The debate over masking requirements at local schools is headed for the courtroom. Judge Thomas G. Power of the 13th Circuit Court heard from lawyers on Wednesday at a show cause hearing, one of the first steps in a new lawsuit filed last week against Traverse City Area Public Schools (TCAPS) and Grand Traverse Academy (GTA). The lawsuit, brought by Grand Rapids-based attorney James A. Thomas on behalf of his clients – one student from TCAPS and one from GTA – argues that the school districts and their boards lack the authority “under any rule of law” to mandate masks for students, given that there is currently no order to that effect from the Grand Traverse County Health Department (GTCHD).

To start, Thomas was seeking injunctive relief from the court, which would have at least temporarily barred TCAPS and GTA from enforcing their masking orders. Going into Wednesday’s hearing, Power had already denied Thomas’s motion for an ex-parte temporary restraining order, which would have forced the defendants to pause their mask mandates before they were even served with subpoenas. Power ruled that “injury to plaintiffs is not irreparable/immediate” and that Thomas had made “no effort to give notice to defendants” as required under the Michigan Court Rules.

Power also denied Thomas’s request for a preliminary injunction at Wednesday’s show cause hearing, ruling that Thomas had failed to prove that the plaintiff’s claims met Michigan’s four-factor standard for preliminary injunctive relief.

But that doesn’t mean the case is over. The matter will now go into litigation, with Power noting at the end of the hearing that the court will “send the pre-trial statements off and get a scheduling order in place.”

The lawsuit is, in part, the product of a social media and crowdfunding campaign that has been building for weeks. On September 8, local parent Sally Roeser launched a GoFundMe campaign called “LAWSUIT against TCAPS and GTA.” So far, that campaign has raised $7,850 toward a $15,000 goal, with the money earmarked for covering Thomas’s fees.

“We all have a responsibility to fight back against what we know is wrong, especially when it involves our children,” Roeser wrote. “We have met with an attorney from Grand Rapids who has agreed to take our case. He is involved in several other similar lawsuits around the state, against COVID mandates and restrictions in schools.”

Roeser did not respond to The Ticker’s request for comment.

In Wednesday’s hearing, Thomas argued that the school boards for TCAPS and GTA were overstepping their bounds by issuing rules that weren’t backed by local health department orders. While several northern Michigan health departments have issued mask mandates for schools – including both the Benzie-Leelanau Health District and the Health Department of Northwest Michigan (which covers Antrim, Charlevoix, Emmet, and Otsego counties) – GTCHD has not.

“Obviously the health department, through their county commissioners, don't feel like an implementation for masking needs to occur in that county,” Thomas said. “So the school boards are making that determination and being the whole proxy for the county commissioners and [the health department].”

Robert Jordan, the attorney representing TCAPS, argued that the district’s board was well within its right to require masks, even without a GTCHD mandate.

“The board of education made a determination that masks were to be required in in the school buildings,” Jordan said. “That was based on the recommendations from both the CDC and the Michigan Department of Health and Human Services (MDHHS). The MDHHS does defer to the local health departments; however, it says local health departments and the district education areas. So, we're talking about both the determinations by local school districts as well as the local health departments.”

Jordan added that the “enabling statutes of the board of education allow school boards to determine what’s in the best interest of the health and safety of the students,” and argued that COVID-19 represented an “ongoing issue of imminent danger” that made the board’s mandate reasonable. He also noted that the TCAPS board has vowed to revisit its masking mandate on a regular basis based on local COVID numbers. The next reassessment is scheduled to occur at the October 25 TCAPS board meeting.

TCAPS Board President Scott Newman-Bale tells The Ticker the lawsuit was essentially inevitable given the circumstances under which the board made the decision to require masks. Newman-Bale has previously been critical of GTCHD for not providing local school districts with leadership or guidance on the matter.

“I think we always knew that, whatever decision was reached, a lawsuit was likely,” he says. “I would also say that we believe that we are required to protect the safety of kids in our school system, but welcome the courts to provide as much definitive information as possible, which is sorely lacking right now.”

Dana Holcomb, president of the GTA school board said their board has no comment.

In order to provide preliminary injunctive relief in a case such as this, a judge must weigh four factors. The first is whether the party seeking injunctive relief will prevail on the merits of the case – or, in essence, if that party is particularly likely to win the lawsuit. The second is whether the party seeking relief will suffer irreparable harm if an injunction is not granted. The third is whether granting the injunction could cause significant harm to others. And the fourth is whether granting the injunction is in the public interest.

Power ultimately ruled that the plaintiffs’ attorney had “not shown a likelihood of prevailing on the merits,” due to the lack of precedent provided that might indicate local school boards are acting beyond their authority.

“Surely, schools have the right to regulate student behavior, by and large,” he said. “And so, if the school board wishes to say [students] have to wear a mask, we start with an assumption they have the power to do that.”

On the subject of irreparable harm, Power acknowledged that the plaintiff had some grounds for a case – just not enough to merit an injunction.

“In terms of preliminary injunction, you weigh the harm to the student,” Power said. “Which, there is some [harm] there: I think it's inconvenient [for kids to have to wear masks], and it does distract from learning. It’s not a pleasant thing to sit there with a mask on. Compare that with the rest of society, in which you might increase the spread of disease and exposure to older people [by granting the injunction]. So, it's not clear to me the harm to the applicant outweighs the harm to the rest of the public.”