Can state governors ban mask mandates in schools?

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The mask wars are back, this time in the classroom. Many Americans continue to believe that they have a right not to wear face masks because they personally object to them. Some governors have stoked this belief by banning local schools from adopting mask mandates, fueling a debate about the safety of school children that has no common ground. School mask policies divide communities into two camps: parents who object to mask mandates for their children’s convenience, and parents who demand mask policies so that their children may attend school safely. Face covering mandates are the politically divisive issue that won’t go away, even if mask opponents have found a new battleground.

The safety issue shouldn’t be in doubt. In late July, the Centers for Disease Control and Prevention recommended students and teachers wear masks indoors at school, regardless of vaccination status. Before the CDC’s updated guidance, the 67,000 doctors of the American Academy of Pediatrics also “strongly” recommended children wear masks in school. With low vaccination rates in many areas, and no vaccine available at all for children under twelve, the stakes are particularly high.

Who decides whether facemasks in classrooms are required or optional? For many parts of the country, it depends on the views of your local school board. In more than half of all U.S. states, school districts can decide for themselves, according to the National Academy for State Health Policy. In seventeen states, masks are required in schools state-wide, regardless of local preference. At the opposite end of the spectrum, seven states claim the authority to prohibit mask mandates in any school.  But these states may be in conflict with federal law. At the end of August, the Biden administration put states on notice that bans on school mask mandates potentially violate the Americans with Disabilities Act, which protects students (and their teachers) who may be at increased risk for severe illness from COVID-19.

State governors who ban local school districts from requiring masks claim to vindicate a right of personal choice on behalf of constituents. Tennessee governor Bill Lee, for example, ordered Memphis-area schools to allow students to opt out of a mask mandate, claiming “parents are THE authority and will be the ultimate decision-makers for their individual child’s health and well-being.” Attorney Brice Timmons, representing parents who support the school mask requirement, pointed out the obvious: “The sentiment that parents know what’s best for their kids is nice, but the way he has framed this is as though parents’ decisions about their children only affect their children.” When a parent makes a decision for a child to opt out of a school mask requirement, Timmons said, “They’re making decisions for other people’s children, and the decision they’re making is that their comfort matters more” than the safety of all children in that classroom.

Is there any such right of personal choice or convenience? No, not in the constitutional sense. Courts around the nation have consistently rejected claims that mask mandates violate individual rights and freedoms guaranteed by the federal constitution. Whether imposed by private businesses or government officials, no court has recognized a “right” not to wear a face mask in public settings, when government officials with authority to do so have mandated their use to mitigate the spread of COVID. What legal authority, then, allows governors to prevent cities, counties, and school boards from implementing mask policies?

When a federal appeals court last month upheld Indiana University’s vaccination requirement for students, Judge Frank Easterbrook observed almost in passing that the University’s face mask requirement was “not constitutionally problematic.” Dozens of courts had already reached this conclusion over the past year in lawsuits by individuals claiming a constitutional right not to wear a mask. Some litigants claimed that wearing a face mask would identify them with a political position with which they disagreed. But face-covering requirements regulate conduct, not speech, and for decades, health and safety ordinances of all kinds have restricted individual freedoms. Indoor smoking bans in restaurants and other retail establishments, for example, are designed to protect the health of employees and patrons, not the smoker, and courts routinely have upheld such ordinances as within the police power of the state. It does not matter whether you believe that second-hand smoke is dangerous, or that alcohol impairs driving. There is no fundamental right to be a health threat to others, especially if reasonable steps can reduce that threat.

The nation’s courts have had little difficulty fitting mask mandates into this traditional power of state and local governments to protect population health and safety. Our constitutional system of government leaves most public health measures up to state governments, and by long tradition, the protection of public health within states has been left, in large measure, to local jurisdictions, which exercise authority delegated to them by state law. Statewide school mask bans upend this “home rule” tradition. The upshot is that courts would be highly unlikely to prevent schools from adopting mask mandates unless state law prohibits local officials from making their own decisions. Parents would have no legal basis to object to a school masking policy on the ground that it violates a constitutional right. Some governors have now stepped in to favor the mask objectors, giving them a basis for a lawsuit that courts would otherwise reject.

Legislatures can set statewide policy on masking, however unwise it might be to legislate for all future pandemics based on this one. In Arkansas, the legislature banned all local governments—including schools—from implementing mask requirements at any time in the future. The law went into effect before a surge of the hyper-infectious Delta variant swept the state, which still has one of the lowest vaccination rates in the country. (Governor Asa Hutchinson has since said he regrets signing the law and now believes it is unconstitutional.) But in other states, the ban on school mask mandates comes from governors, who claim unilateral authority based on emergency management laws. These laws are designed to allow a quick response to natural disasters such as hurricanes and earthquakes by affording governors extraordinary powers not available to them in “normal” times. Governors have broad discretion to take actions to protect life, property, public health, and safety, including the authority to commandeer resources, order evacuations, prevent price-gouging, and enact curfews. Governor Ron DeSantis, like Texas Governor Greg Abbott and others, invoked this emergency authority to ban school mask mandates—the emergency being, apparently, that independent-minded city, county, and school boards within their state might opt to follow the advice of medical experts rather than cater to the beliefs and preferences of some of their constituents.

Using state emergency law to prevent policies that medical experts advise surely perverts the law’s purpose. But it remains to be seen whether courts in those states will see it that way.

Yet even when state policies follow the recommendations of experts, the use of emergency powers by governors has been no less controversial, especially when it denied local governments the ability to opt out. Over the past year and a half, many governors relied on their emergency powers to order business restrictions, size limits on indoor events, and yes—face masks. (The seventeen states currently requiring universal masking in schools accomplished this by executive order, not legislation.) Even proponents of local decision-making and serious skeptics of the federal government found cause for concern about the seemingly unlimited authority exercised by state governors, given that disaster laws were not designed for an emergency lasting for more than a few weeks and have few “guardrails” to constrain arbitrary or excessive actions. The Wisconsin Supreme Court ruled in March that the state’s emergency law did not permit the governor to issue successive emergency declarations during the pandemic—although by then, the governor had done so for a full year, along with the governors of every U.S. state.

This is one reason litigation challenging statewide school mask bans will be messy, as judges in each state sort out the legalities of bans on school mask mandates over the next year (or more). We can expect a variety of rulings in the states currently banning school mask requirements, because each state law varies on questions of home rule, emergency powers of the governor, and the authority of state officials over public education. The Texas Supreme Court permitted a statewide ban on school mask mandates to take effect while challenges to the ban work way through the court system. In Florida, at least for now, school districts can continue mask requirements. Just last week, a trial judge ruled that local school districts can impose mandatory mask mandates on students and staff despite Governor DeSantis’ executive order. But this week, the Florida Department of Education ignored the court’s ruling and withheld school board salaries from school districts which had implemented mask mandates, as the governor had previously threatened.

K-12 education is a right and states must provide it. Probably most parents prefer in-person instruction to remote learning, but in school districts without mask mandates, some parents are forced to keep their children home to protect them or vulnerable family members. In university classrooms as well, mask mandates are designed to limit the spread of COVID by asymptomatic people. But unlike K-12, post-secondary students choose where (and whether) to attend. Universities must protect employees from unsafe working conditions, even if their concern is not primarily about the safety of students. A University of Georgia professor quit his job in the middle of the second class of the semester after a student refused to wear a mask. Irwin Bernstein, a psychology professor, explained to the student that due to his age and underlying health conditions he could die from COVID-19, and from the first day had required everyone in his class to wear a face covering. “No mask, no class,” in large letters on the board behind him. Bernstein said in an email to the student newspaper Red & Black, “I had risked my life to defend my country while in the Air Force, [but] I was not willing to risk my life to teach a class with an unmasked student during this Pandemic.” Other faculty members in the University System of Georgia system have quit or been fired over the lack of a mask mandate in classrooms. Emory University in Atlanta, which is private, requires universal masking, as do many universities throughout the nation, both public and private. Many universities augment the safety benefits of universal masking in the classroom with frequent testing, contact tracing, and vaccination requirements for students and staff. Independent governing boards, not elected state governors by themselves, get to decide mask and vaccination policy for college students.

At the end of the day, the fight over K-12 classroom mask policies is about who decides what that policy will be. As Chief Justice John Roberts reiterated earlier this year, “Our Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the States.”  Elected officials are responsible for the health and safety of their constituents. Citizens who object to restrictive COVID mitigation measures can sue about them, and sometimes win. But when elected leaders take no action, or worse—prevent actions deemed necessary based on medical and scientific consensus—the judiciary can rarely intervene. The only remedy for poor governance and failure to protect the nation’s most vulnerable citizens is a political solution—the next election.

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