Mask Debate Moves From School Boards to Courtrooms

WASHINGTON (AP ) -
In this March 21, 2021, file photo, students sit separated by plastic dividers during lunch at Wyandotte County High School in Kansas City, Kan., on the first day of in-person learning. (AP Photo/Charlie Riedel, File)

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.

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 not vaccinated. 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

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.”

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 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.