Freeway on-ramp

The Government Needs to Construct On, Not Off, Ramps to Combat the Latest Wave of COVID

By Jennifer S. Bard

Over the past two weeks, the news coming in about the spread of COVID-19 has been eerily familiar. Cases are rising all over Europe, not just in under-vaccinated Eastern European countries, but in England, the Netherlands, and Germany — all of whom have much higher rates of vaccination than the U.S. At the same time, cases across the U.S., including in cities like LA, DC, and Chicago have stopped falling, and are rising rapidly in the Mountain West, including the Navajo Nation. Hospitals in Colorado have already reached crisis capacity.

Whether the increase is attributable to the emergence of yet another variant, or perhaps is a natural artifact of waning immunity, it is very real and demands a level of attention from our federal government that, once again, it is failing to provide.

Yet in the face of now too familiar signs of resurgence, already being called a “Fifth Wave,” not only are the usual minimizers advocating reducing existing measures to prevent spread, but cities and states are rolling back what few protections remain intact. It is in the face of this foolish movement to drop our guard that the federal government is, again, failing to use the powers it has beyond vaccine mandates to create much needed on-ramps for mitigation measures as the country heads into winter.

Unlike in the early days of COVID-19, when there was genuine uncertainty about how it spread, the data is in that it’s transmitted by aerosolized particles in the air. This means that by improving air filtration, we can reduce the risk for anyone to catch COVID-19 indoors by simply screening it out. But this requires broad awareness that COVID-19 is airborne, as well as broad access to the necessary tools to reduce aerosols indoors, such as Corsi-Rosenthal boxes.

It is as if the U.S. Centers for Disease Control and Prevention (CDC), the President, or whoever Dr. Fauci represents, are afraid to provide or recommend the three things that could really work to stop the spread of COVID-19: rapid testing, high quality masks, and effective air filtration. The federal government has the power to do so — its ability to spend money to provide our population with the goods and information we need to stop this threat to our welfare and national security is enumerated in Article I of the U.S. Constitution. In the context of the federal government’s vast financial resources and Constitutional authority to use these resources to curb the pandemic, the failure to send every household, school, religious entity, or business the means, or, at least, the information, to protect themselves is inexcusable.

In the face of the mounting threat, the federal government’s seeming lack of interest in protecting students and teachers is particularly strange. Schemes like President Biden’s partnership with the Rockefeller Foundation to encourage schools to adopt rapid testing is the equivalent of partnering with a sailor’s relief fund to encourage passenger liners to carry enough lifeboats after the sinking of the Titanic. Why not just do it? Since when is protecting the nation from pandemic an activity best left to charity?

This failure to do what’s necessary is most glaring in the case of the inexplicable reluctance to provide appropriate guidance for schools and universities. The guidance for COVID prevention in K-12 schools, updated most recently on November 5, 2021 is a study in contradictions, as it advances what seems to be a public relations priority: “safely returning to in-person instruction in the fall 2021,” rather than the public health priority of stopping the spread of disease. Above all, the guidance fails to define what “safely” means. How many cases are acceptable? How many hospitalizations? How many deaths? Is there any metric that would warrant recommending a return to online education? Or is this option permanently off the table?

The guidance states that schools should “determine the additional prevention strategies needed in their area by monitoring levels of community transmission (i.e., low, moderate, substantial, or high).” Over the past four weeks, when almost every county in the U.S. was high risk for COVID-19 transmission, why didn’t the CDC update its guidance to reflect this widespread risk and to stress the need for added mitigation measures? Where is the information about how long a county has to stay out of the “red zone” to warrant a reduction in precautions? And why is the scanty advice on offer apologetically hedged to include the words “if possible,” when doing so in the context of any other equivalent threat would seem absurd?

Where is the real information about how COVID-19 spreads and what actually stops it? How has the CDC not shared the information it has regarding the relative ineffectiveness of plexiglass barriers, which do very little to protect anyone, and actually serve to concentrate and intensify particles for those sitting near them?

By proffering guidance that, in reality, doesn’t apply anywhere, the CDC is implicitly suggesting that practices like allowing children to eat lunch unmasked, or to gather for long periods in crowded, unventilated classrooms are reasonable risks, when it knows very well that they are not.

The federal government could be using its spending power to provide accurate information and supply schools with the materials they need to keep students safe. It could also be exerting the full force of its authority to ensure that every child living in the United States has access to a safe and appropriate education. Instead, the government has opted not to use the powers it has to keep our children safe.

Education is just one illustrative example of how the U.S. COVID-19 response has largely neglected to address the threat at hand. By continuing to focus exclusively on vaccines without equal regard for high-quality masks, air filtration, and rapid testing, our government is failing everyone at school, at work, out shopping, and at home.

Jennifer S. Bard

Jennifer S. Bard is a professor of law at the University of Cincinnati College of Law where she also holds an appointment as professor in the Department of Internal Medicine at the University of Cincinnati College of Medicine. Prior to joining the University of Cincinnati, Bard was associate vice provost for academic engagement at Texas Tech University and was the Alvin R. Allison Professor of Law and director of the Health Law and JD/MD program at Texas Tech University School of Law. From 2012 to 2013, she served as associate dean for faculty research and development at Texas Tech Law.

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