By Terrence Wilson, J.D. • Learning Goes On • September 2, 2022 •
Across the U.S South, several different states have passed legislation that bans the practice of requiring masks for children in schools. This legislation is proposed as a part of a larger package of measures aimed at increasing parent control in educational spaces.
These measures have been enacted despite evidence that those that wear a mask in indoor public settings have up to an 83% lower chance of testing positive for COVID-19. Specifically, researchers have studied the impact of masking in K-12 school environments and assert that consistent and correct mask use is a critical strategy for preventing the spread of COVID-19.
While COVID-19 transmission rates have declined, there are still risks of outbreaks within school communities, and these policies make it significantly harder for schools to control the spread of COVID-19.
Examples of Anti-Mask Executive and Legislative Action and Legislation
Over the last two years, governors and legislatures across the U.S. South have attempted to ban mask mandates in schools. For example, during the 2022 legislative session, leaders in Georgia passed the “Unmask GA Students Act” (GA SB514/Act 586, 2022) with Governor Brian Kemp’s full endorsement. The law prevents any local boards of education, charter school boards, local superintendents, local teachers, administrators or other school personnel from creating or enforcing any rule that requires students to wear masks, without exception.
Similarly, Governor Ron DeSantis issued an order authorizing the Florida education department to withhold funding from school districts that enact mask mandates and cited Florida’s new Parents’ Bill of Rights legislation (FL HB 241/Chapter No. 2021-199, 2021) prohibition on state and government institutions interfering with parents’ authority to make education or healthcare decisions for their children.
Additionally, in Virginia, both Governor Glenn Youngkin and the Virginia legislature have sought to ban mask mandates. Governor Youngkin’s second executive order sought to give the power to decide whether or not children must wear masks to each individual parent. Similarly, the Virginia General Assembly passed a bill that allows parents to opt their children out of school mask mandates and requires schools to stay open five days a week for in-person instruction (VA SB379, Chapter 2, 2022).
Other measures that have been enacted include an executive order by Governor Greg Abbott in Texas. Tennessee legislators passed legislation rolling back several COVID-19 protections, including placing additional requirements on schools that institute mask mandates and prohibits state money from being used for that purpose (TN SB 9014/Pub. Ch. 6, 2021). In South Carolina, legislators wrote the mask mandate ban into law via the state budget (SC HB 4100, 2021).
Legal Challenges are a Mixed Bag
Parents, school districts and advocates have challenged many of these laws in court. In Florida, advocates were unsuccessful in their challenge as, after an original ruling against this executive order, the Florida Court of Appeals ruled in the governor’s favor and allowed the order to remain in place, largely upon procedural grounds. The result of this ruling was that districts like Miami-Dade public schools, the fourth largest district in the nation, and seven other school districts had money withheld. This money was later reimbursed by the Florida Department of Education and was the subject of a cease and desist complaint from the U.S. Department of Education.
In South Carolina, both the state supreme court and the U.S. Court of Appeals for the Fourth Circuit have allowed South Carolina’s budget measure banning mask mandates to stand.
In Texas, a federal appeals court allowed the governor’s mask mandate executive order.
Other advocates have had more success, particularly when considering the impact on the mask mandate ban on students with disabilities. In Arkansas, a federal judge struck down the 2021 law banning school mask mandates (AR SB 590/Act No. 1002, 2021) as unconstitutional (McClane v. Hutchinson, 2021). In Virginia, courts ruled that Governor Youngkin’s executive order and Virginia’s SB 739 could not be enforced against students with disabilities (Seaman v. Commonwealth of Virginia, 2022).
Similarly, in South Carolina advocates were able to secure an injunction against the operation of a mask mandate for students with disabilities when a judge struck down that law as unconstitutional. Similarly, in Tennessee, a federal district circuit court allowed schools to institute mask mandates.
While the legality of mask mandate executive orders and legislation remains up for debate, it is vital that schools continue to have the ability to make the best decisions regarding safety for their students and staff. It will be crucial for parents, communities and community-based organizations to be vigilant for the spread of COVID-19 since schools may not be in a position to take measures to prevent the spread due to executive and legislative action.
[©2022, IDRA. This article originally appeared in the September 2, 2022, edition of Learning is Power by the Intercultural Development Research Association. Permission to reproduce this article is granted provided the article is reprinted in its entirety and proper credit is given to IDRA and the author.]