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Legal battles over masks in schools are being fought across the country, including in Arkansas, California, Florida, Kentucky, Michigan, Oklahoma, Nevada and Texas.

This story also appeared in The Conversation

Rather than clarifying policy, these legal challenges have led to more confusion.

As a new school year begins and COVID-19 hospitalizations rise across the country, the Centers for Disease Control and Prevention and the American Academy of Pediatrics recommend that students wear masks in school to help slow the spread of the coronavirus.

This guidance, and schools responses to it, has resulted in an intense debate. Some parents argue that they should be able to decide when and where their children wear masks, whereas others argue collective health and safety concerns take priority over individual choices. These arguments fall sharply along partisan lines, with 88% of Democrats supporting mask mandates and 69% of Republicans against the requirements.

State rules reflect this division. In eight states, as of Aug. 16, 2021, laws were enacted or governors issued orders banning public schools from requiring students to wear masks. On the opposite side of the debate, 12 states and the District of Columbia are requiring students to wear masks indoors.

Further complicating matters, some school districts have acted in outright defiance of their states regulations. These conflicts pose one key question: Who has the power to control the health and safety measures schools take state leaders or local officials?

Texas provides a good example of this conflict. Even after Texas Gov. Greg Abbott issued an executive order banning school mask mandates, local officials in several school districts adopted policies that required students to wear masks.

Simultaneous legal battles across multiple state court districts ensued and resulted in inconsistent rulings on whether banning masks in schools is constitutional.

On Aug. 15, the Texas Supreme Court weighed in, siding with the governor and saying that schools cannot require masks. Yet some schools still do, defying both the governor and the states highest court.

With all of the partisan rhetoric, lawsuits and conflict, many parents are left bewildered about how to proceed with the school year.

This is not the first time legal battles have erupted in the wake of a public health emergency. During the influenza pandemic of 1918, state and local governments enacted a variety of restrictions to combat the spread of the virus. As they must now, officials had to make hard decisions about whether to close schools or prevent public gatherings. Mask mandates even existed in some areas. State and local judges routinely upheld these measures.

Many of the same constitutional questions debated over 100 years ago arise today about mask mandates and other pandemic-related regulations.

Long-standing U.S. Supreme Court precedent recognizes that states have broad powers to regulate the health and safety of their citizens during a public health crisis.

But no right is absolute. When evaluating a states actions in a pandemic, courts weigh the governments interest in protecting the health and safety of its citizens against an individuals civil liberties.

Common challenges against COVID-19-related regulations argue that some requirements violate the First Amendment or an individuals right to liberty, including the right to make choices about ones own health.

Over the past year, the challenges that have been most successful in the courts argued that certain COVID-19 rules violated the First Amendment right to freely exercise ones religion.

For example, the U.S. Supreme Court recently blocked the state of California from enforcing COVID-19 restrictions on an at-home Bible study group and prevented New York state from enforcing occupancy limits on religious services.

But with respect to mask mandates, legal precedent supporting similar challenges is not as strong.

For example, in Maryland, a federal district court recently suggested in a decision that litigants were unlikely to succeed with claims that challenged mask mandates as unconstitutional violations of the First Amendment.

Arguments that mask mandates violate an individuals constitutional right to liberty defined by a leading legal resource as freedom from arbitrary and unreasonable restraint upon an individual face an even greater uphill battle. Courts have interpreted the Constitution as giving elected officials leeway when it comes to social policy, particularly in areas fraught with medical and scientific uncertainties.

This does not bode well for challenges like one recently filed in Nevada, which claims mask mandates infringe upon the fundamental right of parents to make child-rearing decisions.

On the other side of the debate, in some states litigants have gone to court to advocate for more stringent COVID-19 regulations.

In Florida, two different lawsuits seek to overturn the governors ban on school mask requirements. They claim that the Florida Constitution guarantees a safe school environment and grants local governments the authority to govern schools.

Some of the more successful lawsuits have focused on the fact that, by law, most states can regulate mask wearing in only public schools. This means that state laws and orders that ban mask requirements do not extend to private schools. In Arizona, Arkansas and Oklahoma, lawsuits claim that this creates unconstitutional distinctions between public and private students rights to a safe educational environment and therefore, they say, the state cannot ban mask mandates in schools at all.

All of this fighting within and among the states led the Biden administration to step into the fray. While the federal government cannot constitutionally command the states to do something, it can create incentives for them with money.

In response to the governors orders in Florida and Texas that prohibit mask mandates in schools, U.S. Secretary of Education Miguel Cardona reminded both states governors that federal CDC guidance recommends students wear masks. Cardona also suggested that the Biden administration would closely monitor whether the states were meeting requirements for federal relief funding under the American Rescue Plan Act of 2021. That law requires states to adhere to CDC guidance, including implementing mitigation strategies such as contact tracing or mask requirements, in order to receive the federal money the act provides.

President Joe Biden followed up Cardonas letters to the governors with a phone call of support to one of the superintendents who adopted mask mandates in violation of his governors executive order.

If it all sounds confusing and as if the law is all over the place regarding school mask mandates, thats because it is. The nations schools are subject to a complex web of local, state and federal laws that make it difficult to impose uniform standards.

Add in an intense political battle over the appropriate policies to adopt in the wake of the delta variant and you have precisely the kind of situation that may well end up at the U.S. Supreme Court.

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Who has the power to say kids do or dont have to wear masks in school the governor or the school district? Its not clear - The Current GA

The state of Iowa has agreed to pay $70,000 and improve First Amendment training for state troopers in order to settle a lawsuit filed last year by five protesters who were banned from the Iowa Capitol Complex.

Jalesha Johnson, Louise Bequeaith, Brad Penna, Brandi Ramus, and Haley Jo Dikkers were among seventeen people whom state troopers had banned from the capitol grounds following a July 1, 2020 Black Lives Matter protest that led to numerous arrests. They filed suit last October against Iowa Department of Public Safety Commissioner Stephen Bayens and several Iowa State Patrol officials, saying the bans violated their rights under the First, Fifth, Ninth, and Fourteenth Amendments.

Under a settlement U.S. District Court Judge Rebecca Goodgame Ebinger approved on August 17, the Iowa Department of Public Safety and Iowa State Patrol agreed to withdraw all verbal and written bans, sometimes called trespass warnings, issued to each plaintiff and other persons receiving such notices on and after July 1, 2020. The state will inform affected individuals in writing that the bans were rescinded and that they may continue to enter and use the Iowa Capitol Complex on the same basis and under the same terms as any other law abiding member of the public.

The state will pay each plaintiff $5,000 and $45,000 to Des Moines attorney Nate Mundy, who along with the ACLU of Iowa represented the protesters. The Iowa State Patrol also agreed to continue First Amendment training for officers assigned to the capitol complex.

Attorneys for the state and ACLU agreed in June on terms to settle the lawsuit. The three-member State Appeal Board unanimously approved the settlement agreement earlier this month, and the federal courts action finalized the resolution.

Judge Goodgame Ebinger had ruled last December that the bans likely burden more speech than is necessary to achieve the significant state interests of preventing violence and ensuring public safety, since there was no way for protesters to petition to exercise their First Amendment rights at the Capitol or on the Capitol Complex grounds.

The ACLU of Iowas legal director Rita Bettis Austen said in a written statement on August 17,

The Capitol Complex is approximately 24 city blocks and includes many traditional public forumsplaces where Iowans often go to express their rights of free speech like the West Capitol Terrace, outdoor green spaces, sidewalks, streets, paths, and areas around public monuments. There is perhaps no more important traditional public forum in Iowa than the State Capitol.

The area is intentionally designed for Iowans to gather and speak to an audience of leaders from all three branches of state government. Before we obtained a preliminary injunction in this case, the ban meant that the protestors were unable to participate in demonstrations organized by BLM or other groups on the grounds. The ban also would have prevented the banned protesters from communicating directly with legislators and the Governors office during the upcoming 2021 legislative session. This outcome was important to protect the First Amendment rights of our clients and all other Iowans to speak, assemble, and petition their government for redress of grievances.

Appendix: Full text of August 17 news release from the ACLU of Iowa:

Des Moines, Iowa Today the federal District Court for the Southern District of Iowaapproved and adopted a settlement in which the Iowa Department of Public Safety and Iowa State Patrol (ISP) agreed to withdraw bans that the ISP issued to 17 BLM protesters last summer, including five ACLU clients. The bans forbade the protesters from going to the Iowa Capitol Complex grounds for six months or a year.

Earlier this month, the Iowa State Appeals board voted to approve a recommendation by state lawyers to settle the lawsuit out of court. The settlement included the law enforcement agencies agreeing to not issue similar bans in the future, to continue to provide training on First Amendment rights to the Iowa State Patrol Post 16 (which is responsible for law enforcement on the Iowa Capitol Complex grounds), to pay a financial settlement to the ACLUs five clients, and attorney fees.

Rita Bettis Austen, ACLU of Iowa Legal Director, said, We are very pleased with this outcome. We are grateful to our clients for challenging the constitutionality of these bans. They are protecting their fellow protesters and everyone else who wasnt a plaintiff in this case by getting the bans of all protesters withdrawn. Thestate also agreed to not to issue the same type of ban in the future.

We also appreciate the state for working to come to an agreement with us in this case, both to resolve this dispute and to protect the First Amendment rights of Iowans at the Capitol moving forward. Thats the optimal outcome, Bettis Austen said.

The bans were issued to protesters who were arrested while protesting in July 2020, even though most of the charges against the ACLUs clients were dropped.

In October 2020, the ACLU filed the lawsuit on behalf of five of the 17 Des Moines BLM protesters who the ISP banned verbally and in writing from the State Capitol. The ISP informed the protestors that if they entered the Capitol Complex grounds in the next six months or a year (depending on the protester), they would be arrested.

However, the law that the ISP cited to issue those bans (Iowa Code section 716.8(1)) does not actually authorize any such bans.

In December 2020, a federal court issued a preliminary injunction, saying the ban indeed was likely violating the protestors First Amendment rights. In June 2021, the parties reached an agreement that required approval by the State Appeal Board and the district court to take effect. On August 2, the Appeal Board approved the settlement. Today, the court dismissed the case and approval of the settlement, making the agreement becomes fully effective, resolving the dispute, and ending the case.

Bettis Austen said the activists were banned from a key area for public free speech. The Capitol Complex is approximately 24 city blocks and includes many traditional public forumsplaces where Iowans often go to express their rights of free speech like the West Capitol Terrace, outdoor green spaces, sidewalks, streets, paths, and areas around public monuments. There is perhaps no more important traditional public forum in Iowa than the State Capitol.

The area is intentionally designed for Iowans to gather and speak to an audience of leaders from all three branches of state government. Before we obtained a preliminary injunction in this case, the ban meant that the protestors were unable to participate in demonstrations organized by BLM or other groups on the grounds. The ban also would have prevented the banned protesters from communicating directly with legislators and the Governors office during the upcoming 2021 legislative session. This outcome was important to protect the First Amendment rights of our clients and all other Iowans to speak, assemble, and petition their government for redress of grievances, Bettis Austen said.

Jalesha Johnson, an employee of a Des Moines Public Schools creative arts program, said the win was important not just for her, but for the larger community of protestors.

The most important work we did happened on the Capitol grounds. I feel hopeful and inspired that well be able to frequent the Capitol again. When the ban was in place, it meant I was at risk of arrest by police for nothing more than protesting lawfully at the Capitol. I am relieved that I dont have to feel that way anymore, Johnson said.

Louise Bequeaith, a college student and Des Moines native, said the win was bittersweet. Its hard because this shouldnt have happened in the first place. The Capitol and government are meant to be there for us and to listen. People being punished for protecting our communities and wanting our voices to be heard felt ridiculous. But this is the result that feels like the most justice in this moment.

Haley Jo Dikkers, an educational assistant to elementary school children, said, I think protesting is still an important and vital way to interact with our government, especially if they dont give us other outlets to do so. Im excited to get back to the streets. When youre up against the police that have all this qualified immunity and societal power, I feel like they can get away with pretty much anything. So its really great that now they wont be able to ban people from the Capitol, and I hope they wont try to ban people from protesting in public spaces in the future.

Brad Penna, who owns a coffee shop in Des Moines, said the win is a huge step towards making the most political space in the city and even the whole state accessible to people. They cant ban people following protests now and they know its part of a larger movement.

Before the temporary injunction allowed us back into the area, as a business owner, I would have liked to go to the Capitol when policies about COVID-19 were being discussed. I felt like I didnt have a voice during that time. Now I feel encouraged to once again advocate for our community, Penna said.

Brandi Ramus, who owns a Des Moines vegan bakery, said, I feel like that was a really unreasonable thing that happened to me and the rest of us. Im glad that theyre saying that they were wrong, even though it just seemed like common sense to me. People should be able to protest in public spaces.

I think theres still a lot of work to do here in Iowa as far as protestors and how our state continues to treat us. This is making an example, showing that overreach of law enforcement to silence protestors is wrong. Thats not their place. The police claim they protect and serve the community, but what they are actually doing is battling against it, Ramus said.

The ACLU of Iowa legal team was joined by cooperating Des Moines civil rights attorneys Nathan A. Mundy of Mundy Law Office, P.C., and Glen Downey of The Law Offices of Glen S. Downey, LLC, who also worked tirelessly to represent the five clients in successfully defending against separate criminal charges brought against them after they were arrested while protesting.

Top photos all obtained from the ACLU of Iowa. Top row, from left: Jalesha Johnson, Louise Bequeaith. Bottom row, from left: Brad Penna, Brandi Ramus, and Haley Jo Dikkers.

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The American appetite for social media censorship is apparently increasing: 48 percent of survey respondents now want the government to restrict misinformation, compared with just 39 percent in 2018.

That's according to recent findings from the Pew Research Center, which asked respondents what should be done about "false information online." The percentage of people who thought the social media companies themselves should curb misinformation has barely changed over the last few years (59 percent today versus 56 percent three years ago), but support for governmentaction jumped 9points.

That figure48 percentis significant. It means, that just about half of all people want the government to violate the First Amendment, which protects the free speech rights of private actors, including tech companies. Free speech can be messy, but the authors of the Bill of Rights believed that the federal government should not have the right to decide what ideas the people are allowed to express. After all, the government might accidentally criminalize true information rather than false information, or nefariously censor criticism of its own actions.

Indeed, this is precisely what has occurred over the course of the pandemic. Federal health bureaucrats and their allies in the White House have repeatedly urged tech platforms to take action against so-called misinformation relating to COVID-19. But over and over again, it has subsequently been the case that the misinformation in question was not quite so clear-cut. For instance, after weeks and weeks of the government's preferred health experts shrieking that the lab leak theory of COVID-19's origins was unthinkable and no one should be allowed to even discuss it, the idea gained enough mainstream traction that social media sites had to revise their policies of censoring the topic.

The government's own health guidance has varied wildly from moment to moment. At the beginning of the pandemic, top White House COVID-19 adviser Anthony Fauci discouraged the use of masks among the general population. Then, for months, masks became an urgent necessity in any and all circumstances. Eventually, health officials relented and said that masks were only necessary indoors. After the vaccine rollout began, Centers for Disease Control and Prevention (CDC) Director Rochelle Walensky said that vaccinated individuals didn't need masks at all. But the CDC's current position is that in many circumstances, masks should be worn regardless of vaccination status.

The constantly shifting expert consensus, as well as the government's own history of issuing confusing and contradictory statements, should make people morereticent to entrust a single entity with the task of determining truth from falsehood. So it's a bit concerning that the American public has grown even hungrier for a central information czar since Pew last conducted this survey.

Note that the increasing appetite for censorship is mostly a reflection of increasing openness toward government action on the part of Democrats. While Republicans have grown even less willing to let either governments or the tech companies themselves restrict misinformation, Democrats have moved dramatically away from a robust defense of the First Amendment.

Pew also notes that the demographic differences pertaining to this question have largely disappeared.

"Three years ago, older Americans and those with less education were more likely than younger and more educated adults, respectively, to say the U.S. government should take steps to restrict false information online, even if means limiting some freedoms," write the survey's authors. "Now, Americans across nearly all age groups are fairly evenly divided between the two views. Similar changes have occurred when it comes to Americans' educational background."

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48% of Americans Want the Government To Restrict Misinformation on Social Media - Reason

A teacher in the Alpine School District is no longer working there after a recording of her surfaced talking about the need for people to get the COVID-19 vaccine, her disdain of former President Donald Trump and telling students they can get out if they dont believe in climate change.

The video was shared widely on social media, with many comments calling for the teachers removal.

District spokesperson David Stephenson said he couldnt comment whether the teacher had been fired or resigned, but referred to Alpines Code of Conduct, which states employees and volunteers are expected to act professionally communicating in a civil manner and not promoting personal opinions, issues or political positions as part of the instructional process.

We expect professional conduct and decorum from all of our teachers, Stephenson said in an email. Behavior otherwise that is in violation of the code of conduct will not be tolerated.

Brad Asay, president of the Utah chapter of the American Federation of Teachers, said the incident was unfortunate, but unusual in his experience.

He said teachers have always had to navigate politically-sensitive territory, but it can be especially tricky in the current climate. As the New York Times wrote, nearly all of the major issues dividing the country have dropped like an anvil on U.S. schools, from debates around mask mandates and other public health measures to conservations around race and educational equity.

That's my worry, is that folks out there, especially those that believe that students are being indoctrinated, that they have this belief that's happening all the time throughout our school system, Asay said. What we saw [in the video] was not the norm. This just does not happen often at all.

The American Civil Liberties Union of Utah notes there are many limitations to teachers First Amendment rights in the classroom as it can be considered speech on behalf of the school district. Specific policies can vary widely by district.

The issue gets blurry, however, when it comes to things like public health measures around COVID-19, which may not be political issues at their core but have become so over the last year.

We are in a lot of gray area right now of what can you discuss in a classroom, especially when it comes to COVID, Asay said. A lot of districts are saying don't even mention it.

When sensitive topics inevitably come up, he said the usual approach is that teachers try to keep the discussion open, encourage students to voice their opinions but bring the focus back to the curriculum or subject at hand.

He said he often advises teachers to assume they will be recorded and watched closely, though its less of a warning than a reminder that students are looking to them as examples.

Link:
Navigating Free Speech In The Classroom Is Getting Harder For Teachers When Schools Are At The Center Of Political Debates - KUER 90.1

Image: AdobeStock

North Carolina House Republicans rushed to pass a donor privacy bill Thursday shortly after a Judiciary Committee hearing. The bill (SB 636) would limit the disclosure required for a range of 501(c) nonprofit organizations. It is now up to Gov. Roy Cooper to decide whether to sign it into law.

The bill would prohibit nonprofits from disclosing the list of donors without the donors permission, unless otherwise required by law, such as investigations by state agencies including the State Board of Elections.

Rep. Hugh Blackwell, a Burke County Republican, said the bill seeks to protect donors First Amendment rights. He said, This is designed to say that if you are a donor to a charitable organization, unless you give your permission, you dont have to worry that someone is going to disclose your name broadly to other folks who may have other purposes in mind than just being well informed.

He said legislators proposed this bill in keeping with a recent U.S. Supreme Court decisionthat blocked the California Attorney Generals office from collecting the nonprofit Americans for Prosperitys tax forms containing donor information. Justice Sonia Sotomayor dissented in the case, saying the court erroneously eliminated the burden of proof to show First Amendment violations and instead invalidated the disclosure law entirely.

Rep. Marcia Morey, D-Durham, opposed todays House action. We talked about free speech; We talked about free assembly. Thats not what were talking about here, she said. Were talking about money money that has power to influence and oftentimes money that has power to corrupt.

This bill would prevent the public from identifying big donors to nonprofit organizations and perpetuate secrecy in campaign finance, opponents of the bill argued.

Although the bill would not affect disclosure requirements for nonprofits to the SBOE, campaign finance watchdog groups said that the measure would expand a loophole already in the state statutes. Currently, dark money groups can funnel their money through layers of shell organizations. Since secondary disclosure of donors is not required, it is sometimes impossible to trace back the source donors.

Melissa Price Kromm

A preemptive strike

Melissa Price Kromm, executive director of N.C. Voters for Clean Elections, said the bill is nothing but a preemptive strike to prevent disclosure of donors if state laws close the loophole to allow for peeling the onion to identify sources of dark money.

You dont have the public clamoring for this, you have special interest clamoring for this, Kromm said. She said the sudden passage of the bill without public notice is telling of lobbying groups influence. North Carolina Republican legislators recently returned from the annual conference of the American Legislative Exchange Council (ALEC). The conservative group famous for pre-written model legislation has pushed for similar bills in other states for years.

Rep. Blackwell was a member of ALECs Civil Justice Task Force, according to a memo.

The bill would apply to different kinds of nonprofits, including 501(c)(3) charitable, religious, and education organizations and 501 (c)(6) trade associations. However, Kromm said the bill would close the door to transparency for 501(c)(4) organizations, social welfare groups that often play an active role in campaign activities.

In an earlier op-ed to Policy Watch, she highlighted notable 501(c)(4) groups have abused the funneling loophole, including the National Rifle Association, the Club for Growth and Heritage Action, and Democratic-afiliated groups Future Forward, as well as the 1630 Fund.

On the House floor, Rep. Pricey Harrison, D-Guilford, proposed an amendment to limit the donor protection to501(c)(3) charitable, religious and education organizations only. The amendment failed to gain Republican support.

The Campaign Legal Center, a Washington-based nonpartisan nonprofit organization, sent a letter to Gov. Cooper urging him to veto the bill. The letter warned, The bill mandates secrecy for 29 different types of nonprofit organizations.

While not barring current statutorily required disclosures, S.B. 636 stymies further disclosure of donor information from groups that hide their political spending in dark money shell games to avoid the reach of such statutorily required disclosures, the letter read.

The group noted that the bill would also make it easier for North Carolina officials to hide conflicts of interest. For example, the bill could keep it in the dark when legislators solicit money from individuals associated with nonprofits who wish to buy government action in secret, the letter stated.

The group noted that former Michigan Republican Governor Rick Snyder vetoed a similar version of the bill and called it a solution in search of a problem.

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NC legislators rush bill to limit nonprofit donor disclosure | The Progressive Pulse - The Progressive Pulse