By Melissa Patrick
Kentucky Health News
The emergency order Gov. Andy Beshear issued Tuesday to require universal masking in all school districts is already being challenged in court by Attorney General Daniel Cameron, even as the state school board is scheduled to review — and likely pass — an emergency regulation Thursday that would do the same.
The draft regulation prepared for the Kentucky Board of Education and the Local Superintendents Advisory Council says, “The regulation is necessary to mitigate the spread of Covid-19 in Kentucky public schools and prevent public school closures during the 2021-22 school year due to Covid-19. Specifically, this emergency administrative regulation requires all individuals inside public school facilities to wear a face covering over the nose and mouth, absent an exemption set forth in the regulation.”
The emergency regulation would expire 270 days after filing or if the board withdraws it. It is based on a state law that authorizes the board to issue “regulations necessary or advisable for the protection of the physical welfare and safety of the public school children.”
Education Commissioner Jason Glass said in a Tuesday news release, “With strong and consistent precautions in place, Kentucky’s schools have proven that we can safely open for in-person instruction. The governor’s executive order and the Kentucky Board of Education’s pending emergency regulation to require masking both put the health and learning of Kentucky’s children first, and I support them unconditionally.”
The governor’s 30-day executive order requires all individuals older than 2 to wear a mask when indoors in all public and private pre-schools, Head Start, and elementary, middle and high schools in Kentucky, regardless of vaccination status. The school board’s regulation would apply only to public schools.
Both the governor’s order and the board’s regulation allow for exemptions.
Beshear had recommended that local school boards impose mask mandates, but fewer than a third did. He said Tuesday that his order was needed to preserve in-person learning and thwart spread of the coronavirus. Only a third of students older than 12 are vaccinated for the virus; younger students are ineligible.
The state school board is appointed by the governor. In one of his first actions as chief executive, Beshear disbanded the board and appointed a new one that promptly fired the commissioner who had been hired by the board that had been appointed by Republican Matt Bevin, whom Beshear defeated.
Cameron, a Republican, argues to the Supreme Court that the Democratic governor’s latest order disregards laws the legislature passed this year and violates a Boone Circuit Court injunction that Beshear has appealed to the high court.
“The legitimacy of our government depends on the governor respecting the judicial power of the courts and the law-making power of the legislature, and right now he is disregarding both,” Cameron’s filing says.
“The governor does not have to choose between following the science and following the law. The two can and should work together. If he believes that the science requires a statewide mask mandate for schools and childcare centers, then he needs to do what the law requires and work with the General Assembly to put the necessary health precautions in place.”
Several other elected Republicans objected to Beshear’s order.
“We fully support today’s action by Attorney General Cameron to uphold the integrity of the law,” Senate President Robert Stivers said in a prepared statement. “The governor represents one branch of our government, and he cannot ignore the laws passed by the legislature and the judicial orders pertaining to them.”
The 2021 General Assembly passed a law that limits emergency orders by governors to 30 days unless extended by the legislature. Beshear’s challenge to that law is awaiting a decision by the state Supreme Court. A lower court has temporarily blocked parts of the bills pending the decision.
House Speaker David Osborne issued a statement saying, “Local school districts across the state have carefully considered mandatory face coverings and made decisions regarding their own policies. The governor may not agree with their choices, but he must respect their authority. Instead, at the eleventh hour, he chose to politicize this issue and flout their decisions by issuing an executive order with extremely questionable legal standing.”
Stivers said Beshear had exceeded his legal authority. “If Governor Beshear feels so strongly that action needs to be taken, he can call the General Assembly into a special session.”
Also pending at the Supreme Court is a decision about two other laws, one that gives the legislature more oversight over the administrative regulation process; one that allows businesses and schools to follow federal Centers for Disease Control and Prevention guidelines, instead of those set by the state.
Osborne pushed the court to decide the matter. “Until the Supreme Court of Kentucky rules on the governor’s challenge to these measures, this issue remains unresolved. It is their unwillingness to act that has left so much in limbo.”
Osborne also referenced House Joint Resolution 77, which lists the pandemic orders that would stay in place if the legislature gets the court to overturn a Frankfort judge’s injunction.
On the other side of the aisle, leaders of Democrats in the state House issued a statement saying, “If we want our children in school instead of learning online, and if we actually want to follow CDC guidelines as this year’s House Bill 1 calls for, then Gov. Beshear’s statewide mask mandate for students and school staff alike is the only appropriate step to take. The CDC recommends universal masking for everyone in a school setting, regardless of vaccination status.”
On August 5, the CDC issued a guidance recommending universal indoor masking for all teachers, staff, students, and visitors to K-12 schools regardless of vaccination status.
Dyehouse said, “As you already know, and probably have already heard, this liberal lunatic that we have up in Frankfort has signed another executive order mandating masks for all students and adults in school. What this means is the professional opinion of your superintendent doesn’t matter, the opinion of your school board doesn’t matter, and you as parents, your opinion doesn’t matter.”
Beshear’s order has the support of the Kentucky Chamber of Commerce and teachers’ unions. The Kentucky Education Association said on Facebook, “Requiring masks for all students is vital to help slow the spread of Covid-19 as schools reopen across the commonwealth. That is particularly true for students under age 12, who are not currently eligible for vaccination and are, therefore, among those most at risk for infection.”
The Kentucky Student Voice Team of the Prichard Committee for Academic Excellence also issued a statement in support: “While we were hopeful to return to school without masks, rising Covid-19 rates and the spread of the Delta variant have made doing so unsafe. Despite what some have said about the negative effects of wearing a mask in school, public-health experts tell us that masks are the least invasive way to protect students and ensure a return to the type of education experience we know and miss.”