From New Jersey to California, there is talk from public health and school officials that if school reopens in the fall, students will be required to wear masks. Many parents do not like the idea of their kids wearing masks all day, for health reasons.

The question is what can you do about?

My short, (and probably not entirely satisfying) answer is that it’s about activism, because you should not expect any help from the courts on this issue.

As I have said in many previous posts, courts do not like to second guess public health officials on matters of public health. This view goes back to 1905 in Jacobson, and has very recently been reaffirmed by the Supreme Court in the South Bay Pentacostal Church case.
Here is my post about it:
https://wp.me/p7pwQD-FW

That case challenged Governor Newson’s rule that churches had to operate at 25% capacity. The operative part of Justice Robert’s concurring opinion (rejecting the Church’s attempt to stop the rule or freedom of religion grounds was that these types of public health decisions “should not be subject to “second-guessing by an ‘unelected federal judiciary, ‘which lacks the background, competence, and expertise to assess public health and is not accountable to the people.’”

What about a state elected judge? Would that be any different?

I don’t think so. Judges are going to try to avoid the responsibility of overturning a public health rule with such obvious perceived/accepted benefit by the consensus of scientists and public health officials, for fear that overturning the mask rule will cause clusters of cases, sickness and death. No judge wants to be responsible for that. And cynically, if some kids get sick or unhealthy from the mask requirement, then that’s on the public health officials since it was their rule.

But you say that there are physicians who say that masks don’t work, meaning they don’t protect anyone. For better and worse, public health decisions are not made by outlier opinions.

What about the harm masks can cause, like restricting oxygen intake and increasing Co2? And, where is the evidence that the use of masks is safe for children to wear them all day?

These are certainly good questions, but as indicated by Justice’s Robert’s quote, judges think they are not qualified to make these types of technical decisions, and they shouldn’t “second guess” the public health officials. That is their view, like it or not.

The questions the courts would focus in any such legal challenge is whether there is some constitutional or statutory right which the mask ordinance violates? The best case could be a child with some kind of pulmonary/breathing condition which would make wearing a mask dangerous to that condition. I don’t know if such a condition exists (outside of an asthmatic in an attack), but if they do, then I suppose, that plaintiff might have an argument on an as applied challenge to some education right statute.

But the general point is that, in my view anyway, the courts are not going to overturn a face mask ordinance during a pandemic when the accepted (even if ultimately proven wrong) view is that masks prevent the spread of the disease, and I do not think a court would even grant a hearing on the issue of mask safety for children, because per Justice Roberts, the court system “lacks the background, competence, and expertise to assess public health.”

So, the short of it is that I don’t think there is a viable litigation answer to a county ordinance that school children have to wear masks.

So, what is the answer? If there is one, it is activism.

I saw that Freedom Angels had an event in Nevada County yesterday, I think at the school district or public health office. I think activism and engagement with the county officials is the way to go on this. In New Jersey, they seem to be talking about a state-wide rule, so Trenton would be the place to go for that. In California, it seems to be county-by-county, so activists in each county have to monitor the progress of such rule, at least until Governor Newsom tries to make it state-wide.

The rub is that there are short term unknowns which could have profound consequences on the likelihood of success of a grass roots movement against masks for students. The country is opening up, but the major city protests over the Georgy Floyd’s death has thrown all the carefully prepared city reopening planning out the window.

We know that infection rates are going up in many states, and it seems a safe bet that it is because of the opening-up. What we don’t know yet is whether what happened in New York City and New Jersey will happen in other places like in California. Obviously (or at least it seems obvious to me) if things were to get really bad in California over the next month or two, either schools will not reopen in the fall, or there will be a mask requirement. However, if things continue as they have in California, meaning most California cities and towns have very low death and hospitalization rates, I can see organized activism working in many of these counties.

Look, there are obvious practical and enforcement problems with an ordinance/order requiring all school children to wear masks all day. Practically speaking, I don’t see how a bunch of 8-year olds are going to wear them all day. I think teachers would have to spend too much of their time trying to police their young students. I can see it working for middle and high schoolers when switching classes. But young kids, good luck with that.

My practical advice is that you are going to have 1. find out what your county is planning to do, and see what California might do state wide, 2. Figure out what the science really says, if anything about this, and don’t take at face value every outlier just because it agrees with your position, 3. organize county wide, until there is a state order and/or bring in regional activists for county events like what happened yesterday in Nevada City, 4. request a public hearing, if that is an available means in your county, and we will see what develops with the pandemic (or pandemic hoax as some of you call it).

Rick Jaffe, Esq.