Five states that banned mask mandates are under investigation and may be found in breach of disability law

The US Department of Education has warned school officials in five states that it is investigating whether their bans on mask mandates are “prevent[ing] students with disabilities from safely returning to in-person education.”

Officials in Iowa, Oklahoma, South Carolina, Tennessee, and Utah have been warned by the department’s Office of Civil Rights that, while the office hasn’t yet determined there had been a violation, the ban on universal indoor masking may prevent schools from meeting their legal obligations regarding providing an “equal educational opportunity” to disabled students at high risk for Covid-19.

The office has declined to look at Florida, Texas, Arizona, and Arkansas, noting that, while they have at various times adopted or considered blanket bans on mask mandates in schools, their plans for full-scale bans have been scuttled by “court orders or other state actions,” the DoE letter, sent on Monday, explained.

President Joe Biden declared earlier this year that governors must not interfere with students safely returning to the classroom “without compromising their health or the health of their families or communities.” DoE Secretary Miguel Cardona lamented in a Monday statement, that parents nationwide, especially those with disabled children, might be “putting their children at risk and preventing them from accessing in-person learning equally.”

The OCR hinted at darker consequences for schools in the affected five states that failed to do as they were told, declaring that a lack of mask mandates in those states “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.”

The Biden administration has not made clear what might befall those schools which fail to impose mandates, with Cardona merely bemoaning state leaders’ “putting politics over the health and education of the students they took an oath to serve.” Vowing to “fight to protect every student’s right to access in-person learning safely,” he warned that “possible enforcement actions under applicable laws” could be next for those schools that decline to do as they are told.

It isn’t just the Department of Education that has set its sights on mask mandates for every American child. The American Civil Liberties Union has plunged itself head-first into the irony pool, suing South Carolina last week over its ban on mask requirements in schools. Insisting students with disabilities were barred from the classroom because their peers were not forced to wear masks in class, they declared the “courts must intervene” – though nothing in the anti-mandate law prevents students who want to wear masks from doing so.

The governors on the other side are pushing back. Oklahoma’s Kevin Stitt, a Republican, is wrestling with the Board of Education in the state’s Cherokee Nation, insisting its call for mask mandates runs contrary to state law, even as multiple districts quietly enforce their own mask mandates – with medical and religious exemptions.

South Carolina’s majority-Republican legislature has backed up the governor by prohibiting school districts that require masks from receiving state funding to implement the mandates. Florida Republican Ron DeSantis, one of the most visible opponents of mandatory masking, saw his order struck down in court on Friday, while Texas Governor Greg Abbott has seen his own order challenged by 60 separate school districts and ultimately blocked from taking effect last week.

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