One Step Forward ... Two Giant Steps Backwards!
The Centers for Disease Control and Prevention issued new guidance in July that recommends masking in schools for all students, staff and teachers, regardless of their vaccination status against COVID-19. It brings CDC in line with the American Academy of Pediatrics, which also recommended universal masking in schools in July. Since then, Wisconsin's Department of Health Services said that it supports the CDC's new guidance, and that those changes will be reflected in DHS's recommendations.
The new guidance hasn’t shifted how all Wisconsin school districts are planning for the fall — at least, not yet, but from what we can tell it is beginning or the “new normal”.
“The DHS has endorsed the latest CDC guidance on masks, so that is the guidance our agency will be recommending and communicating to school districts as they plan for the fall,” DPI communications specialist Chris Bucher recently stated. But Bucher is clear it’s just “guidance.”
“There is no official blanket ‘policy’ that applies to all districts in the state,” Bucher explained. “With Wisconsin being a local-control state, policy decisions, such as the use of masks, social distancing, and mitigation strategies have been made by local districts after discussions with both the DHS and local health departments.”
Following these new guidelines, leaders in several districts have in recent days have announced that all students and staff, regardless of age or vaccination status, will be required to wear masks when the 2021-22 school year begins.
Milwaukee Public Schools have already announced that they will require students to wear masks when all of its buildings open for in-person learning in the fall. Superintendent Keith P. Posley announced in the news in a blog on the district’s website. In addition, students and staff will continue to practice three feet of social distancing and all classrooms will have HEPA air filters.
All kids in Wisconsin will continue to have to wear masks on the school bus through at least mid-September. The federal requirement that everyone wear a mask on public transportation will remain in place until at least then.
Can Schools dictate the wearing of masks? The short answer, YES. This is equivalent to making a kid wear a uniform. But the better question, from a legal perspective, should be why, and how these mandates come to pass.
By way of background, State Government have what is called “police powers” – that is the right to pass laws for the general protection of their citizens. (This is NOT a power enjoyed by the Federal Government under the Constitution). But notice the key word “laws”; which means when the government acts, it must do so within the confines and the structure of lawmaking. That is a system of checks and balances, which are designed to fairly represent the cross-section of the governed based on who they elect. However, governments (mostly Governors) have unilaterally made these recent “mask policies” under some rubric of their “emergency powers”.
Again, notice the key word – “emergency”. When does the emergency end? When and what standard are we measuring an emergency? When does a Governor need to involve the entire State legislature? When does democracy start and tyranny end? These answers are different in each State, and they require in depth analysis (more that this article will provide). But the short answer is almost invariably “emergency powers” do not extend for 16 months (despite the variant and other changes).
Regardless of one’s position on mask mandates, the COVID-19 virus and all political entanglements associated with the same; anyone who believes in the “rule of law” and the ideals of the Government representing the governed should be on high alert and watch closely how each government reacts, because these are the times when society finds out if they do the governing or are simply being governed.
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At Jones Law Firm we understand that this past year and a half and what is inevitably still to come with the pandemic has brought to light many new legal and individual challenges. We are committed to being there to guide you through these issues that the one that are yet to come. Please contact us by text or phone at (414) 775-7445 or email at laura@jlfwisconsin.com anytime for your free consultation.
*Any articles in the Libra or posted by Jones Law Firm LLC are not legal advice for a particular client or situation. Further no attorney-client relationship is intended or created with this post.*
