‘Asserting power when they don’t have any’: GOP governors move to ban mask mandates in schools

As a school year filled with challenges from the Covid-19 pandemic comes to a close, the focus is on summer school and planning for the fall, when the Biden administration expects all schools to return to in-person learning.

Since children under 12 likely won’t be eligible for a vaccine until Thanksgiving, according to Dr. Anthony Fauci, this anticipated transition has brought two political battles into one: the disputes over mask mandates of the past year and the long-running fights over local control of schools.

In New York, for example, the state’s Department of Education clarified this week that mask requirements will remain in schools despite a letter from the state health commissioner on Friday indicating otherwise.

While New York state officials said they would follow guidance from the US Centers for Disease Control and Prevention, at least five Republican governors are trying to exert their own authority over the decision. Although Fauci has said children under 12 in communities where the level of infection remains high will likely still have to wear masks when schools return in the fall, Govs. Henry McMaster in South Carolina, Greg Abbott in Texas, Kim Reynolds in Iowa, Spencer Cox in Utah and Brian Kemp in Georgia have already taken steps to prohibit schools from requiring masks.

While there are some differences between the policies in each state, they all point to the same debate at the heart of efforts to return to in-person instruction: Who gets to decide whether to mandate masks in schools — state politicians or local school officials?

In Utah and Iowa, the governors signed bills passed by the legislatures, cementing the bans on school mask mandates into law. However, in response to concerns that the bill in Utah oversteps local control, it does include a provision allowing schools to require masks during outbreaks only if the decision is made in collaboration with local health departments.

In South Carolina, Texas and Georgia, the governors all signed executive orders taking steps to limit schools’ abilities to implement mask mandates. Their authority to do so “varies from state to state,” according to Lindsay Wiley, director of the Health Law and Policy Program at American University.

South Carolina

McMaster’s executive order incited tension last month between the governor’s officer and the state school superintendent.

The executive order, which McMaster signed on May 11, did not technically prevent schools from having mask requirements but allowed parents to opt their students out of participating in them. The order stipulates that the South Carolina Department of Health and Environmental Control will “develop and distribute a standardized form a parent or legal guardian may sign to opt their child out of mask requirements imposed by any public school official or public school district.”

Following the governor’s executive order, the South Carolina Department of Education issued a statement claiming the governor did not have the authority to reverse school policies on masks.

According to University of South Carolina law professor Derek Black, “The reoccurring problem with this executive order and with governors and other elected officials is about asserting power when they don’t have any.”

In South Carolina, county and local authorities have a considerable amount of power to write their own rules, University of South Carolina law professor Jacqueline Fox told CNN.

“There’s a very powerful home rule in South Carolina for localities and counties,” Fox said. “In particular for public health or weather emergencies, they had a lot of power that the counties had to respond quickly and the governor just keeps bumping into that.”

The way constitutional authority is distributed in South Carolina, McMaster may not have had the authority to determine school policies regarding masks, but the state’s superintendent did.

To avoid “a debate over constitutionality,” a day after the governor’s executive order was issued State Superintendent of Education Molly Spearman rescinded South Carolina’s face covering policy in schools “with the exception of the school bus requirement that is now required by the federal government,” according to the Department of Education’s statement.

Fox interpreted Spearman’s action not as ceding power but as using her authority to control the situation.

“She is clarifying this is her choice, not his, but that she’s going to go along with it due to the chaos he created,” Fox said.

“I made my motion because I felt that I needed to do something to settle the calm,” Spearman told CNN’s Victor Blackwell, adding that the governor’s executive order “caused a lot of confusion.”

“I had told superintendents that we were going to stick to our order until the end of the year but it just became impossible when the conflicting order came out and parents were able to opt out. It was moot, really, after that,” Spearman said.

Texas

Abbott’s executive order relies on authority granted to the governor in the Texas Disaster Act of 1975. One section of the act specifically allows the governor to suspend rules of a state agency, which could include state public schools.

Wiley notes that while none of the act’s provisions clearly state that the governor has the power to preempt local authority over public health measures that are more protective, Abbott has used the statute in this way repeatedly throughout the Covid-19 pandemic.

Georgia

While Kemp’s executive order cited emergency authority granted by Georgia’s Emergency Management Code, the provision relating to masks in schools falls short of a full ban, which legal experts had cautioned might violate Georgia law.

Kemp’s press secretary, Mallory Blount, told CNN, “The executive order clarifies that the public state of emergency cannot be used as a basis for a mask mandate in schools.”

Instead of relying on the state of emergency, Jason Esteves, chair of the Atlanta Public Schools Board of Education, told CNN they are “following CDC and local health guidelines.” The mask mandate in Atlanta Public Schools is part of the dress code, which falls under the authority of the school board, according to Esteves.

When asked whether the mask mandate in Atlanta Public Schools would be a violation of the executive order, Kemp’s office did not respond.

“Speaking to the authority of a school board and the superintendent vs. that of the governor, our mask mandate is actually part of the dress code,” Esteves said. “It’s an Atlanta public school policy that was passed by the school board.”

Esteves has said the Atlanta Public Schools intend to continue their mitigation strategies, including a masking requirement, throughout the summer for students attending summer school. He emphasized that while this is their plan for the summer, “what the fall looks like might be very different.”

“Our plan is to follow the science and not pay attention to the politics,” Esteves told CNN.

Educators’ concerns

The latest guidance from the CDC suggests schools prioritize universal mask use, and CDC director Dr. Rochelle Walensky has said additional guidance is forthcoming ahead of the fall.

While it’s unclear what the fall will look like, in many states, new state policies around masks are already having an immediate effect as many students attend summer school.

According to Mike Beranek, president of the Iowa State Education Association, because of Iowa’s new law banning mask mandates in schools, students attending summer school or weekend programming at schools throughout the summer “will not be wearing face coverings either, unless their parents send them to school and tell their children that they need to wear face coverings.”

Some educators in states where governors are trying to limit mask mandates have expressed concerns that the policies are premature and have called for state officials to wait for updated CDC guidance closer to the start of the new school year.

Ovidia Molina, head of the Texas State Teachers Association, told CNN’s Alisyn Camerota that “the fact that it’s being done toward the end of the school year, when many educators were breathing a sigh of relief that they had made it to the end of the year, is just ridiculous. We should have, as a state, listened to the CDC. The guidelines are still saying our students need masks.”

“There has never been a plan by our state to take into account the safety of our educators. That is how we feel,” Molina said.

“Our educators are being put in the predicament yet again by our state of choosing safety,” Molina said. “We’re towards the end of the year. How many educators are going to decide that they’re just tired of being picked on by our state and are not going to come back?”

Beranek shared Molina’s concerns about losing educators as a result of the states’ policies.

“We are already seeing a shortage of applicants for open positions,” Beranek told CNN. “There have been a number of individuals who have taken early retirement, and this past year certainly was a contributing factor.”