Sixth Circuit

Sixth Circuit Takes Michigan COVID Mask Rule En Banc

The full court will consider the proper standard for judicial review of COVID restrictions in religious institutions.


This morning, the U.S. Court of Appeals for the Sixth Circuit granted a petition for rehearing en banc in Resurrection School v. Hertel, a challenge to a Michigan requirement that those 5-years-old or more wear masks in public indoor settings, including schools. A Catholic elementary school and parents with children at the school challenged the requirement on religious liberty grounds, but were denied a preliminary injunction.

The initial panel to hear the case concluded that the challenge was not moot, even though Michigan had rescinded the masking requirement, and rejected the challengers' claims on the merits. Judge Moore wrote for the court, joined by Judge Donald.

Judge Siler agreed with the majority on the question of mootness, but not on the merits. His brief separate opinion read:

I concur with the majority's conclusions on mootness, in part A of the opinion. However, I dissent on the merits on the primary issue, that is, whether the district court correctly denied the petition for the granting of a preliminary injunction.

I do not quarrel with the fact that the district court had the authority to deny the motion for preliminary injunction under the facts of this case, but it did not have the benefit of the more recent case Tandon v. Newsom, 141 S. Ct. 1294 (2021). It also did not have the benefit of the decision in Monclova Christian Academy v. Toledo-Lucas County Health Department, 984 F.3d 477 (6th Cir. 2020), which was handed down later in the same month that the district court made its ruling. Monclova held that in cases such as this, the court should look at all comparators, not just the public schools. Id. at 480. The district court here compared the restrictions in this matter with those followed in Commonwealth v. Beshear, 981 F.3d 505 (6th Cir. 2020). Yet Monclova is more consistent with Tandon than Beshear. The court did not consider other comparable secular activities beyond the public schools. I feel it is a mistake for this court to uphold the denial of the preliminary injunction on the interpretation from Tandon without giving the district court an opportunity to consider it in light of all the evidence before it. Therefore, I would remand to the district court to review the case in light of the decision in Tandon.

As Judge Siler's opinion indicates, there is some tension within the Sixth Circuit's caselaw on this question. Taking this case en banc will provide an opportunity for the court to sort out the doctrine within the circuit, and more closely align Sixth Circuit caselaw with that of the Supreme Court. I also suspect the grant indicates a majority of the court is unconvinced the original panel got the question right.

NEXT: Symposium on my Book, "Repugnant Laws"

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  1. The recent ohio study and the Fargo/morehead study shows virtually no difference in the infection rates between masked schools and unmasked school

      1. This is true in 67 studies reviewed in the Cochrane Review on masking. The sole effect of a mask is to identify the wearer as a Democrat douche bag. That is does with 100% effectiveness.

    1. linked to the frago ND/ Morehead MN study


        my mistake on the calling the ohio school data a study, it was only a presentation of the raw data in some school districts in Ohio

        1. Hey kids, it’s Jozo the Clown! He listens to the right wing echo chamber that got grampy and granny killed over the last several months! He’s got prizes and candy to brighten up your day!

          1. You are a servant of the Chinese Commie Party, and need to go to camp.

            1. Nope, Trump did a good job during Covid—the divergence happened in 2021 when Bush Republicans got back in charge and Bush Republicans screw everything up…and they love shipping jobs to China and slaughtering Muslims.

    2. Skip the limited studies and apply the simple physics and aerodynamics of aerosol transmission. Those argue to retain masking as a marginal benefit.
      AND keep all the windows in the school open. That will do more that masks improperly worn.

      1. Look at Louisiana’s infection rate—Louisiana got hit hardest of all states and now there are no mitigation measures in place and it has the lowest infection rate. The last of the Delta spread will happen over the next two weeks and nobody’s mind is going to be changed. It’s over in a month with the last of the spread in the next two weeks or so. Right now is too late to litigate this stuff because it’s all academic going forward.

        1. "It’s over in a month with the last of the spread in the next two weeks or so. Right now is too late to litigate this stuff"
          Well, my city has high vaccination rates (especially for oldies), low infection rates, low death rates, and OK hospital utilization but we still have a broad mask mandate (anywhere inside unless you're alone) with the end more than two weeks out, and that's only if it's not re-extended again. It was extended after Halloween because they saw high positivity rates. They didn't bother considering that high positivity rates on Halloween where we had a few dozen tests taken means that it was driven primarily by people who were really concerned about being sick, and thus not a representative sample. I hope for other places the end is in sight but here I think it'll continue through until next year.

          1. The data from 2021 shows masks clearly work and states that didn’t mask during Delta had a higher spike…I just think if a population isn’t masked right now the Delta spread is happening and there isn’t much that can be done about it by wearing a mask tomorrow. But look at these southeastern states that went through Delta—enough people have natural immunity and vaxxed immunity that it seems they have achieved herd immunity. So contrasting GA and NC and you see by not masking for a few more months that thousands died unnecessarily in Georgia…but either way it’s over in both NC and GA.

      2. "keep all the windows in the school open"
        No, it's cold outside.

        1. Wear sweaters. It's healthier to be cold and the virus spread is stopped or slowed.

          1. Check your nice weather privilege. It gets very cold and windy (and often snowy or rainy) in the Fall here.

            1. You're correct that eventually windows will have to be shut.
              As few schools will have had no ventilation made improvements during the summer. The winter will make masks more important rather than less.

        2. That is why god made sweaters. Get used to the cold.
          The Brits went without central heating for 1500 years and fared pretty well.

          1. They slept with their animals on composting piles of straw for heat. The Isles are also a nicer climate than where I (and many other Americans) live. Doubt many Brits had to deal with -20 degree weather (before wind) this February.

            1. To be sure you have to have the windows shut in mid-winter.

      3. The "simple physics and aerodynamics of aerosol transmission" demonstrate that masking of sick people reduces the transmission of disease to healthy people. There neither studies nor simple physical explanations to justify the masking of healthy people.

        I will concede that the fact there can be asymptomatic sick people could theoretically justify masking but the statistics do not bear out that measure. This is especially true in schools. Kids are not hurt by this disease and the teachers are already all vaccinated. (Or if the teachers are not vaccinated, by now that's an entirely voluntary choice.)

        1. " Kids are not hurt by this disease and the teachers are already all vaccinated. "
          You obviously have not read the statistics about long Covid. Also it is very clear from the experience of dozens of countries that high vaccination rates alone do not ensure that the reproduction rates stays below 1.0. One can look at Denmark for example or Chile (with over 80% fully vaccinated). Other prophylactic measures are and will be essential to prevent further surges in infection

        2. Lots of people do things (like go to school in the first place), though. I'm not sure how useful "if you're sick, wear a mask" is going to be.

          Studies on the prevalence of asymptomatic and presymptomatic spread are a bit all over the place. Some of the models suggest that a majority of transmission is presymptomatic, although that result looks like an outlier. Once you remove transmission within households, though, presymptomatic spread seems like it's a significant cause of spread. Certainly significant enough that you can't just pretend it's not a thing.

      4. Skip the limited studies and apply the simple physics and aerodynamics of aerosol transmission. Those argue to retain masking as a marginal benefit.

        There's a marginal benefit to wearing a helmet and full pads to class as well. But we don't mandate that.

        1. Now their is a stupid comment.
          The helmet and knee pads won't do anything to prevent infections.
          Shows what you know

          1. Knee pads are recommended in public schools for entirely different protective reasons.

      5. Simple physics models also show that T-shirts provide protection against gunshot wounds. But only an idiot would try to use one as armor.

        What you are claiming here is that your fantasy model of the world should be favored instead of actual real world data. This is about as anti-science and anti-evidence as you can get.

        In the real world, we've seen decades of studies that show that unfitted and low quality masks (like the ones actually used) have no statistically measurable effect upon the spread of these diseases.

        1. "Simple physics models also show that T-shirts provide protection against gunshot wounds"
          Sorry, but they do just the opposite.
          What you claim is anti-science has been measured in real world aerosol dispersion experiments in indoor settings.
          Also, Your claim that applying basic hydrodynamics of compressible media is anti-science is also foolhardy. Such modeling has been proven to be correct experimentally over many length scales.
          I am afraid that you just don't want to know the truth.

          As for poorly fitted or misused masks masks providing minimal or no benefits, what does that prove except that when one misuses a tool one gets no benefit such as trying to use a hammer as a screw driver.

          Try again, as you sometimes have something useful to say.

          1. Oh, you silly science denier.
            Even the most trivial physics models shows T-shirts absorb some of the energy of a bullet. It takes quite the interesting take on physics to claim that it actually increases the energy of the bullet, like you just did!

            And my point is that "aerosol dispersal models" are not modeling disease spread, much less actually measuring it. A study that measures actual disease spread will be more accurate than a model that estimates the same thing. Again, it takes quite the misunderstanding of reality to think that a model of a proxy factor is somehow going to be more accurate than actually measuring the real thing!

            Finally, if non-fitted N95 masks have no statistically measurable effect in hundreds of studies, worldwide, over decades - and the masks being mandated are neither fitted nor N95 - then you mask mandate (the thing being discussed here? Remember that?) is worthless.

            Please don't try again, as you get even more off-base from reality with each post you add to this thread.

            1. If the disease is spread via aerosol, how is this this model not relevant?

              non-fitted N95 masks have no statistically measurable effect in hundreds of studies, worldwide, over decades
              Sounds like you're mixing up mask alone versus mask plus other measures (distancing, vaccine).
              And didn't you mock the CDC when they were wrong about this in exactly the same way you are right now?

              1. Models can be relevant without being useful. Aerosol spread is a proxy measurement for disease spread. Studies that directly measure disease spread are always going to be more accurate than a model, especially one that relies on proxy variables.

                And, no, I'm not mixing up masks vs masking-and-other-activities. In fact, many studies include the effects of other activities as variables. As I've said for more than a year now, masks are worthless BUT goggles seem to have a significant effect. Of course, even goggles fall dramatically short of hand washing and respiratory etiquette.

                As for "mocking the CDC", I've criticized the CDC for many things they've said, but no, I did not criticize them for telling people that masks didn't work. I've been saying that masks are worthless since last spring, despite the protestations of the Faithful of the Church of Masks here.

            2. Oh you silly bullshiter.

              You point is actually bogus as a relevant test of infection spreading has not been done. What has been done is the experimental measurement of aerosol concentration as a function of distance and as a function of the mask/filter characteristics.

              Also known are the probabilities of infection if exposed to varying level of virion concentration for varying amounts of time.

              All the rest about poor fits etc. is only relevant to degree of benefit which could be a factor of two or 10%. Unlike your stupid tee shirt example which MAY impede the damage by the bullet by a thousanth of a percent.

              If you want to see a science denier, look in the mirror.

              1. Oh, delusional one. Please stop, you are making me feel sad for you now.

                Yes, there have been observational studies of the effects of masking on disease spread done - dozens, at least, for COVID-19, and thousands for coronaviruses in general. These are real world measurements done of the specific thing you want to measure. Decades of data from millions of people, which you claim "does not exist".

                Instead, you are attempting to claim that a model based on a proxy variable is better than actually directly measuring the real thing!

                That is insane if you actually believe it. It is pure bullshit to spread such a claim. You are trying to spit on the entire field of statistics and replace it with nothing more than your deranged imagination.

                Masks that are not fitted N95 or better masks have no statistically significant impact on disease spread. This is a fact.
                Poorly fitted masks do not have a "two or 10%" impact factor - they have a near 100% impact factor, reducing even N95 masks to near zero effectiveness. Some of those studies you claim don't exist do cover aerosol spread, by the way, in addition to real world outcomes. The estimate is that every 1% of mask border that is not sealed reduces the mask's effectiveness by an additional multiplicative 40%.
                People with bandana style masks, with beards, or just unfitted loose masks have already reduced their mask effectiveness to statistically insignificant levels, even without measuring the effectiveness of the masking filter at all.
                To summarize again, non-fitted non-N95 they have exactly as much effect on reducing disease spread as a t-shirt has on reducing a bullet's energy - nothing statistical measurable at all.

                On a different note, I'm curious about your claim that we know "the probabilities of infection if exposed to varying level of virion concentration for varying amounts of time". This is not true for most older, well understood diseases, and is directly in contradiction to the CDC's website, which says that we do not know for COVID-19. Can you tell me where you found this data? I'd like to see it myself.

                1. Skipping the quasi insults, let's get to the point of this discussion.

                  The point is not whether one mask in a room does anything, but whether everyone wearing masks in a room lowers the virion concentrations sufficiently to make a difference. That variable is NOT a proxy variable; rather it is a causal factor.
                  MIT and the MIT-Harvard Broad Institute examined this matter in great detail during the spring and summer as as way to set masking standards and student occupancy standards for this fall. I trust their work and the fact that they have spent considerable funds to implement their safety protocols for rooms filled with students. They also spent a great deal increasing air exchange rates in all class rooms and lab space. If your claim is that more care in fitting masks would do even better, then I agree with you.
                  The alternative is to restrict indoor occupancy to 1 person per 150 to 200 sq ft.

                  You should look up the JASON report for exposure issues.

                  As for the CDC, they have had a poor record with respect to this disease, especially regarding the effects of co-morbidities. You can find it through the website of the American Federation of Scientists. But if you believe the CDC, then you should believe their advice regarding masks.

                  With respect to the vaccines mandates, CDC through the administration is spreading a false hope: that as the percentage of fully vaccinated persons increases, the pandemic will end. That idea applied to the EU fails miserably. Countries in which the % of the total population are vaccinated exceed 65% (and even 75%) have seen reproduction rate of SARS-CoV-2 increase from values below 1.0 to values as high as 1.44 (in Denmark). Of major European countries only Italy has maintained a Ro less than 1.0 (0.92). As the other prophylactic measures have been loosens, the infection rates and case fatality rates have increased. So for now however minimal difference masks make, masking should not be abandoned.

                  1. The desired measurement is the likelihood of someone catching the disease. This is, unfortunately, very difficult to measure. So the modeling you are talking about estimates aerosol particle distribution, and then uses those estimates of aerosol particles to in turn estimate the percentage of people that would catch COVID.
                    This is a perfect example of a proxy variable! You aren't measuring the specific thing you want to know, you are using something else to estimate it. I'm not sure how you are coming to the conclusion that aerosol distribution isn't a proxy for disease spread.

                    As for your study, are you referring to Face mask use in the general population and optimal resource allocation during the COVID-19 pandemic, from the Broad Institute of MIT and Harvard, in Nature Communications? That's the only study they've published on mask effectiveness, so I assume it is.
                    In which case, please notice that all their analysis is about N95 and similar fitted masks - cloth masks only get a brief mention, referred to as "face coverings" rather than masks.

                    We primarily assess the impact of disposable medical grade masks (i.e. a resource-limited supply; unless otherwise stated, “face masks” in this paper refer to this type) rather than homemade, reusable cloth face coverings, although we do consider implementation of both mask types in a comparison of public health policies.

                    They take a study that showed that these cloth masks are "one-third" as effective as surgical masks ("Filtration efficiency ... has been estimated to be 80% for fitted surgical masks") as the basis for the inclusion of cloth masks, and then roll it into a single model flag variable (m = mask wearing yes/no)(See the supplement for model equations).

                    Specifically, we considered (1) no surgical mask use, (2) provision of surgical masks to symptomatic cases, (3) provision of surgical masks to the elderly population as first priority and then symptomatic cases if available, and (4) random surgical mask distribution.

                    There is a section where they flat out estimate without data a 5% reduction is disease spread due to cloth masks, but this is given as a potential example rather than a conclusion.
                    Instead, for their model, they assume either 50% effectiveness in reduction in disease spread for fitted N95 masks, or 25% effectiveness.

                    The paper seems more interesting for its discussion of resource allocation, although it is both overly simplistic and assumes good central planning, which has been lacking around the world during the past two years. Their own conclusions section mentions the model needs to better account for heterogeneous populations and distribution ineffeciencies, so may there will be a future paper with a more in depth analysis.

                    As for what I'm basing my conclusions on, here are a few of the major metastudies I'm referring to:
                    Mask efficiency papers:
                    Nonpharmaceutical Measures for Pandemic Influenza in Nonhealthcare Settings? Personal Protective and Environmental Measures; Xiao J, Shiu E, Gao H, Ryu H, Cowling B; Emerging Infectious Diseases, May 2020;
                    (Metastudy based on data from 1946 and later. Concludes face masks do not help)

                    Physical distancing, face masks, and eye protection to prevent person-to-person transmission of SARS-CoV-2 and COVID-19: a systematic review and meta-analysis; Chu D, Akl E, Duda S, Solo K, Yaacoub S; Lancet, June 2020
                    (Major metastudy, concluded non-N95 masks have no statistically significant effect)

                    A rapid systematic review of the efficacy of face masks and respirators against coronaviruses and other respiratory transmissible viruses for the community, healthcare workers and sick patients; MacIntyre CR, Chughtai, A; April 2020
                    (Non-N95 masks don't help)

                    Universal Masking in Hospitals in the Covid-19 Era; Klompas et al.; New England Journal of Medicine, May 2020
                    (Evidence concluded masks not useful outside health care workers; Authors publicly said "But mask anyway, it might help!")

                    SARS Commission Final Report, Vol 3, Ch 8 - It's not about the mask
                    (N95 masks neither necessary nor sufficient to prevent SARS infection, but do help when properly fitted.)

                    These are the reports that lead me to stand by the conclusion that cloth masks provide no measurable benefit, and that mask mandates are ineffective.

                    As for vaccine mandates, I do agree there that they will not eliminate COVID - nothing will, same way nothing prevents the season cold/flu. You, everyone, will catch COVID eventually. In a decade or two, it will be just another entry in the potential candidates for the seasonal illness, just like the Spanish Flu or the Russian Flu.

                    1. The Broad Institute did more than the published study. They place some of the engineering departments did a considerable amount of experimental work for MIT which the Institute then acted upon and spent considerable funds on before deciding on extremely strict rubrics for having students back on campus this fall

                      What you think is a proxy is a physical input variable to quantifying a physical process of aerosol transmission from the source to the receptor. Moreover it is the only source term variable that one can control in a public environment. As you correctly state the measurement of person to person transmission to infection is difficult to measure and is likely unethical to measure. Instead one quantifies all of the physical processes that are the inputs to the receptor's biological functions. One can measure the distributions of particle sizes and initial velocities in aerosols and droplet sizes from people breathing, sneezing coughing. These have been measured experimentally.

                      The studies you cite do NOT address the control of the infectious environment. Just as the statement about every 1% leak in the mask. That size leak cannot change the concentration at 3 meters by a factor of two. That is a physical impossibility. obviously the pore size in the mask and the number of leaks do determine the source input for atmospheric transport. And the properly fitted N95 mask left undisturbed minimizes the source terms.

                      With respect to the statement that the mask does nothing, that depends on whether you are speaking of protecting the wearer or contaminating the atmosphere. I think that my physics arguments and your citations are simply talking past one another, just as you have blown off the experimental measurements of atmospheric contamination and viral transport.

                      As for the statement about ending COVID, you prefer to reduce the matter to a triviality, which it is very unlikely to be for at least the next several months. At this point no one really cares what SARS-CoV-2 will be in ten years. For public health policy, the matter is what it will be in 10 months.

                    2. Then I do not know what Broad Institute work you are referring to, because it is not posted on their websites and does not show up in a internet search. Can you provide links?
                      (As an aside, no, spending money on something does not mean it is effective - look at the TSA)

                      The problem with treating aerosol distribution as a predictor variable is that it is already a response variable to your model, meaning there is an additional level of error included. On the other hand, when you measure infections directly in an observational study, you have no error on the predictor. This is why proxy variables should be avoided where possible.
                      (Another aside: doing infection experiments/RCTs would be likely unethical, but observational studies produce similar data without the ethical complications)

                      Next, the specific mention of mask leakage, well. Let me supply a trivial example: Suppose your mask is 100% effective. Viron concentration in aerosols at 3m is therefore zero.
                      Now unseal the mask along 1% of the edge, cutting effectiveness by 40%. Your 3m viron concentration has now risen by infinite percent. Yes, this example is a non-realist extreme, but it should make clear the point - yes, a 1% leak can easily raise the concentration by a factor of 2 or more.

                      And I suggest you read some of the metastudies I listed. They include, literally, hundreds of studies. Some of those do, indeed, focus on the environment. However, most instead focus on the actual issue: how many people got infected under what sorts of masking regimes. All the modelling in the world will not overcome an actual measurement of that final outcome.

            3. Even the most trivial physics models shows T-shirts absorb some of the energy of a bullet.

              But the energy of the bullet is not the only danger.

              I'm guessing of course but I would think that the additional risk of getting bits of T shirt material in the wound, with attendant extra infection risk, is a considerably bigger negative factor than the positive factor of the T shirt absorbing some microscopic bit of the bullet energy.

              1. I'm not sure it rates on the scale of risk due to a gunshot wound, but either way, it's out of bounds from a "simple physics model" for a more complex problem, which is what I was criticizing.

                Please do not take that as an actual suggestion that a T-shirt should be considered when discussing protection from gunshot wounds.

    1. That site (a photo of three lines without explanation is worse than a poorly conducted study.

      1. It is kinda funny though. The conclusion ("schools requiring masks have no fewer cases than those that don’t require them") is only supported by this data if you take the "masks required for some students" out of "schools requiring masks." If you don't do that the conclusion is actually contradicted.

        I'm also running the numbers myself and they don't look right. 18130/486176 is 3.73% for "no masks required" and 15999/492600 is 3.25% for "masks required." The other fields don't match up either. Either something is left out or it's just calculated incorrectly.

  2. Reading these comments must cause you to wonder why you bother with what this blog has become, Prof. Adler. My condolences.

    (Billy is scheduled to perform in Cleveland this Friday, with Blue Lunch at the Bop Stop. Billy was Roy Buchanan's final singer and is a reliable R&B/souler. Well worth a ticket.)

  3. Even though it seems likely this requirement would be upheld, I have some sympathy for Judge Siler's view. The state of the law changed considerably and it seems like the District court should re-consider the issues in that context.

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