GOP governors move to ban mask mandates in schools

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.

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.

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a day after the governor’s executive order was issued State Superintendent of Education Molly Spearman rescinded South Carolina’s face covering policy in schools “with the exception of the school bus requirement that is now required by the federal government,” according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

Texas

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

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

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.

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.”