The Oneida Daily Dispatch (Oneida, NY)

Mask debate moves from school boards to courtrooms

- By Lindsay Whitehurst and Colleen Long

WASHINGTON >> The rancorous debate over whether returning students should wear masks in the classroom 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, normally rule-enforcing school administra­tors are finding 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 amid protests and even violence over masks around the United States, 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 federal 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 there are downsides to kids being masked all day and that parents should decide whether to put them 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 does not pose health risks for children older than toddler age, and truly effective when worn by a large number of people.

“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, Tennessee.

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 over 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 amid skyrocketi­ng infections, 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 are also 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. Similarly, the argument goes, kids especially vulnerable to COVID-19 need everyone to wear masks so they don’t get sick.

“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.

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 face 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 this past week as the Republican judges found 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 legislativ­elygranted 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 laws restrictio­ns or bans on mask mandates, the state could have a legal upper hand because state laws generally trumps 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.

 ?? JOE CAVARETTA—ASSOCIATED PRESS ?? Students at Ruth K. Broad Bay Harbor K-8center in Bay Harbor Islands, Fla., wear face masks during a Miami Heat event, Thursday, Aug. 26, 2021. Miami-dade schools, the nation’s fourth-largest district with 340,000student­s, began classes Monday with a strict mask mandate.
JOE CAVARETTA—ASSOCIATED PRESS Students at Ruth K. Broad Bay Harbor K-8center in Bay Harbor Islands, Fla., wear face masks during a Miami Heat event, Thursday, Aug. 26, 2021. Miami-dade schools, the nation’s fourth-largest district with 340,000student­s, began classes Monday with a strict mask mandate.

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