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Biden administration opens civil rights investigations over bans on school mask mandates

Education Secretary Miguel Cardona speaks to students outside a Bronx elementary school on Aug. 17. (Brittainy Newman/AP)
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The Education Department opened civil rights investigations Monday into five states for policies banning school districts from requiring masks, upping the Biden administration’s battle with Republican governors over pandemic policies for schools.

Letters were sent to education officials in Iowa, South Carolina, Utah, Oklahoma and Tennessee, all of which bar local districts from mandating masks. They allege that these states may be preventing districts from meeting the needs of students with disabilities who are at heightened risk for severe illness should they contract the coronavirus.

The Education Department did not open investigations in Florida, Texas, Arkansas or Arizona, all of which have tried to ban such mandates as well, because the policies there are not being enforced as a result of court orders or other state actions, the agency said.

Florida’s ban, for instance, was put on hold Friday by a state court. But Education Commissioner Richard Corcoran said Monday that the state Department of Education has withheld an amount equal to the monthly pay of school board members in Alachua and Broward counties and will continue to do so until those districts adjust their mask requirements.

Monday’s move follows up on President Biden’s promise this month that the Education Department would use its authority to try to stop states from interfering with school districts that want to require masks. Some governors argue that masking should be a personal choice for parents and families, and over the past few weeks, the disputes have reflected the larger national pandemic debate over personal freedom vs. public health.

Proponents of mandates point to the highly contagious delta variant. The Centers for Disease Control and Prevention says masks are among the most effective tools to prevent the spread of the virus, and it recommends universal masking in schools as part of a layered mitigation strategy.

Biden orders Education Department to take action against governors who ban school mask mandates

The letters to state officials note significant increases in coronavirus cases among children, including those under age 12 who are not yet eligible for vaccination. Children with certain disabilities are at higher risk.

Debates over mask rules are raging in many communities, but the impact on children with disabilities offers the federal agency a tool to potentially force states’ hands. Federal law requires that students with disabilities be given a free and appropriate education, and the new investigations are meant to explore whether those rights are being subverted.

Policies across the country reflect the partisanship of the states. While nine GOP-run states have attempted to ban mandates, 16 Democratic states, plus the District, have statewide mask requirements for schools, according to Burbio, a data tracking firm.

The rest of the states leave decisions to local districts.

Burbio’s count finds 140 of the 200 largest school districts requiring masks in buildings.

President Biden ordered his Education Department on Aug. 18 to explore legal actions against governors who have blocked mask mandates in schools. (Video: The Washington Post, Photo: Demetrius Freeman/The Washington Post)

The investigation by the Education Department’s Office for Civil Rights “will focus on whether … students with disabilities who are at heightened risk for severe illness from COVID-19 are prevented from safely returning to in-person education, in violation of Federal law,” the letters from the department to states read.

School superintendents in Oklahoma and South Carolina responded by saying they agree with the concerns. Both were elected directly and independently from their governors.

“Regrettably, we are not surprised by this civil rights investigation,” said Oklahoma’s state superintendent of public instruction, Joy Hofmeister. She said the state law prohibiting mask requirements is “preventing schools from fulfilling their legal duty to protect and provide all students the opportunity to learn more safely in-person.”

A spokeswoman for South Carolina Superintendent of Education Molly Spearman said Spearman had repeatedly implored the legislature to reconsider its ban on mask mandates. She said the state education department “is particularly sensitive to the law’s effect on South Carolina’s most vulnerable students and are acutely aware of the difficult decisions many families are facing concerning a return to in-person instruction.”

Officials in Iowa and Tennessee said they were reviewing the matter and had no immediate reaction.

Utah State Superintendent of Public Instruction Sydnee Dickson said local health department officials are free to impose these requirements for schools in their communities. Dickson said that the federal investigation “unfairly defined Utah as a state where mask mandates cannot occur.”

The Education Department’s move was blasted by Rep. Virginia Foxx (N.C.), the top Republican on the House Education Committee, as politically driven overreach.

“It is inappropriate for the Office for Civil Rights to spend taxpayer dollars to intimidate states that are responsive to parents’ needs and balance freedom with public health,” she said in a statement. “Biden and his cronies are using the Department of Education as a propaganda tool against states and governors that disagree with them.”

The federal investigation focuses on two federal laws. Section 504 of the Rehabilitation Act of 1973 protects students with a disability from discrimination based on their disability and guarantees them the right to a free, appropriate education. Separately, Title II of the Americans With Disabilities Act of 1990 prohibits disability discrimination by public entities, including public education systems.

How America failed students with disabilities during the pandemic

Any violations could result in a loss of federal funding, though most investigations end in agreements in which the school district or state agrees to policy or other changes rather than financial penalties.

Education Secretary Miguel Cardona said in a statement that his agency has heard complaints from parents across the country, and he cast the investigation as a way to ensure the success of in-person learning.

“The Department will fight to protect every student’s right to access in-person learning safely,” he said, “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.”