Masking Children: Who Decides? (Washington Examiner) August 19, 2021

If you are confused about whether children should wear masks to school this fall, join the crowd.

More to the point: Do you even know whose decision that is? With conflicting advice about the science of masking children, federalism battles among federal, state, and local powers, and pandemic political posturing all around, it is nearly impossible to figure out who is in charge here.

A recent decision by the Texas Supreme Court presents a microcosm of the larger problems. Texas Gov. Greg Abbott issued an executive order in May, which he expanded in July, to ban the mandated wearing of masks by any government entity, including schools. Concerned about the rapid spread of the delta variant of the coronavirus, some of the state’s largest school districts nevertheless mandated the wearing of masks. The state’s Supreme Court ruled recently that the governor’s ban of mask mandates should prevail, at least for now.

There are both legal and political ironies in all this. With a Republican governor, and an all-Republican state Supreme Court, one might expect a stronger push for federalism, allowing local government entities (including schools) to control their own fates. But mask mandates are seen as a challenge to individual freedom, also a core conservative principle. Legally, it seems unusual for a state emergency power, normally used to take action, to instead prevent action under local emergency powers.

The story does not end there, of course. Some schools are ignoring the ruling until it applies more fully and specifically to them and proceeding with mask mandates. Another added masking to its dress code, an attempt to skirt around the mask mandate for now. Meanwhile, in Washington, D.C., President Joe Biden indicated that he is exploring the use of federal civil rights law to protect mask mandates in schools.

Although both Presidents Donald Trump and Joe Biden declared national states of emergency regarding COVID-19, much of the real action has been left to states and local governments. In California, for example, where state regulations came early in the pandemic, counties were nevertheless the level at which a variety of masking and distancing rules were applied. Although the pandemic was a worldwide problem, local conditions varied, making it appropriate in our federalist system for local and state governments to take the lead.

Applying federalism to the question of masking in schools, it seems like individual districts should be able to make their own decisions. Clearly, conditions in some states and cities vary widely. Policies that make sense in more urban areas may not apply to a rural district. Then, too, people are more likely to honor the rules when they have a voice in making them. Besides, this is not like rules for flying, a situation in which many different people are exposed to one another. Rules in one school district need not have an extended effect beyond their borders.

At the end of the day, one worries that politicians making their political points about mandates and freedom are taking priority over federalism and student safety. Whether students should wear masks in school is a tough enough call without politicians in Washington or state capitals seeking to make a political statement out of it.

Masking in school is a decision for school communities, not for remote politicians and courts.

To read the column at the Washington Examiner:

https://www.washingtonexaminer.com/opinion/masking-children-who-decides