PROVIDENCE, R.I. (WPRI) ─ The R.I. Council on Elementary and Secondary Education voted Tuesday night to order the Department of Education not to approve any back-to-school plans that don’t include mask mandates, as the delta variant continues to spread in Rhode Island.

The vote appeared to be in conflict with advice from a RIDE lawyer, Anthony Cottone, who told the council moments earlier that the department does not have the authority to mandate masks in school districts statewide. (That authority, he said, lies with the legislature by statute or Gov. Dan McKee by executive order.)

Multiple council members expressed a desire to mandate masks anyway, which Cottone said may result in legal action from a school district that does not want to require masks.

“So what I’m hearing us say, correct me if I’m wrong, that you are going to direct me to do that whether we get sued or not,” Education Commissioner Angélica Infante-Green asked council members before the vote.

The council approved the requirement unanimously on a voice vote. Cottone declined to comment afterwards as to whether the council had the authority to take the action.

Infante-Green told 12 News she will follow the directive.

“They’re my bosses, yes, I have to follow the council’s direction,” she said after the vote. “Basically what was said tonight is we will take our chances with any lawsuits that may happen.”

The CDC has recommended universal masking in schools for both vaccinated and unvaccinated students and staff.

The governor has resisted issuing a statewide mask mandate, saying as recently as earlier Tuesday evening that it was better to let decisions be made locally.

“We are working with the local districts to get that work done and they’re having their local meetings as democracy should be conducted,” McKee told reporters outside a vaccination clinic in Pawtucket. He added, “Why would you mandate something that the local communities have already taken care of?”

Shortly after 10 p.m., McKee spokesperson Matt Sheaff issued a statement arguing that the council’s vote “shows they are aligned with what the governor said earlier at his press conference today — that by the time school opens this year, all students will be wearing masks.”

“The administration continues to believe that the best way to get all districts to mask up and enforce those policies is to work directly with them to address concerns and support them in preparing the safest environment possible for our kids,” Sheaff said. “While all options remain at the governor’s disposal, our team will continue to reach out to the remaining districts, many of which are taking up this issue over the next week.”

While McKee said earlier in the day that 80% of Rhode Island school districts were already mandating masks, neither the governor’s office nor RIDE has provided a list of districts to support the statistic.

Victor Morente, spokesperson for Infante-Green, later clarified that the 80% figure represents school districts that have provided a plan to RIDE, not all school districts. While he did not have a list available, he said the districts mandating masks represent about 100,000 students.

The state is already mandating masks in Providence, the largest district in Rhode Island, which has been controlled by RIDE since 2019 under a state takeover. But the rest of Rhode Island’s school committees have been hotly debating whether masks should be required or optional this fall.

It was not immediately what the consequences will be for districts whose back-to-school plans are not approved because of a lack of mask requirement. The plans are tied to federal funding from the Elementary and Secondary School Emergency Relief Fund (ESSER), which is part of the American Rescue Act Plan.

“I have to go to to the drawing board tomorrow and see what that means,” Infante-Green said. “I intend to work very closely with the 20% of those districts so that they can make a different decision so I don’t have to come down on them.”

She stopped short of saying districts that won’t require masks would lose the ESSER funding.

“I can’t say that definitively right now,” she said.

The K-12 council’s vote came after an emotional public comment period in which a series of parents, teachers and health care workers asked for a statewide mask mandate.

Barnaby McLaughlin, a Johnston resident, argued his local school committee members aren’t qualified to make health decisions after they voted to make masks optional. “You’re all wearing masks there at the meeting, our students deserve the same,” he said.

Dr. Luis Daniel Muñoz, a Democrat who is challenging McKee in next year’s primary, offered a stark prediction to the council.

“If everyone doesn’t take a principled stand to do what is right, you will kill children,” he said.

State Rep. Brian Newberry, a North Smithfield Republican, blasted the council’s vote. “Whatever your view on masks is, this is an outrage,” he tweeted. “This is not how government is supposed to work.”

In Massachusetts, Republican Gov. Charlie Baker has echoed McKee in saying he wants to leave the decisions about mandating masks to local school districts, despite criticism from some Democrats. But in Connecticut, Democratic Gov. Ned Lamont announced Tuesday he is mandating masks statewide for the start of the school year.

Steph Machado ( is a Target 12 investigative reporter covering Providence, politics and more for 12 News. Connect with her on Twitter and on Facebook.

Ted Nesi and Shannon Hegy contributed to this report.