MADISON — A Fall Creek parent who said her son contracted COVID-19 from unmasked classmates has filed a lawsuit against the Fall Creek school district, claiming it created a “dangerous learning environment” by failing to renew mask requirements this fall.
The suit filed Monday in federal court in Madison alleges that:
The Fall Creek school district had “robust” COVID-19 mitigation strategies in place last spring when students returned to in-person instruction after months of virtual learning at home. However, the school board subsequently voted to end required mask-wearing, and other COVID-19 mitigation policies, for the 2021-22 school year.
Gina Kildahl’s son, identified in the complaint by the initials S.K, attended Fall Creek Elementary School this fall while wearing a face mask daily. Many of S.K.’s classmates choose not to wear masks in school.
One of S.K.’s classmates tested positive for COVID-19 on Sept. 20, and another tested positive for COVID-19 on Sept. 24, the lawsuit says. One of the sick classmates did not wear a face mask to school.
On Sept. 27, S.K. tested positive for COVID-19 and missed two weeks of school while quarantined.
Refusing to implement reasonable COVID-19 mitigation measures was the direct cause of S.K.’s infection and illness, the suit alleges.
Kildahl’s attorney, Frederick Melms, said in a phone interview Tuesday that S.K. has since returned to school.
Melms also said that it was the “recklessness” of the school board’s conduct that prompted the suit.
“There are several state and federal recommendations on how to protect students against (the virus) but they were ignored,” Melms said.
Among examples of the district’s disregard for the health of its students are, the lawsuit says:
• Not requiring employees to wear masks.
• Allowing potentially contagious visitors and volunteers to enter its schools without masks, COVID-19 screenings or a negative test result.
• Holding extracurricular events without mitigation measures.
Removing the safeguards against infection amounted to throwing S.K. and other students “into the COVID-19 snake pit” when the district had a duty under the Equal Protection Clause of the 14th Amendment to maintain adequate COVID-19 mitigation measures, the suit alleges.
By holding classes without adequate COVID-19 mitigation measures, the school board needlessly exposed S.K. and others to a virus already responsible for approximately 8,000 deaths in the state, the suit claims. The lack of protections continues to risk the spread of COVID-19 within the schools.
Superintendent Joe Sanfelippo was not immediately available Tuesday for comment on the suit’s allegations.
The suit seeks class action status for all K-12 students, not only in Fall Creek but students statewide, attending public schools where mitigation measures are not in place and have contracted COVID-19 at school.
Melms said he filed a similar suit against the Waukesha school district and another attorney filed a COVID-related suit Monday against the Somerset school district.
The Fall Creek suit names the district’s school board members and Sanfelippo. It seeks costs and attorney fees and a judgment finding the school district in violation of the Constitution’s Equal Protection Clause.