WASHINGTON (AP) – The resentful debate over whether returning students should wear masks in class has moved from school boards to courtrooms.
In at least 14 states, lawsuits have been filed for or against masks in schools. In some cases, school administrators who normally enforce the rules find themselves fighting heads of state.
Legal experts say that while state laws normally trump local control, the legal arguments of supporters of the mask stand a good chance of winning. But amid the protests and even the violence against masks in the United States, the legal battle is only just beginning.
Mask rules in public schools vary widely. Some states require them; others prohibit warrants. Many others leave it to individual districts.
Large school districts that want to demand masks are in court and are fighting against the governors of Florida, Texas and Arizona. Concerned parents are suing similar legislative bans on tenure in Utah, Iowa and South Carolina.
Suits to combat mask requirements have emerged in Missouri, Illinois, Michigan, Kentucky and Montana.
At the heart of the debates are the parents, frightened or frustrated for their children in an unprecedented period. The record of early courts has been mixed, with victories for maskers in Arkansas and Arizona followed by back-to-back rulings in two major states going in opposite directions. The Texas Supreme Court on Thursday blocked another school mask warrant while a Florida judge allowed the rules to go ahead on Friday.
The federal Centers for Disease Control and Prevention recommends that the mask be worn universally in schools. Students aged 12 and under remain ineligible for COVID-19 vaccines.
Republican officials who restrict mask warrants argue there are downsides to children being masked all day and that parents should decide to put them on children, who are generally less vulnerable to the virus than adults older.
But public health experts say masks are a key tool in preventing coronaviruses that pose no health risks to children older than toddlers, and really effective when worn by large numbers of people. people.
“This idea of parental freedom to decide what is best for their child is not unlimited. It has never been unlimited in our system, ”said Ellen Clayton, pediatrician and law professor at Vanderbilt Law School in Nashville, Tennessee.
Nationwide, deaths from COVID-19 stand at more than 1,200 per day, the highest level since mid-March. New cases per day average over 156,000, going back in time to the end of January.
The flare is largely fueled by the highly contagious delta variant in unvaccinated people. In areas with particularly low vaccination rates, doctors have pleaded with their communities to get vaccinated to spare overcrowded hospitals.
They have also sounded the alarm on the growing toll of the variant among children and young adults.
In Tennessee, for example, children now make up 36% of state-reported COVID-19 cases. Gov. Bill Lee didn’t ban schools from requiring masks, but ordered any parent to opt out – and distance education options are limited this year. Few of the state’s schools have adopted mask mandates.
South Carolina has passed anti-mask regulations and is now facing a federal lawsuit from the American Civil Liberties Union. ACLU says state puts students with disabilities at increased risk of violating federal law amid soaring infections, especially among young children
Susan Mizner, director of the ACLU’s Disability Rights Project, said giving students with disabilities or medical conditions a remote option is not a good alternative. Limiting medically fragile students and people with disabilities to distance education only 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 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 trial proceeds.
“We understand that people are tired,” Mizner said. “We understand that people are frustrated with the pandemic, we understand that there is a lot going on here. We just want them to lean on themselves to care about the children in their communities who are most at risk and who really need their help to protect them.
Schools already have many restrictions aimed at protecting children’s health. The peanut rules are a good example, said Ruth Colker, a law professor at Ohio State University and an expert on disability law.
These rules are meant to protect children with life-threatening peanut allergies that can be triggered by particles in the air. Likewise, the argument goes, children who are particularly vulnerable to COVID-19 need everyone to wear masks so they don’t get sick.
“They need the people around them not to spread the peanut particles,” Colker said. “COVID is like peanuts. In fact, it’s more contagious.
Because schools that accept federal money are subject to the Federal Disability Act, she sees these arguments as likely to win in court. While many court decisions typically apply to a school or state, that could change if the federal government gets into the legal fray. President Joe Biden has ordered his Education Secretary to explore possible legal action against several states that have blocked school mask warrants and other educational public health measures.
Whatever happens in court, however, is unlikely to bridge the broad and controversial political divisions over masks. A recent poll by the Associated Press and the NORC Center for Public Affairs Research found that about 6 in 10 Americans wanted students and teachers to be required to wear face masks in school.
But that poll also found that only 3 in 10 Republicans supported mask requirements, compared to around 8 in 10 Democrats.
The divide is playing out in Florida and Texas, where several large school districts are challenging governors’ orders against school mask mandates.
In Texas, dozens of school districts have defied Governor Greg Abbott’s mask tenure ban. But the state’s highest court sided with the governor last week as Republican judges ruled that the “status quo” of mask authority should belong to him while the case unfolds. .
“The decision to apply the mask warrants rests with the legislative authority of the governor,” Attorney General Ken Paxton said Thursday. “Mask warrants in our state are illegal. “
In Florida, more than half of public school students are now in districts requiring a mask, despite an executive order from Republican Governor Ron DeSantis. He wants to leave such decisions to parents, but on Friday a judge ruled that schools should be able to demand masks to protect public health.
In places like Utah and Iowa, where legislatures have passed laws restricting or banning mask warrants, the state may have a legal advantage as state laws generally trump local control. . Lawrence Gostin, professor of global health law at Georgetown and director of the World Health Organization’s Center on Global Health Law, said he considered restrictions on mask mandates “totally irresponsible” and “an attack on public confidence”, but saw the legal landscape as blurry at best.
“There are going to be some really fierce courtroom battles across America,” he said.
Whitehurst reported from Salt Lake City.