On Sept. 22, Florida's surgeon general instituted a rule that gives parents and legal guardians "sole discretion" over masking in schools. On Nov. 5, a judge sided with the state health department in a legal challenge to rule. On Nov. 18 Gov. DeSantis signed a bill that allows parents to sue school districts that require masks.
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.
“I think all this will come to a head sooner rather than later,” 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. “School districts need some clarity.”
On Friday, state judges in Texas and Florida sided in favor of school districts, ruling that those states’ 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 “is not authorized to declare by executive fiat that school districts are prohibited from requiring individuals to wear face coverings,” District Judge Catherine A. Mauzy wrote.
In Florida, a state judge issued a similar ruling against Republican Gov. Ron DeSantis’s order barring local school district mask mandates.
“The 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,” said Leon County Circuit Judge John C. Cooper in an oral ruling that referred to a recently adopted state statute meant to affirm parents’ rights to direct their children’s 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.
“This is a battle about what scholars call micro-federalism,” said Scott R. Bauries, a law professor and education law expert at the University of Kentucky. “This is just like traditional federalism [state versus federal power] but at the state level. It’s a question of state versus local power.”
Bauries’ 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.
“What they’re fighting about here is when state officials prohibit the locality from acting, does the locality have some inherent power to act?” he said. “I don’t know that there is a clear answer in every state.”
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.
“In general, we have designed these structures to insulate our educational system from the political process, but it is creeping in now,” said Black, the author of a 2020 book, Schoolhouse Burning: Public Education and the Assault on American Democracy.
“The 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,” said Black. “The 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.”
Texas districts challenge governor’s claim to be ‘commander in chief’ of virus response
The great mask battle of 2021 is pitting one parent against another and some governors against school districts.
As of Dec. 10, four states have bans in effect that prevent school districts from setting universal mask mandates, according to an Education Week analysis. Five additional states have such bans, but they have been blocked, suspended, or are not being enforced. Sixteen states and the District of Columbia require masks be worn in schools.
MASK MANDATE BAN IN EFFECT
MASK MANDATE BAN BLOCKED, SUSPENDED, OR NOT BEING ENFORCED
Note: In Missouri, the state attorney general has threatened to sue school districts that require masks, citing a November ruling by a county judge that said local health orders tied to COVID-19 are illegal. (The ruling is being interpreted differently by different districts.) The state’s treasurer announced he was also cracking down on schools with mask mandates.
Updated 01/17/2022| Sources: Local media reports | 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’s 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’s order and initially brought by a group of smaller school districts has now been joined by most of the state’s largest districts.
“This year, we have different entities in the state attempting to exercise their authority and pulling in different directions,” 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.
“Separate from that, you have school districts that are just trying to chart their own way,” said Thompson. “We 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’re going to require masks.”
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, “All 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.”
In one court filing on behalf of Abbott, state lawyers argued that the governor “is the commander in chief of the state’s disaster response.”
“The Texas Disaster Act creates a chain of command with the governor at its apex,” the filing said. “It does not countenance local officials attempting to substitute their views about how to handle an emergency for those of the state’s commander in chief.”
The Texas Education Agency, before Judge Mauzy’s ruling late Friday, said it would wait until the litigation was resolved before taking any action against school districts over mask mandates.
“My 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,” Thompson said. “You’re not going to regret that, and we’ll defend you on those decisions.”
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’s mask mandate.
“Mask mandates for kids in schools are not supported by the science and are an arbitrary and capricious measure,” declares the attorney general’s suit, which was filed Aug. 24 in state court. “The cure should not be worse than the disease.”
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 “Columbia Public Schools intends to aggressively defend its decision to keep its community and its scholars safe.”
The trial judge’s decision in the Florida case comes in just one of several legal battles over the state’s 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 “invited the judiciary to second-guess the executive’s discretionary actions exercising emergency powers during a public health emergency to address the health, safety, and welfare of students in Florida’s public schools.”
The issue this year is the state’s actions to bar local mask mandates, and as the parents’ 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’s actions.
“Because of the Delta variant, our public schools are not safe and secure at this time unless everyone wears a mask,” Dodson said in an opening statement on Aug. 23. “We believe the governor’s executive order, and accompanying rule, are arbitrary and capricious.”
Michael A. Abel, a Jacksonville lawyer representing the DeSantis administration, said “the 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.”
Abel’s arguments relied heavily on the Florida Parents’ Bill of Rights, a state law signed by DeSantis in June that enumerates the fundamental rights of parents to “direct the upbringing, education, health care, and mental health” 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.
“So long as the requirements of the policy provided for in the Parents’ 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,” said Cooper.
“Remember, this is not something I made up,” 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, “The 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’ bill of rights to show that their policy is reasonable.”
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’s executive order and allow parents to opt out of masks for their children. The opinion suggested that an appeal of Judge Cooper’s ruling would result in an automatic stay pending review by a higher court, and thus the administration’s ban on mask mandates would remain in place.
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 Schools?