On July 30, 2021 the Massachusetts school commissioner, Jeffrey C. Riley, released a memorandum entitled “DESE/DPH COVID-19 Guidance for Districts and Schools: Fall 2021.” In the memorandum Commissioner Riley makes several recommendations for schools. His recommendations include:
- mandating masks for all children in grades K to 6 as well as unvaccinated students in grades 7 to 12.
- Implementing diagnostic and screening tests for unvaccinated students and staff,
- Implementing contact tracing and quarantine protocols for unvaccinated students and staff, and
- Hosting on-site vaccination clinics during either summer orientation or the start of classes.
These recommendations, according to Riley, are made in light of recent updates to the Center for Disease Control’s (CDC) “Guidance for COVID-19 Prevention in K-12 Schools.” Both Mr. Riley’s memorandum and the CDC guidance will be a topic of discussion for school committees throughout the state this month.
What follows is a summary of the proposed policies as well as some ways parents can protect their kids from the unnecessary physical and emotional harm that may result from these policies.
Risk to Children
Both the education department and the CDC acknowledge that COVID-19 is not a significant threat to children.
In Mr. Riley’s memorandum he states
[E]ven for those students not yet vaccinated, the apparent risk of COVID-19 to children remains small.
This statement is followed by four citations to highly credible sources confirming that the virus is not a serious threat to kids. (The sources cited were from the Massachusetts Department of Public Health, the CDC, and the New England Journal of Medicine.)
Likewise, the CDC acknowledges that children are less susceptible to COVID-19.
[M]ultiple studies have shown that transmission rates within school settings…are typically lower than—or similar to—community transmission levels. See Page 4 of the CDC guidance.
At least one study by the CDC was summarized as follows:
Data from China suggests that pediatric coronavirus disease 2019 (COVID-19) cases might be less severe than cases in adults and that children (persons aged <18 years) might experience different symptoms than adults.
These scientific findings are blatantly obvious to anyone who has active and social children.
If COVID-19 is not a serious threat to our children’s health, why would we subject them to the highly intrusive and disruptive recommendations of Commissioner Riley and the CDC?
Mask Mandate
The commissioner’s memorandum “strongly recommends that all students in kindergarten through grade 6 wear masks when indoors.” In addition, the education department, “strongly recommends that unvaccinated staff in all grades, unvaccinated students in grade 7 and above, and unvaccinated visitors wear masks indoors.”
Challenges to Governor Baker’s mask mandate were unsuccessful in court. For example, see Delaney v. Baker, US District Court Civil Action No. 20-11154-WGY.
However, there are significant differences between the governor’s mask order case and the proposed school mask mandate. 1. The state of emergency which was the authoritative basis for the original mask mandate is over; and 2. The proposed school mandate is imposed on only unvaccinated children, even though the CDC acknowledges that vaccinated people can contract and spread the virus.
(According to the CDC guidance, “fully vaccinated people get infected [breakthrough infections], even with the Delta variant” and “preliminary evidence suggests that fully vaccinated people who are infected with the Delta variant can be infectious and can spread the virus to others.” See Page 5 of the CDC guidance.)
So a new legal challenge could legitimately be made against any school district that imposes the recommended mask requirement.
A less costly and more practical way to challenge such a mandate is simply to go to your next school committee meeting and tell the members that you don’t want masks imposed on your kids. If you can’t make the next meeting, call or email each of the members and give them a piece of your mind.
If they don’t listen, vote them out.
COVID-19 Testing
More troubling than the mask mandate is the proposed testing procedures recommended by the education department and the CDC.
Commissioner Riley recommends:
COVID-19 testing – Districts and schools are highly encouraged to maintain or establish a robust plan for COVID-19 testing in schools, including both diagnostic testing and screening (pooled) testing for students and staff.
Testing would be done using BinaxNOW, a swab inserted into the back of the child’s nose. The CDC recommends that such testing be conducted weekly on at least 10% of unvaccinated students whenever the “community transmission” rate is at “moderate, substantial, or high levels.” The CDC defines “moderate community transmission” as at least 10 COVID cases per 100,000 persons—in other words .001% of the general population.
So, in a town like mine, which has only 16,000 people, just 2 cases of COVID in the general population would trigger the burden of weekly testing for our students.
All parents must understand that they have the legal right to refuse the use of such testing on their children. (See Felder v. Children’s Hospital Corp., 97 Mass. App. Ct. 620, as well as 243 Code Mass. Regs. § 2.07(26) and M.G.L. c. 208, § 31.)
Furthermore, a school cannot share a child’s records (including medical records) without a parent’s consent. See 20 U.S. Code § 1232g Family Education and Privacy Rights.
Parents opposed to these measures, should write to their child’s school and superintendent and state in no uncertain terms that your child is not to be tested.
The CDC even acknowledges the parent’s rights to informed consent. The last section of their guidance states:
Testing should be conducted with informed consent from the person being tested (if an adult) or the person’s parent or guardian (if a minor), consistent with applicable state laws related to consent. Informed consent requires disclosure, understanding, and free choice, and is necessary for teachers, staff (who are employees of a school) and students’ families, to act independently and make choices according to their values, goals, and preferences.
Additionally,
Consider distributing consent forms with the other paperwork for returning to school and making them easily accessible.
Finally, the CDC recommends that such testing should focus more on older students rather than the young.
The burden of testing is likely to be higher for younger children and therefore screening testing may be more feasible and acceptable for older children and adolescents.
Again, the vaccinated are excluded from these tests even though the CDC acknowledges that they can contract and spread COVID.
Contact Tracing and Quarantine Protocols
Commissioner Riley and the CDC both suggest implementing contact tracing and quarantine protocols. The CDC proposes that those unvaccinated students who have come within a few feet of an infected person, a “close contact,” should be removed from school for 14 days regardless of negative test results.
The guidance states,
Close contacts who are not fully vaccinated should be referred for COVID-19 testing. Regardless of test result, they should quarantine at home for 14 days after exposure.
Commissioner Riley prefers to implement a highly intrusive “test and stay” protocol.
Under test and stay, asymptomatic close contacts will have the option to remain in school and be tested daily with BinaxNOW for at least 5 days. Vaccinated staff and students are exempt from quarantine.
Forcing students to stay home after they test negative for COVID is unreasonable and contradictory to the existing contagious disease statute (M.G.L. c. 71, § 55) which states that a child exposed to an infectious disease must be readmitted to school upon the presentation of “a certificate from the board of health or its duly appointed agent that the danger of conveying such disease by such child has passed.”
Vaccine Clinics
Most alarming of all, is Commissioner Riley’s recommendation that schools institute on-site vaccine clinics.
We urge all schools…to host an on-site vaccination clinic during summer orientation events or when classes begin. A DPH-approved mobile vaccination provider, including clinic staff and vaccination administrators, will be provided free of charge.
There is not much detail about these mobile clinics in either Riley’s memo or the CDC guidance. However, parents have the right to informed consent before their children can be treated with any vaccine.
If you object to exposing your child to the vaccine, it’s important that you let the school know immediately in writing.
If you have questions or need help, email me at justin@jrmccarthy.com
Law Office of Justin R. McCarthy 