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Students make their way to the front door of Normont Elementary School in Harbor City, California on the first day of in-person instruction on August 16, 2021. (Photo: Al Seib/Los Angeles Times via Getty Images)

Students make their way to the front door of Normont Elementary School in Harbor City, California on the first day of in-person instruction on August 16, 2021. (Photo: Al Seib/Los Angeles Times via Getty Images)

US Education Dept. Opens Civil Rights Probes Into 5 States' Bans on School Mask Mandates

"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."

Kenny Stancil

The U.S. Department of Education on Monday opened civil rights probes in five states to determine whether prohibitions on mask-wearing deny students with disabilities—who are more vulnerable to serious illness from Covid-19—equal access to safe in-person instruction.

"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," Secretary of Education Miguel Cardona said in a statement.

The Education Department's Office for Civil Rights (OCR) sent letters informing officials in IowaOklahomaSouth Carolina, Tennessee, and Utah (pdfs) that it is launching investigations to find out whether bans on mask mandates are preventing school districts in those states "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 letters state:

With the start of the new school year, the nation has experienced significant increases in the number of new Covid-19 cases in the general population and specifically among school-age children. Reports show distressingly high rates of hospitalization of children with Covid-19. National data also show that children with some underlying medical conditions, including those with certain disabilities, are at higher risk than other children for experiencing severe illness from Covid-19.

At the same time, extensive evidence supports the universal use of masks over the nose and mouth to reduce the risk of Covid-19 transmission. For this reason, the Centers for Disease Control and Prevention (CDC) "recommends universal indoor masking by all students (age 2 and older), staff, teachers, and visitors to K-12 schools, regardless of vaccination status." The CDC has stated that "with Covid-19 cases increasing nationally since mid-June 2021, driven by the B.1.617.2 (Delta) variant of SARS-CoV-2," the protection provided by consistent and correct masking "remains essential in school settings."

And yet, the OCR points out, several states have imposed bans on facial coverings even though such policies may inhibit schools from meeting the needs of students with disabilities, in violation of federal anti-discrimination laws.

The probes will examine each state's compliance with Section 504 of the Rehabilitation Act of 1973—meant to guarantee students with disabilities "the right to a free appropriate public education in elementary and secondary school"—and Title II of the Americans with Disabilities Act of 1990. Federal investigators will contact state officials within a week to request data and other information.

If, after analyzing relevant evidence, the OCR ascertains that statewide prohibitions on mask requirements are preventing schools from implementing health and safety measures to reduce students' exposure to the coronavirus, then those states would be in violation of Section 504 and Title II.

The announcement of investigations came just days after President Joe Biden, in response to mounting concerns about the potential negative consequences of GOP governors' anti-mask policies, directed Cardona to "assess all available tools in taking action, as appropriate and consistent with applicable law," to ensure that state officials are providing every student with an equal opportunity for safe, full-time, in-person learning.

In response to Biden's directive, Cardona outlined steps the Education Department would take, including potentially penalizing states using the OCR's enforcement authority, to safeguard the right of all children to public education amid the ongoing pandemic.

The OCR explained Monday that it has not launched probes in Florida, Texas, Arkansas, or Arizona "because those states' bans on universal indoor masking are not currently being enforced as a result of 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," said the OCR. "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."

Although the U.S. Food and Drug Administration has not yet approved Covid-19 vaccines for children under 12, Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, said Sunday that when the FDA does authorize Covid-19 jabs for kids, "mandating vaccines for children to appear in school is a good idea."

Texas Gov. Greg Abbott, a Republican, has already preemptively banned vaccine mandates, providing a possible foretaste of another looming battle between public health experts and right-wing lawmakers.

Cardona, meanwhile, called it "simply unacceptable that state leaders are putting politics over the health and education of the students they took an oath to serve."

"The department," he added, "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."

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