Sep 21, 2021 • Richard Dahl; FINDLAW/BLOGS/LAW AND DAILY LIFE
Do Parents Have ‘Rights’ to Ignore School Mask Mandates?
Battles continue to rage in schools throughout the country on whether students should be required to wear face masks.
As of mid-September, eight states – mostly in the South – have banned mask mandates by schools. Elsewhere, angry anti-mask parents have been converging on school board meetings to proclaim “parental rights” to act on behalf of their children and ignore mask mandates.
In Duval County, Florida, for example, parents of two dozen school children sued the school board there on Sept. 2 to block a mask mandate. Summing up their position, attorney Nick Whitney said, “(W)e have the right to decide for our children, and the county cannot tell us how to do that.”
In Louisiana, Attorney General Jeff Landry wrote on Facebook, “(P)arents have rights; and those rights are worth protecting. … The question is: ‘who gets to determine healthcare choices for you and your child?’ In a free society, the answer is the citizen – not the state.”
Who Has the Power?
Are they right? Is there a legal basis for parents to make that claim?
In Florida, at least, Governor Ron DeSantis clearly thinks so.
“Parental rights” is the foundation of the argument that he and fellow Republican officials have used in their push to ban the mandates. They argue that decisions about facial covering fall under the guidelines of the recently passed Parents Bill of Rights, which gives parents general control over their children’s education and health care. That law, which went into effect July 1, essentially says that parents have greater power in making those decisions than schools do.
But in an opinion piece for Politico, three medical and legal academics from the University of Louisville and Vanderbilt University disagree.
“When it comes to society’s interest in protecting children, the legal precedent is unambiguous: The rights of their parents come second,” the authors state. “Parents do have the freedom to direct the health care and education of their children, but these rights are not unlimited.”
In Prince v. Massachusetts, they point out, the U.S. Supreme Court ruled that parents are not free “to make martyrs of their children” by putting them in harm’s way.
Here are a few other points they make that cast doubt on the “parental rights” argument:
- All 50 states have laws requiring specified vaccines for school children.
- Every state has laws that allow the government to intervene when parents abuse their children.
- Child car seats are required in all 50 states.
But Governmental Powers Are Not Absolute
However, attorney Jennifer Selin, a professor of constitutional democracy at the University of Missouri, points out that governmental powers to protect school children are not unlimited.
In an article for The Conversation, Selin acknowledged the Supreme Court precedent for those powers, but also noted that “(w)hen evaluating a state’s action in a pandemic, courts weigh the government’s interest in protecting the health and safety of its citizens against an individual’s civil liberties.”
In other words, while it’s apparently true that many anti-mask parents are overestimating the power of parental rights, the government may not necessarily hold the trump card, either.
In Stelin’s analysis, the civil-liberties arguments that have been most effective against COVID-19 restrictions have generally been religion-based: The U.S. Supreme Court has blocked the state of California from enforcing restrictions on an at-home Bible study group and blocked New York from enforcing occupancy limits on church gatherings.
While those plaintiffs have succeeded, Stelin says those with “parental rights” claims face a steeper challenge. Some courts, like the U.S. District Court for the District of Maryland, have concluded that that argument falls short of demonstrating that the harm they face is the result of constitutional violations.
Most recently, on Sept. 13, a federal judge issued a temporary restraining order blocking Iowa Governor Kim Reynolds and state lawmakers from banning mask mandates. Reynolds responded with a statement: “Today, a federal judge unilaterally overturned a state law, ignored the decision by our elected legislature and took away parents’ ability to decide what’s best for their children. We will appeal and exercise every legal option we have to uphold state law and defend the rights and liberties afforded to any American citizen protected by our constitution.”
Meanwhile, Back in Florida…
It’s probably worthwhile, at this point, to take another look at Florida, where the legal battle is probably being most intensely fought.
After DeSantis issued his July 30 executive order banning schools from mandating masks, a group of parents sued. On Sept. 2, Leon County Circuit Judge John Cooper ruled in their favor, saying that school face-mask mandates are “reasonable and consistent with the best scientific and medical opinion and guidance in the country.” He also said DeSantis’ executive order “does not meet constitutional muster.”
The plaintiffs’ victory, however, was short-lived. DeSantis appealed the ruling, and on Sept. 10, the 1st District Court of Appeal in Tallahassee, ruled that the ban may remain in place while legal challenges play out. Seemingly on cue, parents filed a request that same day to fast-track the case to the Florida Supreme Court, bypassing the 1st District Court of Appeal. A week later, that’s where the matter rested.
We mentioned above that eight states have banned school mask mandates, at least for now, but did not mention that 17 states – mostly on the East and West Coasts – require face masks in schools. Nevada requires school masking in counties with more than 100,000 people. That leaves 24 states with no official policy, leaving the matter to local school districts.
Amid this hodge-podge, battles have erupted everywhere. In some areas, the loudest complainers are the anti-maskers and in others it’s the pro-maskers.
The law is confusing and unsettled. And at a time like now, when feelings are running raw on both sides that are making conflicting claims about rights, you must wonder if the U.S. Supreme Court will need to provide some clarity.