Ending Mask Mandates: 8 Things to Know About Surety Bonds and School Districts - Granite Grok

Ending Mask Mandates: 8 Things to Know About Surety Bonds and School Districts

Mask wall art

As school districts consider whether to keep or drop mask mandates a grassroots effort is pushing the idea of using surety bonds to end them. This strategy recommends that concerned parents can assert a claim against the surety bond that insures school district officials.

They demand the officials rescind their school district mask mandate or else face monetary liability for keeping the mandate in place.

This strategy has some appeal: its proponents claim that concerned parents do not need to use lawyers to implement it, and the mere threat of these officials shouldering individual liability will incentivize them to immediately walk back mandates.

It has appeal here in states New Hampshire because many school districts stubbornly refuse to allow children to attend school without masks.


We want to thank Robert Fojo for this Op-Ed.
Please direct yours to Editor@GraniteGrok.com.


Like many of the strategies parents have attempted over the last two years to protect their children in school settings, this one has some benefits but also poses some significant challenges. Below are eight things you should know about this strategy:

1. What is a Surety Bond and How Does It Work?

A surety bond is a contract between three parties: (a) the principal, (b) the surety, and (c) the obligee. The principal is the individual or business that purchases the bond to guarantee future work performance. The obligee is the entity that requires the bond. Obligees are usually government agencies that regulate industries and reduce the likelihood of financial loss. The surety is the insurance company that backs the bond.

The surety provides a line of credit in case the principal fails to fulfill the task. The surety financially guarantees to an obligee that the principal will act according to the terms and conditions of the bond. If the principal fails to act according to those terms and conditions, the surety must cover any losses or damages that result from that failure.

Here, the obligees are the parents; the principal is the school district official or school board or district, and the surety is the insurance company.

2. Is There a Surety Bond Requirement in New Hampshire?

Before determining whether your school district or school district officials have surety bonds in place, you should consult the applicable statutes to determine if there is a requirement they maintain a bond.

Some states (like New Hampshire) do not expressly require surety bonds for school board officials. Instead, under RSA 41:6, New Hampshire requires surety bonds for municipal officials with monetary responsibilities (like treasurers, tax collectors, and similar positions).

New Hampshire and other states also require state-level officials to be bonded. For example, RSA 93-B:1 requires bonds for “[o]fficials and employees of all departments and agencies of the state.” School board officials and municipal officials, however, are not state officials.

3. What if There is No Surety Bond?

If the school district does not have a surety bond, they likely are still insured under another form of insurance policy or “errors and omissions” policy that covers school district officials. Such policies would function in the same way as surety bonds.

4. How Do You Get a Copy of the Bond or Policy?

You can request a copy of an insurance policy from your government officials. Under New Hampshire’s Right-to-Know law (RSA 91-A), citizens may request copies of public records. In nearly every instance, an insurance policy will be considered a public record subject to disclosure. You may request a copy in writing (or even verbally). Direct the request to your school district or town clerk.

5. Now that You Have the Bond or Policy, Who Does it Cover?

Once you have a copy of the bond or policy, review it (preferably with an attorney) and determine who it covers. For this strategy to have any potential, your bond or policy must cover school district officials specifically, school district bodies in general, or public officials in general. If it does not cover these individuals, then you likely may not be able to use it in an attempt to force school district officials to end a mask mandate.

6. What does the Bond/Policy Cover?

Assuming the bond or policy covers school district officials, then you should review (again, preferably with an attorney) what kind of conduct it covers. These documents are very specific and will contain a section that identifies what specific conduct it covers and what kind of conduct it excludes from coverage.

Usually, these bonds or policies will insure against financial loss or the mishandling of funds by treasurers or officials in such roles. In other instances, these bonds or policies will cover broader conduct, like mistakes or misstatements by public officials, employment claims, or attorney malpractice.

For our purposes here, a bond or policy should insure against errors or omissions, mistakes, misstatements, breaches of duty, or civil rights violations by school district officials. It is important to review the specific language in the coverage and exclusion sections of the bond or policy to determine if it covers this kind of conduct. If it does, then you are closer to your goal because the implementation of a school district mask mandate usually implicates these types of errors.

7. If the Bond/Policy Covers the Conduct in Question, Determine if a Court in Your Jurisdiction Has Addressed the Specific Claim You Seek to Assert

If the bond or policy is broad enough to cover the conduct of enacting a school district mask mandate, then you need to determine if another parent in your state has challenged the mandate on some basis in court. If a court has already ruled on such a challenge, then you may be limited with respect to how you can challenge the mandate.

The courts that have enjoined or stayed school district mask mandates have done so on the basis that the school districts in question lacked the authority to pass such broad health measures. If a court has not addressed this issue, and if the bond or policy covers this kind of conduct, then you likely have an avenue for asserting a claim against the insurance company.

There are potentially other claims as well that courts have not addressed (even if presented with a mask mandate challenge) that are cognizable with this strategy. Again, you should consult an attorney for assistance with making this determination.

8. If You Have a Claim, How Do You Proceed?

Assuming all the boxes above are checked off, you should confer with an attorney (if you haven’t already) about how to proceed with asserting a claim against the insurance company. Normally, this is done in writing, through a demand letter.

Folks advocating this strategy recommend sending a “notice of intent” or a “letter of intent.” Those are terms that roughly mean the same thing: a written demand to the insurance company or public officials requesting that the mask mandate be rescinded immediately.

Concerned parents have attempted many strategies over the last two years to protect their children in school settings. This approach has some benefits, but it also poses some challenges that need to be navigated. Hopefully, some combination of strategies will ultimately end school district mask mandates for good.

>