On August 11, 2021

Absent a state of emergency, will schools be able to boot a kid for not wearing a mask?

By Lola Duffort/VTDigger

When Gov. Phil Scott’s administration announced new Covid-19 guidance for K-12 schools on Tuesday, Aug. 3, it did so with an important caveat.

The state’s recommendations — including around masking — were not themselves requirements. With the state of emergency no longer in effect, officials said they would need to rely on school districts, who enjoy broad discretion to manage their affairs, to impose such mandates.

And, asked specifically by a reporter if schools could send a child home for failing to mask up, Education Secretary Dan French demurred.

“This specific question is one we’re going to have to explore further,” he said.

Photo by Glenn Russell/VTDigger
Gov. Phil Scott speaks during a meeting of the Emergency Board at the Statehouse in Montpelier on Friday, July 30, 2021.

Since the state announced its new guidance Tuesday — and subsequently released a written, and slightly altered version on Thursday — school officials have been trying to understand what it might all mean.

“One of the first questions that came up was ‘What’s the authority of the school district to require masks, and require proof of vaccination?’” said Jeff Francis, the executive director of the Vermont Superintendents Association.

Jaye Pershing Johnson, general counsel for the Scott administration, said school officials are bound by a “duty of care” enshrined in state law that requires districts to protect students “from being exposed to unreasonable risk.” And that gives them broad discretion to ensure health and safety.

“If they are following that guidance, and they are taking the steps they feel they need to take in order to meet the duty of care that’s set by statute, I think that they will be on solid legal footing,” she said.

And many experts agreed.

“It’s a fascinating kind of analysis of federal versus state versus local control,” said Mark Oettinger, an attorney in private practice who once served as the Agency of Education’s general counsel.

For the whole of the pandemic, Oettinger said, the federal government has been unable — or unwilling — to impose most restrictions themselves and has instead left decision-making largely to local governments, although the CDC has weighed in with recommendations. With Vermont’s state of emergency no longer in effect, the state is now taking much the same approach and devolving power to municipalities and school districts.

Unless the governor decides to re-impose any mandates, Oettinger agrees the health and education agencies likely can’t impose requirements themselves. But he thinks school districts will be on solid ground if they enforce the state’s guidance.

“Could a parent file a lawsuit saying ‘I don’t want my kid to have to wear a mask?’ Yeah, they could always file that lawsuit. Would they win? I think no,” he said.

That’s not necessarily because there’s a state law or regulation that specifically grants them the authority to impose something like a mask mandate, he said. It’s that the burden of proof is on the plaintiff that they are being actually harmed by the school’s new policy.

“It is not ‘Where is the exact authorization for the schools to do this?’ I would say it’s the opposite,” Oettinger said. “What is the cause of action or the constitutional right or statutory right of the parent-slash-family-slash-student that is being violated? And so what would they say in response to that, I’m not sure.”

Joe McNeil, a Burlington attorney who often represents school districts, agrees. Unless local officials create such policies in arbitrary, capricious or discriminatory ways, they enjoy broad powers to ensure the basic health and safety of the learning environment.

“Unless there was a statute that said, ‘You can’t do it,’ or ‘You can only do it this way,’ … my thought is that the courts would give due deference to that exercise of responsibility,” he said.

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