Are Masks Mandate Bans Unconstitutional? Academics Weigh In

We are tired of the debate, but school mask mandates continue to dominate headlines. We’ve done remote learning. We wore masks, social-distanced, and used partitions on desks. Now, as we begin our third year of pandemic teaching, we’re tackling another issue—are mask mandate bans unconstitutional? Let’s take a look at this issue and hear what our community of teachers had to say!

State bans on mask mandates

Earlier this year, Texas Gov. Greg Abbott banned mask mandates in an executive order. In late July, Florida Gov. Ron DeSantis followed suit, as did the leaders in Arizona, Arkansas, Iowa, South Carolina, Utah, Oklahoma, and Tennessee. The resulting fallout has varied drastically from one state to another.

Arkansas Gov. Asa Hutchinson expressed regret in early August. In a press conference, he said: “In hindsight, I wish that it had not become law. But it is the law, and the only chance we have is either to amend it or for the courts to say that it has an unconstitutional foundation.” Several days later, an Arkansas judge blocked the state from enforcing a mask mandate ban.

Meanwhile, things in Florida have been far more dramatic. After schools defied him and his order banning mask mandates was thrown out by a judge, Gov. DeSantis vowed to win an appeal over the ruling. In the meantime, Florida is blocking funding from two school districts that have imposed mask mandates. This puts Gov. DeSantis in direct opposition to the judge who deemed his ban unconstitutional.

Education Department opens civil rights investigation

As of this week, the Education Department has opened civil rights investigations into mask mandate bans in five states: Iowa, South Carolina, Utah, Oklahoma, and Tennessee. Why a civil rights investigation? The Education Department alleges that prohibiting mask mandates prevents school districts from meeting the needs of students with disabilities and underlying health conditions.

There are no active investigations in Florida, Texas, Arizona, or Arkansas, however, as court orders and other state actions have stopped the mask mandate bans from being enforced.

Do teachers think mask mandate bans are unconstitutional?

One Florida teacher shared what it’s like to be in a classroom where mask mandates are banned. “Since the executive order, I’ve been trying to advocate for other things that can help: doing a better job of encouraging vaccination locally, requiring masks of all staff vendors and visitors,” she says. “At least that’s a step that doesn’t put our school funding at risk.”

Are mask mandate bans unconstitutional? We polled our own community of teachers to find out what they think. Here are some of the comments:

“Is requiring shoes unconstitutional? Would placing a ban on requiring shoes be unconstitutional? I mean, I don’t see anyone placing bans on any other public health mandates…What it really boils down to…is it unconstitutional to make schools completely inaccessible to the disabled or medically fragile? Yes. It’s discrimination.” —Amanda Ramirez

“Committing murder is unconstitutional, so yes, bans on mandates are.” —Barbara Wohlforth

“Yes, mask mandate bans are unconstitutional because we are literally putting children in harm’s way because of politics… it needs to stop… if we are in close quarters we need to be masked… my sons’ school was mask optional had an explosion of Covid… they went to a mask mandate and the number came down.” —Heidi ScienceFairy Tucker

“That is an impossible question to answer – too many variables. And who’s constitution—U.S. or state? Do I think it’s unethical to ban mask mandates? Yes.” —Mark Lucker

“Oh my god. Enough already … just wear the masks so we can get past this virus.” —Donna Edwards

“Is it unconstitutional to make schools completely inaccessible to the medically fragile? Yes. It’s a form of discrimination. Public schools are supposed to be a safe place for all students to attend, not just students with good immune systems.” —Kacey M. Reed

How do you feel about banning mask mandates? Share your thoughts with our community.

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