Masks in schools, and the case for school choice
In Wisconsin, two lawsuits that would have forced school masking were dismissed by those who brought them, but maybe they should not have been
A version of this article first appeared in The Lakeland Times
’Tis the season for colds and flu and increased Covid-19 infections, which also means it’s the season for school masking controversies and possible lawsuits.
Over the past month, as traditional winter illnesses have begun to take hold, and rising Covid infections have pushed community infection levels from low to medium to (in some cases) high, a few school districts around the country have begun to reimpose mask mandates, potentially opening last year’s cans of litigious worms.
Having learned nothing at all about public health but perhaps everything about totalitarianism, two school districts in New Jersey have imposed masking requirements for the new year, while in Boston a voluntary but strongly advised masking protocol has been adopted. In a sign of what might be to come on a larger scale, The Atlantic ran an article this past week entitled, “Should Everyone Be Masking Again?”
So here we go again with the nonsense, and what is now a laughably transparent scheme to control people. So far no new lawsuits have been filed, as far I can tell, and the mandates are but a trickle, but they are at least an echo of what did happen nationally a year ago, and a reminder of what might happen again—intense controversies, particularly over masking in schools, and a spate of lawsuits, the majority of them designed to overturn masking requirements.
In Wisconsin, that latter scenario was flipped on its head when the Minocqua Brewing Company’s (MBC) Super PAC and MBC owner Kirk Bangstad backed lawsuits in federal court against two school districts for not imposing adequate Covid masking mitigation strategies that the CDC recommended.
Bangstad and the MBC PAC filed lawsuits in October 2021 against the Waukesha school district, the school board, its members, and the district superintendent on behalf of parent Shannon Jensen and against the Fall Creek school district, the school board, its members, and the district superintendent on behalf of parent Gina Kildahl. Bangstad aggressively raised money to support the lawsuits, by his own account raising somewhere around $50,000, he wrote in an October 6, 2021, MBC Facebook post:
We raised over $50K last week to pay lawyers, infectious disease experts, and epidemiologists to work around the clock to prepare this case. If we get a temporary injunction in a few weeks, that money we raised might be enough and could buy Wisconsin schools a few months until the FDA approves the vaccine for children, at which point we wouldn’t need to continue the lawsuit. If we don’t get an injunction and this case drags on longer, it could require more resources.
In his post, Bangstad said he hoped the action would give “sane school board members and superintendents the courage they need to stand up to the anti-masking Trump Cult being fomented by conservative talk radio and alt right media ….”
Alt-right media! Yikes! In a November 7 post, Bangstad repeated the fundraising claim:
You all collectively donated close to $50K (average donation $40) to fund two class action lawsuits in Wisconsin to stop an unhinged vocal anti-intellectual minority of Tucker Carlson acolytes from imposing their anti-masking beliefs on school boards across the state.
An unhinged vocal anti-intellectual minority of Tucker Carlson acolytes—so that’s what we are! Sure enough, the lawsuits did not survive past the following March, not because temporary restraining orders against the districts were obtained or the plaintiffs won but because the MBC PAC—and the parents on whose behalf the lawsuits were filed—asked the courts to dismiss their own cases, ostensibly because Covid infections had dropped and the CDC had changed its guidance. According to the motion to dismiss in the Waukesha case:
As of March 14, 2022, the CDC has determined that Covid-19 infection rates in Waukesha County indicate that the risk of Covid-19 to the community is low. Given this determination and the new guidance from the CDC, plaintiff believes that the Waukesha County School District Covid-19 Mitigation Policies are in line with the CDC guidelines and Plaintiff’s claims for relief have become moot.
In late February, the CDC had dropped its recommendation that masking be required in schools in communities with low to medium risk of Covid-19 spread and severity, and instead advised that schools should follow general community masking guidelines, which recommended universal in-door masking only at high levels.
The court granted the dismissal, and similar action occurred in the Fall Creek case. But, in each case, the dismissals were necessarily granted without prejudice, meaning they could be resuscitated or refiled if community transmission again reached levels where the CDC recommended masking. Some courts in other jurisdictions refused to dismiss similar cases—or lawsuits challenging mask requirements—precisely because the policies at issue could be reinstated based on changing conditions.
As of last week, Waukesha’s level was rated as medium.
For that and other reasons, explained below, the cases should not have been dismissed. And, just as important, the whole scenario—and there are similar ones around the country, not just in these two instances—begs an important question, and makes an important argument, albeit unwittingly, for the future of American education. And that question is …
To mask or not to mask, should that be a matter decided through “school choice”? …