CINCINNATI (CN) — Despite being rescinded nine months ago, a statewide mask mandate for Michigan schoolchildren was debated Wednesday before the en banc Sixth Circuit, which attempted to determine whether a Catholic school's challenge to the order has already been mooted.
Resurrection School in Lansing, along with two parents, sued the state of Michigan and Ingham County in October 2020, after the implementation of a statewide mask mandate to help prevent the spread of Covid-19.
Under the order, all children from kindergarten through 12th grade were required to wear masks throughout the school day, and there were no religious exemptions.
A federal judge denied the school's motion for a preliminary injunction, which prompted an appeal to the Sixth Circuit and arguments before a three-judge panel.
The panel upheld the lower court's decision in August 2021, but also determined the school's constitutional challenge was not mooted by the state's decision to rescind the mandate.
U.S. Circuit Judge Karen Moore, a Bill Clinton appointee, wrote the panel's opinion and determined Michigan and its government officials could not meet the "heavy burden of establishing that it is 'absolutely clear' that they will not reimpose a mask requirement."
Moore emphasized she and the other judges had no doubts about the sincerity of the state's claims it would not reimpose a similar mandate, but pointed out the unpredictability of the Covid-19 virus makes predictions about future case numbers speculative at best.
Shortly after the panel's decision, Resurrection School again filed for injunctive relief in federal court, but was denied on the merits of its claims in November 2021.
U.S. District Judge Paul Maloney, a George W. Bush appointee, rejected the school's argument that Catholic education providers had been singled out by the mask mandate because the order "affects all students who were not already required to wear a mask." (Emphasis in original.)
Despite expert testimony that refuted the efficacy of masks, Maloney sided with the state and determined the mask mandate promoted a legitimate government interest – namely, preventing the spread of Covid-19.
"Both parties cited overwhelming, competing evidence regarding the efficacy of masks," he said, "but competing science does not defeat rational basis. It was rational for Health Officer [Linda] Vail and the Ingham County Health Department to rely on the 'overwhelming body of evidence in support of masks' from federal and state agencies such as the CDC, MDHHS, and American Academy of Pediatrics in issuing the emergency order."
In a supplemental brief filed with the Sixth Circuit prior to Wednesday's en banc arguments, Resurrection School lamented the "perplexing landscape" created by the state government's convoluted mandates, which it claims suffer from a "lack of exactness."
"The government asserts an extreme reading of the mootness doctrine that would allow it to impose any epidemic order it pleases, while evading the review of the appellate courts," the brief states. "The nature of the government's ever-changing Covid orders allow only a small window of time for adjudication in the courts."
In its supplemental brief, the state disputed this claim and pointed out that no mask mandates have been put in place since the one challenged by Resurrection School was rescinded, despite "the ebb and flow of the pandemic, which broke numerous [case and hospitalization] records over the past few months."
"If ever there was a time one could have reasonably expected a similar order to be imposed, that time has come and gone," the state argued.
Attorney Erin Mersino argued Wednesday on behalf of the school and students, and told the appeals court the number of exceptions included in the mask mandate proved that Michigan "will fight Covid from fourth grade classrooms, but not restaurants ... or frat houses."
U.S. Circuit Judges Karen Moore and Bernice Donald, appointees of Clinton and Barack Obama, respectively, both asked the attorney about the state's decision to rescind the mandate in June 2021.
Mersino said the order could be reinstated at any time, and also emphasized that a mask recommendation put in place by the Michigan Department of Health and Human Services allows it to use county and local governments as proxies to avoid liability.
The attorney told the court the school's principal is fearful he will be charged criminally for his refusal to follow the mandate while it was in effect, and argued the case is not moot because of a six-year statute of limitations on the misdemeanor charges associated with violations.
Attorney John Bursch argued on behalf of the Alliance Defending Freedom, an amicus party in the appeal, and expanded on his co-counsel's argument regarding criminal penalties.
Bursch said that even if the state agreed never to prosecute school officials, local law enforcement could decide to arrest and charge individuals until the statute of limitations expired.
Michigan Assistant Attorney General Daniel Ping argued on behalf of the state defendants, and was peppered with questions about the mask mandate throughout his allotted time.
U.S. Circuit Judge Richard Griffin, a George W. Bush appointee, asked for evidence that his clients made it "absolutely clear" they would not reinstate the mandate, but the attorney refused to guarantee it could never be put back in place.
Ping pointed out there is "no legitimate argument" the state rescinded the mandate to gain an advantage in the litigation, but when asked about the possibility of criminal penalties by U.S. Circuit Judge Chad Readler, a Donald Trump appointee, he also refused to commit to nonenforcement.
"Why can't I say having a mask off in a restaurant is the same as having a mask off in school?" asked U.S. Circuit Judge Amul Thapar, another Trump appointee, in reference to exemptions in the mandate for individuals actively eating or drinking.
The attorney answered that school lasts the entire day, while most meals are an hour or so, but Thapar persisted and asked about someone who might stay at a bar for six or seven hours.
Ping was somewhat evasive during his answer, but was interrupted by Chief U.S. Circuit Judge Jeffrey Sutton, a George W. Bush appointee, who remarked that "no judges" would be at a bar that long.
Seventeen judges took part in the arguments, with U.S. Circuit Judges Eric Clay and R. Guy Cole Jr., both Clinton appointees, participating via videoconference.
No timetable has been set for the court's decision.