By Glenn Rolfe

GEORGETOWN — Divisive public opinion of Delaware’s masking mandate is reflected in results of Indian River School District surveys.

Presented Monday during IRSD’s monthly board of education meeting, nearly 50% of 8,255 responding parents and guardians said face coverings should be optional for students and staff.

In addition, half of the 1,415 staff who responded believe masks should be an option, not a mandate.

On the flip side, 46.5% of the parents/guardians who responded want face coverings to remain during the pandemic. For staff, it was 46.1% in support of continuing the rule.

The results come as Gov. John Carney’s mandate has been extended into February and as IRSD weighs options should the district challenge it.

One scenario — making masks optional in the district after the state mandate ends — was proposed during Monday’s meeting. However, the motion failed to gain a second and was not voted on.

Last week, the governor formally issued regulations extending the emergency masking requirement in public and private K-12 schools until Feb. 8.

“That is a continuation of the previous extension, which was 120 days. This new extension is an additional 60 days,” said IRSD Superintendent Dr. Jay Owens. “Now, this will remain in effect … until Feb. 8, and at that point, the board would need to look at whether we continue with masking or whether it would become optional, barring any kind of continuation of any kind of emergency order at that point.”

Public comments over the past several months have been punctuated by pleas from some parents urging the board to enact local control with an optional mask rule. Meanwhile, some speakers have supported continuation of masking.

At Monday’s meeting, IRSD board president Rodney Layfield motioned that, effective when the mandate expires, the district “allow options to our students to wear masks.”

Dr. Owens interjected: “Barring any kind of extension (by the state).”

Mr. Layfield’s motion drew response from board member Gerald Peden, who expressed concern about possible consequences should the board go against the state regulation.

“Before we make a motion and approve or decline that, I think we should follow the due process. We don’t know what type of penalties that would be imposed on us,” he said.

Through research, Mr. Peden said he found out that “if we don’t adhere to a mask mandate, there could be lawsuits, fines and even jail time. I asked an attorney, how likely is that? And they said probably very unlikely.

“I said, ‘What would be a likely circumstance?’ They said we could very likely lose our sovereign immunity. If we lose our sovereign immunity, each one of us would be liable for any lawsuit,” said Mr. Peden. “There is no protection for board members. If we approve faulty playground equipment and a child gets injured, we could be liable.”

Mr. Layfield addressed Mr. Peden’s worry, noting that sovereign immunity would come into play only if the board violated a state mandate.

“Sovereign immunity protects us from personal litigation. If we violate the mandate of the governor, between now and Feb. 8, yes, our potential is there to lose our sovereignty,” said Mr. Layfield. “However, Feb. 8 is scheduled right now (as) when the governor’s mandate is to conclude and expire. A motion is on the table to, (at) that time, … allow for option. The only way those options could lead us to losing our sovereign immunity would be (if), in some way, shape or form the governor or the state of Delaware is able to extend that mandate, and we have given the option to students. We have time to correct or amend at that time.”

He continued, “But I agree with you. There is a consequence to violating the governor’s mandate. There is no regulation governing Feb. 9, after the governor’s order expires.”

Mr. Peden suggested learning more about those consequences prior to voting on the mask-optional motion.

He added, “For disclosure, the attorney that I spoke to is a client of mine that practices in the state of Pennsylvania. So Delaware law is different. That is why I would like to follow through with a prudent process and find out what the consequences would be in the state of Delaware.”

Mr. Layfield’s motion died for lack of a second, and the board plans to revisit the issue at its next meeting in January.

“I think it would be very prudent for us to probably explore this with our attorney,” said board member Dr. Heather Statler.

Absent from Monday’s meeting were board members Derek Cathell, Dr. Donald Hattier and James Fritz. Dr. Hattier and Mr. Fritz have repeatedly spoken out in opposition to mandatory masking in schools.

Dr. Hattier said that, because an immediate family member tested positive for COVID-19, he closed his chiropractic office this week and did not attend the board meeting.

“With things that are happening, while I do believe that it is overblown, I do not believe in taking chances either,” he said.

Survey says

The three-part survey included emails and phone calls Dec. 2-13.

One survey included parent/guardian responses, counting every student in the house.

A second poll recorded each parent/guardian just once, regardless of the number of the children in the household. Those responses totaled 5,569.

The third questionnaire was for staff.

Mr. Layfield asked Dr. Owens about his take on the surveys’ accuracy.

“How confident are you in these numbers, that we have a good reflection of … our parents in the district and those of our staff?” Mr. Layfield said.

Dr. Owens replied, “Speaking to staff, this is an overwhelming response, when you look (at) 1,415. That is an excellent response rate in my opinion. Of course, we’d like to have a few more (parental answers), but this is a large portion of our population. I think that we accurately captured what we wanted to capture based on the results here today.”