On July 28, 2021 Frederick County Public Schools Superintendent, Theresa Alban dropped a last minute mandate in the laps of FCPS parents. Mrs. Alban informed the incoming students that they are required under her direction to wear face coverings when they begin the school year on August 18.
Thousands of students were required earlier in the summer to decide if they wanted to attend school in person or remain virtual. These parental decisions were arrived at based on the knowledge that FCPS was reopening “mask free.”
This last-minute change has both parents and the schools scrambling. Parents are now being told there is a waiting list to be a virtual student. They are also being told if they don’t want to come into the buildings with masks on, they might want to withdraw their children to homeschool or private school.
Further discussion about that is for another time. The issue at hand is Dr. Alban’s ability to demand our children wear face coverings.
Aside from the mental health concerns and civil rights issues I have with this edict, I don’t believe Mrs. Alban has the authority to make this decree.
In my inquiries to her I asked her where she is deriving her authority to force our healthy students to wear face covers.
“The statutory authority of the local Board of Education and the Superintendent are outlined in the Annotated Code of Maryland Education Article. The FCPS Board of Education approved Policy 439 on Dress Code for Students. This policy states, “Unless excused by an identified exemption, students are required to follow rules imposed as they relate to face masks/face coverings.” The identified exemptions are listed in the policy as well.”
She cites the language stating students are to follow the rules but provides no “Policy” setting out the rules.
I haven’t located where in the Annotated Code or COMAR the authority to make this public health demand is located. I have requested further clarity.
The Board of Education Policy she is relying on is Policy 439. 439 is the Dress Code for Students. Under Definitions, item #3 – Face mask/face covering – A covering that fully covers a person’s nose and mouth and is secured to the person’s head. Item #10 – Unless excused by an identified exemption, students are required to follow rules imposed as they relate to face masks/face coverings. Foot note 2 – Exceptions to wearing face coverings as outlined in FCPS Guidance on Face Coverings in School Buildings.
Nowhere in the language of 439 or the supporting footnoted document is there the power for the Superintendent to require any FCPS staff, student or guest to wear a face mask.
Policy 439 gives her the power to regulate the appearance of a face mask so as not to disrupt the school day; it’s a “dress code” policy. It explicitly says any FCPS “uniform” requirement is “voluntary.” She can’t require students to wear pink hats and flippers and she can’t require students to wear face masks.
FCPS’ Guidance on Face Coverings cites her authority as conveyed through Governor Hogan’s State of Emergency Executive Orders – “Governor Hogan’s Executive Order 20-08-03-01 and the subsequent guidance from the Maryland Department of Health (MDH) and Maryland State Department of Education (MSDE), requires the use of cloth face coverings in schools when not contraindicated…”
Those powers expired on July 1 as did any legal force they appeared to have during the state of emergency.
I don’t question the Board of Education’s power through state law to create any policy it believes is for the benefit of public education and the safety of the students. Those have boundaries but that’s not the debate at this point.
The debate is Dr. Alban’s legal authority to demand our students wear face masks. Until the Board of Education creates language in the Health and Wellness Policy or creates a policy specific to this issue, I don’t believe the Superintendent’s July 28 notification is enforceable.
Parents should act accordingly.