As we approach the sixth anniversary of the first mandatory stay-at-home orders in reaction to Covid, it seems most Americans just want to forget the whole era. After all, for many people, it is easier to forget rather than confront their participation in the mass hysteria that included seniors forced to die alone, crushed livelihoods, and stunting the education of an entire generation.
But this willful blindness leaves us vulnerable to a repeat performance. In particular, unelected federal judges have not performed any meaningful self-reflection regarding their behavior during Covid, and so we are a bad flu season away from them reprising their role as public health overlords.
One of the most egregious examples of such overreach was how the federal judiciary used the Americans with Disabilities Act (ADA) to enact health policy. Like much of the country, they were gripped by a spectacular fit of fear-laced hysteria. In a desperate scramble that seemed partly an attempt to pacify a mask-crazed public and partly panic common among the elderly who saw Covid as a death sentence (one judge was in his 80s), courts hijacked the ADA that requires barriers to be removed — such as steep wheelchair ramp slopes and narrow doorways — and perverted it into a mandate for the ritualistic muzzling of a generation of school children.
In data-free decisions, judges granted a few parents extraordinary judgments that masked hundreds of thousands of other families’ children to placate their fears. Courts decreed that mask mandates transformed schools from a death trap to an oasis of safety.
Panic replaced reason.
The Initial Panic
The ADA legal battle began in 2021 while the Delta variant of Covid was circulating. In Tennessee, Iowa, Colorado, and other states, parents of children perceived to be particularly vulnerable to Covid sued to block state and local bans on school mask mandates. They argued under the ADA that an unmasked classroom was a physical barrier to the education of immunocompromised children, no different from a staircase for a wheelchair user.
Courts accepted the argument wholesale. In cases such as G.S. v. Lee (Tennessee) and The Arc of Iowa v. Reynolds (Iowa), judges issued sweeping injunctions, declaring that universal masking was a “reasonable modification” required for “meaningful access.”
I personally witnessed this in October 2021. I had helped draft a public health order for Douglas County, Colorado, that enabled parents to opt their children out of school mask mandates. A few parents sued under the ADA, demanding the masking of more than 60,000 kids to calm their fears.
I attended the hearing and knew it was an uphill battle from the start. While federal buildings and surrounding communities were beginning to relax mandates, a sign on the door to our courtroom declared that mask wearing was strictly enforced. When the 84-year-old judge entered the courtroom, it was over. After a brief hearing, he quickly issued a temporary restraining order that blocked the public health order and muzzled tens of thousands of kids.
The Missing Math
Missing from these ADA pro-mask victories were the standards for which the ADA is known. Before Covid, physical access under the ADA was based on measurable standards: a ramp must have a slope no steeper than 1:12; a doorway must be a certain width. If a ramp was one degree steeper than the standard, the accommodation was inadequate.
Yet, in the mask cases, the math simply vanished.
Courts agreed with the parents claiming masks transformed schools from places so dangerous their children could not enter to places so safe they were willing to have their child there all day long. This occurred despite it being universally accepted that transmission was occurring in masked schools: masked kids were quarantined if they were near a masked student who contracted Covid. In addition, masks could be lowered for eating and drinking, and there were no mask filtration or fit standards.
Indeed, in elementary schools, the logic meant parents were relying on five-year-olds to not occasionally lower their mask and kill their child.
The equivalent ramp case would be a parent claiming the undetermined steepness of a ramp would kill their child, the court responding with a mandate that the ramp be made less steep by an undetermined amount, and then declaring the ramp adequate, all without ever measuring the ramp. It wouldn’t matter whether the original ramp steepness was two degrees or 80 degrees, the court would rule that any reduction makes the building accessible.
Similarly, courts ruled that changing risk level by an unknown amount from one unknown level to another unknown level was required by the ADA to transform a building from unenterable to accessible. The courts required the act of masking without ever verifying the result of safety.
The Backpedal
As mask mania waned, courts found themselves still having to address the earlier ADA absurdities. Rather than addressing the scientific vacuum of the lower court rulings, most appellate courts relied on tactical retreats — using procedural maneuvers like mootness and standing to nullify the mandates. These maneuvers allowed the courts to quietly discard the orders and sidestep the controversy without ever having to confront the lack of evidence plaguing the original rulings.
In the appeal that came closest to ruling on the idea that masks change a school from unsafe to safe, the Fifth Circuit Court of Appeals in E.T. v. Paxton (Texas) noted the plaintiffs did not suffer an injury in fact due to the lack of a mask mandate. At first this may seem like a win against mask mandates. However, the court dismissed the case for lack of jurisdiction and continued to participate in hygiene theater. They implied mask mandates were effective, declaring that masking was “one possible accommodation” and that “other reasonable options remain” such as voluntary masking, plexiglass, social distancing, vaccination, and hand sanitizer. Hinting that mask mandates could be banned if there’s plexiglass or hand sanitizer nearby was no victory for science.
The court did not rebuke hygiene theater; it was an actor in it.
The Legacy of Judicial Panic
In the beginning, the ADA provided judges with a federal hammer to club local schools into masked submission. Rather than upholding the integrity of the law, the courts signaled a cowardly willingness to shoehorn any available legal theory into a pre-determined, panic-driven result. It didn’t matter that there was none of the data required by the ADA or that the ADA had never been used to force masses of non-disabled people to adopt behaviors for the disabled. All that mattered was the kids were muzzled.
This established a dangerous precedent: in a moment of social hysteria, the judiciary will succumb to mass panic and prioritize public optics and “doing something” over physical evidence and individual freedoms.
When the courts finally retreated from the earlier rulings, it wasn’t a victory for the law, but a cynical exit strategy. Courts never declared that masking tens of thousands of students to placate the fears of a few parents was a misuse of the ADA. As it stands now, the claim that ADA mask mandates can transform a building from an unenterable death trap to a safe environment remains a viable argument to present in court.
As such, we are still susceptible to judge-driven hygiene theater because nothing has foundationally changed. Again, we are a bad flu season or another well-marketed disease away from a panicked judiciary, facing its own mortality, enforcing whatever unquantified, unproven, or ineffective measure it sees fit; your kids’ rights be damned.
Karl Dierenbach is a Colorado-based engineer and attorney. A vocal critic of pandemic-era
overreach, he aided Scott Atlas’ White House efforts, drafted a public health order unmasking
thousands of Colorado children, and assisted Dr. Jay Bhattacharya in his Senate confirmation
effort. Follow him on X @Dierenbach.
