While there are some differences between the policies in each state, they all point to the same debate at the heart of efforts to return to in-person instruction: Who gets to decide whether to mandate masks in schools — state politicians or local school officials?
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.
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a day after the governor’s executive order was issued State Superintendent of Education Molly Spearman rescinded South Carolina’s face covering policy in schools “with the exception of the school bus requirement that is now required by the federal government,” according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.
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.
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.
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.”
CNN’s Ale Pedraza Buenahora contributed to this report.
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