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LINDSAY WHITEHURST and COLLEEN LONG
WASHINGTON (AP) — The rancorous debate over whether returning students should wear masks in the classroom has moved from school boards to courtrooms.
In at least 14 states, lawsuits have been filed either for or against masks in schools. In some cases, normally rule-enforcing school administrators are finding themselves fighting state leaders in the name of keeping kids safe.
Legal experts say that while state laws normally trump local control, legal arguments from mask pro- ponents have a good chance of coming out on top. But amid protests and even violence over masks around the United States, the court battle is just beginning.
Mask rules in public schools vary widely. Some states require them; others ban mandates. Many more leave it up to individual districts.
Big school districts that want to require masks are in court and battling governors in Florida, Texas and Arizona. Worried parents are suing over similar legislative bans on mandates in Utah, Iowa and South Carolina.
Suits fighting mask requirements have popped up in Missouri, Illinois, Michigan, Kentucky and Montana.
At the heart of the debates are parents, scared or frustrated for their children in an unprecedented time. The early court record is mixed, with victories for mask proponents in Arkansas and Arizona followed by back-to-back deci- sions in two big states going opposite ways. The Texas Supreme Court blocked another school mask mandate Thursday while a Florida judge allowed the rules to go forward Friday.
The federal Centers for Disease Control and Prevention is recommending universal mask wearing in schools. Students age 12 and younger remain ineligi- ble for COVID-19 vaccines.
Republican officials who restrict mask mandates argue there are downsides to kids being masked all day and that parents should decide whether to put them on children, who are generally far less vulnerable to the virus than are older adults.
But public health experts say masks are a key coronavirus-prevention tool that does not pose health risks for children older than toddler age, and truly effective when worn by a large number of people.
“This idea of parental freedom to decide what’s best for their child is not unlimited. It has never been unlimited in our system,” said Ellen Clayton, a pediatrician and law professor at Vanderbilt Law School in Nashville, Tennessee.
Nationwide, COVID-19 deaths are running at more than 1,100 a day, the highest level since mid-March. New cases per day are averaging over 152,000, turning the clock back to the end of January.
The surge is largely fueled by the highly contagious delta variant among people who are unvaccinated. In areas where vaccination rates are particularly low, doctors have pleaded with their communities to get inoculated to spare overburdened hospitals.
They have also sounded the alarm about the growing toll of the variant on children and young adults.
In Tennessee, for example, children now make up 36% of the state’s reported COVID-19 cases. Gov. Bill Lee has not banned schools from requiring masks but has ordered that any parent can opt out — and remote education options are limited this year. Few schools in the state have adopted mask mandates.
South Carolina passed anti- mask regulations and is now facing a federal lawsuit from the American Civil Liberties Union. The ACLU argues that the state is putting students with disabilities at greater risk in violation of federal law amid skyrocketing infections, particularly among younger children
Susan Mizner, director of the ACLU’s Disability Rights Project, said offering students with disabilities or medical conditions a remote option is not a good alternative. Limiting medically fragile students and those with disabilities to a remote- only education denies them equal opportunity, she said.
Under the Americans with Disabilities Act and the Rehabilitation Act, public schools cannot exclude students with disabilities or segregate them unnecessarily from their peers. Schools are also required to provide reasonable modifications to allow students with disabilities to participate fully. Lawyers have filed for a temporary injunction requiring masks while the court case plays out.
“We understand people are tired,” Mizner said. “We understand people are frustrated with the pandemic, we under- stand there is a lot going on here. We just want them to draw on their better selves to care about the kids in their communities who are most at risk and really need their help at protecting them.”
Schools already have plenty of restrictions aimed at protecting kids health. Rules against peanuts are a good example, said Ruth Colker, a law profes- sor at Ohio State University and a disability-law expert.
Those rules are aimed at pro- tecting kids with potentially fatal peanut allergies that can be triggered by particles in the air. Similarly, the argument goes, kids especially vulnerable to COVID-19 need everyone to wear masks so they don’t get sick.