The Carney administration, the Delaware Department of Education (DOE), and the Department of Health and Social Services (DHSS) have shot themselves in the foot again, this time over facemask mandates.
The DOE is proposing three permanent regulatory changes that would allow them to continue to impose the facemask requirements in Delaware schools and child care facilities indefinitely. The proposed rules appear in the current (October) issue of the Delaware Register of Regulations as: 815 (regarding public and private schools), and 933 & 934 (regarding childcare facilities).
These rules are already in place as emergency regulations, which have a limited lifespan, but could be kept in place until around Valentine’s Day. The three previously cited proposed regulations would replace the emergency regulations when they expire, should the administration wish to continue this aspect of its COVID-19 mitigation strategy beyond this point.
In an clarification email sent to all state legislators earlier today, the governor’s office maintained that since “the rule-making process takes several months” to complete, they had to act now “in order to preserve all options once the emergency regulations expire in February.”
That is not entirely true. The administration could have simply promulgated a second set of emergency regulations, immediately taking the place of the expiring first set. This would have also given them the option of allowing the facemask mandate to sunset, if conditions in February were to their liking.
What conditions the administration would find acceptable to rescind the mask mandate, no one knows. Neither the governor nor the DOE or DHSS have ever shared what metrics they would consider, and what thresholds would need to be met, in order to allow our kids, teachers, and school visitors to remove their face coverings.
The governor, the Department of Education, and the Department of Health and Social Services, did not apparently reach out to anyone regarding their plans to promulgate permanent COVID-19 facemask regulations. Legislators have received numerous phone calls and emails from school board members, parents, teachers, and school administrators that were unaware of the pending move. Instead of informing these stakeholders in advance and stating their intentions, the DOE and other members of the executive branch kept quiet, allowing some citizens to accidentally discover the proposals in the little-read Register of Regulations and spread the news.
Today’s clarification from the governor’s office stated: “The governor and his team have not made any decision to extend the mask requirement beyond February. It's also important to note that the administration can repeal a rule at any time. So as soon as conditions allow, the requirement will be lifted.”
This is true. A regulation can be rescinded on an emergency basis, before being permanently repealed using a more deliberate protocol. However, this statement from the administration misses the point.
The administration’s latest actions are yet another example of what we have seen throughout Delaware’s response to the pandemic. It is top-down decision making that shows a lack of respect for the citizens impacted by the policies being imposed on them, and a lack of trust in local officials to make decisions on behalf of the people they represent.
In my opinion, the emergency regulations should have been allowed to expire in February (if not rescinded earlier). Then, local school boards, parents, and school officials should have been empowered to evaluate conditions and collectively determine their next course of action.
Perhaps the DOE, the DHSS, and the governor were just -- as they have indicated -- trying to cover their bases and keep their options open. However, the ham-handed manner in which they have handled this has led to adding even more mistrust and suspicion to a situation that was already charged with an abundance of both. The executive branch could have finally, belatedly, shown some trust in its citizens instead of again forcing its edicts on them without their input, knowledge or consent.
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Citizens wishing to offer an opinion on the proposed regulations have until the close of business on November 1st.