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As N.H. school districts drop mask mandates, some say state’s order is not lawful

(Photo by George Frey/Getty Images)
Jena Ardell/Getty Images
Moment RF/New Hampshire Bulletin
(Photo by George Frey/Getty Images)

As school districts drop mask mandates, some say state’s order is not lawful

By mid-February, Dover School District officials were ready to revisit their mandatory mask policies. Case counts were down, hospitalizations had dropped, and the superintendent’s office said the risk would soon be low enough to drop the requirement.

But they wanted to tie the move to a specific metric: case counts. As soon as the case positivity rate dropped below 10 percent, the school board and superintendent agreed at a Feb. 14 meeting, the district would drop its mask mandate.

“We were relying on the guidance of our COVID response team,” said Carolyn Mebert, the chairwoman of the school board. “… And so the received wisdom was when you get to the moderate level, it might be OK to say, ‘OK, masks are optional.’”

On Wednesday, that calculation changed. In his weekly press conference, Gov. Chris Sununu announced that the state was no longer recommending universal indoor masking to combat the coronavirus. Because the state guidance had changed, Sununu said, the Department of Education would be directing schools to drop any mask mandates. School boards would not be able to keep them.

“Given that we want to make sure we’re not in a position where we’re discriminating against students, or, you know, the rules and laws frankly that protect students, no,” he said. “Ultimately those policies really have to move.”

The announcement was followed by technical advisory from the department, noting that the guidelines had changed and urging districts to change their policies “as quickly as possible.”

The directive’s impact has varied. Many districts have already voted to remove mask mandates, following public health metrics or pressures from parents.

Others, like Dover, have responded by changing course. In a letter sent to parents Thursday, Dover Superintendent William Harbron said the district would remove its mask policies starting Feb. 28, the first day back from winter vacation. The 10 percent guide will no longer apply.

“The new guidance is no longer based on community spread but on severity of disease, hospitalizations, differences in risks for different populations, and acceptability and sustainability of preventive strategies,” Harbron wrote.

And some are changing their mask policies this week, but for different reasons. On Monday, two days before the Department of Education’s directive, the Nashua School Board voted to remove the mask mandates on Feb. 28. That vote was taken to align the schools’ policies with those of the city, whose mask policy is also expiring on the 28th, a spokeswoman said.

Yet as school districts across the state begin to remove their mask policies, some officials are bristling at the approach taken by Sununu and the Department of Education to force the remaining mask-mandated schools to change.

“Sununu, he jumps in at the last minute,” Mebert, the Dover chairwoman, said. “He makes a decision and that’s it.”

At his press conference Wednesday, Sununu noted that most school districts have already changed their masking policies. But he raised the prospect of legal liability for school boards and districts that don’t change their policies.

“I think if a school district isn’t providing a fair and equitable education as the law requires them to do so, I would imagine they would face some legal challenges on a whole variety of levels, whether it’s over this issue or any other issue,” he said. “The law is very clear … when you’re looking at the public health issues, they really need to fall in line with the public health guidance that’s out there.”

And the technical advisory sent to schools late Wednesday afternoon contended that mask policies moving forward would be “inconsistent with the Ed 306 rules,” referring to the Department of Education’s administrative rules.

Those rules state that a district must maintain policies that “meet the instructional needs of each individual student,” and “promote a school environment that is conducive to learning.” Because the state guidelines on masking have changed, mask mandates now would fall short of those requirements, the advisory, written by department attorney Chris Bond, stated.

But Barrett Christina, executive director of the New Hampshire School Boards Association, said he disagrees with the directive’s legal underpinnings.

“We were caught off guard by the announcement yesterday,” he said. “For the last two years, the governor and the commissioner have repeatedly stated that the decision of whether or not a school district would require masks within their facility has always been up to the local school boards.”

The authority to put mask mandates in place lies with the school boards, not the state, Christina said. And the authority does not disappear even if the state guidelines change, he argued.

“The allowance of school boards to adopt such a policy – I don’t recall that being tied back to specific health guidance from industry or federal officials,” he said. “… So, it’s a little peculiar that, you know, on Tuesday, we were in compliance with this provision of the minimum standards but on Wednesday we weren’t.”

Christina pointed to a series of superior court decisions that had established schools’ authority to mandate masks.

In a January ruling striking down a lawsuit against mask policies in six southeastern New Hampshire districts, including Dover, Strafford County Superior Court found that school districts have the general powers to “provide for health and sanitation” under RSA 194:3. That statutory power extends to mask mandates, the court held.

In an October ruling involving a lawsuit against Exeter School District and other surrounding districts, Rockingham County Superior Court cited the New Hampshire statute authorizing dress codes, which states that a district may “prescribe regulations for the attendance upon, and for the management … of the schools” with such regulations being “binding upon pupils and teacher.”

“This statute also supports the notion that defendants are empowered to enact mask mandates,” the court held. The state Supreme Court has not weighed in on those challenges.

Still, Christina said while he disagreed with the state’s assertion of authority, he expected most remaining school districts to drop their mask mandates in the coming weeks. And he was unaware of any districts that planned to challenge the state’s directive in court.

“I understand that the health guidance has changed and the numbers are dropping, and that’s certainly a good thing,” he said. “Nobody likes to mask but, you know, school boards did that in their best effort to keep staff and students safe.”

Many of the remaining districts appear to be pivoting already. In a statement, a spokeswoman for the Department of Education said the department had received interest.

“Since yesterday, the department has been fielding a number of questions from school districts regarding the new guidance and how it should be applied,” the spokeswoman, Kimberly Houghton, said. “We are working diligently to answer any and all questions, and are corresponding with school leaders to make sure they have all of the answers they need.”

The department did not have figures on how many schools still hold the policies.

New Hampshire Bulletin is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. New Hampshire Bulletin maintains editorial independence. Contact Editor Dana Wormald for questions: Follow New Hampshire Bulletin on Facebook and Twitter.

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