Sam Podnar is a senior at NASH. When she's not writing, she enjoys baking, reading, and talking too much about local politics.
At Face Value
Do mask mandates in schools unconstitutionally restrict student freedom, or can states legally require face coverings in an educational setting?
November 16, 2021
The August 25th school board meeting was a pressure cooker of community tension.
I entered the NASH auditorium that night intending to write an article on what would normally transpire, but I left hours earlier than expected, with nothing to cover. The meeting hadn’t happened.
In between my arrival and departure from NASH, I witnessed no shortage of yelling—screaming matches largely between parents, verbal cage matches in the pit area and the seats and the foyer and just outside NASH’s entrance. As the conflicts escalated, we waited for the actual meeting to begin, the auditorium filling with palpable hostility.
A mask mandate was officially in place, newly adopted after a judge issued a restraining order and reinstated the superintendent’s original decision to require masks in school facilities. That mandate was not being followed by all attendees or enforced by any district officials. A few board members and the district solicitor explained to the crowd that the meeting could not start until everyone put on a mask, a request which provoked more tumult. More shouting—this time at the stage, where members of the board and administration crossed their arms and shuffled a bit.
The night ended with a message from Board President Andy Chomos, delivered into a microphone as he leaned forward and gripped the table with both hands: “All right, have a good night. We’ll see you in September.”
Those events—and another board meeting on October 27th that saw disruption over masks—have motivated me to dig deeper into the questions about individual liberty that have arisen during this controversy.
Let’s talk about American freedom.
Many parents claim that their right to choose supersedes the power of schools and local governments to instate mask mandates. We need to examine America’s legal tradition that is grounded in the Constitution and backed by hundreds of years of legal precedents, as well as a plethora of recent examples, to determine the validity of this viewpoint.
According to the Congressional Research Service, the 10th Amendment prevents the federal government from directly imposing a mask mandate on the states, but state and local health authorities do have this power. Local health authorities actually have much broader power than people imagine; Pennsylvania’s Disease Prevention and Control Law, passed in 1955, grants state and local health departments the authority to “carry out the appropriate control measures in such manner and in such place as is provided by rule or regulation” in the case of a disease “which is subject to isolation, quarantine, or any other control measure.” COVID-19 fits the bill.
And several legal precedents, most notably Jacobson v. Massachusetts, a 1905 Supreme Court case establishing the legality of vaccine mandates, have asserted that a local government is within its power to implement safety measures in the name of public health.
Legal challenges to mask mandates have been struck down across the country, although not unanimously; successful attempts to overturn mandates have been the exception, not the norm, and have not successfully challenged any fundamental understanding of the Constitutional definition of personal liberty.
In Tandon v. Newsom, for example, the Supreme Court ruled that California did not have the right to limit the gathering of an at-home Bible study group even if it violated COVID-19 restrictions. But the Court ruled this way because the plaintiff was able to prove that the religious activity was being held to stricter health and safety standards than other secular activities in the state; in most other cases regarding religious activities, such as Denis v. Ige and Delaney v. Baker, mask mandates have been upheld when people have challenged on religious grounds. And recently, a federal judge in Texas ruled that Governor Abbott’s ban on mask mandates in schools is unlawful, violating the rights of students with disabilities.
Broadly, courts have ruled that mask mandates do not curb freedom of speech, assembly, or religion; that they do not amount to unwanted medical treatment; that they do not discriminate against a protected class or violate any fundamental rights; and that parental liberty does not extend so far as to prohibit schools from instating measures to protect students from a contagious and deadly virus.
As Suzanne Eckes, an education law professor, points out, “Parental rights in the public school context have never been absolute.” Schools are able to enforce certain rules for students, like a dress code and ban on profane language. It’s understood that certain rules are in place for schools to operate safely for students and staff.
NA’s Code of Conduct prohibits students from bringing weapons to school, making terroristic threats, cyberbullying, and cheating. When signing off on the Code of Conduct agreement at the beginning of each school year, students even agree to not lie, sext, eat outside the cafeteria, do “inappropriate displays of affection,” or possess laser pointers. No parents or students are protesting against these restrictions.
Notions of American Freedom
Various individuals have invoked individual liberty and wielded the Constitution to protest mask mandates as a whole. People have gone so far as to levy the words “tyrant” and “dictator” against the officials imposing the mandates, and chants of “USA” have made it clear that they believe they are in line with American tradition. But this terminology displays a fundamental misunderstanding of what freedom in this country is.
As Brandon Moulard and Laura Lashley write in the National Law Review, “The purported right not to wear a mask during a pandemic comes nowhere close to the type of fundamental liberty interest ‘deeply rooted in this Nation’s history and tradition’ or privacy interest ‘related to the most intimate of human activities and relationships’ our courts are willing to protect.”
Your freedoms are restricted when you could possibly limit another person’s freedoms. In Pennsylvania, you can’t smoke in public places or workplaces, you can’t drive without wearing a seatbelt, and you can’t drive while under the influence of drugs or alcohol. Well, what if you want to smoke indoors or not wear a seatbelt or drive drunk? You can do that, but you’ll face the consequences outlined in the law, written to prevent you from injuring or killing another person.
Remember Jacobson v. Massachusetts? The decision states that “The liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members.”
On any other basis, organized society could not exist with safety to its members. This principle—the idea that no one’s freedom is completely unlimited—is so fundamental, so necessary, and so rational that it’s essentially impossible to make a reasonable argument that the opposite should be true—that everyone should be free to do whatever they want, whenever they want.
One of my teachers explained the concept plainly, loosely quoting an expression widely attributed to Supreme Court Justice Oliver Wendell Holmes (also traced back to a speech made by politician John P. Finch in the late 19th century):
“Is not this a free country?”
“Have not I a right to swing my arm?”
“Yes, but your right to swing your arm leaves off where my right not to have my nose struck begins.”
My teacher would mime the action, boxing out in front of him—“My freedom to swing my fist…”—and pretending to hit a student in the first row—“…ends where it meets your face.” The idea is that simple: your rights are limited when they infringe on the rights of others. Hundreds of years of legal tradition have established this; the ideals of the Founding Fathers agree with this.
It comes down to the words of Cicero, now thousands of years old: “Salus populi suprema lex esto.” The health of the people is the supreme law, also interpreted as “the welfare of an individual yields to that of a community.” This phrase is endorsed by none other than John Locke, one of the most important and influential individuals of American government. It is the epigraph—literally the first phrase—in Locke’s Second Treatise on Government, a text that American schoolchildren study for its incredibly prominent influence on the Declaration of Independence and US Constitution. This is American law, American tradition, the American way. To argue for a version of individual liberty that ignores this notion is not fighting for freedom like a true American—indeed, it misconstrues the very foundation of this country.
In a Constant State of Flux
I’d also like to acknowledge that the legal intricacies surrounding mask mandates are myriad; court decisions in various states have shown that nothing is cut and dried. In 16 states as well as DC, statewide mask mandates for schools are in place. Of the nine states that have issued mask mandate bans, four of those states have the bans in effect, while five have seen them blocked, suspended, or unenforced. In each of these cases, there have been challenges to both mandates and bans of mandates, and most states are seeing incredible complexities and changes in legal decisions.
In our own state, a recent Commonwealth Court decision ruled that Governor Wolf’s statewide mask mandate in schools should be thrown out because the health secretary does not have the authority to issue such an order. (The Department of Health has appealed this ruling, meaning the mandate remains in effect.)
But while our understanding of freedom in this country will constantly be in flux and debated, one basic principle remains the same: it is in no way absolute.
Amid these restrictions on freedom, I’d like to mention some things community members are free to do: voice their opinions in a public forum, like a school board meeting; write to leaders whose decisions they find concerning; and gather in protest to unite their voices. America is not totalitarian. As many people have said in the past few months, we live in a free country, and that’s a saying I endorse. (How free? Well, we’re tied with the UK for the 17th spot on the Human Freedom Index, which isn’t half bad.)
Anti-maskers are valid in harboring concerns over pandemic restrictions. It has been a tumultuous, scary time. Over the past year and a half, we’ve had to do a lot of things we’d rather not: stay in our homes, limit our gatherings, and wear face coverings. We’ve been bombarded with a great deal of new information and have watched the world painfully transform.
The recurring sentiment—on both sides—has been that everyone just wants the best for their children, and I believe that. As someone who is not a parent, I concede that I don’t understand what it’s like to be concerned about a child’s wellbeing at this level.
And if there is one thing we can all agree upon, it is that everyone is exhausted, upset, and in mourning for what we’ve lost during the past year and a half, whether that’s our normal lives, our jobs, our education, our health, or our loved ones. We all just want to get out of this thing—this thing that has killed over 5 million people at this point. But we need to find a way to agree upon essential tenets of our society in order to find solutions and rebuild.
With Governor Wolf’s recent announcement that schools will be able to determine their own masking policies by January 17th, as well as the recent challenge to the statewide mandate, this issue has not lost its relevance. And the broader questions—about freedom, about truth—will never lose their relevance.
I would not like this article to be construed as a device meant to sow division. I believe that to move forward from this pandemic, we have to find a way to unite. But we need to unite over facts and shared values. That is an immense challenge, but I have faith that we can to rise to it.
Editors’ note: All opinions expressed on The Uproar are a reflection solely of the beliefs of the bylined author and not the journalism program at NASH. We continue to welcome school-appropriate comments and guest articles.