A Bozeman nonprofit and a Missoula attorney have filed a second lawsuit challenging local government mask mandates after the first went nowhere.

Earlier this week, Missoula attorney Quentin Rhoades sued Missoula school districts for mandating the use of face coverings for students, staff and visitors regardless of vaccination status.

The Missoula County School Board voted in August to implement the requirement for at least the first six weeks of classes after the number of Delta-variant COVID cases began to surge and the U.S. Centers for Disease Control updated its guidelines.

Rhoades’ lawsuit is targeting Missoula County Public Schools, Elementary District No. 1, High School District No. 1, Target Range School District No. 23 and Hellgate Elementary School District No. 4

One plaintiff, Stand Up Montana, is the same Gallatin County-based nonprofit that sued Missoula County for masks in January. It’s only mission is to encourage Montanans to “stand up for the constitutionally protected liberties” during COVID-19.

Rhoades is also suing on behalf of 11 Missoula-area parents: Clinton Decker, Jessica Decker, Martin NoRunner, April Marie Davis, Morgan Hunt, Gabriel Earle, Erick Prather, Bradford Campbell, Meagan Campbell, Amy Orr and Jared Orr. The Orr’s took their children out of the Target Range School once masks were required but want their children to return to school.

The lawsuit says parents have the right to refuse unwanted medical intervention. It cites statistics from the original COVID variant and concludes the use of masks in schools isn’t needed because “COVID-19 is not much of a threat to schoolchildren.”

However, the Delta variant is changing the rules because it’s so much more contagious.

Children are still somewhere between 12% to 15% of all the cases and about 3% to 4% of all the hospitalizations. However, the Delta variant is so much more contagious that the total number of hospitalizations is greater. Pediatricians are reporting that more children with COVID are being hospitalized than at any point during the pandemic.

Missoula County isn’t the only school system that has mandated masks. Recently, schools in Helena, Bozeman, Billings and Butte have also mandated the use of masks. Some require masks only for children in kindergarten through 8th grade, primarily because vaccines have not yet been approved for children younger than 12.

The lawsuit cites a May 2020 “perspective” from a medical journal that claims masks offer “little, if any, protection from infection…”

The lawsuit claims medical experts changed their mask recommendations “quite suddenly in June or July.” But that’s when the Delta variant began to dominate in the U.S.

The Centers for Disease Control and Prevention says the Delta variant causes more infections, spreads faster and likely causes more severe illness than previous variants. In early August, the CDC recommended getting vaccinated and wearing masks indoors to limit the spread of the Delta variant.

The lawsuit warns that the limits of Senate Bill 400 kicks in on October 1. The 2021 Legislature passed SB 400, which restricts government entities from interfering with parental rights.

In January, Rhoades, Stand Up Montana and some local businesses sued the Missoula City-County Board of Health for its mask mandate, saying the businesses suffered irreparable harm.

The case didn’t go far. In June, a proposed ruling was filed in Missoula County District Court declaring the case moot because the mask mandate was pulled as more people became vaccinated. However, Judge Jason Marks has yet to sign the ruling.

Similar to the January lawsuit, Rhoades is filing the school lawsuit on his own dime and is asking for repayment of attorney fees and costs as part of the judgment.

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com