Is going to class without a mask a right? Can parents decide that their children access an educational center where this element of protection is mandatory due to the health context? The case of the two students from a public school in Cáceres whose family refuses to wear a mask to go to class has put on the table a hypothetical conflict between the right to education and the right to health, after the Junta of Extremadura has decided, due to this matter, to prevent the entry of students without masks in any educational center of the community supported with public funds. The case of these 3rd and 5th grade primary school students is already in the hands of the Juvenile Prosecutor’s Office. Another similar case has been registered these days in a public school in Mallorca, in which two students have refused to put on the mask and their entry has been banned.
The professor of Constitutional Law at the University of Extremadura, Gabriel Moreno González, assures that in this case there is no collision between two fundamental rights, education and health, and that they are “absolutely compatible” because the parents of the minors have not argued other rights that may be violated by forcing them to wear masks. “There could be health, religious or conscientious objection reasons,” he explains, but this is not the situation.
In his opinion, this is the main reason why the norm of the center should prevail, since it is the one that ensures the protection of both fundamental rights. If this regulation is not respected “what we are talking about is the refusal of two citizens to comply with a regulation, which entails an administrative sanction or the opening of the judicial process”, which could even reformulate parental authority.
The interest of minors
Moreno González emphasizes that the best interests of minors must be taken into account, which is above that of their own parents, so he considers that the most “sensible” thing to do is to go to court because the right not to wear a mask does not exist , but its use is a duty that is included in a norm and in the law. By not having adduced other rights that could be violated, “it is as if the norms of a center regarding the uniform are violated”, he affirms. A “more complicated” case would be vaccination, since the right to physical integrity would come into play.
In similar terms, the juvenile prosecutor who will investigate the case, Yolanda Forte, has pronounced this Thursday. Although she has specified that so far she only has the information that has reached her through the media, the prosecutor has insisted that education is a fundamental right and the interest of the two minors must be protected.
Forte recalled that in several cases “in which an intentionality or intentional abandonment of parental duties of the parents or guardians can be verified, a complaint has been made for abandonment of the family.”
But the family strongly rejects the use of masks. So much so, that the Secretary General of Education of the Junta de Extremadura assured on Wednesday that an attempt had been made to initiate a mediation process that has finally been impossible, which has motivated the entry of the case in the judicial process.
Class between partitions
The lawyer for the parents of the minors, Francisco de Borja Gómez Martínez-Fresneda, related to the denialist and anti-confinement group “Police for freedom”, has explained to elDiario.es Extremadura that the imposition of wearing a mask “for eight hours at day is an attack against the health “, especially of the children, who are” the victims of this circovid [sic]”.
The lawyer has assured that he does not know the beginning of the judicial process by the Junta de Extremadura and has assured that, after rejecting the option of separating the girls from the rest of the students so that they receive individualized training, the family asked the center to take the appropriate measures to avoid this “discrimination.” Among the options that he has proposed, that they attend class separated from the rest of their classmates by screens or that they place them next to the classroom windows.
In recent days, Vox has announced that it will present initiatives to ask communities to stop masks from being mandatory in schools for children under 12 years of age. This age group is the only one for which a vaccine has not yet been approved in our country and, although cases of serious disease among girls and boys are less frequent, the lack of protection can make them more susceptible to becoming vectors of infection. .