Education Dept. Opens Civil Rights Investigations in Five States Over Masking

August 30, 2021 by Dan McCue
Education Secretary Miguel Cardono visited the White House press room Thursday to warn Americans not allow politics to prevent students from returning to school safely. (Photo by Dan McCue)

WASHINGTON – The U.S. Department of Education’s Office for Civil Rights has opened investigations in five states to determine whether statewide prohibitions on the universal indoor wearing of face masks discriminates against students with disabilities.

The five states that were notified of the investigations in writing today were Iowa, Oklahoma, South Carolina, Tennessee, and Utah.

Four other states Florida, Texas, Arkansas, and Arizona, are not being investigated but remain under scrutiny because they have universal mask bans that are not currently being enforced.

Health officials have said that many students with disabilities are at a heightened risk for severe illness should they contract COVID-19. 

In light of this, the Biden administration contends that states prohibiting the wearing of face masks are effectively preventing students with disabilities from safely accessing in-person education.

“The Department has heard from parents from across the country – particularly parents of students with disabilities and with underlying medical conditions – about how state bans on universal indoor masking are putting their children at risk and preventing them from accessing in-person learning equally,” said U.S. Secretary of Education Miguel Cardona in a written statement. 

“It’s simply unacceptable that state leaders are putting politics over the health and education of the students they took an oath to serve,” he continued. “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.” 

The letters to the five states currently under investigation outline how prohibitions of universal indoor masking prevent school districts from implementing the policies necessary to protect students from exposure to COVID-19.

The Office of Civil Rights says it is concerned that state mask restrictions on schools and school districts “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 letter states.

In regard to the other four states, the Office of Civil Rights noted that the face mask bans are not being enforced due to court orders or other state actions.

Due to these rulings and actions, districts should be able to implement universal indoor masking in schools to protect the health and safety of their students and staff. 

However, the Department said it 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 investigations will explore each state’s compliance with Section 504 of the Rehabilitation Act of 1973, which is a federal law that protects students with disabilities from discrimination based on their disability. 

Section 504 guarantees qualified students with disabilities the right to a free appropriate public education in elementary and secondary school, commonly referred to as FAPE. 

This includes the right of students with disabilities to receive their education in the regular educational environment, alongside their peers without disabilities, to the maximum extent appropriate to their needs.

The investigations will also explore whether statewide prohibitions on universal indoor masking violate Title II of the Americans with Disabilities Act of 1990, which prohibits disability discrimination by public entities, including public education systems and institutions. 

The Office of Civil Rights said its regional offices will begin collecting data from each state educational agency in the coming weeks.

During the investigation, the office said, it is a neutral factfinder, collecting and analyzing relevant evidence from state education agencies and other sources as appropriate prior to reaching determinations in these matters. 

Merely opening a directed investigation does not imply that there has been a violation of a law that OCR enforces.

On Aug. 18, 2021, President Biden issued a Presidential Memorandum directing the Secretary of Education to “assess all available tools in taking action, as appropriate and consistent with applicable law” to ensure that governors and other officials are giving all students the opportunity to participate and remain in full-time, in-person learning safely, without compromising their health or the health of their families. 

In response to the president’s call, Secretary Cardona laid out the steps the Department of Education can take to protect the rights of all students to access safe in-person learning equally, including using the enforcement authority of the Office for Civil Rights.

Secretary Cardona also sent letters earlier this month to each of the states that are the subject of the direct investigations that OCR announced today. The letters note that: “The safe return to in-person instruction requires that school districts be able to protect the health and safety of students and educators, and that families have confidence that their schools are doing everything possible to keep students healthy.”

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