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Mask debate moves from school boards to courtrooms
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MASK DEBATE MOVES FROM SCHOOL BOARDS TO COURTROOMS

By LINDSAY WHITEHURST and COLLEEN LONGAugust 28, 2021



1 of 10
FILE- In this Monday, Aug. 23, 2021, file photo, Carol Basilio, right, hugs her
daughter Giovanna outside of iPrep Academy on the first day of school, in Miami.
A judge has ruled that Florida school districts may impose mask mandates. Leon
County Circuit Judge John C. Cooper on Friday agreed with a group of parents who
claimed in a lawsuit that Gov. Ron DeSantis' ban on the mandates is
unconstitutional and cannot be enforced. (AP Photo/Lynne Sladky, File)

WASHINGTON (AP) — 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.

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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.

Republican officials who restrict mask mandates argue there are downsides to
kids being masked all day and that parents should decide whether to put them on
children, who are generally less vulnerable to the virus than are older adults.

But public health experts say masks are a key coronavirus-prevention tool that
does not pose health risks for children older than toddler age, and truly
effective when worn by a large number of people.

“This idea of parental freedom to decide what’s best for their child is not
unlimited. It has never been unlimited in our system,” said Ellen Clayton, a
pediatrician and law professor at Vanderbilt Law School in Nashville, Tennessee.

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.

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The surge is largely fueled by the highly contagious delta variant among people
who are unvaccinated. 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

Susan Mizner, director of the ACLU’s Disability Rights Project, said offering
students with disabilities or medical conditions a remote option is not a good
alternative. Limiting medically fragile students and those with disabilities to
a remote-only education denies them equal opportunity, she said.

Under the Americans with Disabilities Act and the Rehabilitation Act, public
schools cannot exclude students with disabilities or segregate them
unnecessarily from their peers. Schools are also required to provide reasonable
modifications to allow students with disabilities to participate fully. Lawyers
have filed for a temporary injunction requiring masks while the court case plays
out.

“We understand people are tired,” Mizner said. “We understand people are
frustrated with the pandemic, we understand there is a lot going on here. We
just want them to draw on their better selves to care about the kids in their
communities who are most at risk and really need their help at protecting them.”

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.”

Because schools that accept federal money are subject to federal disability law,
she sees those arguments as likely to win in court. 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.

In places such as Utah and Iowa, where legislatures have passed laws
restrictions or bans on mask mandates, the state could have a legal upper hand
because state laws generally trumps local control. Lawrence Gostin, professor of
global health law at Georgetown and director of the World Health Organization
Center on Global Health Law, said he considers restrictions on mask mandates
“utterly irresponsible” and “a breach of public trust” but sees the legal
landscape as hazy at best.

“There’s going to be really fierce battles in the courtrooms across America,” he
said.

__

Whitehurst reported from Salt Lake City.

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