Oklahoma Supreme Court rules school districts, not governor, should decide mask mandates

The Oklahoma Supreme Court struck down the governor's influence over school mask mandates in an opinion issued Tuesday, ruling in favor of doctors and parents who challenged a state law that at one point effectively blocked masking requirements in public schools.

The court decided a crucial provision in Senate Bill 658 that made school mask mandates contingent on the governor declaring a state of emergency is “impermissible” and denies school districts local control. 

The decision means public schools wouldn’t have to wait for a governor’s emergency order to require face coverings, though few schools, if any, still mandate them.

“We are pleased the Oklahoma Supreme Court sided with local control and upheld the ability of schools to protect their students and staff,” said Oklahoma State Medical Association President Dr. David Holden, whose organization sued to overturn the law. “We are currently reviewing the ruling and will discuss any next steps with the other plaintiffs.”

Gov. Kevin Stitt said repeatedly he would not declare another state of emergency over the COVID-19 pandemic. The court said this meant the law acted as a “state wide prohibition for masks for public schools.” 

“Local control of schools is usurped by requiring the Governor to exercise executive authority to declare a state of emergency,” Justice Yvonne Kauger wrote in the court’s majority opinion. 

The law took effect July 1, 2021. Shortly afterward, the highly transmissible delta variant ratcheted up cases across the state only to be followed by an even more contagious omicron variant later that winter. 

Some school districts, including Oklahoma City Public Schools and Santa Fe South Charter Schools, began requiring masks despite the law, as COVID-19 infections quickly became overwhelming among students and teachers. 

The state medical association and four mothers of public school students filed a lawsuit Aug. 12, 2021, in Oklahoma County District Court to challenge SB 658. They contended the law denied children a safe learning environment and was unconstitutional because it applied only to public schools, not private schools. 

While public schools were prohibited from mandating masks, private schools freely required them. 

"This is not a political stance; it is about public health and common sense,” then-OSMA President Dr. Mary Clarke said at the time. “If schools can send students home for a lice infection, they should have the latitude and ability to issue a mask mandate." 

District Judge Natalie Mai put a temporary stop to the bill, allowing public schools to issue mask mandates as long as parents had the choice to opt out their children from the requirement. 

"Parental choice is extremely important to the Legislature," Mai said in a Sept. 1, 2021, court hearing. "Any requirement whatsoever must have that option available to the parent." 

The Oklahoma State Department of Education announced it would not enforce the mask mandate prohibition in light of the district court decision. 

Attorney General John O'Connor appealed Mai’s ruling, and the Supreme Court agreed to review the case. 

The court determined SB 658 removes a school board’s ability to act independently and instead hands over that control to the governor “who has neither constitutional nor statutory authority over the operation of schools.” 

Rep. Kevin West, an author of SB 658, said on Tuesday he wouldn't take issue if a school district implemented a mask mandate without the governor first giving an emergency order.

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West, R-Moore, said he prioritized other parts of the law that compel a school board, if it does require masks, to explain its reasons for the mandate and to review the requirement at every regularly scheduled board meeting.

"I was much more concerned about the interaction with the parents and keeping them informed," West said. "I didn’t see it as overstepping our bounds by putting that (emergency order clause) in there, but like I said, it just wasn't as big of a sticking point as the rest of the bill was to me."

Oklahoma public schools widely ended their mask mandates this year, though COVID-19 cases remain elevated. 

From August into early September, Oklahoma has recorded between 9,000 and 10,000 new COVID-19 cases a week; that dropped to about 6,800 in the state’s most recent epidemiology report. Those figures don't include any at-home testing, so the true number of infections is almost certainly higher. 

Both cases and hospitalizations are still well below the highs they reached in early 2022. 

As of last week, the statewide average levels of COVID-19 in wastewater were low. Wastewater testing is considered an accurate way to measure community spread of the virus because it doesn’t rely on individuals obtaining COVID-19 tests and having it reported by the state.

Editor's note: This story has been updated to include comments from Rep. Kevin West, an author of SB 658.

Contributing: Reporter Dana Branham

Reporter Nuria Martinez-Keel covers K-12 and higher education throughout the state of Oklahoma. Have a story idea for Nuria? She can be reached at nmartinez-keel@oklahoman.com or on Twitter at @NuriaMKeel. Support Nuria’s work and that of other Oklahoman journalists by purchasing a digital subscription today at subscribe.oklahoman.com.