The dispute over mask mandates and vaccine requirements is an example of a fundamental debate that is going on in this country. Which is paramount: an individual’s right to choose or the government acting on behalf of the society at large? The answer should depend on the situation. When the behavior only affects the person engaging in the conduct, that is the strongest argument that an individual’s right to choose should be unfettered. There are exceptions to this rule where government has the right to regulate it. For example, the seat belt law applies even when a person is driving alone. Also, possession of narcotics is prohibited under the penal law even if the person only plans to use it for themselves.
On the other hand, when the conduct affects others beside the individual engaging in the activity, the individual’s right to do what they want is superseded by the rights of society.
For example, the NYS penal law criminalizes conduct which is directed toward or could affect another person. Likewise, there are laws relating to an individual operating a motor vehicle, such as drunk driving, speeding, etc., which restrict the driver’s personal freedom to operate a motor vehicle.
Mask wearing and vaccines involve issues of public health and public safety. Public health and public safety have traditionally been governmental functions. At one time, there was less government involvement. However, because of some horror stories, it became clear that the government could not rely on private industry or individuals, and had to step in to protect the public. Notable examples include fire and workplace safety laws after the Triangle Shirtwaist Factory fire, and food and drug regulation laws after the public outcry from the novel The Jungle by Upton Sinclair about the conditions in the meat-packing industry.
Public schools have traditionally been regulated by the government. Private schools also are regulated. For example, the government can mandate that a child has to be vaccinated for certain diseases if they want to go to school. A few years ago, New York changed the law to prohibit exemptions for religious beliefs. The logic is that it is important to protect the health and safety of the children who are in the schools; they do not want the children catching a disease from other students. Likewise, the school has the right to send sick children home even though the parents would want them to remain in school. In New York, a parent’s failure to have the child vaccinated, which results in the child not going to school, has been determined to constitute neglect as defined in the Family Court Act.
Therefore, if there was a vaccine for COVID-19 that has been approved for young children, the government would have the right to mandate that the children take the vaccine to be allowed into school. Likewise, the government has the right to require students to wear masks while in school. If a child has COVID or is exposed to COVID, the school has the right to send the child home or force the child to remain at home until the situation changes. A parent can disagree and express their opinion on any of these issues. However, the government makes the ultimate decision.
It is unfortunate that certain elected officials, such as the governors of Florida and Texas, have decided to play politics with students’ health by prohibiting school districts from instituting mask mandates based on the idea that it should be up to the parents. There is no legitimate reason why dealing with COVID should be left to the parents while every other serious, communicable disease is regulated by the government. On the other hand, there are courageous school boards in both states who have decided that the protection of the health of the children under their care is sacrosanct, and they are willing to go against their governor and require mask mandates. These individuals are subjecting themselves to financial loss and other sanctions. Their courage should be commended.
Public Health, public safety, and management of the schools are traditionally governmental functions. The needs of the many - i.e., the public - override the desires of individuals. Regulating conduct to stop the spread of COVID-19 is just another example of this idea. Those who claim parental rights need to get this message.
Warren S. Hecht is a local attorney. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it.