photo by: Mackenzie Clark

The Douglas County Judicial and Law Enforcement Center, which houses Douglas County District Court and a number of other criminal justice services at 111 E. 11th St., is pictured April 8, 2020.

A Baldwin City mother who filed a petition challenging Douglas County’s mask mandate never applied for an exemption for her child, who would have been granted one if she had, a special education director told the Journal-World on Thursday.

Marie Taylor, the mother of a 9-year-old boy, recently filed the petition in Douglas County District Court challenging the county’s current mask order, which requires anyone between the ages of 2 and 11 to wear a mask indoors in public settings, including in public school buildings.

In the petition, Taylor alleges that the mask mandate causes her child “severe anxiety, stress and a lack of concentration.”

However, Daniel Wray, director of special services for the East Central Kansas Cooperative in Education, said the organization informed Taylor that her child would be granted an exemption from wearing a mask while receiving services from the organization if she applied for one. But Wray said she never applied and instead pursued litigation against the county.

“She has repeatedly said that she would not (apply for an exemption), demonstrating that she is less interested in him receiving services than she is in politicizing the situation to advance the mask position she obviously supports,” Wray said.

Douglas County’s mask order provides exemptions to the order for various reasons, such as a medical condition, mental health condition or disability that prevents wearing a face covering.

When asked why Taylor did not apply for an exemption, her attorney, Joshua Ney, suggested the child may not actually have been granted an exemption. Although Ney said he would not discuss the child’s personal health information, citing medical privacy, he said the child does not currently have a doctor’s note certifying his medical condition, which is required for an exemption to be granted.

Additionally, he said the petition specifically challenges whether the length of the county’s order is legal, not whether the educational organization is following the order correctly.

“This particular case is not challenging the reasonableness of the school district’s actions or even whether the district’s requirement of a doctor’s certification is ultimately necessary under Section 2 of the county’s order,” Ney said, referring to exemptions listed in the order. “The case has been brought by a child with standing solely to challenge the length of the order and preserve the ability for himself and others to seek judicial review if conditions change.”

Taylor’s petition had its first hearing in court on Thursday. The hearing was used to schedule future dates for when attorneys in the case need to file their arguments in the matter and did not include any discussion of the facts of the case. The next hearing in the case is scheduled for Nov. 22.

In the petition, Taylor alleges that the mask mandate interferes with the child’s education because he is required to wear a mask when attending a Baldwin City school, where he receives speech special education services. Despite the child’s alleged issues with wearing a mask, the school district’s special education provider, East Central Kansas Cooperative in Education, told the mother he would be required to wear a mask to receive the services because of the county’s order, according to the petition.

But Wray disputed Taylor’s allegations, calling them “hyperbolic.”

ECKCE is a special education provider working with the Baldwin, Eudora and Wellsville school districts, with resource rooms in school buildings for each district, according to the organization’s website. Wray was specifically named in the petition as the individual who informed Taylor of the mask requirement.

Wray told the Journal-World Taylor’s child is homeschooled and does not attend Baldwin City public schools, as the petition states. ECKCE offered to provide special education services to the child, despite not being required to do so by statute, he said. But if the child were to receive services from the organization, he would have to follow the rules for all of the students receiving services, including wearing masks.

“We offered, above our statutory obligation, to let him come in to receive services if (his) mom would bring him,” Wray said. “We were clear that he would still need to follow the rules for all students upon entering the building.”

Wray also said the child was never denied services and the organization still offers to serve him if she chooses to bring him in.

The Douglas County Commission issued the mask order in August, then extended it for 90 days in September because children in that age range were not yet eligible to receive COVID-19 vaccines, the Journal-World previously reported. Douglas County’s health officer, Dr. Thomas Marcellino, said in September that the mask requirement had met the goal of helping keep kids in school and avoided the shutdowns that have occurred in other areas due to COVID outbreaks.

The county’s order is currently in place until Dec. 22. The petition specifically asks the court to limit the county’s mask mandate to 30 days after issuance, as opposed to the current 90-day order. Under such an order, the mask mandate would have expired last week, but would also still allow for the County Commission to extend it again.

The petition was filed last week and lists the defendants as the Douglas County Commission and Marcellino. Karrey Britt, a spokeswoman for the county, told the Journal-World on Wednesday that the county would not comment on pending litigation. Attorney Brad Finkeldei appeared in court on Thursday representing the defendants. Finkeldei is the assistant county counselor and is also currently the mayor of Lawrence and serves on the City Commission.

Meanwhile, Ney said school buildings are just one area where the mask mandate affects children.

“Young children are obligated to wear masks in grocery stores, recreational facilities and office buildings while their older siblings and others over the age of 11 do not,” he said. “We seek a judicial determination of how often the county is legally required to review and reissue these child-specific mandates as conditions change this fall.”