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Are School Mask Mandates Constitutional?

State and local governments have taken on the task of creating effective measures to stifle the spread of the COVID-19 pandemic while simultaneously attempting to aid in its constituents' return to a semblance of ordinary life. While tackling these legal and political issues, courts have considered a myriad of challenges to mask mandates, including the argument that mask requirements are unconstitutional. These constitutional challenges are prevalent in the school setting, where students are caught in the middle of the debate between their parents, school boards, and the personnel responsible for implementing and enforcing masking policies and procedures. After months of lawsuits, the overwhelming majority of courts have reached the same conclusion: that mask mandates implemented by public officials do not violate the United States Constitution.

When assessing the constitutional challenges implicated by mask mandates, many courts rely on a century-old legal precedent set forth in Jacobson v. Massachusetts, a 1905 Supreme Court Case that upheld the Cambridge Board of Health’s smallpox vaccination mandate. The Jacobson holding established that a vaccine requirement is consistent with the Tenth Amendment, which gives states broad powers to act during an emergency to secure public health and safety. The idea is that there are certain “restraints to which every person is necessarily subject for the common good.” The contemporary Supreme Court reiterated this view in 2020, holding that the Constitution entrusts the health and safety of the people to the elected officials of the states and that their decisions should not be second-guessed by an unelected judiciary.

Many lawsuits dispute the efficacy of wearing a mask to slow the spread of disease. However, this argument is largely irrelevant because constitutional challenges to mask mandates are typically subject to the lowest standard of review, known as “rational basis review.” Under this framework, the legislative choice is not subject to fact-finding in the courtroom and can be based on rational speculation, even if unsupported by evidence. It is not the court’s role to evaluate the government’s decision-making, and thus, courts around the country are opting to “punt” on these issues and defer to the decision-making of elected officials at the state and local levels.

To trigger a level of scrutiny higher than rational basis, plaintiffs contesting mask mandates have attempted to argue several different legal theories. Some have argued that the rules violate their fundamental rights, which could be grounds for Equal Protection or Substantive Due Process challenges. Fundamental rights are explicitly or implicitly guaranteed by the Constitution. When these rights are implicated, the court applies the strict scrutiny standard, which requires a law to be narrowly tailed to accomplish a compelling interest. Courts have repeatedly held that fighting a pandemic is undeniably a compelling state interest, and wearing a mask is “a minimal inconvenience.” Courts are finding that a person’s right not to wear a mask is outweighed by the government’s purpose in requiring one. Beyond that, plaintiffs have repeatedly been unable to prove that a fundamental right has been infringed upon. A Constitutional right exists to refuse medical treatment, but courts have held that requiring a mask is far from a compulsory medical procedure or treating a medical condition and is simply intended to prevent the transmission of germs to others. When it comes to masks in schools, the Supreme Court has explicitly refused to declare education a fundamental right. The Supreme Court has recognized a fundamental right of parents when it comes to certain aspects of their children’s education, but not a parental right to “education unfettered by reasonable government regulation.”

Plaintiffs have also argued that mask mandates violate First Amendment liberties. On the issue of free speech, courts do not consider mask mandates an unlawful regulation of expression. Masks regulate conduct, not speech. While the personal decision whether to wear a mask may sometimes appear to be a political statement, courts do not consider it significantly expressive conduct and note that even with a mask mandate, there are plenty of alternative channels of communication through which individuals can express their views. Free exercise of religion is another basis for mask mandate challenges, but the lawsuits have been unsuccessful when the mandate is a generally applicable rule that does not target religious conduct or substantially burdens the practice of religion. Challenging mask rules on grounds of religious freedom have only been successful where religious institutions were treated less favorably than secular ones or were prompted by religious animus. For example, a stricter capacity limit on houses of worship than private business in New York was analyzed under strict scrutiny by the court, which halted the enforcement of the rule. However, a school mask requirement that is applied to people regardless of religion would almost certainly be upheld by a court.

The bottom line is that governments, including schools, are typically within their power to require people to wear masks. However, this broad power must be exercised in line with other federal and state laws, including the Americans with Disabilities Act, the Disabilities Education Act, and Section 504 of the Rehabilitation Act of 1972. If you or your child are experiencing issues with mask mandates, contact Cantafio Nagel & Song PLLC today for a free consultation.

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