Fight over masking of kids shifts into courts
WASHINGTON — The rancorous debate over whether returning students should wear masks in classrooms has moved from school boards to courtrooms.
In at least 14 states, lawsuits have been filed either for or against masks in schools. In some cases, school administrators have found themselves fighting state leaders.
Legal experts say that while state laws normally trump local control, legal arguments from mask proponents have a good chance of coming out on top. But during protests and even violence over masks around the U.S., the court battle is just beginning.
Mask rules in public
schools vary widely. Some states require them; others ban mandates. Many more leave it up to individual districts.
Big school districts that want to require masks are in court and battling governors in Florida, Texas and Arizona. Worried parents are suing over similar legislative bans on mandates in Utah, Iowa and South Carolina.
Suits fighting mask requirements have popped up in Missouri, Illinois, Michigan, Kentucky and Montana.
At the heart of the debates are parents, scared or frustrated for their children in an unprecedented time. The early court record is mixed, with victories for mask proponents in Arkansas and Arizona followed by back-to-back decisions in two big states going opposite ways. The Texas Supreme Court blocked another school mask mandate Thursday while a Florida judge allowed the rules to go forward Friday.
The Centers for Disease Control and Prevention is recommending universal mask wearing in schools. Students age 12 and younger remain ineligible for covid-19 vaccines.
Republican officials who restrict mask mandates argue that there are downsides to kids being masked all day and that parents should decide whether to put masks on children, who are generally less vulnerable to the virus than are older adults.
But public health experts say masks are a key coronavirus-prevention tool that do not pose health risks for children older than toddler age, and are truly effective when worn by a large number of people in a setting.
“This idea of parental freedom to decide what’s best for their child is not unlimited. It has never been unlimited in our system,” said Ellen Clayton, a pediatrician and law professor at Vanderbilt Law School in Nashville, Tenn.
VARIANT SURGE
Nationwide, covid-19 deaths are running at more than 1,200 a day, the highest level since mid-March. New cases per day are averaging more than 156,000, turning the clock back to the end of January.
The surge is largely fueled by the highly contagious delta variant among people who are unvaccinated. In areas where vaccination rates are particularly low, doctors have pleaded with their communities to get inoculated to spare overburdened hospitals.
They have also sounded the alarm about the growing toll of the variant on children and young adults.
In Tennessee, for example, children now make up 36% of the state’s reported covid-19 cases. Gov. Bill Lee has not banned schools from requiring masks but has ordered that any parent can opt out — and remote education options are limited this year. Few schools in the state have adopted mask mandates.
South Carolina passed anti-mask regulations and is now facing a federal lawsuit from the American Civil Liberties Union. The ACLU argues that the state is putting students with disabilities at greater risk, in violation of federal law, as infections skyrocket, particularly among younger children
Susan Mizner, director of the ACLU’s Disability Rights Project, said offering students with disabilities or medical conditions a remote option is not a good alternative. Limiting medically fragile students and those with disabilities to a remote-only education denies them equal opportunity, she said.
Under the Americans with Disabilities Act and the Rehabilitation Act, public schools cannot exclude students with disabilities or segregate them unnecessarily from their peers. Schools also are required to provide reasonable modifications to allow students with disabilities to participate fully. Lawyers have filed for a temporary injunction requiring masks while the court case plays out.
“We understand people are tired,” Mizner said. “We understand people are frustrated with the pandemic, we understand there is a lot going on here. We just want them to draw on their better selves to care about the kids in their communities who are most at risk and really need their help at protecting them.”
Schools already have plenty of restrictions aimed at protecting the health of kids. Rules against peanuts are a good example, said Ruth Colker, a law professor at Ohio State University and a disability-law expert.
Those rules are aimed at protecting kids with potentially fatal peanut allergies that can be triggered by particles in the air.
“They need the people around them not to be spreading the particles of peanuts,” Colker said. “covid is just like peanuts. In fact, is more contagious.”
Because schools that accept federal money are subject to federal disability law, she sees those arguments as likely to win in court. While many court decisions generally apply to one school or state, that could change if the federal government enters the legal fray.
President Joe Biden has ordered his education secretary to explore possible legal action against several states that have blocked school mask mandates and other educational public health measures.
PARTY DIVIDES
Whatever happens in court, though, is unlikely to bridge the vast and contentious political divides over masks. A recent poll from The Associated Press and NORC Center for Public Affairs Research found about 6 in 10 Americans wanted students and teachers to be required to wear masks while in school.
But that poll also found just 3 in 10 Republicans favor mask requirements, compared with about 8 in 10 Democrats.
The divide is playing out in Florida and Texas, where several big school districts are defying governors’ executive orders against school mask mandates.
In Texas, dozens of school districts have defied Gov. Greg Abbott’s mask mandate ban. But the state’s highest court sided with the governor last week as the Republican judges found that the “status quo” of authority on masks should rest with him while the case plays out.
“The decision to enforce mask mandates lies with the governor’s legislatively-granted authority,” Attorney General Ken Paxton said Thursday.
“Mask mandates across our state are illegal.”
In Florida, more than half of public school students are now in mask-requiring districts, despite an executive order from Republican Gov. Ron DeSantis. He wants to leave such decisions up to parents, but on Friday a judge decided that schools need to be able to require masks to protect public health.
In places such as Utah and Iowa, where legislatures have passed restrictions or bans on mask mandates, the state could have a legal upper hand because state laws generally trump local control. Lawrence Gostin, professor of global health law at Georgetown and director of the World Health Organization Center on Global Health Law, said he considers restrictions on mask mandates “utterly irresponsible” and “a breach of public trust” but sees the legal landscape as hazy at best.
“There’s going to be really fierce battles in the courtrooms across America,” he said.
KIDS OK WITH IT
While the adults argue, many kids in south Florida are thrilled to return after last year’s quarantine and are putting on their masks each morning and reportedly forgetting about them for most of the day.
The kids say they don’t understand the commotion.
“I forget it’s on my face,” said Joel Bender, 13, an eighth grader at Indian Ridge Middle School in Davie. “Everyone’s wearing it. If it slides off, they put it back on. It’s stupid to protest.”
Jerry O’Donnell, a science teacher at Eagles Landing Middle School west of Boca Raton, agreed that the kids are doing fine. He has had “100% compliance” with mask wearing this year.
“They see us wearing it, so they wear it,” O’Donnell said.
“It’s a little bit uncomfortable, but I see it as a small price to pay,” said Gabriela Carvajal, a senior at Everglades High in Miramar. “The vast majority are complying. It’s like a collective agreement to keep each other safe.”
According to a recent Gallup poll, 57% of parents of K-12 children favor mask mandates for unvaccinated students. The American Academy of Pediatrics supports universal masking for everyone, vaccinated and unvaccinated, in schools.
Still, masks have become an enormous point of contention, especially in Florida, where DeSantis is fighting 10 school districts, including Broward, Palm Beach and Miami-Dade, over their mask requirements. DeSantis signed an order July 30 that said parents should have a choice about whether their children wear face coverings at school.
VOCAL PARENTS
A vocal contingent continues to voice displeasure with south Florida schools’ decision to defy the governor. Karen Ammar, mother of a sixth grader who attends Beachside Montessori Village in Hollywood, opposes mandatory masking but said she did not try to opt out her son because “he has been indoctrinated to believe that he is hurting others when not wearing a mask.”
“My biggest concern is that our children are suffering from their parents’ fear, and that it will affect them long-term,” Ammar said in response to a Sun-Sentinel survey about the return to school this year. “I believe our children should be allowed to decide whether they wear masks or not. The whole mentality that we must protect the weakest amongst us, whether we are talking about peanut allergies or covid, weakens us as a nation.”
Michael Ross, father of an eighth grader at Omni Middle School in Boca Raton, argues that the school districts’ covid strategies are not scientifically based and opted his son out of wearing a mask until the Palm Beach County School District no longer allowed exemptions. Now his son complies with the requirement.
“He just wears it,” Ross said. “He’s not a rebel.”
Studies show that masks prevent the respiratory droplets that spread covid-19 from moving through the air and reaching other people.
Schools could become an easy spreader site if kids have no protections, experts say. Children and teens speak in close proximity and are packed into corridors during class changes.
“We are shoulder to shoulder in the hallways,” said Claire Freedman, 13, an eighth grader at Don Estridge High Tech Middle School in Boca Raton.
That’s one of the reasons to keep the mask mandate going, said Dr. Renato Berger, a pediatrician in Coconut Creek. Despite the difficulty of social distancing, he said it’s essential for kids to be in school buildings this year. He said he had 10 patients last year who became suicidal, and he attributes their troubles to the isolation they felt during home-schooling.
“Staying home is not good for them,” Berger said. “The only solution is the mask. The kids have no problem with the mask. They will imitate what the parents do.”
Learning at home last year was “horrible,” agreed Luke Bartels, 7, a second grader at Cooper City Elementary.
“Wearing a mask is not annoying at all,” he said.
Still, parents have been requesting opt-outs from the mandates, even though the only permissible exemptions are for medical and special needs in Broward and for the disabled in Palm Beach.
Palm Beach Pediatric Group in Boynton Beach warned parents recently that its doctors will not write any mask exemptions.
“Our providers have studied peer-reviewed scientific data and do not feel there is any medical condition that qualifies our patient population for a medically necessary mask exemption,” the office posted on Facebook.
Although mask compliance appears to be almost total, Western High senior Josh DeCapua said he gets a kick out of his peers who allow their masks to fall below their noses as a sign of defiance or nonchalance.
“It’s kind of comedic,” he said. “They’ll take it down behind the teacher’s back and then be told to put it back. It does get sweaty, but otherwise it doesn’t affect me in any way.”