State lawmakers gave final approval Tuesday to an emergency regulation passed by the State Board of Education that now requires universal masking in all Maryland public schools.
After a four-hour virtual public hearing, the Joint Administrative, Executive and Legislative Review (AELR) Committee, which is tasked with reviewing state agency regulations, voted 10-7 to approve the emergency regulation passed by the state board in late August.
Only two of Maryland’s 24 school districts — Carroll County and Somerset County — are not already requiring masks to be worn indoors.
The vote splintered along party lines, with Democratic lawmakers voting in favor of the mask mandate and Republican lawmakers opposed. Two committee members were absent.
Proponents of the mask mandate contend it is necessary to allow students to return to classrooms with as little disruption as possible, while opponents criticized the mask mandate for undermining local control.
Maryland State Superintendent of Schools Mohammed Choudhury said the mask requirement would slow the spread of COVID-19 and reduce the need to disrupt in-person learning.
“We cannot experience persistent classroom shutdowns again throughout the school year,” Choudhury said during the meeting. He cited guidelines from the Centers for Disease Control and Prevention, which state that students within 3 to 6 feet of an infected person do not have to quarantine if both were wearing masks.
Clarence Crawford, president of the Board of Education, said the board will reassess the emergency regulation every month. Although the emergency regulation is set for 180 days — the minimum length of a school year in Maryland — it could be rescinded sooner than that, he said.
“If the situation merits making a significant change, we will do that,” Crawford said. “Our goal is — children back in classrooms as quickly as possible with minimal disruption.”
“If there is an off ramp that we see across the country…then we’ll take it off,” Choudhury said.
The emergency regulation went into effect immediately after the committee approved it and will be enforced by local superintendents. If local school systems do not comply with the statewide mask mandate, it could be addressed through funding or legal action, Crawford said.
Choudhury said that he would not choose to suspend students for not wearing masks as the first course of disciplinary action.
Del. Haven N. Shoemaker Jr. (R-Carroll) said that instituting a mask requirement would “establish a dangerous precedent” of subverting local control of schools.
But Crawford said local control also requires some guardrails. “We have no objections to local control, but you cannot have local control without having accountability and responsibility for the decisions that you make.”
Sen. Stephen S. Hershey Jr. (R-Upper Shore) said there was a “disconnect” for the Maryland State Department of Education to institute a statewide mask mandate, yet rely on the local school leaders to enforce the mask mandate.
However, Del. Brooke Lierman (D-Baltimore City) highlighted that there are other instances where the state board adopted statewide health regulations enforced by local schools.
Sandra Benson Brantley, counsel to the General Assembly, wrote in a letter to lawmakers that the state board’s statutory powers were recognized as extending to student health regulations through Maryland State Board of Education v. Bradford and another case involving the Carroll County Board of Education 30 years ago.
“Through the exercise of its power granted by the legislature, the State Board has ‘the last word on any matter concerning educational policy or the administration of the system of public education,’” Brantley wrote.
When asked if the State Board of Education plans to mandate vaccines for teachers, Crawford responded that the board has not discussed or expressed interest in pursuing a vaccine mandate and that decision should be the Maryland Department of Health’s to make. Children younger than 12 years old are not yet eligible to be vaccinated against COVID-19.
Cheryl Bost, the president of the Maryland State Education Association, said that the state teacher union does not oppose a vaccine mandate for teachers and supports the “vaccine and test” strategy that the federal government recently implemented, which requires employees to be either vaccinated for COVID or subject to weekly testing.
Senate Pres. Bill Ferguson (D-Baltimore City) commended the AELR committee “for moving as quickly as legally allowed to slow the spread of the deadly delta variant in schools.”
By law, the committee had to wait 10 business days before voting on emergency regulations. Lawmakers called on Gov. Lawrence J. Hogan Jr. (R) to waive the 10-day waiting period, but he did not.
Most of the 35 witnesses who testified Tuesday were from Carroll County. At a board meeting last month, the Carroll County Board of Education voted to continue keeping masks optional until a statewide mask mandate was put into effect.
Carroll County Board of Education President Marsha Herbert testified against the emergency regulation, calling the state board’s move “a gross overreach of power” and “not the will of the citizens of Carroll County.”
Carroll County Board of Education member Donna Sivigny said the statewide mask mandate is a “one size fits all approach” that does not work for all Maryland students. “We believe mask choice is the best way for parents and educators to address the individual needs of their students, as our equity policy demands,” she said.
Sivigny also objected to the State Board of Education’s plan to reassess the universal mask mandate every month. Rather, the emergency regulation should be reassessed weekly, she said.
But several parents from Carroll County testified that they did not agree with the county board’s decision.
“I think that our Board of Education did not adequately consider students with disabilities, immune-compromised students and families and honestly the potentially harmful impacts of long-haul COVID,” said Rosemary Kitzinger, a mom of four children who lives in Carroll County.
Niki Guinan, a Carroll County parent of two children with underlying health conditions, said the local board ignored the advice of the local health department and removed a virtual learning option, “leaving many of our medically fragile children without a free, robust education,” she said. “The parents of Carroll and Somerset Counties are out of options.”
“Some will argue that your actions today are government overreach, but I argue they are not. They are oversight,” she continued.