Legal Matters: April 2022
Whether or not a school board should decide to impose a mask mandate has been one of the most highly divisive issues of the pandemic. But what does the law say about mask mandates in K–12 schools? This article will address the constitutionality of mask mandates and will also briefly discuss other legal challenges, including state laws that ban mask mandates and federal laws that may provide protections for students with disabilities.
Constitutional Challenges to Mask Mandates in K–12 Schools
Numerous judicial decisions, without exception, have rejected due process challenges1 to mask mandates enacted by the state or by local school boards and enforced by a school district. Most challenges have been brought by parents on their own or on their children’s behalf and have sought preliminary injunctions, which temporarily prohibit the law from going into effect, and permanent injunctions—a way of legally stopping one party from infringing on the rights of another party—against the enforcement of the mask mandate; however, courts have invariably held that plaintiffs—in this case, the parents of students—failed to demonstrate that injunctions were warranted.
Courts have routinely rejected parents’ substantive due process claims (i.e., liberty interest arguments), with a Pennsylvania federal district court holding that, “[a]lthough parents possess the right to raise their children as they see fit, they are not entitled to undermine the Government’s public health efforts during a global pandemic by refusing to have their children comply with a school masking requirement.” In addition, parents’ claims that K–12 public school students have a right to a public education have been rejected because courts hold that mask mandates do not exclude students from school or school functions. Based on these two determinations, courts have routinely concluded that plaintiffs have not shown any likelihood of success.
Courts have also summarily rejected plaintiffs’ other substantive due process claims, universally holding that students do not have a fundamental right to attend school without wearing a mask and, further, that mask mandates are rationally related to protecting the health and safety of students. Finally, courts have concluded that parents have not demonstrated irreparable harm, with the Pennsylvania court stating that requiring students to wear masks—and the remote possibility that students might be delayed in their learning or bullied by other students—was “not indicative of irreparable harm, but consistent with CDC guidelines.”
At least two federal courts—the Sixth Circuit Court of Appeals (covering KY, MI, OH, TN) and a district court in Georgia—have rejected equal protection challenges2 to school board-enacted or school board-enforced mask mandates. In doing so, the courts concluded that mask mandates did not affect the fundamental rights of students, did not discriminate against similarly situated individuals, and were rationally related to the state’s or school district’s legitimate interest in reducing the spread of COVID-19 among students and school employees.
Speech and Association
Two additional federal district courts—one in New York and the other in Pennsylvania—have ruled against parental challenges to school board-enacted or school board-enforced mask mandates based on the speech and association provisions of the First Amendment. In the New York matter, parents alleged that the mask mandate infringed on their children’s First Amendment “speech and expressive conduct rights” by requiring them to conceal their own facial expressions, obscuring the facial expressions of their teachers, and forcing students to modulate their voices. The district court denied the parents’ motion for preliminary injunction, concluding that the parents had not shown a likelihood of success on the merits of their First Amendment speech claims. In the Pennsylvania matter, the district court likewise denied the parents’ request for preliminary injunction on their First Amendment freedom of association claim, holding that the school district’s mask mandate did not prevent students from associating or assembling with others.
Free Exercise of Religion
In another Pennsylvania case, parents objected to a state-imposed mask mandate at K–12 schools—this time on the grounds of free exercise of religion. The federal district court rejected the parents’ argument, concluding that the mask mandate did not infringe on any sincerely held religious beliefs of the parents. Also, the Sixth Circuit Court of Appeals held that the Michigan Department of Health and Human Services’ orders requiring children in grades K–5 in all schools in Michigan to wear face masks did not violate the Free Exercise Clause under the First Amendment, both because the orders were rationally related to Michigan’s legitimate interest in controlling the spread of COVID-19 and requiring masks in schools minimized the spread of COVID-19.
State Laws Banning Mask Mandates and State Preemption of Local Mask Mandates
Opponents of mask mandates have fared better in at least one state, South Carolina, in preventing the implementation of mask mandates in K–12 schools. They have done so by lobbying their legislature to prohibit mask mandates by school districts and other local governmental entities, defending that ban against legal challenges, and seeking judicial relief to enforce the ban.
In 2021, South Carolina enacted a statute prohibiting its K–12 schools from using any funds appropriated by the state to impose mask mandates on students or employees. Not long thereafter, the South Carolina Supreme Court rejected an equal protection challenge against the statute brought by a school district and a parent. In addition, based on that same statutory mask mandate prohibition, the South Carolina Attorney General successfully sued the city of Columbia, obtaining a decision from the state high court enjoining the city from enforcing a mask mandate that it intended to implement in its K–12 schools.
Challenges Involving Federal Disability Laws
In Iowa, a group of parents challenged a state law that prohibited schools from requiring students to wear masks. The parents argued that their children with disabilities were at an increased risk of serious medical complications from a COVID-19 infection. Alleging violations under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, the parents maintained that both laws require schools to provide reasonable modifications to ensure that students have an equal opportunity to benefit from their public education. They also contended that the state law impermissibly forced parents of children with underlying conditions to choose between their child’s education and their child’s health and safety. When issuing a temporary restraining order that blocked the state law, the federal district court observed the drastic increase in pediatric COVID-19 cases in Iowa.
Likewise, in South Carolina, a federal district court enjoined enforcement of a law that prohibited school districts from mandating masks because such laws discriminate against children with disabilities. In addition, in Tennessee, a federal district court granted the plaintiffs’ motion for a preliminary injunction to block the governor’s executive order that allowed parents to opt-out of mask mandates in schools; observing that a masking requirement does not pose an unreasonable burden on other children. In contrast, a federal district in Florida denied the parents’ motion for a preliminary injunction because they failed to exhaust their administrative remedies before heading to court.
The lawsuits discussed above suggest that courts have universally upheld the power of states and school boards to impose mask mandates against constitutional challenges and that federal disability laws might require all students to wear masks as a reasonable accommodation. The issue is far from over, however. School leaders would be wise to monitor the developing litigation in this area.
John Rumel is a professor at the University of Idaho College of Law. He is also the author of Federal Antidiscrimination Law, Chapter 5, “Administrators’ Guide to Employment Law and Personnel Management in Schools” (Education Law Association, 2018). Suzanne E. Eckes is a professor at the University of Wisconsin-Madison. She is also a co-author of Principals Avoiding Lawsuits and a past president of the Education Law Association.
1 While oftentimes a due process challenge under the 14th Amendment contests procedures, a due process challenge can also focus on other rights. In this instance, parents are relying on the due process clause to argue that their rights to liberty have been violated when their children are required to wear masks in schools.
2 The 14th Amendment’s Equal Protection Clause requires that state policies must treat individuals, who are in similar circumstances, in the same manner.
- Arc of Iowa v. Reynolds, U.S. Dist. LEXIS 172685 (S.D. Iowa 2021).
- Disability Rights S.C. v. McMaster, U.S. Dist. LEXIS 185495 (D.S.C. 2021).
- Geerlings v. Tredyffrin/Easttown Sch. Dist., WL 4399672 (E.D. Pa. 2021).
- G.S. v. Lee, U.S. Dist. LEXIS 182934 (W.D. Tenn. 2021).
- Hayes v. Desantis, 29 Fla. L. Weekly Fed. D 1 (U.S. S.D. Fla. 2021).
- L.T. v. Zucker, WL 4775215 (N.D. N.Y. 2021).
- Miranda on behalf of M.M. v. Alexander, WL 4352328 (M.D. La. 2021).
- Oberheim v. Bason, WL 4478333 (W.D. Pa. 2021).
- Resurrection Sch. v. Hertel, 11 F.4th 439 (6th Cir. 2021).
- Richland Cnty. Sch. Dist. 2 v. Lucas, 862 S.E.2d 920 (S.C. S. Ct. 2021).
- U.S. Constit., amend. I.
- U.S. Constit., amend. XIV.
- W.S. by Sonderman v. Ragsdale, WL 2024687 (N.D. Ga. 2021).
- Wilson v. City of Columbia, WL 3928992 (S.C. S. Ct. 2021).