Why is school a thing

School: The thing with the masks

by Sibylle Schwarz, published on October 6th, 2020

+++  Update from 10/23/2020 on masks in class +++ Compulsory mask, permeable mask, face visor, mask refuser, exemptions from the mask requirement for medical reasons, ... After the summer vacation until the beginning of the autumn vacation on Monday (in "my" federal state Hesse, but also Hamburg, Schleswig-Holstein) the (Administrative) courts deal with a wide range of issues. Here is a (incomplete) COLLECTION of court decisions on this.

After the schools closed on March 16, 2020, the schools were gradually reopened after the summer vacation and went to regular school operations in all federal states. The distance rule of 1.5 meters is mostly omitted here.

Finally summer vacation and afterwards? Regular school operation without minimum distance

It became compulsory to wear a mask on the school premises and in meeting areas such as the school yard and building corridors, and for a short time also in class.

  • The state has scope for assessment, evaluation and design
  • Popular remedial action also not permitted during the Covid-19 pandemic
  • Mask requirement in school covered by the authorization basis of §§ 32 sentence 2, 28 paragraph 1 IfSG
  • wearing a mask does not pose a risk to the child's welfare
  • The use of a gauze or lace fabric that is permeable in terms of its structure because it has small holes is not sufficient
  • Face visors cannot be seen as a mouth and nose cover or as an alternative
  • Corona ordinance does not authorize measures under school regulations in the event of a breach of the obligation to wear a face-to-face mask
  • In the event of an exemption from the mask requirement, medical certificates containing specific and comprehensible information are required
  • after an increase in cases of infection, the district also orders masking requirements during the entire teaching time
  • U P D A T E October 16, 2020 Obligation to wear a face-to-face mask in class for the time being
  • U P D A T E October 23, 2020 to wear an everyday mask in school lessons in an increasingly worsening infection situation

The state has a margin of appreciation, evaluation and design

Giving less weight to the “minimum distance” module within the framework of the “modular system” of the various possible infection protection measures is permissible

Federal Constitutional Court, decision of May 12, 2020, 1 BvR 1027/20

"... But even if the legislature is fundamentally obliged to take measures to protect a legal asset, it has a wide scope for assessment, evaluation and design ..."

Saxon Higher Administrative Court, decision of June 10, 2020, 3 B 194/20

“… In addition to protection against state interference, Article 2, Paragraph 2, Sentence 1 of the Basic Law gives rise to the duty of the state to protect the life of the individual. The duty to protect exists in favor of physical integrity and psychological well-being. ... The state has to fulfill its duty to protect, for example by issuing appropriate material regulations. In doing so, however, he has considerable leeway. The measures must not be completely unsuitable and completely inadequate and not significantly lag behind the protection goal.

A specification of the duty to protect in the sense that only taking a certain measure is constitutional is only rarely considered ... "

Administrative Court Berlin, decision of August 7, 2020, VG 14 L 234/20

"... You decide which protective measures are appropriate and necessary to ensure effective protection of life (BVerfG, decision of October 16, 1977 - 1 BvQ 5/77 -, juris Rn. 13 et seq.). ... The Basic Law only provides the framework for this, but not specific solutions. ...

Rather, the Senate Department for Education, Youth and Family has created a state-wide sample hygiene plan, on the basis of which each school has to create an individual hygiene plan (see press release SenBJF from August 4th, 2020, http://www.berlin.de/sen/bjf/ service / presse / schulstart-2020_2021.pdf /, accessed on August 6, 2020). A large number of protective measures are provided according to this sample hygiene plan. ...

It is true that the risk of infection is increased for every pupil if classroom teaching is held in schools without a minimum distance of 1.5 meters, but the administration provides a variety of other measures that are suitable to significantly reduce the risk of infection in school lessons, and which follow the current recommendations of the Robert Koch Institute (in particular mouth and nose covering at least outside of class, ventilation, hand hygiene). The political decision to give less weight to the “minimum distance” module within the framework of the “modular system” of the various possible infection protection measures is within the scope of the regulatory framework and the administration when implementing state protection obligations. ... "

Popular remedial action also not permitted during the Covid-19 pandemic

Administrative Court of Hamburg, order of August 6, 2020, 3 E 3336/20

“The court has the request of the applicant to oblige the school authorities to order the wearing of mouth and nose protection in schools for pupils and for the teaching staff also during lessons, according to §§ 122 Abs. 1, 88 VwGO to ensure effective legal protection interpreted to the effect that he requests the issuing of such an order by the competent authority. ...

However, it is doubtful whether the applicant is entitled to apply in accordance with Section 42 (2) VwGO. In order to exclude a popular legal remedy, according to the submissions of the applicant - also in this respect it is incumbent on him to substantiate it according to § 123 Abs. 3 VwGO in conjunction with §§ 920 Abs. 2, 294 ZPO - it must at least appear possible that the applicant is violated in his own rights or is violated such an injury threatens. The fact that the applicant is concerned with asserting his or her own rights cannot be inferred from the brief considerations that he provided in support of his application. Rather, he justifies what he believes to be a claim in general and without individual reference. To what extent he could be affected by the lack of a mask requirement during school lessons - whether he works as a teacher at a school, is himself a pupil or the father of a school-age child - he does not explain. If the applicant is not in any of the groups mentioned belong, it is incidentally up to him to minimize his risk of infection by maintaining the minimum distance and observing the mask requirement (e.g. in shops and in public transport). ... "

Mask requirement in school covered by the authorization basis of §§ 32 sentence 2, 28 paragraph 1 IfSG

The interference in the basic rights of the pupils resulting from the obligation to wear a mask by limiting the time of the measure and the exception regulations within limits

Bavarian Administrative Court, decision of September 7, 2020, 20 NE 20.1981

“With his urgent application according to § 47 Paragraph 6 VwGO, the applicant represented by his mother pursues the goal of temporarily suspending the execution of the ... insofar as § 16 Paragraph 2 Clause 1 of the 6th BayIfSMV requires him to wear a mouth and nose covering (MNB) is required in school lessons. ...

1. The urgent application is admissible, but is unsuccessful in the matter. ...

... The challenged provisions on the existence of a mask requirement in the plaintiff's school lessons according to Section 16 (2) sentence 1 6th BayIfSMV should be covered by the authorization basis of Section 32 sentence 1 in conjunction with Section 28 (1) sentences 1 and 2 IfSG. ... assumed that the provisions enacted in connection with the SARS-CoV-2 pandemic in § 32 sentence 1 in conjunction with § 28 paragraph 1 sentence 1 IfSG should in principle find a sufficient legal basis ... The obligation to wear an MNB in ​​class is in In this context, it represents a measure to enable face-to-face teaching and is covered as a company regulation as a measure that is subliminal compared to a closure of the authorization basis of §§ 32 sentence 2, 28 paragraph 1 IfSG ...

... that the obligation for schoolchildren in Bavaria to wear an MNB temporarily (according to the declared intention of the respondent initially only for the first nine school days of the school year) does not require a parliamentary regulation by the federal legislature. On the one hand, the interference in the general freedom of action (Article 2, Paragraph 1 of the Basic Law) and the general right of personality (Article 2, Paragraph 1 in conjunction with Article 1, Paragraph 1 of the Basic Law), resulting from the disputed mask obligation, is maintained by the Schoolchildren by the time limit of the measure and the exemptions within limits. ... It must also be taken into account that the obligation to wear the MNB for certain groups of pupils and for compelling educational-didactic or school organizational reasons according to § 16 para. 2 sentence 2 6th BayIfSMV and according to the general exception rules according to § 1 para. 2 6th BayIfSMV does not apply. ...

In this respect, it must be taken into account that the affected students, subject to any exceptions for their own protection or the protection of relatives who are previously ill, are in principle subject to compulsory schooling and therefore cannot avoid the measure. However, this consequence is at least partially mitigated by the fact that exceptions to the obligation to wear an MNB are generally permitted in individual cases due to educational and medical reasons ...

When weighing up interventions in the basic right of the addressees of the norm to personal freedom (Article 2, Paragraph 1 of the Basic Law) and (to be continuously evaluated by the legislator for their proportionality, see BVerfG, Bv 10.4.2020 - 1 BvQ 31/20 -) The general right of personality (Art. 2, Paragraph 1 in conjunction with Art. 1, Paragraph 1 of the Basic Law) with the fundamental right of persons in need of treatment, sometimes life-threatening illnesses from Art. 2, Paragraph 2, Clause 1 of the Basic Law includes the protection of life and the physical integrity through (also in the supplement: OVG NRW, B. of 20.8.2020 - 13 B 1197 / 20.NE) ... "

Higher Administrative Court of North Rhine-Westphalia, decision of August 20, 2020, 13 B 1197 / 20.NE

“The applicants are students who attend secondary schools in the Euskirchen district. By way of interim legal protection, you are opposing the obligation, as part of the fight against the corona pandemic, to always wear a face-to-face mask during lessons. ...

According to § 32 sentence 1 i. In conjunction with Section 28 Paragraph 1 Clause 1 Clause 1 IfSG, the factual prerequisites required for the obligation to wear a mouth and nose cover during lessons as set out in Section 1 Paragraph 3 CoronaBetrVO exist in view of the current worsening pandemic situation. In particular, the obligation to wear a face-to-face mask during lessons in this situation is a protective measure i. S. d. Section 28 (1) sentence 1 IfSG. ...

The measure serves a legitimate purpose. It is intended to help at least reduce the spread of the SARS-CoV-2 virus among schoolchildren and teachers, as well as their caregivers outside of class, and thereby curb the spread of the virus in the population as a whole (until antiviral drugs or vaccines are developed). This, in turn, is intended to avoid the risk of illness for many people associated with the uncontrolled spread of infection, sometimes with serious and fatal disease processes and excessive demands on the health system. ...

In accordance with this stipulation, the general obligation to wear a face-to-face mask during class should also prove to be suitable for achieving the intended purpose of reducing the risk of infection associated with resuming classroom teaching in secondary schools. A remedy is already suitable if it can be used to promote the desired success. It is not necessary that the success is actually achieved in each individual case, or at least that it is achievable; the possibility of achieving the purpose is sufficient. see BVerfG, decision of April 10, 1997 - 2 BvL 45/92 ...

The measure should also be necessary with a view to the special, structurally favorable conditions for the spread of the infection in school operations. ... the currently necessary adaptation of everyday school life, because regular school operations with extensive classroom teaching typically go hand in hand with an increased risk of infection. ...

After all, the regulation at issue is currently still appropriate, taking into account the opposing constitutional positions. In this respect, it should first be pointed out that there is no such thing as the only objectively correct and appropriate weighing-up result. This is true because the regulatory decision is based on a constantly advancing scientific knowledge base characterized by numerous unknowns, consequences of already implemented loosening of protective measures only become apparent after a time delay and the individual protective measures cannot be considered in isolation anyway, but part of one Total packages to reduce the speed of the virus' spread are. Relaxation at one point can therefore result in restrictions elsewhere and vice versa. ...

... Based on this, the intended purpose of the regulation is not disproportionate to the severity of the interference. The measure unmistakably leads first and foremost to restrictions of the fundamental right to general freedom of action (Article 2, Paragraph 1 of the Basic Law) and, if applicable, of the general right of personality (Article 2, Paragraph 1 in conjunction with Article 1, Paragraph 1 of the Basic Law). However, these rights do not apply without restriction, but are subject to a legal reservation and, as a result, stand in opposition to the protection of life and health aimed at by the regulation (Article 2, Paragraph 2, Sentence 1 of the Basic Law) and the right to school education (Section 1, Paragraph 1 SchulG NRW, Art. 8 Paragraph 1 Clause 1 LV NRW). ...

After all, the period of validity of the regulation is limited ... "

The obligation to wear a mask does not violate the parents' right to bring up children

wearing a mask does not pose a risk to the child's welfare

Schleswig-Holstein Higher Administrative Court, order of August 28, 2020, 3 MR 37/20 (Press release)

"The obligation for pupils in the Schleswig-Holstein Corona Control Ordinance to wear a mouth and nose cover on the school premises outside of class does not violate the parents' right to bring up under Article 6, Paragraph 2, Clause 1 of the Basic Law (GG), this also includes protecting the child's best interests. Wearing a mask does not pose a risk to the child's welfare; because the right to physical integrity of the child (Article 2, Paragraph 2, Sentence 1 of the Basic Law) is not encroached upon. ...

The Senate doubts whether the basic right to physical integrity will be affected by the mask requirement in schools. There is currently no reliable scientific evidence that wearing the mouth and nose cover in school is suitable for causing significant general health hazards for schoolchildren. ... "

The use of a gauze or lace fabric that is permeable in terms of its structure because it has small holes is not sufficient

Administrative Court Koblenz, order of September 7, 2020, 4 L 764 / 20.KO

"Insofar as the applicant provisionally requests the future omission of the prohibition to enter the playground during the break times, the Chamber also has doubts about the admissibility of the application.

Because also with regard to this - mainly aimed at the omission of an administrative act - the necessity of the coveted provisional preventive legal protection is doubtful. Based on the statements made by the class teacher and the school administration in the administrative file, it is to be expected that the applicant will return to the school yard during break times in the foreseeable future when wearing the self-sewn mouth and nose covers made of gauze fabric or lace fabric with hole embroidery is prohibited. ...

The legal basis for such a prohibition is the public-law domiciliary right to which the school director is entitled in school duties. ... The headmaster's house rules under public law serve to maintain safe and orderly school operations as a prerequisite for the school to perform its duties properly ...

In accordance with the protective purpose of the domiciliary right to ensure the undisturbed operation of the school, its exercise generally requires that the school be disrupted. Such a disruption can exist in the event of danger for other students or teachers or in the event of a failure to comply with the regulations serving to maintain orderly school operations.

Measured against these stipulations, there is no objection to the summary examination if the headmistress is made of gauze or gauze when using the self-sewn masks of the applicant.Lace material assumes a disruption to school operations and, within the framework of their house rules, is forbidden to the applicant from entering the playground during the break times. ...

It is true that neither Section 1 (3) 10th CoBeLVO nor the Schools Hygiene Plan contains requirements for the design of the mouth and nose cover, in particular for the material used. The interpretation guide for the obligation to wear a mouth and nose cover, as of May 20, 2020, available at https://corona.rlp.de, only provides that the wearing of everyday masks and the covering of the mouth and nose are also provided Scarf or shawl are sufficient without going into detail about the fabric to be used. From the protective purpose of the regulations, however, it follows that the use of a structure that is permeable, as gauze or lace fabric with small holes is not sufficient. ...

... that only those mouth and nose coverings are to be considered suitable within the meaning of § 12 Paragraph 1, Paragraph 1 Paragraph 3 10th CoBeLVO in conjunction with the School Hygiene Plan that have a filter effect with regard to fine droplets and particles due to the tightness of the textile material can …"

Face visors cannot be seen as a mouth and nose cover or as an alternative

Neustadt Administrative Court, decision of September 10, 2020, 5 L 757 / 20.NW (Press release)

“A student at a school in Speyer is not allowed to wear a face shield on the school premises instead of an everyday mask. ...

Mouth and nose coverings, also known as everyday masks or community masks, would have the function, regardless of a label or certified protection category, as a mechanical barrier to help prevent the spread of virus-containing droplets into the immediate environment, e.g. when speaking, coughing or sneezing emit, reduce and thereby protect other people (external protection). Therefore, the mouth and nose cover must be as close as possible and sit well in order to reduce the flow of air past the edges of the mask. According to the meaning and purpose of the mask requirement, the term “mouth and nose covering” includes masks that are sewn from commercially available fabrics. A face visor could - at least according to the current state of knowledge - not be regarded as a mouth and nose covering or as an alternative to mouth and nose covering. Current studies indicate that the retention effect of visors on expelled respiratory fluid particles is significantly worse. This is because visors can usually only catch the droplets that appear directly on the windshield. ... "

Corona ordinance does not authorize measures under school regulations in the event of a breach of the obligation to wear a face-to-face mask

However, legal measures under school regulations in the event of breaches of duty by students are generally considered

Administrative Court Düsseldorf, order of August 25, 2020, 18 L 1608/20

“Two pupils from a grammar school in the Lower Rhine region were wrongly excluded from attending classroom classes after refusing to wear a suitable mouth and nose covering in class. ...

First of all, contrary to the opinion of the respondent, the contested measure is an exclusion from lessons and thus an onerous administrative act. ...

... Obligation of the pupils of a secondary school to wear a mouth and nose cover also in class (§ 1 Abs. 3 CoronaBetrVO). However, it does not contain any standard of authority authorizing a school principal to keep students away from classroom teaching if they fail to comply with this obligation. It can be left open whether the competent infection control authorities may have appropriate powers (cf. § 5 CoronaBetrVO or § 28 Infection Protection Act (IfSG)) and whether these authorities - which is not immediately apparent from the corresponding catalog of fines (see administrative offenses under the Infection Protection Act in In connection with the Corona Protection Ordinance (CoronaSchVO) (as of August 12, 2020) - a fine can be imposed if necessary. Because in the present case the headmistress of the school has undoubtedly acted. ....

Insofar as the headmistress initially referred to Section 54 (3) SchulG NRW for the exclusion from lessons, an exclusion on this legal basis is unlikely to be based on this legal basis. Pursuant to Section 54 (3) of the NRW Schools Act, pupils whose remaining in school or participating in other school events poses a specific risk to the physical or psychological integrity of others or their own can be temporarily or permanently excluded from attending school. This decision must be made on the basis of an official medical report that is regularly checked (Section 54, Paragraph 3, Clause 2 of the NRW School Act). However, in the event of imminent danger, the school principal is authorized to issue a temporary exclusion from attending the school, in which case the official medical opinion must be obtained immediately afterwards (Section 54, Paragraph 3, Clauses 3 and 4 of the NRW School Act). The specific risk to the physical or psychological integrity of others or one's own, which is necessary after this, even in the event of a temporary exclusion from attending school, is here - at least not immediately - evident. The standard aims primarily to enable the exclusion of pupils who pose a risk to other pupils due to an infectious disease, for example. ....

Admittedly, regulatory measures according to § 53 SchulG NRW should in principle be suitable to represent a reaction to misconduct in the form of a breach of duties according to the Corona Care Ordinance. In the present case, such a breach of duty by the applicant due to the use of an unsuitable mouth and nose cover should also be assumed. Because the applicants did not contradict the defendant's presentation that they wore a mouth and nose cover made of a permeable mosquito repellent in school on August 12 and 13, 2020 and are still only willing to wear such a "light" mouth and nose -Bear covering. It is true that applicants must be admitted that Section 1 (3) CoronaBetrVO does not require students to wear a specific mouth and nose covering. They are therefore free to use the simple surgical mouth and nose covers recommended by doctors at high temperatures, which are usually considerably thinner than cotton masks they have sewn themselves in order to reduce sweating under the cover. ...

If, according to this, there is a violation of the obligation under Section 1 (3) CoronaBertrVO, the school has not responded to this in a manner that meets the requirements of Section 53 School Act NRW. Because the only possible temporary exclusion from classes in accordance with Section 53 Paragraph 3 Clause 1 No. 3 SchulG NRW is to be pronounced for a specific period of between one day and two weeks. Furthermore, the choice of the specific length must be justified within the framework of appropriate discretionary considerations. The exclusion from lessons issued by the headmistress, which is apparently intended to apply as long as the applicants do not wear a suitable mouth and nose cover in the school, does not satisfy both requirements. ... "

In the event of an exemption from the mask requirement, medical certificates containing specific and comprehensible information are required

Bavarian Administrative Court of Würzburg, order of September 16, 2020, W 8 E 20.1301

"The applicants are seeking interim legal protection proceedings to establish that, for health reasons, they are exempted from the obligation to wear a mouth and nose cover on the premises of the elementary school they are attending and that they are exempt from attending elementary school without a mouth and nose covering or wearing a visor is permitted. ... Justification ... For health reasons, the applicants could not wear mouth and nose covers, which was proven by medical certificates. ...

... to interpret that the applicants, by way of interim legal protection, on the one hand, request a declaration that they are not obliged to wear a mouth and nose cover on the school premises of the primary school they attended for health reasons, and on the other hand, attend school without wearing a mouth and nose cover or a visor. The application understood in this way according to Section 123 (1) VwGO is admissible, but not justified, as the applicants have not made any claim to an order in this regard credible. ...

Initially, the court has no serious doubts about the effectiveness and legality of the mask requirement on the school premises as stipulated in Section 16 (2) sentence 1 6th BayIfSMV ...

... This jurisprudence of the Bavarian Administrative Court on the mask requirement in secondary schools is transferable in terms of content and result to the mask requirement on the school premises, as the latter is less intrusive from the point of view of the chamber ...

In any case, the applicants did not provide any credible health reasons to convince the court that would make it impossible or unreasonable for them to wear a mouth and nose cover for health reasons. ...

Just like the school management, the court must be able to independently review the existence of these prerequisites for the offense. In the specific case, the exemption from the mask requirement is asserted for health reasons.

As in other areas of law, medical certificates containing specific and comprehensible information are required to enable the court to carry out a review, especially since the applicants want their legal position to be improved ...

As a civil servant, the headmistress - like all other teachers at the school - is subject to the duty of confidentiality (Section 37 (1) BeamtStG). In addition, according to Art. 85 Para. 1 BayEUG, schools are authorized to process pupils' personal data. The fact that this is not done in accordance with data protection regulations in general or in individual cases at elementary school K. is not substantiated or otherwise evident. ... "

after an increase in cases of infection, the district also orders masking requirements during the entire teaching time

Administrative court Koblenz, order of October 6, 2020, 3 L 873 / 20.KO

"After a sharp increase in the number of cases of infection with the coronavirus, the Neuwied district (Rhineland-Palatinate) issued a general decree of October 1, 2020, among other things, that a mask requirement applies to all schools in the district during the entire teaching time.

The admissible application of the applicant, according to § 80 Paragraph 5 Clause 1 Alt. 1 Administrative Court Code (VwGO) the suspensive effect of their objection from October 2, 2020

against those contained in section 1 of the general ruling of the respondent dated October 1, 2020

and pursuant to Section 80 Paragraph 2 Clause 1 No. 3 VwGO in conjunction with Sections 28 Paragraph 3, 16 Paragraph 8 of the Act on the Prevention and Control of Infectious Diseases in Humans (Infection Protection Act - IfSG), an immediately enforceable order

To order a mask requirement at all schools in the district A ***, insofar as it concerns the teaching time, is unsuccessful in the matter. ...

However, due to the summary nature of the urgent procedure and its limited scope for knowledge, neither difficult legal questions can be deepened or finally clarified, nor complicated factual determinations can be made; such must be left to the main proceedings ...

Based on this, according to the current state of affairs and dispute, the requested order of the suspensive effect of the objection to the contested order cannot be considered. Because after the summary examination that is only possible but also sufficient in interim legal protection proceedings, the chances of success of their objection are currently to be assessed as open, also with regard to the submission of the applicants. The balancing of interests that has to be carried out is to the detriment of the applicant, since there are no overriding private interests in suspending enforcement. ...

The general decree at issue can only find its legal basis in Section 28 Paragraph 1 Clause 1 and 2 IfSG. ... According to § 2 of the state ordinance for the implementation of the Infection Protection Act, the competent authority is the district administration. ...

However, the question in particular arises as to whether it is necessary to make mask compulsory during the entire school period at all schools in the district, i.e. also at those schools in which no cases of infection have so far been found, or whether there would have been suitable milder measures straight away. ... In this respect, a comprehensive legal review is required, which is reserved for the main proceedings. ...

If the assessment of the legality of the challenged item 1 of the general decree proves to be open, the balance to be made between the public enforcement interest and the applicant's interest in suspension falls here - also and especially in the light of the state to be derived from Article 2, Paragraph 2, Sentence 1 of the Basic Law Protection order - at the expense of the applicant. ... Taking these standards into account, the public interest in the life, physical integrity and health of the general public and individuals as well as in the functionality of the health system outweighs the private interest of the applicants in not having to wear a mask during lessons. ...

In addition, the duty of care arising from the school relationship continues to apply, on the basis of which the teachers also react to acute impairments during lessons, such as breathing problems and any significant loss of performance and concentration as a result of long periods of wear in individual cases in a suitable manner while protecting against infection can …"

U P D A T E October 16, 2020

The obligation to wear a face-to-face mask in class continues for the time being

Press release from Schl.-Holst. Higher Administrative Court of October 15, 2020

"The 3rd Senate of the Schleswig-Holstein Higher Administrative Court rejected an urgent application directed against the state government's" accommodation ban "as unfounded (Az. 3 MR 45/20). ...

Furthermore, it was decided today that the Obligation to wear a mouth and nose cover in class, on the premises of schools and at school events outside the school premises according to the Schools Corona Ordinance of the Ministry of Education of October 6, 2020 (Az. 3 MR 43/20) for the time being.

According to the challenged regulations, there is an exception to the mask requirement in the classroom only in the case of exams and lectures, if a minimum distance of 1.5 m can be maintained. The same applies in the cafeteria and in the school yard as well as for school events outside the school premises.

The applicant in these proceedings is a secondary school student who claims that the exceptions to the mask requirement provided for in the ordinance are too strict.

In contrast, the 3rd Senate points out that the obligation to wear a mouth and nose cover in class below the threshold of a school closure is a measure to enable classroom teaching and is covered by the Infection Protection Act. Permissibly, the law of the infection control authority opens up the widest possible spectrum of suitable protective measures, since the range of protective measures that may be considered in the event of a communicable disease cannot be determined in advance. The arrangements made here are suitable, necessary and also appropriate to achieve the goal of preventing the spread of the SARS-CoV-2 virus.

It has not been medically proven that children and adolescents wear an everyday mask for several hours to serious physical limitations.

In addition, the legislator has taken into account the protected property of physical integrity by allowing an exception for people with physical, mental or psychological impairment.

After all, it is up to the parents and the teachers to practice putting on the mask correctly and to encourage the children to change the masks regularly. This can also be conveyed to children aged ten.

The applicant was not able to provide sufficient substantiation for psychological impairments. Incidentally, it is only compulsory to wear a mask in the school context and only for the first two weeks after the autumn break. The comparison with the existing regulations in other federal states does not result in a different assessment, because the normative body of the respective state only has to uphold the principle of equality within its sphere of control. "

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U P D A T E October 23, 2020

to wear an everyday mask in school lessons in an increasingly worsening infection situation

Administrative Court of Baden-Württemberg, decision of October 22, 2020, 1 S 3201/20, here press release:

“With yesterday's decision announced today, the Administrative Court (VGH) rejected an urgent application against the obligation to wear an everyday mask in school lessons.

The subject of the proceedings was the regulation in § 6a No.1 of the Corona Ordinance School in the amended version applicable from yesterday (version of October 21, 2020, in force since October 22, 2020).

This determines that In schools from grade 5, the obligation to wear a non-medical everyday mask or a comparable mouth and nose cover also applies in the classrooms if the number of new infections with the SARS-CoV-2 virus according to the state health office has been determined to be a nationwide average in exceeds 35 for the past seven days per 100,000 inhabitants.

The mask requirement does not apply in intermediate and final examinations, provided that the requirement of 1.5 meters between people is observed. An exception also applies to food intake (eating and drinking); During the break, the mouth and nose cover may be removed outside the school building, as long as the minimum distance between people of 1.5 meters is maintained. ...

The 1st Senate of the VGH rejected the urgent application. In order to limit the spread of COVID-19, a mask requirement in class is a suitable means. The Robert Koch Institute, the ad hoc commission SARS-CoV-2 of the Society for Virology and the Heidelberg study on the infection rate in children had unanimously agreed that everyday masks should also be worn in class as an effective means.

The mask requirement interferes with the rights of the applicants, but this interference is justified. Your right to independently determine your own external appearance will be affected. This impairment went hand in hand with restrictions in communication and social interaction due to the obscuration of the face and facial expressions, as well as difficulties in breathing freely and thus, under certain circumstances, in well-being during lessons. However, this would be offset by the equally serious consequences for the life and limb of a large number of those affected by the coronavirus and the associated maintenance of the efficiency of the German health system. At present there is again the risk that, without further measures, the speed of infection, which has now increased significantly again, will continue to increase very quickly, that control means that are currently still within limits such as official contact follow-up will no longer apply and that the health care system will be overloaded as a result. Since the beginning of September, the proportion of older - particularly at risk and therefore also particularly relevant for the utilization of the health system - has been increasing again among the COVID-19 cases.

It is also not objectionable to make mask compulsory in teaching nationwide. The consideration, which was advocated by the applicants and oriented towards city or district boundaries, would not do justice to the actual infection process, which is not based on such boundaries. The development underlying the current increase in the number of infections shows that infections are now spreading diffusely and crossing city and district boundaries in a very short time. A consideration of such limits would also disregard the fact that students and teachers exceeded such limits on a daily basis in many cases. "

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Similarly - Wiesbaden Administrative Court, order of October 22, 2020, 7 L 1167 / 20.WI, press release

"... The prerequisites for issuing the orders according to the Infection Protection Act are met.

Section 3 (1) sentence 1 of the Second Corona Ordinance stipulates that the obligation to wear a mouth and nose cover in school does not exist during face-to-face lessons in the class or course association. However, according to the opening clause in Section 11 of the Second Corona Ordinance, the locally responsible authorities are also likely to order measures that go beyond the ordinance.

In Wiesbaden, too, there is an increasingly worsening infection situation, which was already in place when the general decrees were issued. Before the end of the autumn vacation, the 7-day incidence of 35 new infections per 100,000 inhabitants had been exceeded. Immediately after the general decrees were issued, there were more than 50 new infections per 100,000 inhabitants in the past 7 days. From the autumn holidays, the infection process in the area of ​​the state capital Wiesbaden developed extremely dynamically. There are numerous infected and sick people and also an indefinite number of suspects, which according to the Infection Protection Act creates a higher risk situation. Currently (as of October 21, 2020) a total of 255 people are infected and, according to the Hessian escalation and prevention concept, the state capital Wiesbaden has reached level 5 (dark red) with a 7-day incidence of 89.7 per 100,000 inhabitants.

The basic obligation to wear a mouth and nose cover also during lessons is suitable to significantly reduce the speed of the respiratory flow and the ejection of saliva / mucus / droplets. It serves by making the diffusion of virus-laden aerosols and infectious droplets, which is unhindered by coughing and sneezing, more difficult and, in this respect, above all for external protection. With the general use of mouth and nose covers, there is mutual protection. The arrangement of wearing a mouth and nose covering is thus aimed at preventing the spread of communicable diseases. This is particularly true in face-to-face teaching in schools, in which the pupils are confined in space, often without the possibility of the required minimum distance of 1.5 m to be kept in closed rooms, in which infectious aerosols could accumulate. ...

Today the applicant lodged a complaint against this decision (7 L 1167 / 20.WI), on which the Hessian Administrative Court in Kassel now has to decide. "

The student's appeal against the decision of the Wiesbaden Administrative Court has now been rejected. The Hessian Administrative Court has decided by resolution of October 27, 2020, 8 B 2597/20, that the obligation to wear a mouth and nose cover in school lessons in Wiesbaden will not be suspended.