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Biden Administration to Treat Masks in Schools as a Civil Rights Issue

By Evie Blad — August 18, 2021 4 min read
First Lady Jill Biden and Education Secretary Miguel Cardona tour Benjamin Franklin Elementary School, in Meriden, Ct., on March 3, 2021.
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The Biden administration stands ready to investigate civil rights complaints from families concerned that restrictions on masking in schools violate their children’s rights to a free and appropriate public education, U.S. Education Secretary of Education Miguel Cardona said Wednesday.

The statement came the same day as a memorandum from President Joe Biden that directs the U.S. Department of Education to “use all available tools to ensure that governors and other officials are providing a safe return to in-person learning for the nation’s children.”

“This isn’t about politics,” Biden said in a White House address Wednesday afternoon. “It’s about keeping our children safe. It’s about taking on the virus together, united. I’ve made it clear that I will stand with those who are trying to do the right thing.”

The Education Department’s office for civil rights may take action if state policies mean that children with medical vulnerabilities, like respiratory illnesses or weakened immune systems cannot safely attend school during the COVID-19 pandemic, Cardona said in a blog post.

“The Department will also receive and respond as appropriate to complaints from the public, including parents, guardians, and others about students who may experience discrimination as a result of states not allowing local school districts to reduce virus transmission risk through masking requirements and other mitigation measures,” he wrote.

The assertion comes as the Biden administration takes an increasingly aggressive posture toward states that have prohibited school districts from setting universal mask mandates. Many of the nine states that prohibit such requirements also have surging virus cases and hospitalizations due to low vaccination rates and the spread of the more-contagious Delta variant of COVID-19.

“These states are needlessly placing students, families, and educators at risk,” Cardona wrote.

Cardona wrote to Republican governors and education commissioners in Florida and Texas last week, warning them that federal officials would bypass the states and work directly with districts to implement mask requirements. He said districts that face state financial penalties for requiring masks could backfill those financial losses with federal COVID-19 aid if it was necessary to keep students safe. He sent similar letters to leaders in Arizona, Iowa, Oklahoma, South Carolina, Tennessee, and Utah Wednesday.

Masks have become a contentious issue for state and local education officials.

Biden said state leaders set a “dangerous tone” when they took an aggressive posture toward school leaders who favored mask rules. He highlighted a viral video of protesters outside of a Tennessee school board meeting last week threatening doctors and nurses who had testified in favor of face coverings.

His memo directed the Education Department “to assess all available tools” to encourage safe school reopenings, including “whether to take steps toward the initiation of possible enforcement actions under applicable laws.”

“Our priority must be the safety of students, families, educators, and staff in our school communities,” the memo said. “Nothing should interfere with this goal.”

Calls for masks in schools

The Centers for Disease Control and Prevention has repeatedly stressed that schools should open for in-person learning this year, but officials have called for “layered mitigation” strategies, including masks and proper ventilation, to help reduce risk. The agency revised its recommendations to schools in July to call for universal mask-wearing in schools, even among those who are vaccinated. The CDC had previously said vaccinated students may not need to wear masks, but it cited emerging research about the Delta variant to support its reversal.

Masks help prevent the wearer from contracting the virus and, worn universally, slow spread among populations, case studies have found. So, while parents and politicians who oppose mask mandates call them an issue of personal freedom, supporters of such requirements say widespread use is necessary to keep students safe.

Under Section 504 of the Rehabilitation Act of 1973, schools are obligated to accommodate the needs of students with disabilities to ensure they have access to a free and appropriate public education, commonly known as FAPE. Complaints about inadequate virus protections may be investigated under that law.

The Biden directive came as 14 Texas students with disabilities like cerebral palsy and asthma sued Gov. Greg Abbott to call for an end on the state’s ban on local mask mandates, the Austin American-Statesman reported. Tying districts’ hands on masking creates a dangerous environment for vulnerable students, who are more likely to grow severely ill from the virus, creating an “unlawful barrier,” they argued.

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