Former state AG: Battle over bans on mask mandates still ‘untested’ in courts

At what point does a mask mandate or vaccine requirement cross a line from a health and safety issue to a matter of civil rights? This question comes up as the Biden administration may try to overturn state laws that ban masks at schools.

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“This is an issue that’s been debated and discussed a lot in the last year and a half,” said Rob McKenna, former state attorney general. “The short answer is it is not a violation of one’s civil rights for the government to order you to wear a mask during a public health emergency. It’s not a violation to require you to be vaccinated to attend school. Nor is it a violation for the federal government to require its employees to be vaccinated, or the state government to do that, or private employers.”

“All of that is well established,” McKenna added. “What’s interesting now, I think, in terms of new developments, is this suggestion by the Biden administration that states that prohibit mask mandates in schools may be violating the civil rights of the children who then, as the Biden administration would have it, are not being protected.”

The reason for this particular fight is there are schools that are being prohibited from adding mask mandates, such as in Florida where Governor Ron DeSantis has threatened to withhold the pay of superintendents of school districts who impose a mask mandate.

“The argument that the Biden administration is making is that some state governments have adopted policies and laws that interfere with the ability of schools and districts to keep our children safe during in person learning,” McKenna said, “which the Education Department claims could be a violation, [and] could amount to discrimination if they lead to unsafe conditions that prevent students from attending school.”

The suggestion that civil rights of students are violated if there is not a mask mandate, McKenna says is untested.

“I’m skeptical that one would be able to bring a strong civil rights claim on behalf of students because there isn’t a mask mandate,” he said. “I think that there just isn’t any law on that. The law is always about whether or not the mandate is a violation of civil rights, not the absence of a mandate.”

But it’s yet to be seen if the Department of Education will sue the state of Florida, for example, which has pursued a ban on masks in schools even as other states, including neighbor Louisiana, are requiring masks at schools.

“This is a very interesting set of potential lawsuits,” McKenna said. “I think, actually though, the federal government probably will have more success if they decide to use the leverage they clearly do have, which is over federal funding for school districts.”

As part of the American Rescue Plan, billions of dollars were given to America’s schools to help them return to in-person learning in the classroom.

“Apparently that, I’m sure many 1,000 pages long, law requires schools to develop safe reopening plans in order to receive federal funding,” McKenna explained. “So if schools are prevented from imposing mask mandates, the feds could claim that they don’t get the money. Of course, that’s pretty harsh medicine for the schools and for the students. Probably doesn’t hurt Governor DeSantis in Florida at all if that happens. But that is leverage they would have in states like Florida, Arizona, Iowa, and others.”

The key word then becomes “safe,” and which leaders are providing the advice.

“When we talk about requirements for vaccination, there’s lots and lots of evidence to point to that vaccines are safe and they’re effective. And even if they’re not perfectly safe or perfectly effective, they’re strong enough that the government can impose them,” McKenna said. “Here, we may have more disagreements over the efficacy of masking that could result in pitting a state official against the CDC.”

“The CDC is saying very clearly that they believe that students should be required to be masked to go back to school,” he continued. “That is very, very clear from what they’ve been saying. We’ll have to see if Governor DeSantis or other Republican governors are able to roll out their own experts who say, no, that’s not true, and that in the balance between civil rights and the rights of parents that decide what’s best for their kids, and the health of the students and the staff, we’re coming down on the side of no masks.”

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