Education Department Opens Investigations Into 5 Statewide Bans on Mask Mandates

By Justine Coleman, The Hill

31 August 21

he Education Department announced on Monday that it has opened civil rights investigations into five statewide bans on mask mandates to determine whether they discriminate against students with disabilities.

The department’s Office for Civil Rights (OCR) sent letters to school officials in Iowa, Oklahoma, South Carolina, Tennessee and Utah describing how bans on universal mask requirements could prevent schools from implementing policies that protect students from COVID-19, particularly those with underlying medical conditions “related to their disability.”

In the letters, the agency wrote that the prohibition of mask mandates "may be preventing schools … from meeting their legal obligations not to discriminate based on disability and from providing an equal educational opportunity to students with disabilities who are at heightened risk of severe illness from COVID-19.”

The probes will examine whether the bans violate parts of the Rehabilitation Act of 1973 and the Americans with Disabilities Act that forbid discrimination based on a person’s disabilities and that give all students the right to free public schooling. The OCR said it will collect data from the five education departments “over the coming weeks.”

Oklahoma State Superintendent of Public Instruction Joy Hofmeister (R) said the agency "regrettably" is "not surprised" by the Education Department's probe into the state law banning mask requirements in public schools.

"That law, Senate Bill 658, is preventing schools from fulfilling their legal duty to protect and provide all students the opportunity to learn more safely in-person," Hofmeister said. "We will fully cooperate with USDE.”

Utah State Superintendent of Public Instruction Sydnee Dickson argued in a statement that state law allows local officials to determine whether mask mandates should be implemented, noting that Salt Lake City and Grand County School districts have indoor mask requirements.

"While we appreciate OCR’s efforts to protect children, specifically students with disabilities, we think they have unfairly defined Utah as a state where mask mandates cannot occur," Dickson said.

“We look forward to working with OCR to clarify Utah’s position on the issue," she added. "We continue to urge districts and charters to work with their local public health care professionals to continue providing Utah students and public school staff with safe and effective schools."

One bill passed in the Utah legislature earlier this year permits local health departments to mandate masks in schools, although county governing bodies can overturn the decision.

A spokesperson for the South Carolina Department of Education (SCDE) said Superintendent Molly Spearman (R) had received the Education Department's letter about the provision in the state's Appropriations Act that bans mask requirements.

"Superintendent Spearman has repeatedly implored the legislature to reconsider Proviso 1.108 and allow local school boards to make decisions affecting the health and well-being of the students they serve," the spokesperson said.

"As the chief administrative officer of the public education system of the state, Superintendent Spearman anxiously awaits resolution of these critical questions by the courts so that the SCDE can advise all affected parties of their rights and obligations under the law," the statement added.

Spokespeople for the Tennessee Department of Education and the Iowa Department of Education said in statements that the agencies received the letters and are reviewing them.

Agency officials noted that they have not launched probes into Arizona, Arkansas, Florida and Texas because those states are not yet enforcing their policies due to court battles or “other state actions.”

“However, the Department will continue to closely monitor those states and is prepared to take action if state leaders prevent local schools or districts from implementing universal indoor masking or if the current court decisions were to be reversed,” the office said in a release.

Education Secretary Miguel Cardona said that parents of children with disabilities have told the department that the prohibition on mask requirements is putting their kids “at risk” and “preventing them from accessing in-person learning equally.”

"It's simply unacceptable that state leaders are putting politics over the health and education of the students they took an oath to serve,” Cardona said in a statement. “The Department will fight to protect every student's right to access in-person learning safely and the rights of local educators to put in place policies that allow all students to return to the classroom full-time in-person safely this fall."

With the investigations, the Biden administration is taking a more aggressive push against bans on mask mandates in schools.

President Biden criticized Republican governors who instituted such restrictions on masking earlier this month, saying the moves were “setting a dangerous tone.” At the time, the president said he was instructing Cardona to "use all of his oversight authorities, and legal action if appropriate, against governors who are trying to block local school officials and educators."

"This isn't about politics," Biden said. “It's about keeping our children safe. It's about taking on the virus together, united. I've made it clear that I'll stand with those who are trying to do the right thing."

The prohibitions against mask requirements counter the Centers for Disease Control and Prevention’s recommendations for all people aged 2 and older to wear masks indoors at schools.

The administration’s action also comes as the back-to-school season has been clouded by anxiety over rising COVID-19 cases and hospitalizations among children across the country.