The U.S. Education Department has launched investigations into five states whose prohibitions on universal mask mandates in schools may run afoul of civil rights laws protecting students with disabilities, federal officials announced Monday.
The department's civil rights head wrote to state education leaders in Iowa, Oklahoma, South Carolina, Tennessee and Utah, notifying them that the department's Office for Civil Rights would determine whether the prohibitions are restricting access for students who are protected under federal law from discrimination based on their disabilities, and are entitled to a free appropriate public education.
The investigations make good on the Biden administration's promise to use the federal government's muscle - from civil rights investigations to legal action - to intervene in states where governors have come out against mask mandates in public schools. The Centers for Disease Control and Prevention recommends that everyone in schools wears masks, regardless of vaccination status, so that schools can more safely resume in-person instruction.
In letters to state leaders, civil rights officials said the department would explore whether the prohibitions "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."
Tennessee Gov. Bill Lee issued an executive order August 16 giving parents statewide the ability to opt out of local mask mandates for public school students.
The department said it has not opened investigations in Florida, Texas, Arkansas or Arizona because those states' bans on universal indoor masking are not being enforced in schools due to litigation or other state action. The office would continue to closely monitor those states, officials said.
On Friday, a Florida court rejected an effort by Gov. Ron DeSantis, a Republican, and other state officials to prevent mask mandates in schools.
This month, President Joe Biden announced he had directed his Education Secretary Miguel Cardona to use the agency's broad power to intervene in states where governors have blocked mask mandates. "We are not going to sit by as governors try to block and intimidate educators protecting our children," he said.
Cardona has said he was particularly perturbed by prohibitions in places where the delta variant of the coronavirus has sent cases surging. He said he has heard from desperate parents who fear sending their immunocompromised and medically vulnerable children into schools that do not have universal masking. This month, parents of young children with disabilities sued Texas Gov. Greg Abbott, a Republican, over his ban on mask mandates in public schools, arguing that his order prevented their medically at-risk children from being able to attend school safely.
"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," Cardona said in a statement announcing the investigations.
Millions of public school children qualify for special education services that often require hands-on instruction and other services and therapies. And the population has been a priority to get back into classrooms after experiencing steep academic and social setbacks as a result of school closures during the pandemic.
The department will specifically look at whether the state bans violate Section 504 of the Rehabilitation Act of 1973, which 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 department said.
It will also look at whether statewide prohibitions 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 department said the investigations are not indicative of a violation, which could result in a state losing federal funding. Most investigations result in resolution agreements where the agency and the district or state being investigation agree to reforms in lieu of penalties.