KingSpry | School Boards Caught In Middle of Mask Debate

For School Boards Caught In the Middle of the Mask Debate

Posted on September 7th, 2021
by John E. Freund, III

In the public controversy over the wearing of masks in schools, many legal theories have been advanced by non-lawyers and some lawyers as well questioning the legality of government-imposed mandatory masking requirements in light of the COVID pandemic. Some of the proponents of these theories advocate non-compliance as a remedy and some more cautiously suggest legislative fixes or legal challenges.  

Constitutionally based theories argue that a mask mandate is in violation of the individual’s Liberty interest under the 14th Amendment.  

This approach has different variations, but they all center around a claim of imminent risk to student health posed by masks that limit a student’s ability to breath freely. Notwithstanding, the constitutional merits of this argument, a plaintiff would be hard pressed to prove that masking in general poses an imminent threat to student health, especially since all the mandates provide exceptions for students whose health could be genuinely jeopardized by the requirement.  Other arguments are based on the 14th Amendment’s Due Process clause which rely on case law granting a substantive due process right to parents to raise their children.  This argument would seem to fall in the same way as any parents rights claim that children should exempt from any number of laws promoting a child’s health, safety and well-being, because certain restrictions or requirements came from government and not parental authority.  There are, of course, claims that mandatory masking violates the Free Exercise Clause of the first Amendment.  Cases here are unanimous that such measures designed to address matters of public health do not violate the Free Exercise Clause. 

Moreover, exceptions for religious belief would seem to have dubious applications to masks, but in any event would be subject to reasonable inquiry as to whether the beliefs are sincerely held and whether they are really “religious” beliefs and not just a pretext for personal belief or political ideology.  Alongside these more conventional legal arguments against mandatory masking are extreme claims that Mandatory masking violates the Nuremburg Laws or the 13th Amendment.

Another set of arguments claims that the agencies issuing mandates, the CDC, Pennsylvania Department of Health, PDE, the Governor, or the school board do not have the legal authority to require mask wearing.  

One argument questions the authority of DOH under Section 5 of the Disease Prevention and Control Law because the most recent order does not have an end date.  The CDC’s directive that masks are mandatory on school buses is attacked because opponents disagree with the Agency’s determination that school buses constitute “public transportation” under the Transportation Safety Act.  

The most often cited challenge to School Board authority to mandate masking is based on a common law principle called “the Rule in Dillon’s Case.” Dillon’s Rule stands for the proposition that state created entities, which include school boards, only have the powers that are expressly given them by the state in statute.  Since there is no express power to mandate masking the argument is that boards cannot do it.  However, those making argument based on the Rule in Dillon’s Case only quote half the rule, the other half provides that school boards also have the power to take actions that are reasonably necessary to exercise their expressly given powers.  Here there is no argument that school boards have the express power and authority to guard the health, safety, and well-being of students and to provide for a safe school environment.  Regardless, of what one believes about the effectiveness of masking the school board’s legal authority to require students to wear masks is without serious question.

The most recent mask mandate from the state does not come from the Governor, it comes from the Secretary of Health under her authority given by Section 5 The Disease Prevention and Control Act.  

It is beyond doubt that the Secretary of DOH has the authority to order and “determine the most efficient and practical means for the suppression and suppression of disease”.  The directive to require masks for school children is clearly within her statutory authority.  While the CDC does not have direct authority to mandate masking in school, it does have direct authority under the Transportation Safety Act to require masks on public transportation, which according to the CDC, includes school buses.  While one might disagree with the factual or underlying premises of these agency determinations, there is virtually no doubt that the Pennsylvania DOH and the federal CDC have the legal authority to make mandatory orders within their statutorily given authority.   Willful violations of these directives can bring legal consequences in the form of fines, injunctions, and civil action for damages if sickness can be linked to a willful violation or refusal to enforce duly ordered masking mandate orders.

In responding to the calls to oppose masking orders it is important that school directors’ step back and take some perspective.  

School Districts are not sovereign states, they owe their existence entirely to the state and ultimately are ultimately governed by state laws. Whether or not some of the arguments challenging the validity of masking laws have any legal merit, the orders of the CDC and DOH have presumptive validity and are enforceable until they are repealed by the legislature or declared invalids by the courts. Nowhere in the Pennsylvania Constitution, the School Code, or any bona fide legal principle, is there support for the idea that school boards have the power to declare otherwise presumptive valid laws invalid.  It is certainly fair to question the underlying factual presumptions of these orders, whether they make sense, whether they are really effective, whether masking is harm for children’s health or an obstacle to their education whether school buses are “public transportation” and so forth.  

However, school boards proceed at their peril for willful refusal to comply with state ordered masking requirements.  School boards are better advised to deal with their skepticism by prudent implementation of masking mandates. Consider the encouragement of passive enforcement measures and avoid confrontation with students and parents to the extent possible.  Schools need to keep adequate supplies of masks available for students who appear in school or school transportation without masks.  Constant education and encouragement about the importance of masking and other disease avoidance measures should be happening.

Students or teachers who seek legitimate exemptions should be engaged in interactive processes to reach accommodation that will provide some level of protection while addressing the issues that militate against their wearing masks, indeed, these non-confrontational strategies are specifically called out by both the CDC and expressly explained in the DOH’s order of September 1. 

Bottom Line

The bottom line for school directors is to question the wisdom of masking all you want but do not succumb to bogus legal arguments declaring that you should ignore lawful governmental orders.  Rather, encourage policies that will reduce the tensions created by these temporary requirements and which will contain transmission rates so that the need for mandatory measures will be short lived.


School Law Bullets are a publication of KingSpry’s Education Law Practice Group. This article is meant to be informational and does not constitute legal advice.