Open Source: What student mask exemptions are permitted in Ohio?

EDITOR’S NOTE: This story is in response to a reader-submitted question through Open Source, a platform where readers can submit questions to the staff.

MOUNT VERNON — Mask-wearing requirements in north central Ohio schools are mainly dictated by each school district. 

Schools were in remote learning when the Ohio Department of Health issued the first mask mandates at the onset of the COVID-19 pandemic. The debate over school purview on mask-wearing had not yet taken shape, as people were not physically in schools. 

Most districts in north central Ohio returned to full-time, in-person instruction last school year, and state health ordinances required mask-wearing in school.

School districts faced a vastly different landscape at the start of the this school year. After the state rescinded school mask mandates in the summer of 2021, there were no government powers dictating school mask policies (unless villages or cities issued mask-mandates.) 

Many districts in the area decided to begin the year with minimal restrictions and left mask-wearing in schools up to choice. As case and quarantine numbers rose, however, a number of school districts changed course and began requiring masks indoors.

Objections and protests erupted following a return to required mask-wearing, and some parents have tried to seek religious and medical exemptions to school policies. 

So, what student mask exemptions are permitted in Ohio schools? The answer is complicated. 

School Authority 

School districts are given the authority to make their own rules by law.

Specifically, Ohio Revised Code sections 3313.20 and 3313.47 provide broad discretion to school boards to govern and manage their own affairs. There is also a specific section, 3313.67, that gives boards the power to make and enforce rules that prevent the spread of communicable diseases among students.

“School boards have pretty general authority to regulate what happens in their buildings,” Knox County Prosecuting Attorney Chip McConville said.

For example, schools set conduct rules and dress codes. Questions arise when schools’ discretion is limited by some other law, McConville said.

“There are certain things that can supersede school policy, obviously, but anything that’s not an explicit state law requirement, the boards can fill in the rest,” McConville said. “That’s their authority.”

The right to freedom of religion in the U.S. has been brought up by parents at school board meetings in north central Ohio in response to the return of mask requirements in schools.

“You get religious exemptions to a lot of different requirements if you can show the threshold that it has to be held on a ‘sincerely held’ religious belief,” McConville said, but added that how such a level of belief is established is vague.

The “sincerely held” standard comes from Title VII of the Civil Rights Act. Title IV prohibits discrimination based on race, color, religion, sex or national origin in public schools.

Religion is not defined in the United States Constitution, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” 

No major religious denominations in the U.S. oppose masks outright, but the lack of a definition for religion means there is no distinction between a belief found in an organized or long-established religion, such as Judaism, Islam or Christianity, and a new or uncommon religious belief someone may have.

Unlike many ountries, the United States does not have a department or ministry of religious affairs that could define what a religion is and address specific claims to religious beliefs.

The absence of a clear definition means the validity of a religious belief cannot be questioned, but “the threshold question of sincerity … must be resolved in every case,” as established by United States v. Seeger and ​​Dockery v. Maryville Academy.

A recent case involving religious exemptions to the COVID-19 vaccine directly addressed measuring this “sincerely held” standard. 

Employees of a hospital in Arkansas sought exemption to its vaccine requirement based on vaccines being developed and tested on fetal cell lines. The hospital created a form requiring employees who sought exemption based on the aforementioned reason to attest to not using any medications that use fetal cells in their development, which includes Tylenol, Pepto Bismol, Aspirin, Ibuprofen, Benadryl, Claritin, among others.

Other ways in which institutions have measured the sincerity of beliefs is by looking at past actions, McConville said, although past actions alone cannot confirm nor deny a current belief.

Religious exemptions have often been granted without much questioning, said Van Keating, senior staff attorney with the Ohio School Boards Association. Given the high-stakes nature of the pandemic, many institutions — including schools — are now giving such requests a closer look, Keating said.

Parents in north central Ohio and elsewhere have also requested medical exemptions to school mask mandates. 

Citing the existence of a medical condition does not provide automatic protection under the Americans with Disability Act. 

“The ADA does not provide a blanket exemption to people with disabilities from complying with legitimate safety requirements necessary for safe operations,” according to the Department of Justice.

Schools can reject exemptions if allowing such exemptions would cause a “direct threat,” meaning there would be a significant risk to the health or safety of others that could not be eliminated by reasonable accommodation.

Likewise, when granting exemptions, schools can also put in place other accommodations, such as having a student wear a face shield instead of a traditional mask, to still follow the spirit of its health mandate. 

That said, who has the authority to write exemptions? 

In Florida, a chiropractor signed more than 500 medical exemptions for students after a district began requiring masks indoors. The district altered its mask policy in response, tightening which categories of medical professionals can sign an exemption. 

Similar to religious exemptions, school districts generally have the ability to determine which exemptions they will accept, Keating said. 

Mask exemption policies can and often do vary by school district, Keating said, with each district having the discretion to make exemptions on a case by case basis. 

Court Cases 

There are legal avenues people can take to challenge mask requirements if they believe their freedoms have been violated, Keating said. 

While statute law often makes passing mention to rights such as freedom of religion, these tend to get explained or limited more by court decisions. 

Several recent cases have implications for granting religious exemptions to mask requirements, including an August ruling that a Michigan mask requirement did not violate religious freedom.

Parents from a Catholic school in Lansing, Michigan, filed a lawsuit after the Michigan Department of Health and Human Services issued an order in October 2020 requiring students to wear masks at school. This past summer, on Aug. 23, 2021, the United States Sixth Circuit Court of Appeals (which has jurisdiction over Ohio) ruled that the requirement did not violate religious freedom under the Constitution. 

More specifically, the court found the mask requirement was of “general applicability,” meaning it did not unfairly discriminate against religious activity but applied objectively to all people.

The decision also held that the Michigan Department of Health and Human Services had a legitimate interest in controlling the spread of COVID-19 because of evidence that masks are an effective mitigation strategy.

The basis of many recent mask exemption claims gets at the fundamental question of “weighing the compelling interest in preventing (virus) spread versus individual liberties,” Keating said.