Opinion | The Dangerous Legal Illusion of ‘Parental Rights’

Mask mandates by schools have quickly become one of the most politically charged aspects of the pandemic. At least six states in the South and Southwest have banned or undercut school mask mandates. Incensed anti-mask parents are speaking out at school board meetings and public protests. On the first day of school in Amador County, Calif., one parent became so irate when he saw his daughter walking out of school in a mask that he began arguing with the principal and ended up in a bloody fight with a teacher.

Yet unmasked students are increasingly likely to become infected and infect others at a time when the Delta variant represents a serious threat to children, their families and the public. The minimal burden on children and the tremendous benefit to individual and public health make parental outrage difficult to fathom.

Parents opposed to mask mandates cite a variety of arguments, be they philosophical or political, erroneous or conspiratorial. But perhaps the most common, misguided and dangerous reason is that mask mandates for school children violate ill-defined, but allegedly comprehensive and paramount, “parental rights.”

When it comes to society’s interest in protecting children, the legal precedent is unambiguous: The rights of their parents come second. Parents do have the freedom to direct the health care and education of their children, but these rights are not unlimited. As the Supreme Court said in Prince v. Massachusetts, parents are not free “to make martyrs of their children” by putting them in harm’s way. Governments can and do limit parents’ discretion with the goal of protecting the health, safety and welfare of children. One example is child car seat requirements, which exist in all 50 states. Every state also has a law authorizing the government to intervene when parents abuse or neglect their children.

All 50 states also have the power to limit parental discretion to protect other children. For instance, schools and day care facilities are heavily regulated by local, state and federal laws to make sure that they are safe. Children who attend school are required to be immunized in all 50 states. These requirements have been upheld by numerous courts, including the Supreme Court. Schools also prohibit parents from sending children to school when they are sick, and a federal appeals court held that unimmunized children could be excluded from school during “an outbreak of a vaccine-preventable disease.” Given these legal precedents, it is clear that schools and day care facilities can require masks as a condition of attendance.

Undoubtedly, there are times when public school policies overreach and infringe upon parental rights. But this isn’t one of them. Amid a global pandemic that has killed more than 4 million people, including over 600,000 Americans, a wide range of public health measures are legally and ethically justified. School mask mandates are among the most helpful and least intrusive ways to protect children. They merely require children to wear a piece of cloth on their faces.

Wearing a mask, quite simply, works. It protects the child wearing the mask, it protects the child’s classmates and teachers, and it helps break the chain of infection that keeps the SARS-CoV-2 virus circulating in our communities. While vaccination is undoubtedly the most effective way to prevent the spread of Covid, not everyone can or will get a vaccine. No vaccine is yet approved in the U.S. for children under the age of 12, and vaccine hesitancy and resistance by adults remains widespread. These delays in getting everyone vaccinated make it clear we still need to use other measures to protect children. Some schools have imposed testing and contact tracing, required social distancing, prohibited large gatherings, increased classroom ventilation, moved activities outside where possible, and continued personal hygiene measures — but many have not. Aside from vaccination, however, mask wearing is still the best way to prevent viral transmission.

Masks in schools are a particularly good idea when you consider how easy it is for most children to wear a mask. Children are already familiar with superheroes who wear masks, including Batman and Batwoman, Spider-Man and Captain America. And many children’s real-world heroes, like teachers and health care workers, routinely wear masks. In fact, millions of American children are already wearing masks to school every day with no major complications.

As parents, we should not make our children victims of a reckless and wrongheaded understanding of parental prerogatives. We should spend less time thinking about the rights we claim for ourselves and more time thinking about our responsibilities to protect our children.

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