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States

Mask Mandates Put ‘Local Control’ of Schools to the Test

By Andrew Ujifusa — August 11, 2021 | Updated: August 12, 2021 8 min read
Texas Gov. Greg Abbott gives his State of the State Address in the House Chamber in Austin, Texas, on Feb. 5, 2019.
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Local control over schools—a concept that many say they believe in, yet don’t always support in practice—is under intense pressure this year as school-level and state leaders struggle over how to cope with the COVID-19 pandemic.

Even as the Delta variant of the coronavirus leaves schools scrambling at the start of a new year, districts in several states are defying what they see as misguided or ill-founded state laws or orders regarding mask mandates.

Tension between local and state leaders about schools is far from new. But in recent times, it has often involved issues like school accountability and turnaround strategies for low-performing schools. Today’s disputes are testing the wisdom and fragility of community autonomy over schools in the face of unprecedented and high-stakes questions about students’ health, well-being, and academic progress.

Such disputes threaten to fray official and personal relationships at an especially fraught time for schools and families. They could also foreshadow further strife over issues like vaccinations.

“The back-to-school narrative has a much more heavy-handed feel from federal and state players, who typically don’t get involved” in questions involving day-to-day school operations, said Noelle Ellerson Ng, the associate executive director of AASA, the School Administrators Association. (In an unusual move, for example, U.S. Rep. Madison Cawthorn, R-N.C., appeared before a county school board in North Carolina in early August and sharply criticized members for requiring masks in schools.)

The extent to which state officials truly promote local control by empowering parents over districts—or vice versa—and whether some parents’ views are being favored over others are also factors in the current circumstances.

“That’s the problem with defining local control. Is that ‘local’ or not?” said Paul Hill, the founder of the Center on Reinventing Public Education, a research center at the University of Washington, Bothell. “That turns out to be extremely complicated ... with as many social divisions as we have now.”

Prolonged stress over schools is fueling tension within states

The most prominent fights right now on this front involve the power of school districts to mandate that students and staff wear masks while on school property.

Gov. Ron DeSantis of Florida and Gov. Greg Abbott of Texas, both Republicans, recently have sought to prohibit school districts from universally mandating masks; in Florida’s case, districts can adopt such mandates but parents can opt their children out, according to DeSantis’ executive order. But the districts in Miami-Dade and Leon counties in Florida, and school districts in Texas including those for Austin and Dallas, have defied state orders and said they will require masks in all cases anyway, as COVID-19 cases and hospitalizations have risen in those states.

Elsewhere, South Carolina lawmakers have prohibited districts from requiring students and teachers to wear masks, a position that Gov. Henry McMaster, a Republican, indicated he supports.

Not all of the disagreements involve the same actors in the same role. While in Florida and Texas the governors and district leaders have squared off, in Arkansas, GOP Gov. Asa Hutchinson, a Republican, has tried but so far failed to convince lawmakers to reverse a ban he previously signed on district masking mandates. And South Dakota Gov. Doug Burgum, a Republican, vetoed a bill prohibiting state officials from mandating masks, only for the legislature to override his veto.

Eight states have enacted some sort of prohibition or limitation on local school mask mandates, according to the tracking website Burbio.

School Mask Mandates at a Glance

  • 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


    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. 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.

    3. Texas

    On Dec. 1, an appeals court halted a federal judge’s order that had stopped Texas from enforcing its ban on mask mandates in schools, allowing the prohibition to remain in effect.

    4. 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.

    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.

    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. Iowa

    On Sept. 13, a federal judge ordered Iowa to halt enforcement of its law banning mask mandates in schools. The order was later extended. The case is now awaiting a ruling from a federal appeals court.

    4. South Carolina

    On Sept. 28, a federal judge suspended South Carolina from enforcing the rule that banned school districts from requiring masks for students.

    5. Tennessee

    MASKS REQUIRED


    1. California
    2. Connecticut
    3. Delaware
    4. District of Columbia
    5. Hawaii
    6. Illinois
    7. Louisiana

    According to a State of Emergency proclamation issued Nov. 23, and most recently extended on Jan. 19, students are required to wear masks in schools, but districts can opt out of the mandate if they adopt an isolation and quarantine policy consistent with the state's department of health protocols.

    8. Maryland

    On Jan. 5, the mask mandate was extended for 180 days, but newly allowed school districts to opt out if at least 80% of the county or 80% of their students and staff have been fully vaccinated.

    9. Massachusetts

    On Jan. 10, Massachusetts extended the state's mask requirement through Feb. 28. On Sept. 27, Massachusetts said schools can apply for a waiver from the face covering rules if 80% of their students and staff have been vaccinated. If a school reaches the 80% threshold, unvaccinated students and employees are still required to wear masks.

    10. Nevada
    11. New Jersey

    On Dec. 7, a judge ruled New Jersey's school mask mandate is "rational" and does not violate the U.S. Constitution.

    12. New Mexico
    13. New York
    14. Oregon
    15. Rhode Island
    16. Virginia

    An executive order from Virginia's new governor that is set to take effect on Jan. 24 rescinds the state's current school mask mandate and instead allows parents to opt their child out of any mask mandate at their school.

    17. Washington
  • 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 01/20/2022| Sources: Local media reports | Learn more here

In several cases the mask disputes pitting districts against states involve big school systems. Miami-Dade County, which has 334,000 students, is one of the 10 largest districts in the nation.

But legal battles are already under way in Arkansas and Texas, where judges so far have shown a willingness to give districts the power to mandate masks, at least temporarily.

Meanwhile, all 11 states requiring masks in schools have Democratic governors. Requiring districts to have students and school staff wear masks haven’t been greeted with wild and joyous celebrations. There have been community protests in response to these mandates. But if nothing else, these states can point to Centers for Disease Control and Prevention guidance recommending this step for political cover.

State mandates requiring masks in schools haven’t been met with universal acclaim from districts. After Kentucky Gov. Andy Beshear, a Democrat, ordered all schools to require face masks in buildings, one superintendent in the state called Beshear a “liberal lunatic” who was overriding local officials’ authority and opinions.

Hints of tension between districts and states have also arisen on a separate—and also politically volatile—issue in Oklahoma, one of 11 states have adopted laws or other measures this year targeting how teachers address racism or “divisive concepts” in American history. A handful of districts there already have said they don’t plan on changing how they teach students about racism, even if it risks violating a new law limiting how they approach the topic.

It remains to be seen if or to what extent districts elsewhere follow suit in the wake of criticism from educators about how these statutes could affect their instruction and as states outline how investigations of potential violations of these laws, as well as penalties, will work.

In the current climate, some state leaders who’ve previously backed local control over schools are clearly running in the opposite direction, said Jon Valant, the director of the Brown Center on Education Policy at the Brookings Institution. To a large extent, local control over schools is a matter of tradition that’s not immune from disruption, he noted.

“Whatever the motivation is to keep up local control, it’s pretty flimsy,” he said. “Most politicians do have ideas about how principled government works. That being said, for a whole lot of them, those principles sit a few steps below reelection when it comes to these day-to-day priorities.”

Not every state grappling with issues like mask mandates is making headlines

There are mixed views among parents on the issue of masking children in schools.

Polling by Gallup from late July has indicated that a majority of parents of students and of adults in general support mask mandates for unvaccinated teachers and school staff. The idea is somewhat less popular for unvaccinated students, although a majority of both groups still support mask requirements. (Gallup’s polling did not ask about mask mandates for vaccinated individuals and did not differentiate results from state to state.)

But there’s plenty of division. Some parents have indicated that mask requirements amount to an unwarranted infringement on the rights of their children. Yet others believe that if schools want to reopen and stay open safely, masking is crucial, given that children younger than 12 aren’t yet eligible for COVID-19 vaccines.

Such differences can feed broader dissatisfaction with schools after nearly 18 months of the pandemic, Valant noted.

The growth of school choice during the pandemic also has the potential to alter the traditional balance of power between districts and states in the current circumstances. In early August, the Florida board of education permitted families who don’t want their children to wear masks in schools to use a tax-credit scholarship program to transfer to private schools.

The political ping-pong has escalated recently.

On Aug. 10, in response to a threat from DeSantis to withhold pay from school leaders who impose mask mandates in defiance of his order, White House Press Secretary Jen Psaki told reporters that the Biden administration was exploring how it might direct unspent COVID-19 relief funds to districts in order to make up their salaries.

Valant cautioned that simply waving state officials’ interest in and actions over local schools won’t work. At the most basic level, all 50 states have language in their constitutions requiring the creation of a public education system, according to an Education Commission of the States analysis. And the influence of governors and state legislatures over hot-button policy issues like testing and funding has been accepted, with varying degrees of enthusiasm, by local leaders for some time.

In the past, state actors have often sought to empower local leaders by streamlining requirements and easing their regulatory burden, Hill noted. But in his view, governors like DeSantis would at least be more consistent if they allowed districts to enact mask mandates without parental opt-outs, while still empowering parents to move their children to different schools if they disliked such rules. Instead, he said, such officials appear to have a conflict of interest as they promote their own political status.

The extreme political pressures on local K-12 officials, Hill added, create “a disastrous situation for everyone” involved.

Governors and legislators aren’t the only representatives of state governments. Ellerson Ng, for example, said she wished the recommendations from state health departments that have consulted with local school districts carried more force in more states.

South Carolina’s health and education departments, for example, have jointly said they advise all students to wear masks in schools.

“If we could have depoliticized guidance around masking and COVID, that would be great. But that ship has sailed,” Ellerson Ng said.


And she blamed the political climate for fueling simultaneous outrage over things like critical race theory and masks—two issues that aren’t related as far as educators are concerned.

Valant, however, also stressed that in many places state and local officials have grappled with the same issues and managed to build some kind of workable consensus relatively quietly, Valant said.

“They aren’t going to make news because you don’t have people like Governor DeSantis who are hurrying to television cameras to talk about this stuff,” Valant said.

A version of this article appeared in the August 25, 2021 edition of Education Week

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