School Law

No, Montana Public Schools Really Can’t Get Sued for a “Mask Optional” Policy

On August 31, 2021, Montana’s Governor issued a rule saying parents should decide whether their children wear masks in school.

“Unfortunately, mandating masks for students is based on inconclusive research that fails to prove masks’ effectiveness in reducing the incidence of COVID-19 in the classroom. Simply put, our children shouldn’t be subject to arbitrary mask mandates when schools can’t follow the science because there’s a lack of meaningful, reliable research. On the other hand, some scientific studies we’ve carefully reviewed undoubtedly reveal the adverse impacts of masking on a child’s health, wellbeing, and development,” Gov. Gianforte continued.

However, the board of trustees for my own kids’ schools had just voted to require masking.

Fear of litigation over covid-19 was one of the reasons for the vote.

Could a district be sued if they voted to follow the Governor’s rule and let parents decide whether their kids get masked in school?

House Bill 435, now law, says that a school can’t be sued for exposure to covid-19 for ordinary negligence.

Negligence is what you sue for most of the time in civil court, and you know it when you see it. The elements are duty, breach, causation, and harm. Think of a simple rear-end car accident. The driver who hit you is sued for negligence because he breached his duty to drive reasonably safely, and his mistake injured you.

It must be gross negligence, willful and wanton misconduct, or intentional tort. I don’t think even a gross negligence lawsuit would survive in court. Section 5 of this law says that the entity, like a school, has a complete defense to any civil lawsuit alleging covid-19 exposure as long as the entity acted reasonably. I am pasting the language here:

Section 5.Affirmative defense — reasonable measures consistent with regulations, orders, and public health guidance. (1) In addition to all other defenses, a government entity may assert as an affirmative defense that the government entity took reasonable measures consistent with a federal or state statute, regulation, order, or public health guidance related to covid-19 that was applicable to the government entity or activity at issue at the time of the alleged injury, death, or property damage.

(2) If two or more sources of public health guidance are applicable, a government entity does not breach a duty of care if the person took reasonable measures consistent with one applicable set of public health guidance.

(3) If a government entity proves the affirmative defense contained in this section, the affirmative defense is a complete bar to any action relating to covid-19.

(4) This section may not be construed to impose liability on a government entity for failing to comply with a federal or state statute, regulation, order, or public health guidance related to covid-19.

So, nope! Montana boards of trustees really cannot use the fear of lawsuits as a reason to mask up kids.

However, on the flip side of things, if they vote mask mandatory, they can’t be sued for any kind of harm that the masking causes, either.

Abby Moscatel is a litigator for based in Lakeside, MT. She can be reached at