Nearly a dozen Republican-controlled states have moved to prohibit school districts from setting mask mandates, but only three have successfully won their case in court.
While cases continue to be litigated in Iowa, Montana and Oklahoma, four other states have been blocked from enforcing such bans on constitutional grounds.
While legislation of this nature has not yet been passed in West Virginia, one House bill aiming to do just that is swiftly making its way through the state Capitol.
On Wednesday, the West Virginia House Education Committee voted 18-6 to approve House Bill 4071, also known as the Public School Health Rights Act, and send it to the state’s House Judiciary Committee.
The bill would prohibit educational institutions and elected or appointed officials from imposing a mask mandate on students or school employees, even in the case of a COVID outbreak.
It would also prohibit required COVID testing of symptomatic students and staff, as well as mandatory quarantine or isolation unless there is a positive COVID test. If it is signed into law, the bill would allow parents and students to bring legal action against schools or officials who implement these policies.
Currently, 35 out of 55 counties in the state require masks in schools.
While the federal constitution says little about the validity of such a ban, West Virginia University College of Law’s Robert Bastress says HB 4071 raises “a serious question under the state constitution.”
“Like all states, West Virginia guarantees a free education and our education clause says that the legislature shall provide a thorough and efficient system of public education,” Bastress told Newsweek on Thursday. “Our state supreme court has interpreted that to mean, among other things, that there’s a fundamental right to education and that students have a right to attend schools that are safe.”
“I think it’s a very reasonable argument that this [bill] threatens to create, or require administrators to operate, schools that are not safe,” he said, adding this point would be especially compelling “in the face of a particularly severe outbreak of COVID.”
As of Wednesday, two-thirds of West Virginia counties have been categorized as red by the state Department of Human and Health Resources due to high rates of infection.
On Thursday, the state officially surpassed 400,000 cases of COVID after adding an additional 5,453 new cases in one day.
While individual parents and families could continue sending their children to school with masks under the proposed legislation, some think the bill goes too far in protecting individual rights at the expense of public health.
“You want to talk about the freedom of letting parents decide if their children have to wear a mask, but what about the freedom of me sending my child to school to be in a safe environment?” Democratic Delegate Cody Thompson, who voted against moving the bill forward, said during Wednesday’s meeting.
Bastress said these arguments might be strong enough to persuade even West Virginia’s conservative supreme court.
“The bill certainly recognizes certain personal rights—and generally speaking you have a personal right to refuse medical treatment, which I assume that would include the right to refuse medical tests, but it’s not an absolute right,” he said. “The intrusion on the person, with regards to a COVID test and wearing a mask, is pretty de minimis. The bill protects interests which are recognized, they’re just not very important interests in this particular case.
“Our current state Supreme Court is fairly conservative, particularly compared to what it used to be, but I think even this court would seriously question whether this bill mandates unsafe schools,” he added.
Throughout the pandemic, Governor Jim Justice has left the decision to individual counties—and nearly all of them have required masks in schools at some point— but the signing of HB 4071 into law would strip those powers from local officials and hand them to the state.
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