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Masks now required at 3 Jeffco private schools after lawsuit

Jefferson County Public Health sought a court order to force three schools to comply with an order requiring masks in schools.

JEFFERSON COUNTY, Colorado — Masks will now be required at three Jefferson County private schools that were sued by the health department earlier this month.

Jefferson County Public Health (JCPH) reached an agreement Wednesday with two of the three private schools named in the lawsuit. A judge granted a temporary injunction against the third school, Faith Christian Academy, on Thursday. That ruling is effective immediately. 

Faith Christian argued both that they were following the county's guidance, and that the county's public health order was unconstitutional.

The health department dropped its lawsuit against Beth Eden and Augustine Classical Academy on Wednesday. Those schools agreed to let the department do unannounced visits, after the lawsuit accused both schools of refusing inspectors. 

The hearing began Tuesday, after JCPH filed a civil lawsuit seeking to force several schools to comply with its health order requiring masks indoors at schools and childcare facilities.

The suit, filed on Sept. 15, accused Beth Eden Baptist School, Augustine Classical Academy and Faith Christian Academy of violating the health order. JCPH sought an injunction from the court that would force the schools to comply with the order and prevent them from denying inspectors entry to the schools.

As part of its argument for the injunction, JCPH said that in August of this year, the rate of COVID-19 in unvaccinated individuals over the age of 12 was 17 times higher compared to vaccinated individuals. It noted that a vaccine has not been approved for anyone under age 12.

The health department also argued that about 28.6% of all confirmed Jefferson County outbreaks reported in the fall of 2020 were either in child care or pre-K through grade 12 school settings.

RELATED: Jeffco amends public health order on masks in schools

Tuesday morning, outside the courthouse, there was a circle of prayer. Supporters of the three schools lifted their voices as attorneys inside litigated the county's public health order. Supporters of the schools also filled up the courtroom, to the point where it was standing room only. 

Beth Eden Baptist School

In late August, JCPH says in the lawsuit, it received complaints that Beth Eden was not complying with the order and someone from there called and spoke with the school principal. During that Aug. 24 call, the lawsuit says, the principal indicated they were allowing parents to seek an exemption to mask-wearing without providing a basis for one and that some parents had opted for such exemptions.

Two days after that call, the lawsuit says, the principal sent a letter to parents of students informing them that the school was “out of step with the government mandate” and explained why they were not willing to comply.

That letter also included an attachment that was a waiver and release that purported to release the school from legal responsibility for infection, the lawsuit says. The letter also explained that exemptions could be claimed "without providing a basis," the lawsuit says.

On Aug. 31, JCPH inspectors conducted a compliance inspection of Beth Eden and issued a notice of violation. The lawsuit said inspectors observed three classes of 30 to 40 students without masks, three teachers without masks, and three administrators without them.

The lawsuit says the school refused to allow inspectors inside the school for future "unscheduled" inspections.

9NEWS has reached out to Beth Eden Baptist School for comment, but has not yet heard back.

RELATED: Can kids be harmed wearing masks to protect against COVID?

Augustine Classical Academy

On Aug. 31, JCPH received a copy of an email sent out by the Augustine board of directors that indicated the board was aware of the health order, but stated that "only parents, on behalf of a child, can decide whether an exception or testing requirement applies to a child," the lawsuit says.

That email also said employees and staff could "decide for themselves" whether an exemption or testing requirement applies to them, according to the lawsuit.

The next day, inspectors attempted to visit the school but were denied entry, with an explanation that the school requires "scheduled appointments," the lawsuit says.

On Sept. 3, JCPH sent a letter to Augustine outlining their inspection authority, and on Sept. 7, JCPH, along with an inspector from the Colorado Office of Early Childhood (COEC), attempted to conduct another compliance inspection.

JCPH inspectors were told by an administrator to wait outside, the lawsuit says, but the COEC inspector did wait and went into the preschool, where 10 children were observed without masks. Only two children were wearing masks.

JCPH inspectors were eventually allowed inside, and they observed approximately 70 children wearing masks and 15 children without masks, the lawsuit says. Most of the children not wearing masks were in grades other than preschool.

Augustine Classical Academy released the following statement to 9NEWS:

Augustine Classical Academy (ACA) was surprised by this complaint based on the fact that JCPH inspectors were escorted into the facility to investigate complaints and those inspectors clearly indicated that ACA was found to be in compliance with the public health order, as mentioned in the complaint. Inspectors verbally confirmed our compliance. JCPH’s complaint indicates a delay in allowing inspectors into the campus, which is based on standard protocol as a locked campus. Therefore, a slight delay while administrators determine the visitor’s identity and safety is reasonable to keep our students safe. 

Also, ACA finds it notable that despite the fact that JCPH is receiving complaints about public schools being noncompliant, the complaint names three small, religious schools. We are curious about why JCPH targeted small religious schools in what appears to be an effort to intimidate, if not harass, our schools for being non-compliant with the public health order when all three schools have either clearly indicated their voluntary compliance and/or been investigated and found to be in compliance by JCPH inspectors. 

ACA echoes the sentiments shared by Faith Christian Academy that this litigation is unfortunate for our community, especially during already stressful times for families. We share JCPH’s concern about Covid and are pleased to report that since opening for in-person learning in August 2020--13 months ago--we have had zero Covid outbreaks, which indicates that ACA is not now nor has ever been a public-health threat. We wholeheartedly share the goals of prioritizing in-person learning and protecting the well-being of students and recognize that JCPH has a legitimate role in helping the public navigate health issues. It is unfortunate that JCPH has chosen to depart from their properly appointed role and are instead using tax dollars to launch unfounded and baseless lawsuits against religious organizations who are committed to helping people and families.

Faith Christian Academy

The lawsuit alleges the school knew about the requirement as of Aug. 16, but the next day on Aug. 17, the superintendent sent an email communication to parents stating his intent to not to abide by it.

On Aug. 21, the lawsuit says, a second communication was sent to families stating they will not be following the required provisions of the health order. Several days later, the lawsuit says, a JCPH representative attempted to educate the school about the order to gain voluntary compliance.

On Aug. 26, the lawsuit says, the school was issued a notice of violation after an on-site inspection. The next day, the lawsuit says, the superintendent sent another communication reiterating their stance to not comply with the order.

The school refused to allow inspectors in for follow-up inspection on Sept. 8, the lawsuit says.

Faith Bible Chapel International, which operates the school, provided this statement in response:

The allegations against FCA are demonstrably false. In particular, JCPH alleges FCA has not complied with the current public health orders, but that is not true. FCA has and will continue to comply with those orders, even though some experts believe they were not lawfully entered.

This lawsuit is unfortunate for our community, especially during these already stressful times for families. We believe the role of JCPH should be to help the public navigate health issues instead of using tax dollars to launch unfounded and baseless lawsuits against religious organizations who are committed to helping people and families.

Read the full lawsuit below:

JCPH provided the following statement about the decision to pursue legal action.

After extensive effort to provide education and support to ensure compliance with PHO 21-002, Jefferson County Public Health (JCPH) has taken legal action against three schools (Faith Christian Academy, Augustine Classical Academy and Beth Eden Baptist School) to ensure compliance with the Order. Non-compliance places students, teachers, staff, and their families at increased risk of COVID-19 and also jeopardizes continued in-person learning.

Our approach to all Public Health Orders, including PHO 21-002, is to provide education and support to obtain voluntary compliance, and to only pursue legal options when all other options to ensure compliance are exhausted. We cannot comment further as this litigation is pending.

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