The Volokh Conspiracy

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Youth Sports Mask Requirement Is Constitutional


From Let Them Play MN v. Walz, decided yesterday by Judge Eric C. Tostrud (D. Minn.):

This case concerns the state of Minnesota's decision to require youth athletes to wear face coverings while participating in organized sports activities and to limit spectators at organized youth sports events, both in an effort to limit the spread of COVID-19…. In this lawsuit, Plaintiffs claim that the face-covering requirement and spectator limits violate their rights under the Equal Protection Clause …. {Because Plaintiffs have identified no fundamental right, and because the challenged restrictions likely satisfy the rational-basis standard, Plaintiffs are not likely to succeed on the merits of their substantive-due-process claim[, either]…. [A] "rational basis for equal protection purposes also satisfies substantive due process analysis."}

In the absence of a suspect classification or a fundamental right, the rational-basis standard applies. Under that standard, a challenged state law will be upheld as long as it is "rationally related to a legitimate government interest." Plaintiffs do not seem to dispute that Minnesota has a legitimate interest in controlling the spread of COVID-19, and it is hard to see how they could. Instead, Plaintiffs argue that Minnesota's youth-sports restrictions are arbitrary and irrational in relation to that interest.

Rational-basis review sets a low bar. The challenged law is presumptively valid, and a plaintiff can only overcome that presumption by showing that no "reasonably conceivable state of facts" could support the law. A challenged law may survive even if it is both overinclusive and underinclusive in advancing the asserted interest, and even if it is based on "rational speculation unsupported by evidence or empirical data." Moreover, the state decisionmakers' "subjective motives" for imposing the challenged restrictions are "irrelevant for constitutional purposes." In other words, under these long-settled principles, it doesn't matter whether Plaintiffs have the better policy argument. The question isn't whether the state has made the best decision. The question the law requires us to answer is whether the challenged policies have some rational basis.

Under this standard, Plaintiffs have not shown that Minnesota's face-covering and spectator requirements likely violate the Equal Protection Clause. In the preamble to EO 21-01, Governor Walz acknowledged that the state was facing a "challenging balancing act." EO 21-01 at 2. He concluded that restrictions like the ones that Plaintiffs challenge were necessary because lifting the temporary ban on certain activities, like youth sports, would increase the risk of COVID-19 transmission. He described his reasoning for that conclusion in some detail:

"[S]ome settings continue to pose more risks than others. Indoor activities pose higher risks than outdoor activities. Strenuous activities resulting in increased respiration pose higher risk than sedentary activities. Unpredictable settings are riskier than more predictable and controlled settings. Settings conducive to prolonged contact provide more opportunity for transmission than settings featuring more transitory interactions."

Based on the whole record in this case, it is perfectly reasonable to conclude that youth sports—which often involve sustained close contact, physical exertion, and large groups of spectators—would pose a risk of transmission. According to Defendants' evidence, sports have been associated with multiple COVID-19 outbreaks throughout the country. In Minnesota, MDH has "traced at least 334 outbreaks and 10,207 positive COVID-19 cases to sports activities" and found that "[s]ports-related cases are more than twice as prevalent among high school-age children as any other age group[.]"

It is also reasonable to conclude that the face-covering and spectator restrictions would lessen this risk. Social distancing is a basic recommendation for limiting the spread of COVID-19. The American Academy of Pediatrics has specifically recommended that children wear face coverings while playing sports, and a recent nationwide survey found that the use of face coverings was associated with decreased COVID-19 infections in high-school athletes, at least for indoor sports….

To be sure, Plaintiffs present another side of the story with their evidence. They have submitted affidavits from multiple individual physicians opining that it is not safe for children to wear masks while playing sports. The concern, according to these sources, is that masks could hamper an athlete's breathing, leading to dizziness, hyperventilation, and other negative effects. Or they could obstruct an athlete's vision, increasing the risk of collisions and related concussive injuries.

Plaintiffs provide anecdotal evidence, including videos, to show that some of these injuries may already have occurred. Plaintiffs also emphasize the significant physical and emotional benefits of participation in youth sports, and with their Complaint, they included a summary of a Wisconsin study finding that "participation in sports is not associated with an increased risk of COVID-19[.]"

All of this evidence shows that Plaintiffs have a reasonable, good-faith policy disagreement with Minnesota's approach to combating COVID-19 in youth sports. But their disagreement is ultimately a political one; it does not show that Defendants likely violated the Equal Protection Clause.

Seems legally quite correct to me.