Though there have been some attempts to challenge vaccine mandates as a violation of the U.S. Constitution, current legal rules make these challenges unlikely to succeed.

But what about a legal challenge that takes precisely the opposite approach? Is there a constitutional right to a mask mandate?

That’s the question raised by a lawsuit recently filed in Utah. A news report on the case explains that the suit has been brought by parents who are at increased risk if they contract COVID or whose children are at increased risk. The parents argue that recently approved state laws that prohibit the adoption of mask mandates infringe the children’s rights to an education. In other words, they say the children have a constitutional right that would have the effect of requiring at least some schools to enact a mask mandate.

Unlike the question of mandatory vaccines, the plaintiffs are not invoking the U.S. Constitution as the source of the right. That is not solely because the federal Constitution does not mention education, since it does not mention “bodily integrity” either. Where a proposed right is unwritten, litigants typically point to the term “liberty” in the 14th Amendment and argue that this term includes the concept they are arguing for – in this case, access to schools.

This option, however, has been precluded by the U.S. Supreme Court, which ruled in 1973 in San Antonio Independent School District v. Rodriguez that there is no federally protected right to education.

But in our federal system, that does not necessarily foreclose the argument. Many states have constitutional provisions requiring the state to provide an education or children in the state.

Utah’s constitution says: “The Legislature shall provide for the establishment and maintenance of the state’s education systems including: (a) a public education system, which shall be open to all children of the state.” The plaintiffs in the mask lawsuit focus on the language “shall be open to all students.” Their argument is that the schools are not really “open” to children with heightened vulnerability or whose parents are at high risk if the schools can’t require everyone to wear masks.

This is a novel argument. There have been cases in some states involving the right to an education, typically invoking concerns that schools in some parts of the state are well-funded and others are not. These suits, though, depend on very specific language, like a requirement that the school system be “uniform” throughout the state.

So, in the absence of specific precedent to support the argument, the Utah plaintiffs will have a couple of hurdles.

First, the constitutional language is broad, so the state could argue that other accommodations, like online access, satisfy the requirement that schools be open.

Second, Utah courts are hesitant to strike down laws passed by the Legislature when those laws are not clearly contrary to a specific constitutional provision. This typically means they will defer to the Legislature when it is making a judgment call about policy. This is particularly true where, as in this case, the request is for an affirmative obligation rather than removal of a hurdle. While a court might be willing to strike down a school mandate to say the Pledge of Allegiance, it would be unlikely to require the school to adopt a statement of inclusion that would be recited in its place.

Third, while there is a good case to be made that a mask mandate would be effective in protecting vulnerable people, it is hard to imagine a guarantee of safety, particularly with young children being the primary subjects of the regulation.

Finally, the courts might shy away from involving themselves in a range of policy decisions about how schools can be more accessible to students. Such questions could involve myriad health conditions (including people who have health reasons for not wearing masks), busing policies, etc. The principle of separation of powers implicated in some of the other considerations would be particularly relevant here.

This is not to say that the parents don’t have a valid concern. It is important to consider ways in which state or school policies might inadvertently create hurdles to participation to children who are at risk in various ways. Perhaps the schools of the children whose parents have sued could devise ways to facilitate the children’s involvement, such as voluntary masking or some other arrangement. It should not always require a legal order to figure out a way to do things in a more inclusive way.