Louisiana Attorney General Jeff Landry issued a legal opinion Friday that said the state’s top school board, not Gov. John Bel Edwards, has the authority to dictate masking policies in public schools.
Edwards said Landry is “completely wrong” and his argument is “irresponsible” and “dangerous.”
Landry’s opinion, while not legally binding, is the latest salvo in an ongoing political dispute between the Democratic governor and Republican state attorney general over coronavirus mitigation measures. It comes as Louisiana students have already begun returning to classrooms amid the state’s fourth surge in coronavirus cases driven by the deadlier and more transmissible delta variant.
Louisiana is experiencing the highest rate of new cases in the nation, according to data from the Centers for Disease Control and Prevention. On Friday, the Louisiana Department of Health reported record-high COVID-19-related hospitalizations for the fourth consecutive day.
Landry argued that the legislature gave the state Board of Elementary and Secondary Education the authority to require schools to follow specific safety protocols.
“This office is of the opinion that directives as to the safety protocols to be observed by teachers and students present at school facilities during the school day are themselves a vital aspect of education over which BESE holds constitutional and statutory authority to oversee,” Landry wrote.
BESE outlined minimum safety standards for the 2020-21 academic year, which included mask mandates and triggers for rolling back class sizes and shifting to virtual instruction if transmission rates got too high. Those standards expired on June 30. Until Edwards’ mask mandate went into effect Wednesday, individual school districts were instructed by BESE to set their own mask policies for the coming school year.
“Louisiana is not governed by a dictatorship,” Landry said Thursday in a Facebook post about the mask mandate. “The question is: ‘who gets to determine the healthcare choices for you and your child?’ In a free society, the answer is the citizen, not the state.”
A visibly frustrated Edwards spoke publicly about Landry’s opinion during his Friday press briefing.
“The fact of the matter is, I have the authority and the obligation under the current circumstances to declare public health emergencies,” Edwards said, later criticizing Landry for politicizing matters of public health.
“He’s going out of his way to undermine public confidence in the basic mitigation measures that will slow transmission at a time when we need it more than any other time in this pandemic,” Edwards said.
“It is sad. It’s regrettable. It’s also irresponsible and it is dangerous.”
Dr. John Vanchiere, a pediatrics professor at LSU Health Shreveport, joined Edwards at the Friday briefing. Vancherie said because of the delta variant, 20 percent of new coronavirus infections are occurring in children. Children younger than 12 are not eligible to receive any of the COVID-19 vaccines.
Most pediatric COVID-19 patients experience mild symptoms, but children’s hospitals across the state are reporting increased admissions of pediatric COVID patients. More than 400 children across the country have died from COVID-19 — double the number of children killed each year by the flu.
While serious and life-threatening pediatric COVID cases are statistically unlikely, Vancherie said even children with minor cases are able to spread the coronavirus to older, more vulnerable populations.
“We know kids are infectious, and we know that they now are continuing as a part of an unvaccinated population to foster the spread of this pandemic,” Vancherie said. “And the only way to change that is masks.”
“This is not a time for politics, for threatening lawsuits about having to wear a mask,” Vancherie said. “Masks save lives.”
When announcing his decision to reimpose the statewide mask mandate on Monday, Edwards made it clear that the requirement would also apply to schools, and would be a key part of the return to in-person learning.
“We can’t send children back into school unvaccinated and unmasked,” Edwards said. “It’s vitally important that we protect our children, especially those who are too young to be vaccinated.”
But Landry was working to undercut Edwards’ mandate before it even took effect.
On Monday, Landry emailed his employees at the state Department of Justice suggestions for circumventing the mandate and he circulated form letters that people could use to claim an exemption from the mandate for religious or philosophical reasons.
“Louisiana law offers broad and robust protections for students’ and parents’ religious and philosophical objections to certain state public health policies,” Landry wrote in the emails first obtained by the Louisiana Illuminator. “I support your religious liberties and right to conscientiously object.”
Landry’s letters included scriptural justification for the exemptions.
“I do not consent to forcing a face covering on my child, who is created in the image of God,” read one letter. “Masks lead to antisocial behavior, interfere with religious commands to share God’s love with others, and interfere with relationships in contravention with the Bible.”
On Wednesday, Edwards penned an open letter to state Superintendent of Education Cade Brumley, outlining the exemptions included in the executive order that reimposed the mask mandate. The list did not include an exemption for religious reasons.
Edwards directly criticized Landry for his misleading messaging during an interview on Amanpour & Company.
“I don’t think he’s consulting with any public health experts,” Edwards said. “And what he’s doing has no basis in the law, so it’s very difficult to deal with him.”
Louisiana’s Department of Education currently refers local districts to Edward’s mandate when discussing mask policies for the coming school year. Earlier versions of the document recommended that schools follow guidance from the Louisiana Department of Health but ultimately left the decision of whether to require masks up to local system leaders.
“At this time, the LDOE has made no revisions to the operational guidance distributed to school districts last month, and the Board has issued no policy requirements related to COVID-19 for the 2021-22 school year,” said Kevin Calbert, BESE’s communications manager, in an email.
Calbert said there will be an item on BESE’s Aug. 18 meeting agenda to formally receive Landry’s advisory opinion.
Throughout the pandemic BESE and Brumley have both stressed the importance of “local context” when making operational decisions, preferring to empower individual districts to make their own student safety decisions. Before Edwards’ mandate went into place, the vast majority of districts had planned to encourage, not require, mask use.
While the mandate met no resistance in Orleans Parish, where masks were already a requirement, hundreds of parents in St. Tammany Parish turned out to protest the decision at a school board meeting Thursday.
The local school board voted to make masks optional in June and parents argued they should fight to keep that policy in place. Superintendent Frank Jabbia said that isn’t an option.
“St. Tammany Parish is responsible for all 38,000 students and all 6,000 employees, and we must follow the mandate,” he said. “Every school system in the state of Louisiana is going to abide by this mandate.”
Jabbia told board members that he had done his “due diligence” to ensure there was no way out of the mandate by consulting the Louisiana School Board Association, legal experts and the district’s legal counsel. All three confirmed that the governor’s mandate must be in place in St. Tammany Parish, Jabbia said.
“I am pleading with the families and parents to give us a chance to educate their children,” Jabbia said. “It is not the school's fault. It is not the principal's fault. It is not the teachers fault. This is a mandatory mandate by the Governor.”
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