Dept. of Education Investigating Whether Mask Mandate Bans Violate Students' Civil Rights

The U.S. Department of Education's Office for Civil Rights recently announced investigations into bans on mask mandates in six states, specifically examining how these bans impact students with disabilities. On August 30, the OCR sent letters to chief state school officers in Iowa, Oklahoma, South Carolina, Tennessee, and Utah, alerting them of the investigations.

Notably missing from the list are Texas and Arkansas, which have enacted similar laws or executive orders but are not currently enforcing them due to court orders. Florida was also missing from the first round of letters. However, attempts to enforce the ban in the Sunshine State have landed them on the Department of Education's "to do" list.

States Split on Mask Mandates

Ten states and the District of Columbia have adopted the Centers for Disease Control recommendations that require students and teachers to wear masks in public schools, while 32 have left the decision up to school districts. But eight states have swung the opposite way, telling school districts they cannot require universal masking.

Parents of children with special needs in Florida have filed a federal lawsuit alleging that banning mask mandates violates the Americans with Disabilities Act. Their argument mirrors the Office for Civil Rights' concerns that state bans on universal masking in schools have a discriminatory effect.

Dept. of Ed. Warns of Potential Discrimination

The Office for Civil Rights' investigations focus on the Rehabilitation Act of 1973, which guarantees qualified students with disabilities the right to a free appropriate public school education. This includes the right to receive their education in the "regular education environment" alongside their peers.

Letters sent to the school districts express concern that, by prohibiting schools from requiring masks, states "may be preventing schools...from providing an equal educational opportunity to students with disabilities who are at heightened risk of severe illness from COVID-19." Investigations will focus on whether the state bans discriminate against students with disabilities by preventing them from safely returning to in-person classes.

Meanwhile, Florida's Department of Education announced last week that it planned to withhold school board members' salaries in counties currently mandating masks in schools. However, those plans were thwarted by Leon County Circuit Judge John C. Cooper, who lifted an automatic stay of his recent decision that the blanket ban on mask mandates exceeded the authority given to state education officials and the governor.

Related Resources

• Jacobson v. Massachusetts: How a 1905 Court Case May Determine the Legality of Vaccine Mandates
• SCOTUS Ends CDC Eviction Moratorium Through 'Shadow Docket'
• The Constitutionality of Vaccine Mandates (Podcast)