With the return of mask requirements, so have the lawsuits

(Image credit: DavidCarpio/Shutterstock)

Complaints about school mask mandates have returned amid the surge in the omicron variant of COVID-19, which peaked in the United States last month, prompting lawmakers, teachers and parents to discuss how school districts should deal with pandemic-related health guidelines.

On January 13th, the Centers for Disease Control and Prevention Recommended universal indoor masking by all students aged two years and older, regardless of vaccination status. It also recommends children maintain a three-foot social distance within a classroom requires accommodations for those who cannot safely wear a mask. However, these are only recommendations—school districts are not required to implement them.

Legally, states have the power to enforce mask mandates, not the federal government. Every state has different rules about who can implement mask requirements, but no matter what upsets someone. Some parents have pushed for stricter mask regulations when they are not in place for their children, while others have fought against the regulations, arguing they violate their constitutional rights.

Complaints about compulsory school masks

A federal judge issued an injunction ordering the North Allegheny School District north of Pittsburgh to reinstate and enforce its mask policy. The move came after a group of parents filed a class-action lawsuit challenging the district’s optional mask policy in January.

The school board voted in December to let parents choose whether their children should wear a mask at school, but the group of parents who filed the lawsuit said it violated the Americans with Disabilities Act. The lawsuit did not identify the children, but said they have medical conditions that make them vulnerable to COVID-19.

“The school board has empowered parents of medically vulnerable students to choose whether to keep their children at home, where they are likely to experience an ongoing learning loss, or risk placing them in an environment that has a serious poses a risk to their health and safety,” the lawsuit states.

As a result, on Jan. 17, a judge issued a restraining order requiring children to wear masks. That day, the school district sent one E-mail to parents notifying them of the mask policy change.

This is the second time parents in the North Allegheny School District have taken legal action over the school district’s mask policy. In August, parents and students filed a complaint to reverse the optional policy.

The state of Virginia is also facing a similar lawsuit.

On January 24, seven school districts in the state filed a lawsuit against Gov. Glenn Youngkin over an executive order ending mask mandates he signed on Jan. 15, his first day in office.

The school districts represent 350,000 students.

The lawsuit alleges that the order is in direct contradiction to guidance from the CDC and a 2021 law passed by the Virginia General Assembly that allows each school board to implement personal policies to limit the spread of Covid-19 to reduce.

“Without today’s action, school boards will be placed in a legally untenable position — faced with an executive order that is contrary to the Constitution and state law,” the lawsuit reads.

A spokesman for the governor, Macaulay Porter, told the New York Times in a statement that the governor’s office was “disappointed that these school boards are ignoring parents’ rights.” She also said the governor and attorney general are determined to fight the lawsuit.

This is the second lawsuit Youngkin has faced. Parents in Chesapeake asked the Virginia Supreme Court to rule that the governor’s order violates the state’s COVID containment law in schools.

White House Press Secretary Jen Psaki is one of those Virginia parents who have supported the school’s efforts to uphold mask mandates.

“Thanks to @APSVirginia for standing up for our children, teachers and administrators and their safety in the midst of a transmissible variant,” Psaki said tweeted on January 16th.

Psaki continued to support school mask mandates when a reporter asked her about the Virginia school district’s lawsuit on Jan. 24.

“Studies show that masks reduce transmission at school,” she said. “They are a proven tool that protects students and teachers from Covid. And they can help keep schools open and safe. What we advise school districts to do is adhere to public health guidelines and follow public health guidelines.”

But not everyone thinks schools should follow CDC guidelines regarding masks.

On Jan. 21, Missouri Attorney General Eric Schmitt announced complain against at least 27 school districts over masking policies Twitter. Many of the school districts are located in the St. Louis and Kansas City areas.

The lawsuit states that the state’s school districts do not have the authority to require students to wear a mask because the General Assembly did not require it.

“School districts do not have the authority to impose public health orders on their school children at will,” the lawsuit states. “That’s doubly true when the public health regime, in this case face masks, creates a barrier to education that far outweighs any speculative benefit.”

The lawsuit argues that it is up to parents to decide whether their children should wear a mask at school.

“This follows from the basic truth that “the child is not the mere creature of the state; those who care for him and direct his destiny have the right, with a heavy duty, to recognize him and prepare him for additional obligations,” the lawsuit reads.

Who has the authority to determine mask requirements?

The federal government has limited powers to impose mask requirements. As for the States, thanks to Jacob v. Massachusetts, where the Supreme Court upheld states’ power to enforce compulsory vaccination laws, the power to rule on their own mask mandates.

“It was said that compulsory vaccinations for the benefit of the common good and security were constitutional,” it said Danny Karen, the attorney behind Your Lovable Lawyer, a legal wellness website. “Well, if vaccinations are constitutional, so is wearing masks more broadly. That’s your constitutional basis for why it’s okay, Chicago — for the Health Commissioner to order what you did [city wide mask-mandate].”

Now each state has different rules about who can enforce Maks mandates. It’s also getting difficult because some opponents of the mask mandate argue that government-enacted mask mandates violate the First Amendment clauses on freedom of speech and assembly, or that masks constitute coerced political expression.

“The First Amendment protects freedom of speech, of the press, of petition, of assembly and of religion. But a mask doesn’t stop you from expressing yourself,” Karon said. “Likewise, you don’t have to express yourself in a specific way, as you would if a specific style mask was required. Masks only limit how you can speak, not what you can say. And because this time, place, and manner limitation does not discriminate based on the content of a person’s speech, it does not violate the First Amendment.”

What does the constitution say about masks?

The Constitution has no language regarding masks. The Tenth Amendment empowers state and local officials to pass and enforce necessary legislation.

“A mask mandate is not an example of government overreach, but another sensible policy designed to help protect us,” Karon said. “As long as this government safety measure is neutral, universally applicable, and promotes medical necessity, it is not unconstitutional and the courts must bow to public health experts.”

Karon said some anti-maskers use the constitution to support their arguments, but they “can’t prove it”.

“The Supreme Court has never interpreted the Constitution in the way anti-masking actors insist, and neither did people of similar ideology decades ago,” he said.

How many more mask lawsuits will there be?

In short, there’s no end in sight to how many more of these mask-mandated lawsuits we’ll see.

“As long as there are lawyers and people who want to sue, you will see lawsuits,” Karon said. “The lawsuits died down, but then the Delta variant came and it increased, the Omicron variant came and it increased. As there was a resurgence, masks were required again, which angered some people and led to lawsuits.”

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