WASHINGTON (AP) – The bitter debate over whether returning students should wear masks in the classroom has shifted from school authorities to the courtrooms.
Lawsuits for or against school masks have been filed in at least 14 states. In some cases, enforcement school administrators usually fight against heads of state.
Legal experts say that state laws usually trump local control, but legal arguments from mask advocates have a good chance of prevailing. But amid protests and even violence against masks in the United States, the legal battle is just beginning.
The mask rules in public schools vary widely. Some states require it; others forbid mandates. Many more leave it to the individual districts.
Major school districts that want masks are on trial and battling governors in Florida, Texas, and Arizona. Concerned parents are suing similar legal prohibitions on mandates in Utah, Iowa, and South Carolina.
Masked suits have appeared in Missouri, Illinois, Michigan, Kentucky, and Montana.
The focus of the debates is on parents who are fearful or frustrated for their children in an unprecedented time. The early judicial record is mixed, with wins for mask advocates in Arkansas and Arizona, followed by back-to-back rulings in two major states going in opposite directions. The Texas Supreme Court blocked another mandate for school masks on Thursday while a Florida judge allowed the rules to continue on Friday.
The Federal Centers for Disease Control and Prevention recommend the wearing of universal masks in schools. Students aged 12 and under will not remain eligible for COVID-19 vaccines.
Republican officials curtailing masking mandates argue that there are downsides to having children masked all day and that parents should decide whether to attract them to children who are generally less susceptible to the virus than older adults.
However, public health experts say that masks are an important coronavirus prevention tool that does not pose a health risk to children over infancy and is really effective when worn by large numbers of people.
“This idea of parental freedom to choose what is best for your child is not unlimited. It was never unlimited in our system, ”said Ellen Clayton, a pediatrician and law professor at Vanderbilt Law School in Nashville, Tennessee.
Nationwide, COVID-19 deaths are more than 1,200 per day, the highest since mid-March. New cases per day averages over 156,000, which puts the clock back to the end of January.
The increase is primarily fueled by the highly contagious Delta variant in unvaccinated people. In areas where vaccination rates are particularly low, doctors have asked their communities to get vaccinated to save overburdened hospitals.
They have also sounded the alarm about the growing burden of the variant in children and adolescents.
In Tennessee, for example, children now make up 36% of the state’s reported COVID-19 cases. Governor Bill Lee has not banned schools from requiring masks, but has ordered all parents to opt out – and distance learning opportunities are limited this year. Few schools in the state have introduced masking requirements.
South Carolina has passed anti-mask regulations and is now facing a federal lawsuit from the American Civil Liberties Union. The ACLU argues that the state puts students with disabilities at greater risk for breaking federal law amid exploding infections, especially among younger children
Susan Mizner, director of the ACLU’s disability rights project, said offering a long-distance option to students with disabilities or illness was not a good alternative. Restricting medically weak students and people with disabilities to distance learning denies them equal opportunities, she said.
Under the Americans with Disabilities Act and the Rehabilitation Act, public schools cannot exclude students with disabilities or unnecessarily separate them from their classmates. Schools are also required to make reasonable changes to allow students with disabilities to fully participate. Lawyers have filed for an injunction demanding masks during the trial.
“We understand that people are tired,” said Mizner. “We understand that people are frustrated with the pandemic, we understand that there is a lot going on here. We just want them to use their better selves to care for the children in their communities who are most at risk and who really need their help to keep them safe. “
Schools already have many restrictions designed to protect children’s health. Rules against peanuts are a good example, said Ruth Colker, a law professor at Ohio State University and an expert on disability rights.
These rules are designed to protect children with potentially fatal peanut allergies that can be triggered by particles in the air. Similarly, the argument goes, children who are particularly vulnerable to COVID-19 must wear masks to keep them from getting sick.
“You need the people around you not to spread the peanut particles,” Colker said. “COVID is like peanuts. In fact, it’s more contagious. ”
Since schools that accept federal funds are subject to the Federal Disability Act, she sees these arguments as likely to be won in court. While many court decisions apply to a school or state in general, that could change if the federal government gets into the legal battle. President Joe Biden has directed his Secretary of Education to review possible legal action against several states that have blocked school mask mandates and other educational measures related to public health.
Whatever happens in court is unlikely to bridge the large and controversial political divide over masks. A recent survey by The Associated Press and NORC Center for Public Affairs Research found that about 6 in 10 Americans wanted students and teachers to wear face masks during school.
But that poll also found that only 3 in 10 Republicans are in favor of masking obligations, compared with about 8 in 10 Democrats.
The divide is playing out in Florida and Texas, where several large school districts are defying governors’ orders against the mask mandate.
In Texas, dozens of school districts have opposed Governor Greg Abbott’s ban on the mask mandate. But the state’s highest court sided with the governor last week when Republican judges ruled that the “status quo” of authority over masks should remain with him while the case continues.
“The decision to enforce mask mandates rests on the governor’s legal authority,” Attorney General Ken Paxton said Thursday. “Mask mandates are illegal all over our state.”
In Florida, despite an order from Republican Governor Ron DeSantis, more than half of public school students are in mask-compulsory districts. He wants to leave such decisions to parents, but on Friday a judge ruled that schools must be able to require masks to protect public health.
In places like Utah and Iowa, where law enforcement has put restrictions or bans on masking requirements, the state could have the legal upper hand, as state laws generally trump local control. Lawrence Gostin, a professor of global health law at Georgetown and director of the World Health Organization’s Center for Global Health Law, said he found mask restrictions “totally irresponsible” and “a violation of public trust,” but sees the legal landscape as blurred.
“There is going to be really bitter fighting in courtrooms across America,” he said.
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Whitehurst reported from Salt Lake City.
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