All SHP News Commentary October 28, 2021

The Political and Judicial Battles Over Mask Mandates for Schools

Litigation over mask mandates takes a bizarre turn after political leaders in eight states introduce bans on mask requirements. Some state bans apply only to mandates adopted by school districts; others are broader. In this JAMA Health Forum viewpoint, health law experts Michelle Mello and David Studdert look at the various lawsuits, court rulings — and possible solutions.
Illustration of a masks and law
Getty Images

"If there is one image that encapsulates the bitter clashes over COVID-19 policy in the US, it is surely the face mask. Schools have become ground zero in ongoing battles over whether the US public must mask up," write Michelle Mello and David Studdert in this JAMA Health Forum editorial. 

They are both professors of health policy at the Department of Health Policy and professors of law at Stanford Law School.

"Less than a month into the pandemic, the Centers for Disease Control and Prevention recommended wearing masks to reduce transmission. At the time, evidence of their effectiveness was modest; it has since become stronger. Local and state public health orders have required masks in indoor and in some cases outdoor public spaces.

"Early challenges to these mandates were brought by individuals and businesses claiming incursions on their liberty. Courts rejected the claim that freedom from face covering was a fundamental constitutional right, applied light judicial scrutiny, and easily rebuffed these challenges. Arguments that masks violated freedom of speech or religion, interfered with students’ educational development, abridged parents’ rights to make educational choices for their children, and constituted unwanted medical treatment also have not found traction."

To many observers, the situation highlights the feebleness of federal authority during epidemics and the need to strengthen it.
Michelle Mello & David Studdert
Professors of Health Policy and Law

Mello and Studdert continue: "In recent months, litigation over mask requirements took a bizarre turn after political leaders in 8 Republican-led states introduced bans on mask mandates. Some state bans apply only to mandates adopted by school districts; others are broader. Now plaintiffs—chiefly school districts and parents of disabled children—are fighting not for the right to avoid face coverings but for the right to insist on them.

"Challenges to the bans on mask mandates rest on 4 types of arguments. First, the bans violate the federal and state civil rights of students with disabilities by making in-person learning available to them only under dangerous conditions. Second, the bans constitute state intrusions on the authority of local officials, violating state constitutional and statutory rules governing division of power. Third, state officials have misused their authority under state emergency-powers laws. Finally, the particular legal mechanism used to impose the ban (for instance, a budget bill) was faulty."

Read the Full Commentary in JAMA Health Forum

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