Over the last few days, I’ve seen a number of people suggest that there’s something intrinsically “unconservative” about Governor DeSantis’s decision to bar mask mandates in every school district in Florida. The case made in defense of this proposition seems to be two-fold. First, that DeSantis is “interfering” with local schools by setting a statewide rule. Second, that by barring a mandate, DeSantis in effect setting a mandate.
Neither of these arguments is correct.
The core unit of political organization in America (which is also known as the “United States“) is the state. It is not the federal government, which was the creation of the people, which has limited powers in a few enumerated areas, and which left the states intact; and it is not the local counties within the states, which are creations of the state and can be preempted at any point and for any reason. By design, the states are in primary control of areas as meaningful as criminal law, education, zoning, transportation, agriculture, energy, taxation, and industry. As such, it is a mistake to assume that the same relationship applies between the states and the localities as applies between the federal government and the states. As a prudential matter, it is often a good idea for state governments to defer to the wishes of local communities, just as, when they are drafting laws and regulations, it can be appropriate for statewide officials to leave space for any meaningful differences that might exist. But, unlike the federal government, state governments are not obliged to do this by either law or tradition, which means that determining what qualifies and what does not qualify is a political rather than a constitutional question. (This is why, for example, the federal government’s Obamacare mandate was a big legal problem, whereas Massachusetts’s individual mandate, while a terrible policy, was not.)
This brings us to the second critique, which is that, as a political choice, there was something wrong with DeSantis’s decision to set a statewide policy for masking in schools. Frankly, I consider the claim that to bar mandates is in effect to impose a mandate to be sophistic nonsense — not least because by complaining that the Florida regulation “takes away” the power of schools to set their own policies one is obliged to concede that it hands that power directly to parents. Certainly, one can reasonably argue that Florida has got the balance wrong, and that school boards, not individual parents, are better placed to make this call. But one cannot credibly argue that Florida has “restricted” choice. It hasn’t. It has allocated choice. Florida had three options. The first was to set the substantive policy for every school and every student (no masks or mandatory masks). The second was to allow each school to make that determination. The third was to let parents decide. By going with the third option, Florida handed the decision to the smallest possible unit: the individual.
Was this the right call? Substantively, I happen to think so, yes. There’s no good evidence that masking children does anything useful, let alone that mandating masking does, which makes this issue a good candidate for personal choice. Clearly, the current problem in Florida and beyond isn’t that children are contracting COVID, but that the combination of a new variant and the millions of people who have declined to get the vaccine has caused a temporary spike in infections. Still, people of good faith can disagree about that — and do — and the fact that they can underscores that, for once, this is not a process question but a policy question that deserves to be treated as such.