Mask Mandate Lawsuits Reflect Bigger Battle: Do States or Local Districts Control 69传媒?

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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

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1. Florida

On Sept. 22, Florida's surgeon general over masking in schools. On Nov. 5, a judge in a legal challenge to rule. On Nov. 18, Gov. DeSantis signed a bill that that require masks.

2. Georgia

On March 29, Gov. Kemp signed the which allows parents to exempt their child from a school mask requirement. The law went into effect immediately.

3. Iowa

On Sept. 13, 2021, a federal judge ordered Iowa to halt enforcement of its law banning mask mandates in schools. On Jan. 25, 2022, a federal appeals panel narrowed that injunction. Iowa鈥檚 attorney generalwhile awaiting further action from the court. On May 16, 2022 a U.S. Court of Appeals .

4. Oklahoma

On Sept. 1, an Oklahoma judge , but students or their parents can still opt out of school mask mandates if they choose.

5. Utah

In Utah, local health departments with approval from the state or county government, according to the state鈥檚 top education official.

6. Virginia

On Jan. 15, Gov. Youngkin It effectively rescinded the state's school mask requirement that had been in place since August. That executive order On Feb. 14, the Virginia legislature That bill was on Feb. 16 and went into effect on March 1.

MASK MANDATE BAN BLOCKED, SUSPENDED, OR NOT BEING ENFORCED

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1. Arizona

On Sept. 27, a that were set to take effect on Sept. 29. On Nov. 2, . On April 25, Gov. Ducey signed , which prevents schools from requiring a student to wear a mask without first getting parental consent. The ban, which replaces the one blocked by the courts, will go into effect 90 days after the legislature adjourns.

2. Arkansas

An , that a law signed by the governor in April that prohibited local officials, including school boards, from setting mask mandates was unconstitutional. School districts have been able to set their own mask requirements since August when the judge put the law on hold.

3. South Carolina

On Sept. 28, South Carolina from enforcing the rule that banned school districts from requiring masks for students.

4. Tennessee

On Dec. 10, 2021, a federal judge An appeals court on May 10, 2022.

5. Texas

On March 17, an appeals court upheld an injunction that , finding it is unlawful and exceeding the governor's authority. This is not the first time the state's ban has been .

MASK REQUIREMENT IN EFFECT

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1. Hawaii

Although Hawaii's state-wide indoor mask mandate indoor masking will still be required in public schools

PREVIOUSLY HAD MASK REQUIREMENT

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1. California

On Feb. 28, the governors of California, Oregon, and Washington that mask requirements would end in their states effective March 12.

2. Connecticut

On Feb. 7, Gov. Lamont announced that the school mask rule would expire Feb. 28. Heon Feb. 15 that made the expiration date official.

3. Delaware

On Feb. 7, Gov. Carney amended his emergency order to allow his state-level school mask requirement to expire March 31. that masks would no longer be required effective at 6:00 p.m. on Tuesday, March 1.

4. District of Columbia

On March 8, the department of health that recommend universal masking only when community COVID-19 levels are high.

5. Illinois

On Feb. 5, a judge issued a聽聽on the governor's statewide mask requirement. On Feb. 25, the state supreme court vacated that order. On the same day, the governor the requirement on Feb. 28.

6. Kentucky

Kentucky's school mask mandate , when the state legislature voted to limit the governor鈥檚 emergency powers.

7. Louisiana

According to a which was students were required to wear masks in schools, but districts could opt out of the mandate if they adopted an isolation and quarantine policy consistent with the state's department of health protocols. On Feb. 16, Gov. Bel Edwards without requiring masking in schools.

8. Maryland

On Jan. 5, but allowed school districts to opt out if certain vaccination rates were met. On Feb. 22, the state board of education . On Feb. 25, a state legislative committee effective March 1.

9. Massachusetts

On Sept. 27, the state began allowing from the face covering rules for vaccinated individuals if certain vaccination rates were met. On Feb. 9, officials announced

10. Nevada

On Feb. 10, the immediate suspension of the school mask requirement. The previous mask requirement had only

11. New Jersey

On Feb. 7, Gov. Murphy to end his state鈥檚 school-mask requirement on March 7.

12. New Mexico

On Feb. 17, the end of the mask requirement, effective immediately.

13. New York

On Jan. 24, A day later, an appeals judge On Feb. 27, Gov. Hochul on March 2.

14. Oregon

On Feb. 7, health officials said the state would drop its school mask requirement no later than March 31. On Feb. 24, the Oregon Health Authority . However, on Feb. 28, the governors of California, Oregon, and Washington that mask requirements would end in their states effective March 12.

15. Pennsylvania

A statewide mask mandate for Pennsylvania schoolchildren on December 10.

16. Rhode Island

On Feb. 9, Gov McKee announced the school mask mandate would On Feb. 15, he signed an specifying that the order would take effect at 5 p.m. on March 4.

17. Virginia

On Jan. 15, Gov. Youngkin It effectively rescinded the state's school mask requirement that had been in place since August. That executive order On Feb. 14, the Virginia legislature That bill was on Feb. 16 and went into effect on March 1.

18. Washington

On Feb. 17, the state's school mask requirement will end effective March 21. However, on Feb. 28, the governors of California, Oregon, and Washington that mask requirements would end in their states effective March 12.
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.

Mark Walsh

Contributing Writer, Education Week

Mark Walsh covers education law and the U.S. Supreme Court for Education Week.

A version of this article appeared in the September 08, 2021 edition of Education Week as Mask Mandate Lawsuits Reflect Bigger Battle: Do States or Local Districts Control 69传媒?