Governor Chris Sununu’s announcement yesterday that New Hampshire is no longer recommending that face masks be worn in indoor public spaces, including schools, calls into question his office’s credibility and leadership.
Specifically, the state’s sudden reversal on face masks concedes that school districts never had the authority to require masks in the first place, and involves a significant degree of hypocrisy and disingenuousness.
For nearly two years, Governor Sununu did nothing to protect the health of children from the harmful effects of remote learning and face masks. His office and the Department of Education allowed school districts to implement wildly divergent policies and directives concerning the frequency of in-person instruction, the handling of positive COVID cases, and masking requirements.
His administration has now done a complete 180: it has abandoned its recommendation that masks be worn in indoor public spaces. The Governor’s administration also put out two statements that make matters more confusing.
We want to thank Robert Fojo for this Op-Ed.
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First, the Governor stated schools should no longer require that masks be worn because it would conflict with his administration’s new guidance. “Guidance,” however, is not law and has no force or effect. The Governor’s mere guidance cannot compel school districts to do anything.
Second, in an advisory to school districts, the Department of Education stated “[a] mask requirement may violate the district’s obligation to maintain policies that meet the instructional needs of each individual student, promote a school environment that is conducive to learning, and that meets the special physical health needs of students.”
Accordingly, the Department (presumably with the Governor’s approval) has now conceded that a school district mask mandate not only conflicts with its obligations to all of its students but also potentially violates the rights of students with special needs.
This is certainly a jaw-dropping moment: in the many lawsuits I handled, school districts insisted they had “broad” authority to require masks, and some of their attorneys erroneously argued not having a mask mandate posed risks for students with 504 plans. Now the agency that oversees these school districts has expressly rejected both assertions.
This presents an opportunity to remind school districts (and the Governor) that districts never had the authority to implement mask mandates in the first place, and the Governor could have taken more preventive steps to protect children from the harms of wearing a mask.
School Districts Do Not Have the Authority to Mandate Masks
The New Hampshire Constitution grants no direct power to towns or cities. The only Constitutional power that is granted is Part I, Article 39, which prohibits the legislature from changing the form of government of a town or city without the approval of the voters.
Instead, the New Hampshire Constitution grants power to the legislature, which, in turn, may grant power to municipalities if it wishes to through statutes. New Hampshire follows “Dillon’s Rule.” Under that rule, municipalities have only those powers that are (1) expressly granted by the state legislature, (2) necessarily implied from expressly granted powers, or (3) essential and indispensable to their declared objects and purposes.
In a 1970 decision titled Piper v. Meredith, the New Hampshire Supreme Court made clear that “towns are, but subdivisions of the State and have only the powers the State grants to them.”
Under this framework, cities and towns can neither add to their authority nor reduce their responsibilities unless the legislature permits them. These limitations are strictly construed against the municipality: any doubt regarding whether a municipality has a certain power must be resolved against the existence of that power.
In other words, if there is a question about whether a municipality can exercise certain authority, a court must conclude it does not have that authority and deny it that power. Thus, if a municipality seeks to take any action, it must find a statutory provision allowing it to do so.
These principles apply to school districts. Like cities and towns, the authority of a school board is limited to those powers expressly stated in its governing statutes.
School districts have various powers and responsibilities in RSA 189, RSA 194, and RSA 200. I will spare you the suspense: none of these provisions allows school districts or school boards to enact broad health measures, let alone a requirement that children wear face coverings or face masks.
RSA Chapter 200 is the only section that addresses school districts’ powers concerning health, but that chapter is limited to “health and sanitation.” Everything in it concerns, among other items, the safety of buildings, access to medical care in case of injuries, school health personnel, physical and health education, the air quality in the school, head injury policies for school sports, and the use of specific medical equipment in schools (like nebulizers and bronchodilators).
Only two sections in that chapter (RSA 200:38 and RSA 200:39) direct what school districts may do in response to the outbreak of a communicable disease. RSA 200:38 is titled “Control and Prevention of Communicable Diseases; Duties of School Nurse,” and RSA 200:39 is titled “Exclusion from School.” RSA 200:38 requires only that school nurses ensure children have up-to-date immunizations and a complete physical examination and report any instances of non-compliance to school administrators. RSA 200:39 requires a child who “exhibits symptoms of contagion or is a hazard to himself or others” to “be excluded from the classroom,” and the parents of the child must be notified.
Nothing in those sections permits a school district to pass a broad mask mandate (or any broad health measure). If there was such authority, the legislature would have included it there.
School districts – through their attorneys – repeatedly argued they have “broad” authority to ensure children learn in a safe environment, and that authority was somehow derived from the statutes above concerning the safety of school buildings. That, of course, is preposterous, and numerous cases in other states have expressly rejected that reasoning.
Indeed, there is something quite different between making sure a school building satisfies the building code, on the one hand, and forcing every healthy student to wear a mask, on the other; or between having a nurse on-site to provide a child with aspirin if the child has a headache, on the one hand, and requiring every student to wear a mask as a condition of going to school and partaking in the benefits and privileges of being a student, on the other.
School districts do not have the authority to require masks.
Governor Sununu Could Have Banned School Districts From Mandating Masks
Governor Sununu’s approach to masks in schools was to allow school districts to adopt their own policies. While he may have believed this approach was consistent with a conservative or libertarian political philosophy, it contradicts many tenets of both: the protection of civil liberties, non-interventionism, and limitation on the size and scope of government.
Governor Sununu could have followed his Republican counterparts in Florida (Governor Ron DeSantis) and Texas (Governor Greg Abbott) and issued an executive order banning school districts from mandating masks or directing the Department of Education to promulgate rules establishing a similar ban. He certainly had the authority to do so: Part 2, Article 41 of the New Hampshire Constitution vests the “executive power of the state” in the Governor, and the Governor “shall be responsible for the faithful execution of the laws.”
In requiring children to wear masks, school districts acted outside their authority. In addition, parents have a fundamental Constitutional right to direct the care and upbringing of their children, and that right includes the right to make healthcare and medical decisions for their children.
Parents’ due process rights protect their decisions concerning their children’s medical care and dictate that those decisions should be made by parents rather than the state. Governor Sununu could have issued an executive order enforcing the limits on school district authority and preserving parents’ Constitutional rights. He failed to do so.
This administration’s announcement on masks is a welcomed development, but the Governor’s sudden reversal – with nary an explanation for his hypocrisy – raises more questions than answers and makes one wonder why we placed our children in harm’s way for so long, given the Governor’s overdue (and tacit) acknowledgment that school districts should have never required masks at all.
Unfortunately, the answer to that question does not lie in Dr. Benjamin Chan’s explanation that, “[a]s the risk decreases, we can pull back on some of the recommended prevention strategies.”
No – it’s an election year, and the Governor understands politics better than the law.
