These new anti-mandate measures are now facing court challenges of their own. Some of the claims argue that officials have violated the authority given to localities under the state constitution. For example, an Arkansas judge last month ruled that the state’s ban on mask mandates infringes upon the powers granted to local and judicial officials under the state constitution. More recently, the Texas Supreme Court allowed a lower-court decision blocking Abbott’s ban on mask mandates in schools to remain in effect pending further litigation, and a Florida circuit court ruled that Governor Ron DeSantis lacked the power to bar school districts from mandating masks in public schools.

The most interesting cases to date, however, have been brought on behalf of children with disabilities who claim that the anti-mask measures violate federal laws prohibiting discrimination against people with disabilities. The theory is that by failing to allow schools to take reasonable steps such as mandating masks to make schools safe for children who are at high risk of complications from COVID-19, the states have violated students’ civil rights. The Biden administration appears to endorse this view. Recently, the Department of Education has begun an investigation into whether laws restricting mask mandates in schools in Iowa, Oklahoma, South Carolina, Tennessee, and Utah violate the rights of students with disabilities.

By focusing on students’ rights to be safe at school, this new round of litigation seeks a very different type of freedom than plaintiffs sought in the earlier round. Now, instead of demanding the freedom from health measures, plaintiffs are seeking the freedom that, in a pandemic, only health measures can provide.