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


Are Montana Students Required to Wear Masks on Privately-Run School Busses?

Published by Montana Daily Gazette

Lakeside/Somers Superintendent Price Retaliates Against Freedom Speaking Bus Driver

Somers-Lakeside School District 29 Superintendent Joe Price is out for blood. He is retaliating against Bus Driver Dick Syverson -bus #9-and manipulated the bus company owner to fire Syverson for exercising Freedom of Speech at a public board meeting.

When school board members voted for optional masking for students on September 3rd with a 3-2 vote Syverson got up and spoke, stating that he didn’t want his students masked or himself on the bus which was his personal opinion. This infuriated Price, who then sought revenge against the children’s favorite and beloved school bus driver. Syverson has driven the bus for 26 years with an outstanding and exemplary record.

Following the last board meeting a sign on the bus stated, -at the advice of Superintendent of Public Instruction Elsie Arntzen-“Masks are Optional,” and masks were provided on the bus for those who chose to wear them; that wasn’t hardcore enough for Lakeside Principal Stephanie Broyles, who got on Syverson’s bus and wanted to coerce the students into wearing masks.

She was then asked by Syverson to “get off his bus.”

Superintendent Arntzen revealed to Syverson to tell anyone who asked, “What is required by Montana State Superintendent of Schools has been done. All medical decisions must be made by the parents.”

The issue of forced masking on private school busses is highly debatable.

According to local School Law Attorney Abby Moscatel:

“It is unclear whether private school bus drivers and kids riding those busses are required to wear masks under Federal Law. The federal legislature has not passed a law requiring mask wearing on private school busses. There is not a state law requiring it, either. President Biden did issue an Executive Order requiring masks on many forms of transportation, like planes and trains, but private school busses are not included in that order. But, then, the CDC came out with its own order, which does require school kids and school bus drivers to wear masks. The legal question is whether the CDC’s rule would hold up in court. At this time, we just don’t know.” – Abby Moscatel, Esq.Blacktail Law Group

Superintendent Price then manipulated Treasure States Transit owner Hartley Hageness -who owns the bus Syverson drove- into firing the bus driver and who did so before tonight’s school board meeting! Price threatened to cancel Hagnesses contract if Hageness didn’t fire Syverson. Hageness then told Syverson that he was “not allowed” to speak at tonight’s meeting, against the bus driver’s constitutional rights. Hageness has been Syverson’s employer for 26 years and Hageness never had any complaints concerning Syverson.

Price is known for shifty moves, as seen in the this article, where he would not wear the very mask he enforced at a board meeting.

Elsie Arntzen, State Superintendent of Public Instruction, has communicated with Syverson and knows this is shifty and is for Syverson.

There will be a public school board meeting tonight at 6 PM in Lakeside, MT, at the elementary school on Adam’s Street for all who want to speak on Syverson’s behalf and these unconstitutional matters.