Law & Courts

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

By Mark Walsh — August 27, 2021 9 min read
Image showing a gavel coming down on a medical face mask.
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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.

“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.

School Mask Mandates at a Glance

This information is no longer being updated. The last data update was on May 23, 2022.

  • MASK MANDATE BAN IN EFFECT


    1. Florida

    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.

    2. Georgia

    On March 29, Gov. Kemp signed the “Unmask Georgia Students Act” 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’s attorney general announced the state is not enforcing the ban while awaiting further action from the court. On May 16, 2022 a U.S. Court of Appeals lifted the injunction.

    4. Oklahoma

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

    5. Utah

    In Utah, local health departments can issue 30-day school mask mandates with approval from the state or county government, according to the state’s top education official.

    6. Virginia

    On Jan. 15, Gov. Youngkin issued an executive order allowing parents to opt their child out of any school mask mandate. It effectively rescinded the state's school mask requirement that had been in place since August. That executive order was later halted by a judge. On Feb. 14, the Virginia legislature passed a measure that bans school mask mandates. That bill was signed by the governor on Feb. 16 and went into effect on March 1.

    MASK MANDATE BAN BLOCKED, SUSPENDED, OR NOT BEING ENFORCED


    1. Arizona

    On Sept. 27, a judge in Arizona blocked the state laws banning mask mandates that were set to take effect on Sept. 29. On Nov. 2, the Arizona Supreme Court upheld that ruling. On April 25, Gov. Ducey signed HB2616, 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 Arkansas judge ruled on Dec. 29, 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, a federal judge suspended South Carolina from enforcing the rule that banned school districts from requiring masks for students.

    4. Tennessee
    5. Texas

    On March 17, an appeals court upheld an injunction that blocked Gov. Abbott's executive order banning mask mandates in schools, finding it is unlawful and exceeding the governor's authority. This is not the first time the state's ban has been halted by a judge.

    MASK REQUIREMENT IN EFFECT


    1. Hawaii

    Although Hawaii's state-wide indoor mask mandate ended on March 25, indoor masking will still be required in public schools at least through the summer.

    PREVIOUSLY HAD MASK REQUIREMENT


    1. California

    On Feb. 28, the governors of California, Oregon, and Washington issued a joint announcement 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. He signed a bill on 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. On Feb. 28, he announced 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 released updated guidelines that recommend universal masking only when community COVID-19 levels are high.

    5. Illinois

    On Feb. 5, a judge issued a temporary restraining order on the governor's statewide mask requirement. On Feb. 25, the state supreme court vacated that order. On the same day, the governor announced he would lift the requirement on Feb. 28.

    6. Kentucky

    Kentucky's school mask mandate ended in September, when the state legislature voted to limit the governor’s emergency powers.

    7. Louisiana

    According to a State of Emergency proclamation issued Nov. 23, which was extended on Jan. 19, 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 extended the order without requiring masking in schools.

    8. Maryland

    On Jan. 5, the mask mandate was extended for 180 days, but allowed school districts to opt out if certain vaccination rates were met. On Feb. 22, the state board of education voted to rescind the mandate. On Feb. 25, a state legislative committee gave final approval to lift the mandate effective March 1.

    9. Massachusetts

    On Sept. 27, the state began allowing schools to apply for a waiver from the face covering rules for vaccinated individuals if certain vaccination rates were met. On Feb. 9, officials announced the statewide mask requirement for K-12 schools would be lifted on February 28.

    10. Nevada

    On Feb. 10, Gov. Sisolak announced the immediate suspension of the school mask requirement. The previous mask requirement had only applied to counties with populations of 100,000 people or more.

    11. New Jersey

    On Feb. 7, Gov. Murphy announced plans to end his state’s school-mask requirement on March 7.

    12. New Mexico

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

    13. New York

    On Jan. 24, a judge struck down the state's mask mandate. A day later, an appeals judge restored the mandate. On Feb. 27, Gov. Hochul announced the mandate would be lifted 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 announced the requirement would lift on March 19. However, on Feb. 28, the governors of California, Oregon, and Washington issued a joint announcement that mask requirements would end in their states effective March 12.

    15. Pennsylvania

    A statewide mask mandate for Pennsylvania schoolchildren was thrown out by the state Supreme Court on December 10.

    16. Rhode Island

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

    17. Virginia

    On Jan. 15, Gov. Youngkin issued an executive order allowing parents to opt their child out of any school mask mandate. It effectively rescinded the state's school mask requirement that had been in place since August. That executive order was later halted by a judge. On Feb. 14, the Virginia legislature passed a measure that bans school mask mandates. That bill was signed by the governor on Feb. 16 and went into effect on March 1.

    18. Washington

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

  • NOTES
    In January 2022, the Missouri attorney general, Eric Schmitt, sued some school districts that required masks, citing a November ruling 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’s treasurer announced he would also crack down on schools with mask mandates. In mid-March, Schmitt began dropping lawsuits against school districts that no longer required masks. On May 19, 2022 Schmitt announced new lawsuits against several districts that had reinstated mask requirements.
    On Feb. 23, 2022, New Hampshire’s 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 “are inconsistent with” their rules. There’s disagreement over whether districts still have the authority to require masks, but at least one district changed its policy in response. A bill that would have banned mask mandates 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’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?

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