As students across the country return to classrooms, the controversy surrounding masks has reached a fever pitch. In at least 14 states, lawsuits have been filed either for or against masks in schools. This has led to protests, litigation, and even violence. Just this week, the U.S. Department of Education’s Office for Civil Rights launched investigations into five states that have banned mask mandates in schools, alleging that the governors are violating the civil rights of students with disabilities.
On Lawyer 2 Lawyer, host Craig Williams is joined by professor Ellen Wright Clayton, JD, MD. Together, they take a look at the mask controversy in schools and communities across the United States. The conversation focuses on mask mandates, public health law, parental freedom, and litigation surrounding these issues.
Ellen Wright Clayton: We need to stop talking about parents who say I am free to make decisions about what my children do when their decisions put their children in harm’s way and they put everybody else’s children in harm’s way. That’s not the right issue. The issue that we really need to be talking about is responsibility.
Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.
J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams coming to you from Southern California. I write a blog named May It Please The Court and have two books out entitled, ‘How to Get Sued’ and ‘The Sled.’
Well, as students across the country return to classrooms, the controversy surrounding masks has reached a fever pitch. In at least 14 States, lawsuits have been filed either for or against masks in schools. This has led to protests, litigation and even violence. Just this week, the United States Department of Education’s Office for Civil Rights launched investigations into five states that have banned mask mandates in schools alleging that governors are creating an unsafe learning environment for students with disabilities.
Today on Lawyer 2 Lawyer, we’re going to take a look at the mask controversy in schools and communities across the United States. We’ll be discussing mask mandates, public health law and litigation surrounding these issues with a woman who’s both a law professor and a medical professor as well as a lawyer and a doctor. We have Ellen Wright Clayton, JD, MD. Ellen is the Craig-Weaver Professor of Pediatrics, professor of Health Policy and co-founder of the Center for Biomedical Ethics and Society at Vanderbilt Medical Center. And she’s also a professor of Law at the Vanderbilt Law School. She’s an active participant in policy debates. Professor Clayton has advised the National Institutes of Health and other federal and international bodies on an array of topics ranging from children’s health to the ethical conduct of research involving human subjects. Welcome to the show, Professor Clayton.
Ellen Wright Clayton: It’s a real pleasure to be here. Thank you.
J. Craig Williams: Well, professor, we’re talking about masks today. What is the general science behind wearing masks? I know that doctors wear masks in surgeries, but how did this come about, why we are wearing masks and what good does it do us?
Ellen Wright Clayton: Well, we’re wearing masks because it actually does two things. One is that it contains our secretions or things when we breathe so that it doesn’t spread to others. For instance, when we sneeze, when we cough or even when we talk or sing, we’re always putting particles in the air and they spread. But in addition, they also protect us from those same activities by other people. We wear masks both to protect ourselves and increasingly to protect other people from the spread of this really terrible pandemic that we’re currently facing.
J. Craig Williams: I’ve seen some news articles about the proficiency of masks and keeping the virus out. And I’ve seen some that have said on the side of your mouth especially with the paper masks that you see the doctors wear in surgeries, that those are not necessarily as effective as an N95 or for that or even a homemade cloth mask. What’s the relative viability of each one of the masks that we see out there and why should we be using one or the other?
Ellen Wright Clayton: Well, the N95s are clearly the most effective because they fit most closely and because they have multiple layers that are really designed to really prevent any sort of spread and any sort of particles coming into our own masks. Surgical masks actually do fairly well, but they’re not as effective because they don’t fit as tightly because they don’t have as many layers. But it’s also becoming increasingly clear that they are a lot more effective than nothing, and a lot more effective than even single layer cloth masks.
And so, one of the things that is a viable option for many people is to wear a surgical mask with a cloth mask on top of it. I think what’s becoming also clear is that single layer cloth masks are really not as effective as you’d like, but any mask is better than no mask. That’s really clear. The other thing that is clear is that the valved masks, the ones that have those little pieces of plastic on the side are good at protecting the wearer. They are not good at protecting others because the way those masks work and the reason they’re more comfortable for the wearer is that what they breathe out is then vented out and therefore spread to others. So, if what you’re trying to do with a mask is to protect other people, in addition to yourself, the valve masks are not a great way to go.
J. Craig Williams: I’ve also seen some people wearing the famous bandana from the Old West where it hangs down above their nose and around their ears and hangs down almost to their chest. Looks like it has good coverage but what’s the efficacy of that?
Ellen Wright Clayton: Well, it’s more limited. And the reason that it’s more limited is that in order to contain what you breathe out, it has to fit firmly to your body somewhere. And so, if you are wearing what they often call a gator, which it goes down over your chest. Again, it’s better than nothing because at least it limits spread to some extent, but unless it actually fits closely to your body everywhere. It’s not going to be as effective. It is absolutely critical that whatever masks people are wearing, it has to cover their nose and it has to cover their mouth. A mask that is below your nose or a mask that is around your chin, but doesn’t cover your mouth or your nose is not going to be doing the job.
J. Craig Williams: And just to connect the dots, the reason that we’re so concerned with a mask is that the pandemic is communicated that way. It’s communicated in the air, expressed from someone’s breath from their lungs. Is that the basic thrust of it?
Ellen Wright Clayton: That’s exactly right. Droplets and aerosols.
J. Craig Williams: Well, now let’s talk about the big problem. We have so much non-compliance with mask wearing and there’s a lot of people that say the CDC information has been conflicting. Why are we having such a big debate over this? Isn’t the science squarely in favor of wearing a mask?
Ellen Wright Clayton: The science is squarely in favor of wearing a mask. In places where people don’t wear masks, there is more disease and in places where they do, there is less disease. Although thankfully, now for a big part of our population, we can also use vaccinations, which are clearly the most effective thing you can do to prevent infection. There are significant portions of our population that either don’t choose to get vaccines or more particularly for children under the age of 12, there is no vaccine that is approved for children in that age group.
And so, by far the most effective things that we can do to protect our children from getting infected and to prevent them from helping others is by having them wear masks because that is the primary most effective thing that works. Other things that work are social distancing and that can be a challenge with children. The issue with the mask is just absolutely critical and where they’re not wearing it, we have more disease as we see in the part of the country in which I live.
J. Craig Williams: I’m a father of three and I recall as they would go back to school in the fall almost every year in elementary school, they would bring home some version of flu or crud from school that I would get because they transmitted it to me.
Ellen Wright Clayton: That’s exactly right. I have friends and acquaintances, many of whom are immuno-compromised or are otherwise really at risk of getting COVID, and some of them are really up in arms that we don’t have the vaccine yet, but they are very well aware that they can protect themselves by wearing masks, by getting vaccines and their major source of concern is that they’ll get it from their kids who will bring it home from school.
J. Craig Williams: It seems like almost universally that you scientists all agree that we should be wearing masks, but unfortunately, we’ve thrown politics into this mix. There are some states that require masks, others ban mandates. We have Florida Governor DeSantis withholding the salaries of school board members who have upheld the mask mandates to protect the children going back to schools. What role should politics be playing this in an ideal world and how do we deal with it in this practical world?
Ellen Wright Clayton: Well, I think we need to say very clearly that what we ought to be doing is wearing masks. This is a dreadful, dreadful pandemic and what we desperately need to do is get it under control sooner rather than later, because otherwise, we may develop more serious and even more virulent variants that will cause even more disease. We need to remind our leaders, both at the state and local level that they have an obligation to protect the public and they have an obligation to make sure that children are safe.
It is important that we get kids back in school. It’s clear that this last year has been costly in their learning, but we have to be able to do that safely, and that requires leadership that says that this is what we ought to do.
We need to have a clear statement from parents who say, “I am free to raise my kids and to make these kinds of health decisions,” to understand that parental freedom is not unlimited. They do not have the right to put their children in harm’s way. We have had laws to prevent child abuse and neglect for decades, and as this pandemic continues, we may soon get to the threshold where it is actually actionable neglect that warrants state intervention not to require your children to wear masks and it is certainly not the right of children or the right of parents to not only put their own children in harm’s way, but other people’s children in harm’s way and other people’s children’s family in harm’s way.
The Supreme Court, in a very famous case called Prince versus Massachusetts, the Supreme Court said that parents are not free to make martyrs of their children and they went on to say in that case that involve religious freedom, to say that parents are not free in the name of religion to pose harm to their children or in the case of communicable disease, or to permit their own religious beliefs to pose harm, the risk of communicable disease to others. This is really important. We need to stop talking about parents who say, I am free to make decisions about what my children do when their decisions put their children in harm’s way and they put everybody else’s children in harm’s way. That’s not the right issue.
The issue that we really need to be talking about is responsibility. We need to talk about the actions that we need to take to protect our children, to protect other people’s children, to protect our entire population, to bring this under control and we need to realize that we really are in this together and we are responsible for others. It is certainly, when I go, I’m fully immunized. You’ll not be surprised to know and when I go out, I wear a mask in part to protect me, but mostly is to protect other people, both literally in case I have a symptomatic case, but also to sort of make the point that what a responsible person is doing, ought to be doing in today’s society is masking and taking this seriously and getting immunized. I mean, that’s really where we are.
J. Craig Williams: Where in your opinion does the refusal to allow your child to wear a mask fall on the spectrum from civil neglect to criminal abuse?
Ellen Wright Clayton: Well, fortunately, we don’t have to get all the way to criminal abuse. Actually neglect, that puts a child, if you look at the laws that exist in every state, they say when parental actions put their child at risk of serious harm, then that’s actionable neglect that can warrant state intervention. We are coming perilously close to that.
J. Craig Williams: If you were able to say something directly to Governor Abbott of Texas and Governor DeSantis in Florida regarding mask usage, what would you say?
Ellen Wright Clayton: What I would say is the data are clear and that you need to tell the people in your state that they need to do this because they are responsible for all people. They are responsible for protecting their own children and protecting everyone else as well and to have a ban on masks is irresponsible and they are not meeting their obligations as leaders who have an obligation to protect the safety of their citizenry. They are abdicating that responsibility and they need to face up to it, and they need to say, “People, you have to be responsible.”
J. Craig Williams: How would we go about taking this political aspect of what DeSantis and Abbott are doing? How do we get this out of the equation so that we can just focus on the science?
Ellen Wright Clayton: Oh, boy, I think it’s going to be hard to get it out of the equation. I think that the new actions that are being considered by the Department of Justice Civil Rights Movement is actually going to be an interesting step. As I know, you know, the Department of Justice is looking into states like Texas, Florida, Tennessee and a number of others that are allowing or getting in the way of mask mandates and saying that they are failing to protect the interests of children with disabilities, both under the Americans With Disabilities Act and the Individuals With Disabilities Education Act.
And I think that what they are saying there is that these kids have a right to go to school and to have a free appropriate public education and that they have to be kept safe and that by getting in the way of mask mandates, you are putting these children in harm’s way, in particular in harm’s way. I think that’s really important. I am a strong advocate of the rights of individuals with disabilities. I think it is actually a great feature of our government that we have that commitment.
And then I think actually a nice side benefit of that, is that if it becomes the case that everyone has to wear masks and that people are encouraged once the vaccines become available for younger children to get those as well, the nice side benefit is that those are lawsuits that will lift all boats that will protect all children and not just children with disabilities. But I think we need to change our discourse in our country and say we have to care about other people. And you can look to teachings of virtually every different religious tradition that says that we are to love our neighbors, that we are to care for our neighbors, and that that is what we ought to do. And the idea that we’re free to do whatever we want without regard to the interests of others is just selfish.
J. Craig Williams: Well, the one thing as a lawyer that has bothered me in this entire discussion that there has not been anyone speaking on behalf of the children. Seems like that’s going to be what the civil rights case is about.
Ellen Wright Clayton: That will certainly be what that’s about. And I think that one of the reasons they’re seeing a lot of the cases being brought both by the Justice Department and by parents of children with disabilities is that they have already levered to move the world that I think parents in general, many parents really, really want masks and many parents really, really want vaccinations for their kids. And in fact, one of the things that we’re dealing with in the pediatric community is that many parents are going to the pediatrician and saying, “Please just give me a mini dose Pfizer for my children,” and the FDA I think very rightly is saying, “We don’t know what the right dose is. Please don’t do that.”
I think that what we need to do is to get the parents who want their kids to be protected out there voicing their opinions. They are doing that, but their voices are being shouted down in some of these forums by the parents who say, “You’re interfering with my rights as a parent.” And the problem with those folks is that they misconceive what their rights are. They have many rights with regard to raising their children, but they do not have a right to allow their own children to be sick and they do not have a right to make other children sick. That is not a right that parents have.
J. Craig Williams: Help me understand here what the argument is. I mean, I’ve seen the no shoes, no shirt, no service signs in a restaurant, not a far stretch to add a mask to that. You wear seatbelts in a car. Your kids are in safety seats. There are all types of restrictions. What is the argument against the mask?
Ellen Wright Clayton: They think that it will bother their children and the fact is it will bother their children only because it bothers them. There are a few medical contraindications to masks, they are breathtakingly few. But for other children, if they see their friends doing it and if their parents tell them that this is the right thing to do, and if their teachers tell them the right thing to do, then they’ll do it. And many of them do. It is a failure of leadership. Our governor here in Tennessee said state school boards can decide what they want to do about masks, but that parents are free for whatever reason to refuse to let their children wear masks. That is a failure of leadership.
J. Craig Williams: Let’s talk about medical exemptions. There are a lot of people who claim that they have asthma, they can’t breathe or this mask provides difficulty for them. What’s the reality here?
Ellen Wright Clayton: I think for severe asthma, that might be the case. But lots and lots of children have asthma and very few of them would have that kind of trouble. Again, I think this is an area where parents are bringing a lot of pressure on pediatricians to say that the child shouldn’t be wearing a mask.
And as you often see with regard to a variety of exemptions to immunizations, and I think pediatricians are taking it very seriously and saying, “No, we have to really see that there’s some real reason why your child can’t wear a mask and that those exceptions are few and far between.”
Craig Williams: There are a lot of people who think that there’s a lot of craziness in Florida. Here’s an example of a chiropractor who is issuing medical exemption forms. What kind of qualifications does that chiropractor have to do that?
Ellen Wright Clayton: None. But again, I think our licensure agencies need to take that seriously, need to call those clinicians into account and say, “You have to stop doing this,” and withdraw their licenses, but that’s what they need to do. I mean, we’ve seen this in numerous other areas as well. And so, I want to make another point going back to schools. Schools also have a really important job to play in keeping kids safe. And I think you have three kids, I have two. When our kids got sick, the school said, “Don’t come.” And they said don’t come for a couple of reasons. One is because you want the kid to get better faster and we know that chicken soup and sleeping and all that and tender loving care will get them better faster in general. But the other thing was to keep other kids from getting sick. And so, this is not new news to say that children who are sick shouldn’t be going to school.
Craig Williams: As a young child, I remember doctors who made house calls and then might put up a quarantine sign on your door.
Ellen Wright Clayton: I mean, you’re absolutely right about that. And sometimes when there’s something really very highly contagious and very lethal, like meningococcus, if we make a diagnosis of that in a child in school, the whole public health system mobilizes to make sure that all the children who were potentially exposed get prophylactic antibiotics so that they don’t get this terrible disease.
This is what public health is supposed to be. It is supposed to be identifying a threat, particularly a very serious threat like COVID and taking appropriate action to bring it under control and to say that it is infringement on a child’s right or a parent’s right to say that in order to go to school that a child has to wear a mask, to avoid getting sick themselves and avoid making other children sick is really just, it really undermines I think the very fabric of what our public health and our governmental responsibilities are in protecting the health of the nation.
Craig Williams: I’d like to ask a kind of tough question here and I’m not sure whether it’s an appropriate one, but can you describe for our listeners what it is like to go through COVID? We see the short stills on the news at night and pictures of people with all kinds of tubes sticking out of them and we’re told it’s difficult to breathe. But what’s it like?
Ellen Wright Clayton: Well, it’s variable. Some people have relatively mild courses, but even a mild course of COVID means that you are just out for a week or two. It makes flu like a walk in the park, so that’s even the ones that don’t get into the hospital. The ones that do get into the hospital can be sick for days to weeks and they can require meticulous medical care, they can require being on a ventilator, which means that they have to be sedated or even paralyzed, so they don’t fight the vent. And obviously, as you know, hundreds of thousands of people have died.
This is not a joke. In fact, there was an article I think of The Washington Post saying, “We shouldn’t talk about mild disease with COVID.” There’s disease that doesn’t’ necessarily get you in the hospital but it is a serious disease and it really hits people very, very hard and can have long-lasting symptoms in many cases. They’re saying up to a third of patients who get it have some long-lasting symptoms that last a month or two, some of them obviously a lot longer in the case of long COVID. This is not something that people should think, “Oh well, this is fine, I’ll just get this. It’s just a cold.” It’s not.
Craig Williams: Well, Professor Clayton, we’ve just about reached the end of our program, so I’d like to take this opportunity to invite you to share your final thoughts to wrap up.
Ellen Wright Clayton: Well, my major thought is we need to take this seriously. We need to understand our obligation to protect people who cannot get immunized because they’re too young and to protect all other people.
We need to take seriously the need to wear masks and the situations where there’s a lot of disease going around and we need to understand that this is not an infringement on our freedom. This is what we need to do to protect ourselves, to protect our children and to protect everybody else in this great country. We need to do this and we need to listen to what the scientific evidence is. The nature of science is that it evolves over time but we know a lot now about what it takes to prevent this disease or to try to contain it and we desperately need to do it.
Craig Williams: Well, thank you very much. That’s been a spirited message that I hope get through to our listeners. Like you, I’m vaccinated and wear a mask because it is when I’m appropriately inside something else, like a building. But thank you very much for being on the show today. As we wrap up, I’d like to thank our guest, Professor Ellen Clayton for joining us today. It’s been a pleasure having you on the show.
Ellen Wright Clayton: Thank you.
Craig Williams: Well, if you like what you heard today for our listeners, please rate us on Apple Podcast or your favorite podcasting app. You can also visit us at legaltalknetwork.com where you can sign up for our newsletter. I’m Craig Williams. Thanks for listening. Please join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.
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Podcast transcription by Tech-Synergy.com.