Written by: Tracy Waller, Esq., MPH
The 2021–2022 school year started much differently than the previous school year. While many schools only offered a virtual option for students last year, this year, most students across the country are attending school in person. In the nearly two years since COVID-19 emerged in the United States, many Americans have worn face masks and have been vaccinated to prevent catching the coronavirus. Although there has been progress, the number of COVID-19 cases has remained high. According to the American Academy of Pediatrics, as of October 7, 2021, more than 6 million children have tested positive for the coronavirus since the onset of the pandemic. From September 30, 2021, to October 7, 2021, 148,222 children tested positive for virus, representing 24.8% of the weekly reported COVID-19 cases.
The Importance of School and the Protection of Masks
Although the number of both pediatric and adult COVID-19 cases remains high, keeping children in school, in person, continues to be a priority. Children across the country have experienced the negative effects of being kept out of school for an extended period time. Children from lower-income families and under-resourced communities were especially vulnerable to the toll of being kept out of school. Children with disabilities were disproportionately affected because they lacked access to much-needed special education and related services, supplementary aides and programmatic supports, which are required to support their academic progress, but which were not accessible or not as efficient virtually.
The Centers for Disease Control and Prevention (CDC) has compiled a list of recommendations on protecting oneself and others. According to that list, anyone not fully vaccinated and at least 2 years old should wear a mask in indoor public places. For people who are fully vaccinated, a mask is still suggested indoors in areas of substantial or high transmission “to maximize protection from the Delta variant and prevent possibly spreading it to others.” Although some children and adults are unable to wear masks because of their disability, studies have shown that by increasing the number of people wearing masks, the rate of transmission of the coronavirus is decreased. Therefore, masks, especially surgical masks, also protect the wearer by reducing the potential exposure of the person wearing the mask. Unfortunately, the vaccine for COVID-19 to prevent death and serious illness is still not available to children under the age of 12 years.
On Friday, September 24, 2021, the CDC released three studies that highlighted “the importance of using layered prevention strategies including universal masking to stop the spread and minimize disruptions to school operations for safe in-person education.” The studies found that COVID-19 outbreaks were far higher at schools without mask mandates. Despite these findings, many states across the country are not requiring universal masking in schools. Some states prohibit schools from mandating masks enforced by the threat of withholding of school funding.
Creating School Mask Mandates and Bans on School Mask Mandates
The topic of masking continues to be politically divided, so states across the country are varied in their school mask policies. Sixteen states and the District of Columbia (D.C.) require that masks be worn in schools regardless of vaccine status. Those states are: California, Connecticut, Delaware, D.C., Hawaii, Illinois, Louisiana, Maryland, Massachusetts, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Virginia and Washington. Four U.S. territories require masks in schools: Guam, the Northern Mariana Islands, Puerto Rico and the U.S. Virgin Islands. In Guam, Department of Defense Education Activity (DoDEA) schools are offering in-person instruction, while the remainder of the island’s K-12 schools are offering remote classes. Five states have attempted to ban school mask mandates statewide, but have been blocked by the courts: Arizona, Arkansas, Iowa, South Carolina, and Tennessee. And five states have banned school districts from mandating masks: Florida, Kentucky, Oklahoma, Texas, and Utah. In Montana, the Department of Public Health and Human Services issued a rule that directs that schools mandating masks in the classroom “should … be able to demonstrate they considered parental concerns in adopting the mandate” and that they should allow students to opt out based on “physical, mental, emotional or psychosocial health concerns, as well as on the basis of religious belief, moral conviction or other fundamental right.” But many Montana school districts have continued to require masks in schools. The remaining states have left the decision to require universal masking in schools up to individual school districts: Alabama, Alaska, Colorado, Georgia, Idaho, Indiana, Kansas, Maine, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Carolina, North Dakota, Ohio, South Dakota, Vermont, West Virginia, Wisconsin, and Wyoming.
States also vary widely in the methods employed to address the question of masking in schools. For example, New Mexico issued a public health order. In Massachusetts, the education commissioner issued regulations requiring masking after being given authority by the State Board of Elementary and Secondary Education. In Maryland, the State Board of Education voted to approve universal masking, but needed legislative approval, and the General Assembly’s Joint Committee on Administrative, Executive and Legislative Review then voted to require face masks. A comprehensive list of state-by-state school mask mandates, bans and ongoing litigation can be found on the Center for Dignity in Healthcare for People with Disabilities’ website.
The topic of masking in schools continues to be politically divisive and can become a political sword in states that are politically divided. In Kentucky, the governor issued an executive order requiring universal masking regardless of vaccination status, only to have the state’s Senate and House pass a joint resolution limiting his authority and effectively ending the masking-in-school requirement.
Through the passage of S.B. 195, the Utah legislature has effectively banned school mask requirements. The Utah legislature passed “S.B. 195 Emergency Response Amendments” to “[limit] the Department of Health and local health department powers related to public health emergency declarations” by “limiting the time period required for it to remain in place,” “allowing elected officials to terminate public health emergency declarations,” and by “prohibiting the declaration of a public health emergency after a previous declaration for the same public health emergency expires.” When the Salt Lake City Health Department issued a mask mandate for students unable to access the COVID-19 vaccine (children in kindergarten through sixth grade), the city council voted to overturn the mandate.
In Montana, the Department of Public Health & Health Services (DPHHS) issued an emergency rule which asks school districts to consider parents opt-out requests, “schools and school districts should consider . . . and should provide students and/or their parents or guardians, on their behalf, with the ability to opt-out of health-related mandates.” Many Montana school districts have continued to require masks in schools.
However, because requirements to wear a mask or to allow students to opt out of wearing a mask in school are new and cannot be compared to other school mandates or rules, states have relied on different mechanisms to either ban or require mask-wearing in school—and courts have been split on upholding school mask bans and mandates. Several schools have attempted to require students to wear masks by adding masks to their dress codes, with varying success. The Durango School District in Colorado successfully added the requirement to wear masks to its dress code, but in Colorado, there is neither a school mask mandate nor a ban on school mask mandates. In Texas, the Paris Independent School District (ISD) added masks to its district dress code, finding a loophole in the governor’s executive order banning masks. A county district judge then issued a temporary restraining order (TRO) against the school district, finding that the district “lack[ed] the authority to issue or enforce a facemask mandate in light of Governor Abbott’s executive order.” At the September 21 hearing regarding the TRO, the judge ruled to uphold the order, and the Paris ISD now strongly encourages masks, but cannot require them.
School Mask Mandates in the Courts
Children under 12 years are still unable to receive the COVID-19 vaccine. Some school-age children with disabilities are unable to receive the COVID-19 vaccine either because of their disability or because of the difficulty in accessing the vaccine. These children are especially vulnerable to contracting the virus and becoming seriously ill or dying. Some parents of children with disabilities have opted to sue their local school system on behalf of their children under the Individuals with Disabilities Education Act (IDEA), the Americans with Disabilities Act (ADA) and/or Section 504 of the Rehabilitation Act (Section 504), because by not requiring masking, the argument is that the schools are failing to meet the needs of children with disabilities. In schools without mask mandates, parents are making difficult choices between keeping their child with a disability home or sending them to school and accepting the risk that they may become ill with COVID-19. If forced to stay home, children with disabilities are likely to experience mental health consequences and decreased access to the education services they need, and which their local school systems are required to provide to support the students academically.
In Florida, courts have waffled. Despite the governor issuing an executive order banning mask mandates, many school districts have defied the governor by requiring masks in schools, and have risked not receiving money from the state to pay their teachers’ salaries. On Wednesday, September 8, 2021, a circuit court judge blocked the governor’s ban. Two days later, on Friday, September 10, a three-judge panel of the Florida First District Court of Appeal placed a stay on the circuit court’s ruling, allowing the state to continue to try to block schools from requiring masks.
Federal courts across the country are also divided. A group of parents filed suit in the United States District Court for the Southern District of Florida on August 8, 2021, two days before the start of school. Their Complaint alleged that, “As part of a school district’s obligations under the Individuals with Disabilities Education Act, the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act, all public-school districts have an obligation to ensure that all children with disabilities have a free and appropriate public education in the most integrated and least restricted environment.” In that court, the federal judge denied the parents’ request for a preliminary injunction against the governor’s order.
In contrast, on September 3, 2021, a federal judge in Tennessee struck down the governor’s executive order allowing students to opt out of mask mandates imposed at their school. In the Tennessee lawsuit, two students argued that they were more vulnerable to COVID-19 due to medical conditions, and that their rights were being violated under the ADA because they were being excluded from school activities. On September 13, 2021, a federal district court blocked Iowa’s law prohibiting schools from requiring masks after upholding that children’s rights were being violated under Title II of ADA and Section 504 of the Rehabilitation Act. The country continues to be divided around school mask mandates despite studies proving that larger COVID-19 outbreaks occur in schools that do not require universal masking. As the winter months approach, it remains to be seen whether states without mask mandates will reconsider their stance if COVID-19 numbers start to climb again
 In this study conducted in Bangladesh, the researchers found that the filtration of surgical masks worked better than cloth masks, but “the best mask is one that a person will actually wear and wear correctly.”
 On Thursday, October 7, 2021, Pfizer submitted data to the U.S. Food and Drug Administration (FDA) requesting emergency use authorization for its COVID-19 vaccine for children ages 5 to 11. The FDA has tentatively scheduled a meeting on October 26, 2021, to review the request, and an FDA ruling is expected as early as October 31.
 Some states also include mandatory opt-out provisions for students to opt out of wearing a mask. Because the result is essentially the same as a mask mandate ban, this post considers these two situations to be equivalent.
 On Thursday, September 23, as part of the Biden administration’s SAFE grant program, the administration began compensating some Florida school board members whose pay was docked for defying the governor’s ban on mask mandates.
 The word “and” does not appear in the law; however, it has been left in because it appears on page 10 of the Complaint.