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Retrieved from Department of Education
Deep Dive
School communities largely embrace masks despite lawsuits
Among lawsuit claims are that students asked to attend virtual learning
for not following mask rules are subjected to a "separate and unequal"
education.
Kara Arundel
Nov. 12, 2020
With the school year several months underway and the number of COVID-19
cases increasing across the country, school systems are finding that,
for the most part, students, parents and staff are complying with mask
policies in areas where they are required.
“It’s been surprisingly easy,” said Michael Lubelfeld, superintendent
of the North Shore School District 112 in Highland Park, Illinois. “A
lot of people thought it would be a problem but it totally isn’t.”
Accordance is strong in Lincoln, Nebraska as well, said Steve Joel,
superintendent of Lincoln Public Schools. “A lot of fears that people
raised never materialized,” Joel said. “Families and students realize
what’s at stake.”
In the places where mask rules are being challenged, it’s often just a
few parents who are resistant to the policies, school leaders say.
For example, in the Washington County School District in St. George,
Utah, parents demonstrated outside the district’s administrative
offices against the state’s mask mandate in August. Later that day,
students spoke at a football game asking the community to wear masks,
as first reported by the Deseret (Utah) News and verified by Steven
Dunham, the district’s director of communications.
Policies for wearing masks while in school buildings differ across the
country, often with state or local agencies setting recommendations or
rules and individual school districts determining whether to impose
stricter policies. For instance, children ages birth through 8 in
Indiana are exempt from wearing masks, according to a governor’s order,
but the state Department of Health recommends all school children wear
face masks unless seated at socially distanced desks.
Repercussions for violating mask policies can also vary. Some school
districts will ask students who refuse to wear a mask to attend school
online instead of in-person. Others may take non-disciplinary action,
such as behavior contracts and reward systems, as is the approach in
the Wake County Public School System in Cary, North Carolina. Only when
those non-disciplinary and support interventions are ineffective does
the district consider in-school or out-of-school suspensions, according
to health protocols detailed on the district’s website.
Parents protest through litigation
Lawsuits challenging mask policies in schools have been filed in
several states or school districts, with the grievances including
claims of procedural errors and violations of free exercise, according
to a review of the complaints.
For example, a Connecticut judge denied an emergency injunction to
prevent schools in the state from requiring students to wear masks. The
Connecticut Freedom Alliance is suing the Connecticut Department of
Education, in part, because the group says the practice of wearing
masks is harmful to children. Superior Court Judge Thomas G. Moukawsher
ruled otherwise, writing, “Indeed, there is very little evidence of
harm at all and a wide ranging medical consensus that it is safe.”
Attorney Patrick Leduc has sued five school districts in Florida on
behalf of parents claiming students who are asked to attend virtual
learning because they aren’t following the mask rules are subjected to
a "separate and unequal" education. The lawsuits also said students are
being denied their fundamental right to an education under the Florida
Constitution because the mask mandates are not based on a compelling
interest and the regulation itself is not narrowly tailored to meet
that interest, he said.
Additionally, Leduc said the mask requirements, as regulated by the
school boards, interfere with a parents’ constitutional right to make
medical decisions for their children.
“My lawsuit seeks to empower parents whose love for their children is more than the school board’s,” Leduc said.
Jose Martín, an attorney with Richards, Lindsay & Martín law firm
in Austin, Texas, who represents school districts, said school systems
shouldn’t be concerned about litigation over mask disputes if they
follow the guidelines from the Centers for Disease Control and
Prevention (CDC).
Explaining further, he said courts tend to defer to authoritative
agencies, especially when it applies to the safety and welfare of the
school community.
“Free speech is different for students [in schools] than for other
citizens, as their free speech rights must be balanced with schools’
prerogatives to maintain an orderly and safe learning environment,”
Martín said. School systems have the authority to set policies that
create safe learning environments as they see fit, and as long as those
policies aren’t discriminatory, he said.
Reducing risk through best practices
School districts have made exceptions to mask policies for students
who, because of their young age or disability, or because a certain
activity taking place, such as running, may be unable to be safely
performed while properly wearing face coverings.
Guidance from the CDC acknowledges these special circumstances and
advises schools to consider adaptations and alternatives to reduce risk
of exposure to the virus when a student is unable to wear a mask.
Adaptations could include social distancing measures and consultation
with a healthcare provider for individual circumstances.
The U.S. Department of Education’s Office for Civil Rights also
recognizes special circumstances when mask wearing is not possible,
particularly when enforcement impedes a child with a disability from
receiving “free appropriate public education.” In those cases, OCR
recommends schools make modifications that are consistent with the
health, safety and well-being of all students and staff, according to a
Q&A issued Sept. 28.
In general, the CDC advocates for the use of masks in schools and has
recently issued a scientific brief that says, in general, face
coverings can reduce exposure to the virus for both the wearer and
those nearby.
Joel, the Lincoln Public Schools superintendent, said his district is
following the advice from medical experts regarding safety protocols
for in-person learning, and the policy is adjusted when needed. He said
compliance with mask wearing in schools has been strong because of
“major messaging” about the rules, and because teachers have been
diligent with reminding students how to properly wear their masks.
Some parents have spoken out during school board meetings against mask
wearing, but Joel said parents do have a choice to comply with the
rules for in-person learning or have their children attend school
online. “We’re doing the best we can,” he said.
In the North Shore School District, the ease of compliance with mask
wearing is credited to robust communications before in-person learning
began and because of the desire of students and staff to be back
together safely, said Lubelfeld.
Before the school year began in September, teachers and principals sent
video messages to students to welcome them to the new school year. The
videos included images and messages about mask wearing and social
distancing, Lubelfeld said.
Also, there was buy-in for the safety measures because parents and
students were eager for in-person learning, he said. “Kids literally
were being grateful to be back on campus again,” he said.
The district had to transition back to all virtual learning in late
October when COVID-19 cases increased in the community. When the
district resumes face-to-face classes, Lubelfeld expects there will be
more communication about the need for masks, and that there will be the
same level of abidance.
“It really was a nonissue, thank goodness,” he said.
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