exemption; or

• Students may be exempted from this Emergency Policy by the school principal due to a documented medical condition or disability of the student.

https://go.boarddocs.com/ar/bentonville/Board.nsf/Public# (choose "Policies" from menu bar; then choose "Section 1. Board Governance and Operations (EP 1.3.21), archived at https://perma.cc/4ZC6-DAVW ).

The policy further stated that the Board "shall review the face mask policy at every regular Board of Education meeting, beginning with the September 2021 regular Board of Education meeting, to determine policy continuance." Id. By periodically reviewing the policy, the Board would determine whether "[t]he school district has a fourteen-day coronavirus (COVID-19) infection rate of at least fifty (50) new known infections per ten thousand (10,000) residents of the public school district based on the most recent data published by the [Arkansas] Department of Health or the Arkansas Center for Health Improvement." Id. The Board would also consider "[t]he availability of vaccinations

for those [students] below 12 years of age." Id. The District's policy evolved from its Safe Schools Plan² , which referenced both the ADH directives and the Centers for Disease Control and Prevention (CDC) guidelines, which applied to the 2021–2022 academic year.

On September 10, 2021, the parents filed a petition for declaratory judgment and damages in the Benton County Circuit Court.³ In their petition, the parents asserted that the policy violated their constitutional rights guaranteed by article 2, sections 21 and 29 of the Arkansas Constitution and the Arkansas Civil Rights Act of 1993 (ACRA). They sought declaratory relief, a permanent injunction prohibiting enforcement of the policy, and damages under the ACRA.

The parents also moved for a TRO and sought to temporarily enjoin the District's policy. The District opposed the TRO motion, arguing that the parents had not demonstrated that the policy violated a fundamental right and had failed to demonstrate a likelihood of success on the merits. After a hearing on the matter, the circuit court entered an injunction order on October 12, 2021, and ruled that "the district policy violates the Plaintiffs’ constitutional rights and was enacted without proper authority and is enjoined." The District timely appealed. We therefore have jurisdiction of this appeal pursuant to Arkansas Rule of Appellate Procedure–Civil 2(a)(6).

II. Mootness

As a threshold matter, we must address whether the instant appeal is moot. Both parties acknowledge in their briefs that the District's policy "lapsed" days after the circuit court's order in October 2021 because of a decline in the local COVID-19 infection rates. The District contends that the instant appeal falls under one of the mootness exceptions as capable of repetition yet evading review because "[the policy] may be revived" and "could again be implemented" if the COVID-19 infection rates rise again. The parents also claim that the case falls under a mootness exception because the District's authority "waxes and wanes based on an arbitrary number of active infections" in the community.

As a general rule, this court will not review issues that are moot. Ark. Dep't of Hum. Servs. v. Ledgerwood , 2019 Ark. 100, at 2, 571 S.W.3d 1, 2. To do so would be to render advisory opinions, which this court will not do. Id. , 571 S.W.3d at 2. A case is moot when any judgment rendered would not have any practical legal effect upon a then-existing legal controversy. Id. , 571 S.W.3d at 2. In other words, a moot case presents no justiciable issue for determination by the court. Id. , 571 S.W.3d at 2. We also may not issue advisory opinions in anticipation of future litigation. Walker v. McCuen , 318 Ark. 508, 516, 886 S.W.2d 577, 582 (1994). Courts do not sit for the purpose of determining speculative and abstract questions of law or laying down rules for future conduct. Flow Doc, Inc. v. Horton , 2009 Ark. 411, at 6, 334 S.W.3d 865, 870.

This court has repeatedly held that changes in the law may render claims moot. Hutchinson v. Armstrong , 2022 Ark. 59, at 6, 640 S.W.3d 395, 398–99 ; City of Clinton v. S. Paramedic Servs., Inc. , 2012 Ark. 88, at 10, 387 S.W.3d 137, 142 (stating that "any opinion handed down by this court based on repealed ordinances and a nonexisting franchise procedure would simply be an advisory opinion"); Warren Wholesale Co., Inc. v. McLane Co., Inc. , 374 Ark. 171, 174, 286 S.W.3d 709, 710–11 (2008) (holding that the issue was moot after the entry of the circuit court's order because the board promulgated a new regulation and repealed the version challenged by the declaratory-judgment action).

Here, the parents challenge the policy promulgated by the Board. The policy states that the "Board shall review the face mask policy at every Board of Education meeting, beginning with the September 2021 regular Board of Education meeting, to determine policy continuance." But both the District and the parents have acknowledged to this court that the policy "lapsed" in October 2021 shortly after the circuit court entered its order. Because the circuit court relied on the now-lapsed policy in its order, the grounds on which the circuit court entered its TRO have been rendered moot. See Armstrong , 2022 Ark. 59, at 6, 640 S.W.3d at 398–99.

III. Mootness Exception

Next, we must determine whether the case falls under a mootness exception. We have recognized two exceptions to the mootness doctrine for (1) issues that are capable of repetition yet evade review, and (2) issues that raise considerations of substantial public interest which, if addressed, would prevent future litigation. Convent Corp....