by Michelle Diament | August 31, 2021

The U.S. Department of Education is opening investigations into five states where officials say limits on school mask mandates may be in violation of federal laws prohibiting discrimination against students with disabilities.

The agency’s Office for Civil Rights sent letters this week to the chief state school officers in Iowa, Oklahoma, South Carolina, Tennessee and Utah notifying them of the investigations, which will examine whether each state is complying with Section 504 of the Rehabilitation Act and the Americans with Disabilities Act.

Section 504 guarantees students with disabilities the right to a free appropriate public education that is to be provided alongside their peers without disabilities to the maximum extent appropriate. The ADA bars public entities — including school systems — from discriminating against people with disabilities.

At issue are various state actions designed to keep schools from requiring universal masking to prevent the spread of COVID-19. Without masking requirements, many parents of students with disabilities and those with medical conditions who are at heightened risk of severe illness from the coronavirus are leery of sending their vulnerable children to school in person. The situation is especially fraught since students with disabilities are among those who have struggled most with remote education during the pandemic.

“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 Secretary of Education Miguel Cardona. “It’s simply unacceptable that state leaders are putting politics over the health and education of the students they took an oath to serve. 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 letter to each state indicates that the Education Department is “concerned” that their policies “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.”

By opening the investigations, the federal agency said that it is not implying whether any violations have occurred. Rather, the Office for Civil Rights is acting as a neutral fact-finder.

Currently, the Education Department is not investigating Florida, Texas, Arkansas or Arizona because mask mandate bans in those states are not being enforced due to a court order or other state actions. The agency said it will “closely monitor” those situations and is prepared to take action if the circumstances change.

The investigations come after President Joe Biden issued a presidential memorandum earlier this month directing the secretary of education to ensure that states are giving all students the opportunity to participate in in-person schooling without compromising their health.

Already families in Florida, Texas, South Carolina and Tennessee have filed suit alleging that the mask mandate restrictions violate disability rights.

The Centers for Disease Control and Prevention recommends that schools require everyone age 2 and older to wear face masks, whether or not they are vaccinated.https://www.disabilityscoop.com/2021/08/31/ed-department-mask-mandate-bans-may-violate-rights-of-students-with-disabilities/29469/