The endgame appears near in multiple states over whether school districts have the legal authority to require masks to contain the spread of COVID-19 in schools, and it turns on long-fought issues involving who wields control of local schools.
鈥淚 think all this will come to a head sooner rather than later,鈥 said David Thompson, a Houston lawyer helping to represent Texas school districts challenging an order from Republican Gov. Greg Abbott that bars local mask mandates. 鈥淪chool districts need some clarity.鈥
On Friday, state judges in Texas and Florida sided in favor of school districts, ruling that those states鈥 governors exceeded their authority in barring mask mandates.
In Texas, a state judge in Travis County ruled that challengers are likely to prevail on their claims against Republican Gov. Greg Abbott.
The governor 鈥渋s not authorized to declare by executive fiat that school districts are prohibited from requiring individuals to wear face coverings,鈥 District Judge Catherine A. Mauzy wrote.
In Florida, a state judge issued a similar ruling against Republican Gov. Ron DeSantis鈥檚 order barring local school district mask mandates.
鈥淭he school district which adopts a policy such as a mask mandate is acting within discretion given to it by the legislature and the Florida Parents Bill of Rights,鈥 said Leon County Circuit Judge John C. Cooper in an oral ruling that referred to a recently adopted state statute meant to affirm parents鈥 rights to direct their children鈥檚 upbringing.
Cooper said he would sign an injunction blocking state officials from barring the local mask mandates.
The Texas and Florida rulings come as governors in eight states have barred school districts from requiring masks, leading to legal battles nationwide. The cases have been working their way through state courts, based on esoteric state law issues such as separation of powers and home rule.
鈥淭his is a battle about what scholars call micro-federalism,鈥 said Scott R. Bauries, a law professor and education law expert at the University of Kentucky. 鈥淭his is just like traditional federalism [state versus federal power] but at the state level. It鈥檚 a question of state versus local power.鈥
Bauries鈥 scholarship has focused in part on education adequacy battles between school districts and their states, and he sees some parallels with the current fight over state-level efforts to bar local mask mandates.
鈥淲hat they鈥檙e fighting about here is when state officials prohibit the locality from acting, does the locality have some inherent power to act?鈥 he said. 鈥淚 don鈥檛 know that there is a clear answer in every state.鈥
Derek W. Black, a law professor at the University of South Carolina, is another scholar of education finance and equality who has looked to the battle over mask mandates with interest.
鈥淚n general, we have designed these structures to insulate our educational system from the political process, but it is creeping in now,鈥 said Black, the author of a 2020 book, Schoolhouse Burning: Public Education and the Assault on American Democracy.
鈥淭he other takeaway from school finance litigation, which is getting lost in all these mask controversies, is the question of whether there is an individual right here, or a general duty regarding the entire school system,鈥 said Black. 鈥淭he general answer is that while state constitutions have obligations to provide equal and adequate educations for all ...that does not always mean they can cater to individualized complaints.鈥
Texas districts challenge governor鈥檚 claim to be 鈥榗ommander in chief鈥 of virus response
The great mask battle of 2021 is pitting one parent against another and some governors against school districts.
This information is no longer being updated. The last data update was on May 23, 2022.
MASK MANDATE BAN IN EFFECT
MASK MANDATE BAN BLOCKED, SUSPENDED, OR NOT BEING ENFORCED
MASK REQUIREMENT IN EFFECT
PREVIOUSLY HAD MASK REQUIREMENT
NOTES
In January 2022, the Missouri attorney general, Eric Schmitt, some school districts that required masks, citing a by a county judge that said local health orders tied to COVID-19 were illegal. (The ruling was interpreted differently by different districts.) The state鈥檚 treasurer on schools with mask mandates. In mid-March, Schmitt against school districts that no longer required masks. On May 19, 2022 Schmitt against several districts that had reinstated mask requirements.
On Feb. 23, 2022, New Hampshire鈥檚 governor announced the state was no longer recommending universal indoor masking and therefore schools have to end mask mandates, arguing they violate state education department rules. Soon after, the department advised districts that the mandates 鈥渁re inconsistent with鈥 their rules. There鈥檚 , but in response. A was vetoed by Gov. Sununu in May 2022.
Updated 5/23/2022 | Sources: Local media reports, Education Week reporting | Learn more here
Besides Florida, the most contentious fight over local mask mandates has been in Texas, where Abbott in March issued an executive order prohibiting local mask mandates not just for school districts but for other local governments.
The governor鈥檚 action has been challenged in several lawsuits around the state, including by county authorities whose general mask mandates cover schools. But a lawsuit in Travis County challenging the governor鈥檚 order and initially brought by a group of smaller school districts has now been joined by most of the state鈥檚 largest districts.
鈥淭his year, we have different entities in the state attempting to exercise their authority and pulling in different directions,鈥 said Thompson, who is counsel to the Houston Independent School District and the Texas Association of School Administrators.
Abbott is attempting to exercise his authority under the Texas Disaster Act, is seeking to prohibit mask mandates, while some local county executives (called county judges in Texas) are relying on their authority to impose health orders as they issue the mandates.
鈥淪eparate from that, you have school districts that are just trying to chart their own way,鈥 said Thompson. 鈥淲e have a growing number of districts that are saying, while all these other entities are fighting each other, we have our own statutory authority, and we鈥檙e going to require masks.鈥
The Houston district, along with Dallas, Austin, and others, filed a brief in the case known as La Joya Independent School District v. Abbott, that argues, 鈥淎ll school districts inherently have the right to impose (or not impose) a mask requirement in response to the realities and conditions in their local communities. This local control of public schools stems neither from the [Texas Disaster Act] nor from any regulatory law or state agency rule, but from the Texas Education Code.鈥
In one court filing on behalf of Abbott, state lawyers argued that the governor 鈥渋s the commander in chief of the state鈥檚 disaster response.鈥
鈥淭he Texas Disaster Act creates a chain of command with the governor at its apex,鈥 the filing said. 鈥淚t does not countenance local officials attempting to substitute their views about how to handle an emergency for those of the state鈥檚 commander in chief.鈥
The Texas Education Agency, before Judge Mauzy鈥檚 ruling late Friday, said it would wait until the litigation was resolved before taking any action against school districts over mask mandates.
鈥淢y best advice to school districts, knowing that we are dealing with the Delta [coronavirus] surge, has been for them to make the decisions to keep students and staff safe,鈥 Thompson said. 鈥淵ou鈥檙e not going to regret that, and we鈥檒l defend you on those decisions.鈥
A familiar look (on Zoom) for Florida case on mask mandates
In Missouri, the script is flipped in the sense that state Attorney General Eric Schmitt, a Republican, has sued the Columbia school district and its officials to try to end the district鈥檚 mask mandate.
鈥淢ask mandates for kids in schools are not supported by the science and are an arbitrary and capricious measure,鈥 declares the attorney general鈥檚 suit, which was filed Aug. 24 in state court. 鈥淭he cure should not be worse than the disease.鈥
The Centers for Disease Control and Prevention has recommended universal masking in schools to mitigate the spread the virus.
The 19,000-student district said in a statement that the state lawsuit will waste taxpayer dollars and 鈥淐olumbia Public 69传媒 intends to aggressively defend its decision to keep its community and its scholars safe.鈥
The trial judge鈥檚 decision in the Florida case comes in just one of several legal battles over the state鈥檚 ban on mask mandates, but it may be felt in others.
The case of McCarthy v. DeSantis in Leon County Circuit Court, in Tallahassee, bears some resemblance to a key legal battle fought in the same (Zoom) courthouse last year, when some parents were opposing a state mandate for in-person learning.
In late August 2020, Leon Circuit Court Judge Charles W. Dodson issued an injunction against a DeSantis administration emergency order that required most schools to open in person or face a loss of state funding. But that ruling was overturned last October by a state appellate panel that said the challenge 鈥渋nvited the judiciary to second-guess the executive鈥檚 discretionary actions exercising emergency powers during a public health emergency to address the health, safety, and welfare of students in Florida鈥檚 public schools.鈥
The issue this year is the state鈥檚 actions to bar local mask mandates, and as the parents鈥 lawsuit made its way to an online trial this week before Leon County Judge John C. Cooper, there was Dodson on the screen, now retired from the bench and helping to challenge the state鈥檚 actions.
鈥淏ecause of the Delta variant, our public schools are not safe and secure at this time unless everyone wears a mask,鈥 Dodson said in an opening statement on Aug. 23. 鈥淲e believe the governor鈥檚 executive order, and accompanying rule, are arbitrary and capricious.鈥
Michael A. Abel, a Jacksonville lawyer representing the DeSantis administration, said 鈥渢he governor made the policy decision to protect the freedoms and statutory rights of students and parents. He did this by resting with the parents the decision whether children should wear masks in schools.鈥
Abel鈥檚 arguments relied heavily on the Florida Parents鈥 Bill of Rights, a state law signed by DeSantis in June that enumerates the fundamental rights of parents to 鈥渄irect the upbringing, education, health care, and mental health鈥 of their children.
Cooper, in delivering a two-hour oral summary of his decision on Friday, held that school districts have due process of law rights under the Parents Bill of Rights statutes to be able to justify their policies.
鈥淪o long as the requirements of the policy provided for in the Parents鈥 Bill of Rights are met, the doctrine of separation of powers requires that the discretionary power exercised by the school board cannot be interfered with by the judiciary or the executive branch of government,鈥 said Cooper.
鈥淩emember, this is not something I made up,鈥 added the folksy but decisive judge.
The case before Cooper does not directly involve efforts by the state board of education to punish school boards that have enacted mask mandates in defiance of the governor. The board has moved forward on penalties for the boards in Broward and Alachua counties.
Cooper referred to those actions and said, 鈥淭he law of Florida does not permit the defendants to punish school boards for adopting a face mask mandate if the school boards have been denied their due-process rights under the parents鈥 bill of rights to show that their policy is reasonable.鈥
The DeSantis administration said it would appeal the ruling, and state Attorney General Ashley Moody, an elected Republican and ally of the governor, issued an opinion on Sept. 1 that said schools must still follow the governor鈥檚 executive order and allow parents to opt out of masks for their children. The opinion suggested that an appeal of Judge Cooper鈥檚 ruling would result in an automatic stay pending review by a higher court, and thus the administration鈥檚 ban on mask mandates would remain in place.