On August 12, the Northam administration issued an order, signed by the State Health Commissioner, that requires all individuals aged two and older to wear masks at public and private K-12 schools throughout the Commonwealth. The masking requirement applies regardless of vaccination status and regardless of the COVID infection rate in the community where the school is located.
This sweeping mandate represents a breathtaking employment of government power. Virginians have every right to demand that the Northam administration justify its action with solid scientific data and convincing evidence that it has the legal authority to impose such a mandate. So far, the Governor has failed to do this.
There is no data-based science behind mask mandates for children. The August 12 order refers to CDC guidance that currently recommends masking inside school buildings. But CDC guidance on masking, and much else, has flip-flopped throughout the pandemic. And no scientific studies have been conducted that conclusively show masks effectively reduce COVID transmission among children. Indeed, a study published in May by the CDC itself found no statistically significant benefit from mandating masking for school children.
Respected medical professionals have expressed concern about the possible physical, developmental, and psychological harm that prolonged masking may do to children. Many European countries have decided against recommending masks for young children.
We are often told that we must “follow the science” in such matters. And we should. But following the science does not mean that we should defer without question to the directives of government officials just because some of them are credentialled specialists. Officials who mandate in the name of science must explain and defend the scientific basis for their mandate. Sound science requires sound data. The Governor needs to clearly identify the data behind the school mask mandate so that informed public debate can weigh the benefits and risks involved.
The Governor also needs to clearly identify the legal basis for the school mask mandate. The rule of law, that essential condition for our continued liberty, requires that all officials in each branch of government carefully confine their actions to those that clearly lie within the limits of their lawful authority. In every instance, an official should clearly identify his legal authority to take the action in question. If he cannot, he should refrain from acting unless and until the legislature modifies the law to authorize the action.
The constitutional rot that threatens our survival has spread through our system of government largely because officials seldom approach questions of their authority with the proper self-restraint. Too often, they fail to ask if they clearly have the authority to act. Instead, they ask if anything clearly prohibits them from acting and, in the absence of a clear prohibition, they move ahead until they are forced to stop. In this case, it is not clear that the Northam administration has been asking the right questions about the scope of its authority.
While the August 12 order correctly notes that the State Health Commissioner has statutory authority to issue orders to protect public health during emergencies, it is not at all clear that a state of emergency exists. During the height of the pandemic, the Governor exercised his statutory authority to formally declare a state of emergency, but that declaration expired at the end of June. According to the Governor’s office, he let the declaration expire because COVID is no longer an emergency in the Commonwealth.
Furthermore, the mask mandate may be unconstitutional. Article VIII, Section 7 of the Virginia Constitution states that “The supervision of schools in each school division shall be vested in a school board….” Courts have invalidated state-wide measures found to infringe on the manifest constitutional authority of the local boards. The General Assembly reaffirmed the preeminence of local boards this spring when it enacted S.B. 1303. That legislation gives each local board flexibility to manage COVID by adopting the CDC mitigation measures that the board determines are reasonable.
Any parent who wants their child to wear a mask at school should be free to make that choice. But before the state government forces all school children to mask up, it must clearly demonstrate that it has the data and authority to take such action. The Northam administration may have the necessary data and authority, but so far it has failed to make the case.
– Kennerly Davis, Jr. is the former Deputy Attorney General for the Commonwealth of Virginia