The CDC. Part One.

The US Center for Disease Control, the CDC, is often the “go to” source for policy guidance.

As we have seen over the past few years, the CDC has been less than truthful and statements from the agency have been based on bad or non-existent data.

The problem is that as the impact of COVID grew, the CDC took on a role of that of the legislative branch and seems to think that it can make and enforce laws.

The first and second instance of this was the eviction moratorium the CDC issued. The CDC initially issued an eviction moratorium which the Supreme Court said had to end in July. The CDC then issued another moratorium which the Supreme Court overturned effectively saying, “we’ve been down this path before. It was wrong then and it is wrong now.” The Court overturned that moratorium saying:

“It is indisputable that the public has a strong interest in combating the spread of the COVID–19 Delta variant. But our system does not permit agencies to act unlawfully even in pursuit of desirable ends. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 582, 585–586 (1952) (concluding that even the Government’s belief that its action “was necessary to avert a national catastrophe” could not overcome a lack of congressional authorization). It is up to Congress, not the CDC, to decide whether the public interest merits further action here.”

Now the Department of Education is stepping out of its lane and has announced that it is suing five states whose governors implemented mask bans in schools.

The DOE sent letters to education officials in Iowa, Oklahoma, South Carolina, Tennessee, and Utah stating the bans “may be preventing schools…from meeting their legal obligations not to discriminate based on disability.”

The statement from Secretary of Education Miguel Cardona reads, in part:

“The Department has heard from parents from across the country – particularly parents of students with disabilities and with underlying medical conditions – about how state bans on universal indoor masking are putting their children at risk and preventing them from accessing in-person learning equally,” U.S. Secretary of Education Miguel Cardona said in a press release.

“It’s simply unacceptable that state leaders are putting politics over the health and education of the students they took an oath to serve. The Department will fight to protect every student’s right to access in-person learning safely and the rights of local educators to put in place policies that allow all students to return to the classroom full-time in-person safely this fall.”

The statement went on to further address other states, including Florida:

[U.S. Department of Education’s Office for Civil Rights (OCR)] has not opened investigations in Florida, Texas, Arkansas, or Arizona because those states’ bans on universal indoor masking are not currently being enforced as a result of court orders or other state actions. Due to these rulings and actions, districts should be able to implement universal indoor masking in schools to protect the health and safety of their students and staff. However, the Department will continue to closely monitor those states and is prepared to take action if state leaders prevent local schools or districts from implementing universal indoor masking or if the current court decisions were to be reversed.

There is a fallacy to the thinking there as our friends at Legal Insurrection explain:

Let’s look at Oklahoma since I live in Oklahoma City. The Education officials did not listen to Gov. Kevin Stitt or read the law. Read this slowly:

Stitt noted the law doesn’t prevent parents from voluntarily having their children wear masks or get vaccinated.

“The difference is, we’re not going to mandate that somebody else has to send their 4-year-old to school with a mask or someone else has to get their 4-year-old vaccinated,” he said.

In other words, your child can wear a mask if they want to or if the parents want their child to wear a mask.

The Iowa law says school districts cannot implement a law mandating masks. It does not say that a child cannot wear a mask even if they want to wear one.

Tennessee Gov. Bill Lee signed an executive order that gives power back to the parents. It allows them to opt their child out of any mask mandate passed by school districts.

South Carolina is the same way:

“Mandating masks is not the answer,” McMaster said. “Personal responsibility is the answer, common sense is the answer, and we have an abundance of both in South Carolina.”

McMaster continued to push vaccinations but said closing the state’s economy and schools is not an option. He also made it clear that it’s a parent’s right to decide if children wear masks in schools, saying state law is “crystal clear” that funds will not be used to enforce mask mandates.

“By state law, we are not going to have mask mandates in the public schools,” McMaster said. “We want to get the children back in the school and we don’t want to get a repeat of what happened last year.”

I guess the Utah law also doesn’t flat-out ban masks because some districts “are strongly encouraging at least unvaccinated people to wear masks inside school buildings.” The Salt Lake City district “already plans to encourage masking for vaccinated people as well.”

In other words, people can wear masks if they want to wear masks.

The Department of Education is relying on the CDC which says that masks are a good thing in schools:

At the end of May, the Centers for Disease Control and Prevention published a notable, yet mostly ignored, large-scale study of COVID transmission in American schools. A few major news outlets covered its release by briefly reiterating the study’s summary: that masking then-unvaccinated teachers and improving ventilation with more fresh air were associated with a lower incidence of the virus in schools. Those are common-sense measures, and the fact that they seem to work is reassuring but not surprising. Other findings of equal importance in the study, however, were absent from the summary and not widely reported. These findings cast doubt on the impact of many of the most common mitigation measures in American schools. Distancing, hybrid models, classroom barriers, HEPA filters, and, most notably, requiring student masking were each found to not have a statistically significant benefit. In other words, these measures could not be said to be effective.

In the realm of science and public-health policy outside the U.S., the implications of these particular findings are not exactly controversial. Many of America’s peer nations around the world — including the U.K., Ireland, all of Scandinavia, France, the Netherlands, Switzerland, and Italy — have exempted kids, with varying age cutoffs, from wearing masks in classrooms. Conspicuously, there’s no evidence of more outbreaks in schools in those countries relative to schools in the U.S., where the solid majority of kids wore masks for an entire academic year and will continue to do so for the foreseeable future. These countries, along with the World Health Organization, whose child-masking guidance differs substantially from the CDC’s recommendations, have explicitly recognized that the decision to mask students carries with it potential academic and social harms for children and may lack a clear benefit.

There are several problems with the CDC study, however:

The study published by the CDC was both ambitious and groundbreaking. It covered more than 90,000 elementary-school students in 169 Georgia schools from November 16 to December 11 and was, according to the CDC, the first of its kind to compare COVID-19 incidence in schools with certain mitigation measures in place to other schools without those measures. Scientists I spoke with believe that the decision not to include the null effects of a student masking requirement (and distancing, hybrid models, etc.) in the summary amounted to “file drawering” these findings, a term researchers use for the practice of burying studies that don’t produce statistically significant results. “That a masking requirement of students failed to show independent benefit is a finding of consequence and great interest,” says Vinay Prasad, an associate professor in University of California, San Francisco’s Department of Epidemiology and Biostatistics. “It should have been included in the summary.” “The summary gives the impression that only masking of staff was studied,” says Tracy Hoeg, an epidemiologist and the senior author of a separate CDC study on COVID-19 transmission in schools, “when in reality there was this additional important detection about a student-masking requirement not having a statistical impact.”

In addition:

After the CDC and the American Academy of Pediatrics issued their student-mask guidance last month, I contacted both organizations asking for the evidence or underlying data upon which they had based their recommendations. The AAP did not respond to multiple requests. The CDC press office replied that since children under 12 cannot be vaccinated, the agency “recommends schools do universal masking” and included links to unrelated materials on vaccines and a recent outbreak among adults. Over the course of several weeks, I also corresponded with many experts — epidemiologists, infectious-disease specialists, an immunologist, pediatricians, and a physician publicly active in matters relating to COVID — asking for the best evidence they were aware of that mask requirements on students were effective. Nobody was able to find a data set as robust as the Georgia results — that is, a large cohort study directly looking at the effects of a mask requirement. (The closest is a study published in Science, based on a Facebook survey, that was suggestive but not conclusive of a marginal benefit of student masking. )

Why won’t the CDC release the underlying data so it can be studied? One of the things that we hear all the time is that studies that show one thing or another that is contrary to the government’s message need to be “peer reviewed” and the data released so it may be studied. Yet the very study upon which schools are relying on mask mandates is not peer reviewed and the CDC won’t release the data.

Over and over, studies and reports on children in schools with low transmission rates claim in their summaries that masking students helped keep transmission down. But looking at the underlying data in these studies, masks were always required or widely worn, and implemented in concert with a variety of other interventions, such as increased ventilation. Without a comparison group that didn’t require student masking, it’s difficult or impossible to isolate the effect of masks. (This is the error made by Duke University researchers who wrote a report about North Carolina schools, later summarized in a New York Times opinion piece.) I reviewed 17 different studies cited by the CDC in its K-12 guidance as evidence that masks on students are effective, and not one study looked at student mask use in isolation from other mitigation measures, or against a control. Some even demonstrated that no student masking correlated with low transmission.

The data and recommendations of the CDC appear to be flawed, but there is no way to determine that because the CDC won’t release the data.

That should give people pause.

It should also pause the Department of Education from suing states, but it won’t.

In a blog post last week, Cardona said “the Department may initiate a directed investigation if facts indicate a potential violation of the rights of students as a result of state policies and actions.” He averred that students “may experience discrimination as a result of states not allowing local school districts to reduce virus transmission risk through masking requirements and other mitigation measures.” He added that “the Department’s Office of Special Education Programs monitors states’ implementation of the federal special education law that requires that students with disabilities receive a free, appropriate public education.”

Cardona is responding to an August 18 memorandum in which President Joe Biden complained that “some State governments have adopted policies and laws that interfere with the ability of schools and districts to keep our children safe during in-person learning.” Biden noted that “some of these policies and laws have gone so far as to try to block school officials from adopting safety protocols aligned with recommendations from the CDC to protect students, educators, and staff.”

Biden instructed Cardona to “assess all available tools in taking action, as appropriate and consistent with applicable law,” to ensure that “governors and other officials are taking all appropriate steps to prepare for a safe return to school for our Nation’s children, including not standing in the way of local leaders making such preparations,” and that “governors and other officials are giving students the opportunity to participate and remain in safe full-time, in-person learning without compromising their health or the health of their families or communities” (emphasis added (in original)).

The implication, again, is that the federal government has the authority not only to stop governors from “standing in the way of local leaders” but also to demand that local officials follow the CDC’s advice, even when they disagree with some of it. The CDC has decided that mask mandates are appropriate, for example, so every public school in the nation has to impose them. That is a remarkable assertion of federal supremacy in two areas—education and disease control—that have long been recognized as primarily the province of state and local governments.

“It’s massive federal overreaching,” says Hans Bader, a former senior attorney at the Competitive Enterprise Institute who also has worked for the Department of Education’s Office for Civil Rights. “Under Cardona’s logic, what would stop the federal government from forcing schools to have mask mandates forever, as a way of reducing the transmission of seasonal flu that could harm disabled students with health conditions more than healthy students, and affect minority groups with lower vaccination rates more than whites?”

Bader argues that “giving the federal government such expansive power to mandate masks would ignore Congress’s admonition that the Education Department should not usurp control of the ‘administration’ of America’s schools.” He also says case law does not support Cardona’s interpretation of Section 504 or Title VI.

We stated a few days ago that we disagreed with Governor DeSantis’ ban on mask mandates by school districts. We believe that local control and decision making is better than state control, and it is infinitely better than Federal control over issues such as this.

On Monday’s emergency meeting of the Brevard County School Board, many speakers and some representatives cited the CDC study in support of mask mandates. While well intentioned, we wonder how those same people would react knowing the CDC has been less than forthright on its studies and conclusions?

That is not to say that if the data and science supports mask wearing in schools that such a mask mandate should not be issued. What is being said is that there is rightful skepticism in the CDC pronouncements upon which people are making decisions.

Still, the primary problem in dealing with COVID and mitigating its spread has been the CDC and the desire of the Federal government to take over local and state decisions where there is no legal and lawful ability to do so.

The Federal government and agencies seem intent on lying to the American people and trying to force locals under the Federal thumb.

That force should be resisted.

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