As Mask Mandates Return, So Do Lawsuits

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Lawsuits over school mask mandates have returned amid the surge of the omicron variant of COVID-19 that peaked in the United States last month, leading lawmakers, teachers, and parents to debate how school districts should handle pandemic-related health policies.

On Jan. 13, the Centers for Disease Control and Prevention recommended universal indoor masking by all students ages two and older, regardless of vaccination status. It also recommends kids to social distance by three feet within a classroom and requires accommodations for those who cannot safely wear a mask. However, these are just recommendations — school districts are not required to implement them. 

Legally, states have the power to enforce mask mandates, not the federal government. Each state has different rules pertaining to who can implement mask mandates but no matter what someone is upset. Some parents have pushed for more stringent mask mandates when they are not in place for their children, while others have pushed back against the mandates, arguing they violate their constitutional rights. 

School Mask Mandate Lawsuits

A federal judge issued a temporary order requiring 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 in January against the district’s mask-optional policy. 

The school board voted in December to let parents decide if their kids should wear a mask in school, but the group of parents who filed the lawsuit said this violates the Americans with Disabilities Act. The lawsuit did not identify the children but did state that they have medical conditions that leave them vulnerable to COVID-19. 

“The School Board has put the parents of medically vulnerable students in the position of having to decide whether to keep their children at home where they will likely suffer continued learning loss or risk placing them in an environment that presents a serious risk to their health and safety,” the lawsuit states. 

As a result, a judge issued a temporary restraining order requiring children to wear masks on Jan. 17. That day, the school district sent an email to parents informing them of the mask policy change. 

This is the second time parents in the North Allegheny School District have sought 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 class action over masks, but from the opposite end of the ideological spectrum.

On Jan. 24, seven school districts in the state filed a lawsuit against Gov. Glenn Youngkin over an executive order ending mask mandates that 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 conflict with guidance from the CDC and a 2021 law passed by Virginia’s General Assembly, which lets each school board implement in-person policies to reduce the spread of Covid-19. 

“Without today’s action, school boards are placed in a legally untenable position — faced with an executive order that conflicts with the constitution and state law,” the lawsuit says.

A spokesperson 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 parent’s rights.” She also said that the governor and state attorney general were committed to fighting the lawsuit.

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

White House Press Secretary Jen Psaki is one of those Virginia parents who has supported the school’s efforts to keep the mask mandates in effect. 

“Thank you to @APSVirginia for standing up for our kids, teachers, and administrators and their safety in the midst of a transmissible variant,” Psaki tweeted on Jan. 16. 

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

“Studies show that masks reduce transmissions in school,” she said. “They’re a proven tool that helps keep students and teachers safe from Covid. And they can thus help keep schools open and safe. What we’re advising school districts on is to abide by public health guidelines and follow public health guidelines.”

But not everyone believes schools should listen to CDC guidelines in regards to masks. 

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

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

“School districts do not have the authority to impose, at their whim, public health orders for their schoolchildren,” the lawsuit states. “That is doubly true when the public health order, in this case, facemasks, creates a barrier to education that far outweighs any speculative benefit.”

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

“That follows from the fundamental truth that “(t)he child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations,” the lawsuit states. 

Who Has The Power To Determine Mask Mandates?

The federal government has only limited power to require mask mandates. As it concerns the states, they have the power to decide their own mask mandates thanks to Jacob v. Massachusetts, where the Supreme Court upheld the authority of states to enforce compulsory vaccination laws. 

“It said compulsory vaccinations for the sake of the public welfare and safety, those are constitutional,” said Danny Karon, the attorney behind Your Lovable Lawyer, a legal wellness website. “Now if vaccinations are constitutional, easily by extension mask-wearing is too. That is your constitutional basis for why it’s okay Chicago — for the commissioner of health to order what they did [city wide mask-mandate].”

Now, each state has different rules regarding who can enforce maks mandates. It also gets tricky because some mask mandate opponents argue that state-issued mask mandates violate the constitution’s First Amendment’s Free Speech and Assembly clauses, or that masks represent forced political expression.

“The First Amendment protects freedom of speech, press, petition, assembly, and religion. But a mask doesn’t keep you from expressing yourself,” Karon said. “Likewise, it doesn’t require you to express yourself a certain way, as would be the case if a particular style mask were required. At most, masks limit how you can speak, not what you can say. And because this time, place, and manner restriction doesn’t discriminate based on the content of a person’s speech, it doesn’t violate the First Amendment.”

What Does The Constitution Say About Masks?

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

“A mask mandate is not an example of governmental overreach but, rather, another reasonable policy intended to help keep us safe,” Karon said. “So long as this government safety measure is neutral and generally applicable and promotes medical necessity, it does not violate the Constitution, and courts must defer to public-health experts.”

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

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

How Many More Mask Mandate Lawsuits Will There Be? 

In short, there is no end in sight for how many more of these mask-mandate lawsuits we will see. 

“As long as there are lawyers and people wanting to sue you will see lawsuits,” Karon said. “The lawsuits died down but then the delta variant came along and they picked up, the Omicron variant came along and they picked up. As there was a new surge, masks were required again, which upset some people and led to lawsuits.”

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