Mask Mandates: Are They Legal?

This is Jay Sekulow. Mass mandates.

Are they legal and constitutional? Keeping you informed and engaged. Now more than ever, this is Sekulow. We want to hear from you.

Share and post your comments or call 1-800-684-3110. And now your host, Jay Sekulow. Welcome back to school and back to school with a lot of issues.

And I know some of my grandkids started school today and I know some of your children and grandchildren have started school as well. And there are a lot of issues. One of them is mass mandates or no mass mandates and what the schools can and cannot do. Critical race theory, which we're going to get into that as well.

So this is our welcome back to school episode of Sekulow. Let me start with the, there's a lot of controversy going on right now regarding mass for schools. And look, I'm a Federalist.

I'm a conservative, which means I believe in local control. Which means if a school district in a particular county decides that they think it's in the best interest of the school district to have mass for their students because of health concerns, well, they should have the, they have the authority to do that. If you don't like that school boards, you can vote them out of office. We live in a constitutional republic.

That's how representative government works. But this idea that's going on in Florida, and I have a lot of respect for Governor DeSantis where he's talking about suing a local school district if they decide that they're going to put a mass mandate in place for the students and teachers. I think it's wrong. I think it's constitutionally wrong. And if we're going to be consistent constitutionally, I think, and we really believe in local control, which is what conservatives have been preaching for since the 1960s, then we have to be cognizant of the fact of what that means legally speaking. And I'll tell you this, I, you know, I, this is, I was hoping that the kids weren't gonna have to go back to school with mass this year.

I think we all were. I don't know anybody that was saying that they wanted this to happen. Some school districts are letting it be optional with the parents. I think that's perfectly constitutional, perfectly sound. Others are saying, no, if you're going to go to our school, you're going to have to wear a mask. Now, you also have to draw the distinction between public institutions and private institutions.

Private schools, for instance, have a, there's no constitutional basis to sue a private school with regard to a determination on masks. By the way, and the same thing applies in one sense for critical race theory. I mean, we think, and we're going to get into it, but professor Harry Hutchinson has written an article that's going up, has written a book on this issue.

And the fact is, Harry, I don't want to get into it in this first thing, but I don't want to get into the specifics. But there are two big issues facing back to school right now. And you've got the whole COVID situation, which is serious. And then you've got this critical race theory, which is erupting in every local school district.

Absolutely. And it's often erupting under a different title or a different name. And in some cases, it can lead to the return of separate but equal and school segregation in class. And so there's a case out of Atlanta suggesting that that's precisely what has gone on. And so I think the American people ought to become informed about this particular issue, cognizant about this issue, and be able to speak with some fluency about this issue. And this issue, I think, will be with us for the next probably 10 to 15 years. It's been percolating in the academy for the last 40 to 50 years.

So I'm not getting into what the policy, right. And we're going to talk about what is actually going on. We were taught that in law school, Harry, we were talking about that earlier. 40 years ago, these were being, they didn't call it critical race theory, but it was being discussed in the law schools.

And now those lawyers are in leadership positions. So you could figure out a lot of this and on school boards, but I'm not going to get into the effectiveness of a mask or not, whether the effectiveness of a particular, I'm not a doctor. I'm talking about what is legal and what is not, what is constitutional and what is not. That's what we're going to explore on this program. Same thing goes with the vaccines. I mean, you know, what's constitutional and what's not.

That's a different question of what's effective and what's not. But we're going to get into all this. Also, don't forget, we're in an ACLJ matching talent. By the way, on the critical race theory, Professor Hutchinson's proposing a pretty broad scope of how we can get involved to stop this bad history from taking place.

We'll be back with more in just a moment. At the American Center for Law and Justice, we're engaged in critical issues at home and abroad, whether it's defending religious freedom, protecting those who are persecuted for their faith, uncovering corruption in the Washington bureaucracy and fighting to protect life in the courts and in Congress. The ACLJ would not be able to do any of this without your support.

For that, we are grateful. Now there's an opportunity for you to help in a unique way. For a limited time, you can participate in the ACLJ's matching challenge. For every dollar you donate, it will be matched. A $10 gift becomes $20.

A $50 gift becomes $100. This is a critical time for the ACLJ. The work we do simply would not occur without your generous support.

Take part in our matching challenge today. You can make a difference in the work we do, protecting the constitutional and religious freedoms that are most important to you and your family. Give a gift today online at ACLJ.org. Only when a society can agree that the most vulnerable and voiceless deserve to be protected is there any hope for that culture to survive. And that's exactly what you are saying when you stand with the American Center for Law and Justice to defend the right to life. We've created a free, powerful publication offering a panoramic view of the ACLJ's battle for the unborn.

It's called Mission Life. It will show you how you are personally impacting the pro-life battle through your support. And the publication includes a look at all major ACLJ pro-life cases, how we're fighting for the rights of pro-life activists, the ramifications of Roe v. Wade 40 years later, the play on parenthood's role in the abortion industry, and what Obamacare means to the pro-life movement. Discover the many ways your membership with the ACLJ is empowering the right to life.

Request your free copy of Mission Life today online at ACLJ.org slash gift. Welcome back, everybody. We're talking about back to school issues, and I think there's going to be two that are big. I mean, there'll be others, but there are two that are big. And that's going to be the situation with the pandemic and masks and also the issue of critical race theory, which is getting to be a major issue. Harry was pointing to it, and I just during the break was looking at it, a parent has filed a federal complaint against her child's school alleging literally that the class was segregated based on race because of critical race theory. You know, Dr. King famously said that he was looking forward to the day when people would be judged by his children, would be judged by the content of their character, not the color of their skin.

And it's like it's been flipped upside down. Now, I want to go to the mask mandate issue first, then we're going to get right into the critical race theory issue. And I encourage you to, if you're watching on any of our social media applications, to share this with your friends. We believe in local control here at the ACLJ. So, look, and there are situations where the state has to make a decision.

I get it. But I don't find it rational where a state would come in and tell a local school board, Andy, that that local school board trying to address a local need can't do that under the penalty of losing its funding for its teachers. Which is what's going on in Florida, at least being threatened right now in Florida, is that if a school district were to decide because of its student body and the parents, because they're the elected school board, that we think a mask would be appropriate for the students, that that would in fact cause the governor of the state then to say, we're going to remove your funding. I just don't see how that's constitutional. Well, it's not constitutional, Jay. Look, as you said earlier, and I share this with you entirely, I'm a conservative, a traditionalist, and I am a federalist. I believe that the central government has enumerated powers and not exclusive, wide-ranging, broad-ranging, roving powers.

And I've represented school boards as attorneys for the school boards, and we have represented school boards through the ACLJ. The most important thing, in my opinion, is local control through the local school boards, the local boards of education, to make the decisions in their communities with respect to issues such as the mask. If they decide it's optional, then we should support that. If they decide it's mandatory, then we should support that. The federal government has got no business injecting itself, or the state government for that matter, into determinations made by local boards of education as to what is best for the children that go to their local schools in a local school district, usually comprising a particular county as the case may be.

And I think we need to really emphasize that fact. Federalism means local control. Wes, it used to be thought that when you elected the school board, they made the decisions for the local community.

Yeah. Our system of government is designed to power down to the closest level, nearest to people. Here's the thing I've been thinking about, though, Jay, as a retired military guy and for my masters in law and an observer of the geopolitical world. The Chinese Communist Party could not have designed a more effective way to divide America and Americans than if that had been their design in the release of the COVID virus.

Oh, no question. This is an issue and a crisis, and we're going to have to face it. The goal will be... And then the Russians, and look, the New York Times is reporting today, and the Russia propaganda that's been out there on this, including on the vaccine issue, and again, we're talking about the legal side of it, has been unbelievable, too.

I mean, there's been a lot out there. Yeah, and we can't dodge this issue. It is a crisis. It is an issue. The goal will be, and I think it's where we are as a team here, and that is to address this while respecting each other, and yet, as you indicated, at the same time, resisting government control, especially at the federal level, which is antithesis to our Constitution. But, you know, in reality, both of these issues, the mask issue and the COVID issue and critical race theory, they have the potential to divide us as a country. That's what we have to fight against. Well, I mean, the division in the country on all this is, folks, I think it's really tragic.

I'm just going to be honest with you. I think this has become unbelievably politicized. And no one's, you know, like on the vaccine issue, I'm just going to tell you a thought that came to a friend of mine that shared it with me. This doesn't mean you have to do it.

This doesn't even mean you agree. But what would you rather have, a vaccine created in the United States or a virus created in a lab in communist China? Now, we're not saying mandate it. We're not saying you mandate the vaccine.

We're not saying you have to do it or don't do it. I got vaccinated. That was a decision I made for me and my family. So my family got vaccinated.

That was their decision. But I looked at it that way. Do I want to mess with the virus that I believe was intentionally created by the Communist Party in China in a lab and launch on the world?

Do I want to take the risk of having that? And you know, I have a family member that's very ill with this right now, a brother or a vaccine created in the United States under the watch, by the way. Let's not forget this. Under the watch of the previous administration, President Trump, Regeneron, Remdesivir, these medicines that came out in record time. No one's giving credit to the previous administration on this, which I think is a shame because that should be one of the legacies of what the President was able to accomplish.

A tremendous legacy to get those medicines up and out. The Biden administration is claiming they're the ones getting all the vaccinations done. But the truth of the matter is, Kamala Harris, Vice President Harris said she would not take the vaccine because it was created under President Trump, which she then took.

Because then she decided, oh, I'll read the science and if the, well, I guess the science was right. So that you understand that this should be a political issue. This should be an individual conscience issue that people make decisions on.

But we have reached this rhetoric in the United States right now, which is unbelievable, either for us or against us. If you think a vaccine is appropriate, well then you're the, you know, you're the Antichrist. If you think you're not getting vaccinated, well then, you know, you're not looking at the science.

People are going to make decisions. But what we have to be very cautious of in the United States is understanding the constitutional framework upon which these opportunities, for instance, medications. You know, Regeneron is a wonder drug for people with remdesivir as well. I don't know if they have FDA approval yet. I think they were under emergency use authorization. Maybe they got it now, but initially when they came out it was emergency use authorization.

But if you were in the hospital, you were very glad they had it. So we're not, I think some of this is a lack of consistency and some of this is a denial of the fact that it looks like the Chinese Communist Party created a virus in a lab. It got launched, however it happened, on the world. And now we've got this unbelievable, first of all we've got tragic death and illness in the United States of America. And the Russians have been using social media to do what? To propagate against candidates, to propagate against vaccines, to propagate against whatever would divide America. We need to be wise here and understand this is a global threat that we're facing. And then you turn it to the local school district and ask yourself this. Why in the world is critical race theory now being taught in our schools as if that's a normative theory?

And as Professor Hutchinson said, whatever that actually means. But look, racism in the United States is real, it was all over the world. You don't ignore history, we know the history. In fact if you don't teach the history, you often times can repeat it and that would be a horrible thing too. But to shame a generation of nine-year-olds, that's how it's in second, third grade, to shame these students is also outrageous.

And it'll give the other side a chance to divide us even further. So Harry, let's talk about, and we're taking your calls on this, I know people are calling in 800-684-3110. Harry, on the critical race theory issue, when you boil it down, I know it's hard to because there's so many elements to it. What is it that we're talking about in the schools right now that kids are facing as they go back today?

A very good question. Critical race theory is a theory that hangs over virtually every state, county, and hamlet in America. Essentially it's a form of Marxism that seeks to destroy the nation's foundations on grounds that what? The nation is fundamentally flawed, fundamentally racist, and that America's original sin is slavery.

Critical race theory offers a number of wild claims, but plain and simple, it's a Marxist perfectionist ideology driven by the pursuit of perfect justice on issues of race, gender, and identity. And one of its founding principles is that it's essentially a religion without forgiveness. So for instance, it expands the division that we've just been talking about in the nation because what we are saying is that all of us, you and I are saying, are flawed human beings. We may have done something wrong in our distant past, but we can never be forgiven from it because of critical race theory.

Yes, certainly counter to the gospel, that's for sure. I mean really, think about that for a moment. So we're going to talk about both of these issues because they're intertwined because this is what your kids are dealing with going back to school. This is what we're dealing with as Americans right now. So we're taking a break.

When you come back, your phone lines are jammed. We're going to take your calls at 800-684-3110. We encourage you if you're on Facebook or any of our other social media platforms, share this with your friends. Don't forget, support the work of the ACLJ. We're going to get into the legal side of the critical race theory and how we're handling that too. We'll talk more about the mandates.

Back with more in a moment. It will show you how you are personally impacting the pro-life battle through your support. And the publication includes a look at all major ACLJ pro-life cases. How we're fighting for the rights of pro-life activists. The ramifications of Roe v. Wade 40 years later. A play on parenthood's role in the abortion industry. And what Obamacare means to the pro-life movement. Discover the many ways your membership with the ACLJ is empowering the right to life.

Request your free copy of Mission Life today online at ACLJ.org slash gift. At the American Center for Law and Justice, we're engaged in critical issues at home and abroad. Whether it's defending religious freedom, protecting those who are persecuted for their faith. I'm covering corruption in the Washington bureaucracy and fighting to protect life in the courts and in Congress. The ACLJ would not be able to do any of this without your support.

For that, we are grateful. Now there's an opportunity for you to help in a unique way. For a limited time, you can participate in the ACLJ's Matching Challenge. For every dollar you donate, it will be matched. A $10 gift becomes $20.

A $50 gift becomes $100. This is a critical time for the ACLJ. The work we do simply would not occur without your generous support. Take part in our Matching Challenge today. You can make a difference in the work we do, protecting the constitutional and religious freedoms that are most important to you and your family.

Give a gift today online at ACLJ.org. Hey, welcome back. My grandkids went to a group of them, I shouldn't say all of them, but three of them started school today. So I figured, I know what everybody's dealing with, so we're going to talk about that. It's mask or no mask, or vaccine or no vaccine, or is it, you know, are they literally teaching critical race theory to third graders? I mean, this is going on in public schools around the country, so this is for real.

But I want to go back to a couple of fundamentals. So, on the issue of mask mandates, I think this is where local control comes in. I just think it just makes, these are local, there's going to be local hotspots, so to speak. And I think if the local school board thinks we've got a hotspot, well, we should, you know, defer to the local school district. And by the way, if you don't like the decision they made, get them out of office in the next time. But, I mean, we sometimes forget, Andy, that we're living in a constitutional republic here. And I really, I'm talking to conservatives here too.

We've got to lower the temperature on this stuff. I mean, this is, if the school district decided you're not, your kids in that particular school district aren't going to wear a mask and you want your kid to wear a mask, have your kid wear a mask. If they give them any grief over that or she, you call us. Likewise, if the local school district were to decide, hey, we're concerned about it here, we're going to put a mask mandate in, we want the kids to wear a mask. I mean, I think they have the constitutional authority to do it. It's health and safety. That's what local governments do, Andy, every day, and all of a sudden this has become politicized.

Well, Jay, you're absolutely correct. The authority to govern a local school district needs to remain with the local board of education and local school district. That is the basis and fundamental nature of what we call federalism and a republic. As Benjamin Franklin famously said, we have a republic, madam, if you can keep it.

In other words, we now are being tested sorely with respect to whether or not there is a republic here, and that is a separation of powers between the central government and the local authorities. This is not a place for the federal and state governments to be interfering. If you are a conservative, if you are a traditionalist, if you are a federalist, if you believe in the Constitution of the United States as it was drafted by the framers and the founders, then you believe in the paramount nature of decisions made by local school boards, by local boards of education. If they decide that there is a mask that's got to be worn to the school, so be it.

If they decide it's optional, so be it. So that is the basis and fundamental nature of how our system works. I represented a board of education in metropolitan Atlanta for several years, and that's how we handle things.

Their decision is paramount. I mean, so have I. I mean, I've handled, I've represented school boards. I just think, Harry, whether it is the critical race theory issue, which is so more prevalent than we realized, or it's the situation with the virus and how the response is, we forget we're a constitutional republic and all this. That's why the vitriol on these, these screaming school board meetings, which are fine, I mean, if that's the way you think you can communicate. But the reality is, if we really believe in limited government and local control, I mean, this is how you limit government and local control. I think that is true.

And in principle, I agree with Andy because I have no constitutional basis to disagree with Andy. But I would say this, that the police power, as I read the Constitution, resides in the state. And I also would agree with Andy that conceptually it is better if the state devolves its powers to the local school board, county, health department, whatever it might be.

Correct. However, I would also say that the local school board and county should make sure that it makes an independent decision, and I think that has been part of the problem that often state and local communities, they have relied too frequently on vacillating information that has come from Washington without engaging their own experts, their own health care professionals. And I think that has led to some frustration, in part because the national recommendations have gone up and down, which I think leaves local authorities a bit in the lurch. So if we can have Andy O'Connell in charge of controlling the local school boards, I'm all in favor of that because we would get independent decision-making on a wide raft of issues, including critical race theory, I think, if they made truly independent as opposed to nationalized decisions. Let's go to Brian on line three from South Carolina. Brian, you're on the air.

Gentlemen, thanks. My issue is that I've supported and defended the Constitution for most of my life, so I'm with you on that. My problem is with the school boards themselves, I do agree you vote them out. However, if the State Department of Education sets out guidelines for local school boards, and the mandate from the school board then contradicts what the state is saying, but the will of the people are along with the state, I don't agree with the school board. The majority of people in my area do not want the mask mandate. They want freedom to choose, which is what I believe the Constitution gives the will of the people, is their right to choose. I don't agree, because then it boils down to the Board of Education for that local district then has the right to supersede the state if they say, for instance, my state says no critical race theory taught. I want you to think about this, Brian.

This is a good call. Okay, so if you had, God forbid, a tuberculosis outbreak in a local school district, and the governor of a particular state said, you know what, I know it's in that particular school district, but we're saying that the student still needs to go to school, has to go to school, or you can't, you know, we're going to mandate the student go to school. Or, if the student had, if there was a communicable disease outbreak, it's not COVID, it's something else, and there was a particular safety measure you could take, a mask, to help prevent the spread of that. Do you think that the local school board can't say that's what we'd like to do for our local students? No, that's what I'm saying. No, but you're saying that the state, so the governor is trying, the problem with what's happening in Florida, where the hospitals are being overrun with COVID right now, is that they're trying to make a band-aid approach for the entire state.

It's one-size-fits-all, but it's not. So I could see you saying, you know what, we're not going to mandate a mask from the state of Florida, but we're going to leave that up to the local school board. I don't know why that is hard for conservatives to understand.

We're not saying that the Florida government should mandate masks for the entire state, but they should not say, but if you do amass local school board, we're going to take away your funding, because then we're not federalists or conservatives. You know what we are? We're the other side, because that's what they do.

So that's what, Brian, that's what I'm trying to get to. It makes, this thing has gotten so vitriolic, it makes no legal sense. So that's what we're trying to discuss on this program.

I don't care if you're for the mask, against the mask, for the vaccine, against the vaccine. I'm talking about what is the law? And this is where it's ridiculous to mandate that a school district cannot do something to protect its local student body. That's a mandate. I thought we don't like mandates.

We like mandates that we like, but that's not the way the Constitution works. We'll be back with more, including your calls and comments. 1-800-684-3110.

We're here for another half hour. Hey, support the work of the, we knew this would be a controversial topic, but folks, it's back to school, so she'll always be back to school. She'll always been in September. When I went to school in New York, that's what it was.

Way too early, but that's what it is. We're taking your calls and comments, 800-684-3110. By the way, we're not poking fingers at anybody for the individual decisions you make.

We're just trying to explain the law and how it works. 1-800-684-3110, if you want to talk to us. Don't forget, support the work of the ACLJ.

You can do that at ACLJ.org. Facebook and Periscope audience, or whatever social media platform you're on, hang with us. We're going to talk live during this one-minute break, and we'll be right back. I'm talking about freedom. I'm talking about freedom.

We will fight for the right to live in freedom. Keeping you informed and engaged. Now, more than ever, this is Sekulow. And now, your host, Jay Sekulow. All right, so we've, you know, we've opened up the, poked the bear and opened up the beehive, and I did that on purpose.

We did it on purpose. We talked about it a long time before we went on air today, where they do it. It's back to school for my grandkids, so I said, what are they facing, or what are kids facing? They're facing masks, no mask, mandates, no mandates, and critical race theory. And they're experiencing critical race theory in a very low grade, so I want, we've been spending a lot of time on masks, we're going to keep doing that, we're going to take calls, but I also want to talk about the situation as it relates to critical race theory. Because, Harry, you write a sentence, and it says that critical race theory is essentially a form of Marxism that seeks to destroy the nation's foundations on grounds that the nation is fundamentally racist and that America's original sin is slavery. And you say that's fundamentally Marxist.

And it is. So Marxism, through a number of iterations, has reached a consensus, and the consensus is that all power, unless of course they control it, is indeed oppressive. So if you look at Karl Marx, then if you look at Alexander Koyejev, then if you look at Wilhelm Reich, and then if you finally look at some of the contemporaries who include the critical race theorists and legal scholars at Harvard, essentially you have privileged individuals who now claim that everyone else is oppressive except themselves.

And so they see themselves as approaching human perfection. And so for instance, we have an organization out there called the Abolitionist Teaching Network. It's a radical activist group that the Biden administration has included in its post-pandemic coronavirus guidance for public schools. They believe that the U.S. educational system engages in the spirit murder of black, brown, and indigenous children. They believe that whiteness, for instance, is a form of illness.

And they say a lot of other outrageous things. And what I think our listeners should keep in mind, they should keep in mind the statements made by Xi Van Fleet. She is a Virginia mother who immigrated to the United States from communist China. And she argues that critical race theory is essentially the roadmap to the cultural revolution that occurred in China 20, 30, or 40 years ago. And so at the end of the day, if critical race theory is inserted in our schools and in our country, then it will lead to one end only, and that is totalitarian oppression by elites.

And that also brings on multigenerational guilt and shame, which is part of it. Yes, it is the antithesis of the teachings of Martin Luther King Jr., the absolute antithesis. It is making people, including young children, as you said, feel guilty about their skin color. What a travesty and what a betrayal of how far we've come as a nation. What it is doing, Jay, is taking people who strive to love and respect everyone, and it's taking Americans and attempting to push us into our racial corners. What a sad thing.

And here's the thing. My third grader has to be taught that he's not being, but these schools are under a lot of pressure. Those on the left, they are using this and other issues to divide us, and it is very, very Marxist, socialist in their leanings. And they're using this for their own political advantage to divide us as a nation and to destroy this noble experiment in self-government. I'll tell you, folks, I'm going to say it over and over again.

You're going to hear it coming out of me a lot. We live in a constitutional republic, and we need to remember what that means. Was there sin in the past in the United States? Was racism real? Yes, racism is still real. They're racist, but we're not systematically racist as a country.

We're not systemically racist as a country. We're the greatest hope and freedom in the face of the earth. But let's remember what the Constitution is all about here. Let's remember what our first principles are.

And with all this rhetoric on all these issues, it's being forgotten. And I'm going to use, we've got a lot of calls coming in 800-684-3110. I'm going to talk. We're going to take those calls early because we've got so many. We want this conversation to continue.

Back to the morning moment. At the American Center for Law and Justice, we're engaged in critical issues at home and abroad. Whether it's defending religious freedom, protecting those who are persecuted for their faith, uncovering corruption in the Washington bureaucracy and fighting to protect life in the courts and in Congress, the ACLJ would not be able to do any of this without your support.

For that, we are grateful. Now there's an opportunity for you to help in a unique way. For a limited time, you can participate in the ACLJ's Matching Challenge. For every dollar you donate, it will be matched. A $10 gift becomes $20.

A $50 gift becomes $100. This is a critical time for the ACLJ. The work we do simply would not occur without your generous support.

Take part in our Matching Challenge today. You can make a difference in the work we do, protecting the constitutional and religious freedoms that are most important to you and your family. Give a gift today online at ACLJ.org. Only when a society can agree that the most vulnerable and voiceless deserve to be protected is there any hope for that culture to survive. And that's exactly what you are saying when you stand with the American Center for Law and Justice to defend the right to life. We've created a free, powerful publication offering a panoramic view of the ACLJ's battle for the unborn.

It's called Mission Life. It will show you how you are personally impacting the pro-life battle through your support. And the publication includes a look at all major ACLJ pro-life cases, how we're fighting for the rights of pro-life activists, the ramifications of Roe v. Wade 40 years later, Planned Parenthood's role in the abortion industry, and what Obamacare means to the pro-life movement. Discover the many ways your membership with the ACLJ is empowering the right to life.

Request your free copy of Mission Life today online at ACLJ.org slash gift. Alright, we've got to take some phone calls because a lot of people have been waiting for a long, long time. I'm going to go to Andy in Illinois on Line 3. Andy, go ahead.

You're on the air. Yeah, I was just going to make comment that, you know, we're just the opposite of DeSantis in Florida. Pritzker's mandating masks in schools. There's really no difference because he's threatening to take money away from school districts if you don't mask up. I guess my question to you guys is if a local school district, Board of Education, decided to go optional, masks optional, can he legally take that money away, the state money away from school? It's a good question.

And the way it works, and by the way, that's exactly what you understand. Okay, that's your liberal governor in Illinois. But it's the same issue in Florida. A governor I have a tremendous amount of respect for, conservative, is basically saying we're mandating no masks. And if the school board elects masks, we're going to withhold money. So we don't think that is a good policy position because we believe in local control. Now, can you bring a lawsuit against that? Andy, that's a different story.

I mean, that would have to be looked at. But the idea is from a policy standpoint, local control means local control. So the Illinois situation is really no different than the one in Florida. It's just the result is different because one is saying you must wear a mask, the other is saying you do not wear a mask. Those are both kind of wrong. They're both wrong. They should be local control.

That's right, Jay. Both in their own different ways make an error. Look, local control is what local school districts historically have exercised since the founding of the nation. One of the fundamental things that our founders were concerned about was education and school boards and school districts and school communities and how they should function locally under the supervision of locally elected members of the Board of Education. And those decisions they make, if they make them and you don't like them, then vote them out of office and get a school board in there that does what the local population wants it to do.

But do not have interference by the state. That power, as Harry Hutchinson accurately argued, has devolved upon the local school board, and the local school board should exercise that. The federal government, no. The governor, no.

The local Board of Education, yes. That's what federalism and the separation of powers is all about. Well, that's what we believe as conservatives. It just seems like the vitriol has gotten so high that only if it serves you, we don't like mandates unless it's a mandate we like. That's not a very good response. And by the way, the left is no better.

The rhetoric on this has to be turned down. Carolyn's calling from Texas on Line 6. Hi, Carolyn.

Hi, Jay. So my comment was thank you for being the voice of reason on this. You usually are. I watch things blow up, and you guys, you stay calm. You're like, okay, this is what the law is. This is how the government works. This is how we can fight it. This party is insane. You're always the voice of reason on that. I appreciate that, because there's a lot of places you can't even have a conversation anymore. It's gotten out of control.

Well, we're glad that we can have, first of all, appreciate you calling in. And we're not in the position because we're not medical experts to say what's the best medicine, what's not the best medicine. I'm just saying some of these arguments being made just don't make a lot of sense.

You make the decision yourself. Because I know a lot of people say, well, the FDA hasn't approved the vaccine. So that's a legitimate argument of not mandating it, certainly. Or if you decide you're not going to take it. I will say on the other hand, there's medicine when you're in the hospital with this horrible illness, that those medicines haven't gotten FDA final approval yet either.

But you're taking them because you want to stay alive for your family, for yourself. So, I mean, this is where it's not – some of this is not rational thought. Because the vitriol has gotten way too high. If we can – and it goes back to a little bit – you made an interesting statement, Wes, on the critical – I'm tying both the critical race theory and the medicine because, you know what, it's back to school.

And kids are facing this. What the United States is. Yeah, the 1619 Project and the critical race theory proponents, they say categorically that America is systematically racist. That as a country, we are racist and there may be a few anti-racists in it. In fact, the opposite is true. America has taken a stand, and especially in the last 40 or 50 years, we are an anti-racist nation. And yes, we have some racists in it.

So it's just the opposite of what they're teaching. What's lacking in a lot of this conversation, Jay, is what I said before. And that is gratitude, forgiveness, and humility. Gratitude because we live on the greatest nation on the planet.

Forgiveness for the way our perceived wrongs against us, the way we have mistreated other people, certainly forgiveness for the weaknesses of our founders, but also humility that we don't have all the answers. Right. We don't have all the answers. Washington doesn't have all the answers.

The state of Florida or Illinois, just because those two came up, don't have all the answers. That's what government's about. You don't always have the answer. It's representative government. We try to kind of do the best we can with the facts as we have them.

I mean, that, Harry, is how a representative republic works. I think that's true, but I also would echo the caller's comment that it's very difficult to have a rational conversation, in part because the temperature is so high. And we started out with a lot of COVID fear because COVID was not fully understood.

Number one. Number two, we had advisors, particularly at the federal government, who would assert with great confidence that a particular approach was backed by the science, and we now know that's untrue. But I would echo- We also said they also, the same experts said it was created in a wet market in China, and we now pretty much know that that was not the case. But I would echo what Michael Oosterholm says, and he is an advisor to the current President on COVID. And he would say what is missing, what is lacking, and this echoes what Wesley has said, is humility. And so humility at the federal government, humility at the state government from the governor's office, humility at the local level that we don't have all of the answers, but what we've had is basically a one-sided conversation dominated by left-wing media saying that this, there is only one approach that works. And so I think that is one of the real issues out here. There's a lack, if you will, of diversity of opinion being expressed, and so people then go to their corners and they are willing to come out fighting. Let's go to Earl, who's on Line 4 in Wyoming.

Earl? Yes, if you are designating local control for the mask mandate, you must allow local control for critical race theory. The Constitution set up the states as experiments for each state. Pennsylvania was a Quaker state. There were state religions at the time of the Constitution put forth. Yeah, but then when the Bill of Rights came, that no longer could really be the case.

But go ahead. The state can mandate what is taught within that state and the state controls of standards. Do you really want that to be the case? Can I ask you a question, Earl, honestly? That is the case.

Earl, let me ask you a question. Do you really want it where the state can mandate everything in the curriculum? The state does mandate everything in the curriculum. They have state standards in every state in the nation. State standards. But individual curriculum decisions are made by the curriculum committee of the local school board.

Against the state standards. So if a local school board wanted to teach critical race theory and the parents did not remove that school board, you know, you can't outlaw – I mean, this is where it's – I think you've got to – why do we think that the legal system is the only way in which, Andy, you resolve these disputes? When you've got these issues, we should be doing exactly what we're doing on this broadcast, pointing out the flaws of critical race theory, which we're going to be doing a lot over the next coming weeks. And then I don't think you have to allow – I mean, it's fine that they're passing these laws, states saying you can't teach critical race theory. But what if some legislature said you can't teach something that you want them to teach? I mean, this is where it gets very, very dangerous.

Let's attack the fundamental, why it's wrong. That's what we used to do. Not everything is run to court, even though we all make our living running to court. But not every – sometimes it's in the policy room, Andy.

Well, that's right, Jay. You know, we in America have become so litigious that every time you look at us in a way that we don't like the way you looked at us, we run to a federal court or a state court and we scream that our civil rights have been violated. Instead, we should be talking about policies. This critical race theory is, in my view, in my personal view, a horrendous idea. It is, as Harry Hutchinson has clearly pointed out, and this is what really impresses me, a religion without forgiveness. Think about that. It is taught as a religion in which there can be no redemption and no forgiveness whatsoever.

Why don't we discuss that sort of thing on a policy basis and stop saying we're going to run to court if someone mandates it? Do you want a religion that does not allow for forgiveness? Imagine Christianity. If you had Christianity and there was no idea of forgiveness, you have no Christianity because we're all sinners and we all are to be forgiven by God. That was the idea that Christ preached and that was the idea that we espouse as Christians. Critical race theory condemns that. So here's the point, and we're going to stay live because I've got a question I want to talk to Harry about regarding this theory because it came up in its, I'm not going to give school names, but it came up in schools that I'm familiar with where the parents said, we're not going to have this, and you know what ended up happening? They didn't have it because they were educated on what the issue was. That's a lot of what has to be done here.

You want to litigate it for two and a half years while your child's in school? Or do you want to get it resolved quickly so you understand? And we're going to teach you what it is and how to respond to it. We're going to be back with more, including your phone calls at 800-684-3110. We actually have a line open first time today, 800-684-3110. Back with more in a moment.

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Give a gift today online at ACLJ.org. Alright, I'm not even going to let the bumper music play. We're going to go right to the phones.

800-684-3110, Sunday's calling in Indiana. Sunday, you're on the air. Hi. Hey.

Thanks for having me on. Sure. My question is about mask mandates. Yeah.

How does it apply if the school boards aren't actually getting the information and the mandates on their own, but because the CDC and the health departments are telling them to do it? Let me give you a little secret here. Let me tell you where a lot of this is coming from. Andy will know this because he represented the Insurance Authority. It's coming from the insurance companies, too.

Don't kid yourself for a minute, I mean, Sunday. Really, it's a good question you ask. So, the CDC has been kind of hit and miss on this, let's be honest, to say the least, even under the previous administration. I mean, stuff came out. It was going to be a two-week, you know, we're going to lock down for two weeks and this thing's going to dissipate and, you know, I think it helped.

I can't quantify it. But the insurance companies, which we live in a free country, by the way, so the insurance companies do have a role in this. The insurance companies are also saying, you're seeing a lot of concerts cancel right now. Some of it the musicians are sick, some of it the insurance companies are saying, eh, risk, reward, too much exposure.

Andy? Yeah, you're absolutely correct. I represented the Georgia Insurance Commissioner for years and years and insurance companies are just saying, we're not going to expose ourselves to the possibilities of that kind of liability and those kinds of payouts, so we're simply going to walk away and we're not going to underwrite the risk. You don't underwrite the risk.

The risk doesn't take place. The event is canceled. A lot of that is happening right now.

We're taking your calls 1-800-684-3110. We're also taking five Facebook comments. Joni on Facebook said, I'm a conservative, but I wear a mask to protect others. It's not that hard for people to do.

It's common courtesy. You know, Joni, I went, my wife and I went into a store yesterday and we've both been vaccinated and we put on a mask, too, because there were other people in there and I don't know how this variant's going. I've got a brother that's very, very sick with COVID and hospitalized and we think it's, for us it was, I just don't find it to be a constitutional issue and people screaming over a mask. I just don't, I just think it's bad for the Republic.

Let's take Jensen's call in New Mexico. Hi. Hey. I just have a quick question. Sure.

I'll give you a quick background real quick. We have, I live in New Mexico, southern New Mexico. Yes. And most of our school districts are very small and very rural. Yep. And one of our very small rural school districts had several meetings with parents and the school board decided to make masks optional with 100% backing of the parents.

Okay. Our state New Mexico public, Public Department of Education is unelected. They're appointed bureaucrats. They stepped in and suspended that locally elected school board. Yep.

I'll worry about that. Yep. We tried. We tried to possibly be constitutional for unelected bureaucrats to suspend a local school board that way.

I'm with you. And then they said they're going to give them a hearing. Well, the person overseeing the hearing is going to be appointed by the PED who are, so we have another unelected person being elected by a board of unelected people. And that person is going to decide if the elected school board has a case or not. Now, how is that fair and how is that constitutional and what can we do about it? And the difficulty is, we talk about this on the federal level, separation of powers, and we talk about bureaucrats running our government.

It's unfortunately not that much different at the state level except for the fact that you have more direct input. Now, I would find it constitutionally suspect that the duly elected school board of the county could just be thrown out because the State Department of Education doesn't like a decision they made. Especially, Harry, without a hearing.

Absolutely. And the hearing that Jincie's talking about is an administrative hearing. It's not what we would do as a court hearing. So there are two issues.

First, what we have in the United States, and it's very, very pernicious, is a capitulation or surrender to experts and expert opinion and basically taking authority away from democratically elected representatives. The other thing that's going on is something called snark. Snark essentially is elites, generally upper middle class, who look down on people who live in flyover country, live in rural areas. They don't know what's going on.

That's the perception. And basically they like to come in and tell these individuals, these quote unquote deplorables, what to do. And so here you have an absolutely perfect illustration of what you have been talking about throughout the program on allowing local authorities to make the decision with the input of the parents. And basically the state capital intervenes and says, no, we don't believe you're qualified.

You lack the expertise. And that I think is a huge problem. And if you thought the policy, if a policy came out that the school board made locally that you disagreed with, there's a way to challenge it besides elections. So let's say they said, you know, we're going to suspend any student that participates in a Bible club. That's a local school or policy.

We're not giving them a pass either, by the way, okay? There's still representative government. So what do you do?

You sue them because the policy is unconstitutional, violates freedom of religion, freedom of association and freedom of speech. Dominic from Connecticut, you're on line three, Dominic. I'm sorry. I can't hear you there. We're going to go to Sue Ann in Maryland.

Hi Sue Ann. Yes. Yeah. Okay. Thank you.

Appreciate what you're doing. My comment is that mandate really are not law and we do. I fully agree that should be resolved at the local school board level, but I want to suggest that we have to practice this argument. We don't do the argument, any service by focusing so much on the word mandate. We've allowed to radical governors to lead the whole country into thinking that they can change things by quote mandate. We don't, our country operates on a wall by the legislative department, not executive department governors who decided that we're going to do a mandate.

I completely agree with you that we have conflated, the country has conflated mandates with law, executive orders with statutory orders, and it's conflating the entire judicial process. The problem here is, and if we don't lower the rhetoric volume and you know, we talked about critical race theory and shaming kids. If you decide to wear a mask, you should not be shamed for it. Nobody should be in your face screaming at you about it. If you decide not to wear a mask, okay, that's your decision. If I decide because you're not wearing a mask, I'm not comfortable being where you are. That's also my decision. So I don't think, you know, and by the way, private, like the airlines, could they, could an airline mandate a mask? You bet.

They're a private business. This is a health issue that has become a national issue, which is testing our commitment as people to our form of government. That's not an unhealthy process. No, but I don't, Andy, we got to tone it. It's got to be toned down, has to be toned down. Yeah. The rhetoric has to be toned down and we need to start having the conversation that we're having right now. Look at the structures, a constitutional republic, local control of education, local decisions regarding curricula and regarding policies of children should be made locally. That's the framework that we need to be talking about.

Yep. The fact of the matter is not all four of the four of us you've heard talking today, we don't agree on everything on all this, but we talk about it. We don't, we don't criticize each other. We're not holding signs up and say, you can't come on the air unless you say this. But if I was a private airline and said, you know what, you're going to fly on my plane, you're going to, you're going to wear a mask, guess what they get to do? Make that decision or don't fly on their plane. So if a local school board says no mask, wear masks optional, and you don't like it, well, then get a new school board or go to a private school because they're not going to be able to tell the private school what to do either on that.

I mean, this is part of what representative government is. We'll talk to you tomorrow. At the American Center for Law and Justice, we're engaged in critical issues at home and abroad. For a limited time, you can participate in the ACLJ's Matching Challenge. For every dollar you donate, it will be matched. A $10 gift becomes $20, a $50 gift becomes 100. You can make a difference in the work we do, protecting the constitutional and religious freedoms that are most important to you and your family. Give a gift today online at ACLJ.org.