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Education Department Opens Civil Rights Probes in 5 States That Ban School Mask Mandates

By Evie Blad — August 30, 2021 4 min read
Kindergarten students sit in their classroom on the first day of in-person learning at Maurice Sendak Elementary School in Los Angeles on April 13, 2021.
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The U.S. Department of Education launched investigations Monday into five states that prohibit schools from setting universal mask mandates, setting the stage for potential enforcement actions as the Biden administration spars with Republican governors over COVID-19 precautions.

The investigations by the agency’s office for civil rights will determine whether those policies—in Iowa, Oklahoma, South Carolina, Tennessee, and Utah—threaten education access for students with disabilities and health vulnerabilities who do not feel safe attending school in person without virus mitigation strategies recommended by the Centers for Disease Control and Prevention.

“National data also show that children with some underlying medical conditions, including those with certain disabilities, are at higher risk than other children for experiencing severe illness from COVID-19,” Acting Assistant Secretary for Civil Rights Suzanne Goldberg wrote to leaders in those five states. “At the same time, extensive evidence supports the universal use of masks over the nose and mouth to reduce the risk of COVID-19 transmission.”

The targeted investigations will determine whether the states’ policies are a violation of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973, under which schools are required to provide a free and adequate public education to students with disabilities.

Such investigations carry the implied threat of the suspension of federal funding, but they are often resolved through voluntary resolution agreements between the Education Department and the party being investigated before the process is complete.

The Education Department did not launch similar investigations in other states that have prohibited schools from setting universal mask requirements— Arizona, Arkansas, Florida, and Texas—because those states have suspended enforcement of their policies voluntarily or as the result of court action, but it said it would continue to monitor those areas.

Most recently, a judge in Florida ruled the state overstepped its authority by prohibiting local mask requirements there. Despite that court ruling, Florida Education Commissioner Richard Corcoran announced Monday evening that his agency had withheld the monthly school board member salaries in Alachua and Broward County, the first two districts to face state penalties for requiring masks.

“We’re going to fight to protect parent’s rights to make health care decisions for their children,” Corcoran said in a statement. “They know what is best for their children.”

School Mask Mandates at a Glance

  • MASK MANDATE BAN IN EFFECT


    1. Florida

    On Sept. 22, Florida's surgeon general instituted a rule that gives parents and legal guardians "sole discretion" over masking in schools. On Nov. 5, a judge sided with the state health department in a legal challenge to rule. On Nov. 18, Gov. DeSantis signed a bill that allows parents to sue school districts that require masks.

    2. Georgia

    On March 29, Gov. Kemp signed the “Unmask Georgia Students Act” which allows parents to exempt their child from a school mask requirement. The law went into effect immediately.

    3. Iowa

    On Sept. 13, 2021, a federal judge ordered Iowa to halt enforcement of its law banning mask mandates in schools. On Jan. 25, 2022, a federal appeals panel narrowed that injunction. Iowa’s attorney general announced the state is not enforcing the ban while awaiting further action from the court. On May 16, 2022 a U.S. Court of Appeals lifted the injunction.

    4. Oklahoma

    On Sept. 1, an Oklahoma judge temporarily blocked the state law banning school mask mandates, but students or their parents can still opt out of school mask mandates if they choose.

    5. Utah

    In Utah, local health departments can issue 30-day school mask mandates with approval from the state or county government, according to the state’s top education official.

    6. Virginia

    On Jan. 15, Gov. Youngkin issued an executive order allowing parents to opt their child out of any school mask mandate. It effectively rescinded the state's school mask requirement that had been in place since August. That executive order was later halted by a judge. On Feb. 14, the Virginia legislature passed a measure that bans school mask mandates. That bill was signed by the governor on Feb. 16 and went into effect on March 1.

    MASK MANDATE BAN BLOCKED, SUSPENDED, OR NOT BEING ENFORCED


    1. Arizona

    On Sept. 27, a judge in Arizona blocked the state laws banning mask mandates that were set to take effect on Sept. 29. On Nov. 2, the Arizona Supreme Court upheld that ruling. On April 25, Gov. Ducey signed HB2616, which prevents schools from requiring a student to wear a mask without first getting parental consent. The ban, which replaces the one blocked by the courts, will go into effect 90 days after the legislature adjourns.

    2. Arkansas

    An Arkansas judge ruled on Dec. 29, that a law signed by the governor in April that prohibited local officials, including school boards, from setting mask mandates was unconstitutional. School districts have been able to set their own mask requirements since August when the judge put the law on hold.

    3. South Carolina

    On Sept. 28, a federal judge suspended South Carolina from enforcing the rule that banned school districts from requiring masks for students.

    4. Tennessee
    5. Texas

    On March 17, an appeals court upheld an injunction that blocked Gov. Abbott's executive order banning mask mandates in schools, finding it is unlawful and exceeding the governor's authority. This is not the first time the state's ban has been halted by a judge.

    MASK REQUIREMENT IN EFFECT


    1. Hawaii

    Although Hawaii's state-wide indoor mask mandate ended on March 25, indoor masking will still be required in public schools at least through the summer.

    PREVIOUSLY HAD MASK REQUIREMENT


    1. California

    On Feb. 28, the governors of California, Oregon, and Washington issued a joint announcement that mask requirements would end in their states effective March 12.

    2. Connecticut

    On Feb. 7, Gov. Lamont announced that the school mask rule would expire Feb. 28. He signed a bill on Feb. 15 that made the expiration date official.

    3. Delaware

    On Feb. 7, Gov. Carney amended his emergency order to allow his state-level school mask requirement to expire March 31. On Feb. 28, he announced that masks would no longer be required effective at 6:00 p.m. on Tuesday, March 1.

    4. District of Columbia

    On March 8, the department of health released updated guidelines that recommend universal masking only when community COVID-19 levels are high.

    5. Illinois

    On Feb. 5, a judge issued a temporary restraining order on the governor's statewide mask requirement. On Feb. 25, the state supreme court vacated that order. On the same day, the governor announced he would lift the requirement on Feb. 28.

    6. Kentucky

    Kentucky's school mask mandate ended in September, when the state legislature voted to limit the governor’s emergency powers.

    7. Louisiana

    According to a State of Emergency proclamation issued Nov. 23, which was extended on Jan. 19, students were required to wear masks in schools, but districts could opt out of the mandate if they adopted an isolation and quarantine policy consistent with the state's department of health protocols. On Feb. 16, Gov. Bel Edwards extended the order without requiring masking in schools.

    8. Maryland

    On Jan. 5, the mask mandate was extended for 180 days, but allowed school districts to opt out if certain vaccination rates were met. On Feb. 22, the state board of education voted to rescind the mandate. On Feb. 25, a state legislative committee gave final approval to lift the mandate effective March 1.

    9. Massachusetts

    On Sept. 27, the state began allowing schools to apply for a waiver from the face covering rules for vaccinated individuals if certain vaccination rates were met. On Feb. 9, officials announced the statewide mask requirement for K-12 schools would be lifted on February 28.

    10. Nevada

    On Feb. 10, Gov. Sisolak announced the immediate suspension of the school mask requirement. The previous mask requirement had only applied to counties with populations of 100,000 people or more.

    11. New Jersey

    On Feb. 7, Gov. Murphy announced plans to end his state’s school-mask requirement on March 7.

    12. New Mexico

    On Feb. 17, Gov. Grisham announced the end of the mask requirement, effective immediately.

    13. New York

    On Jan. 24, a judge struck down the state's mask mandate. A day later, an appeals judge restored the mandate. On Feb. 27, Gov. Hochul announced the mandate would be lifted on March 2.

    14. Oregon

    On Feb. 7, health officials said the state would drop its school mask requirement no later than March 31. On Feb. 24, the Oregon Health Authority announced the requirement would lift on March 19. However, on Feb. 28, the governors of California, Oregon, and Washington issued a joint announcement that mask requirements would end in their states effective March 12.

    15. Pennsylvania

    A statewide mask mandate for Pennsylvania schoolchildren was thrown out by the state Supreme Court on December 10.

    16. Rhode Island

    On Feb. 9, Gov McKee announced the school mask mandate would only remain in effect until March 4. On Feb. 15, he signed an executive order specifying that the order would take effect at 5 p.m. on March 4.

    17. Virginia

    On Jan. 15, Gov. Youngkin issued an executive order allowing parents to opt their child out of any school mask mandate. It effectively rescinded the state's school mask requirement that had been in place since August. That executive order was later halted by a judge. On Feb. 14, the Virginia legislature passed a measure that bans school mask mandates. That bill was signed by the governor on Feb. 16 and went into effect on March 1.

    18. Washington

    On Feb. 17, Gov. Inslee announced the state's school mask requirement will end effective March 21. However, on Feb. 28, the governors of California, Oregon, and Washington issued a joint announcement that mask requirements would end in their states effective March 12.

  • NOTES
    In January 2022, the Missouri attorney general, Eric Schmitt, sued some school districts that required masks, citing a November ruling by a county judge that said local health orders tied to COVID-19 were illegal. (The ruling was interpreted differently by different districts.) The state’s treasurer announced he would also crack down on schools with mask mandates. In mid-March, Schmitt began dropping lawsuits against school districts that no longer required masks. On May 19, 2022 Schmitt announced new lawsuits against several districts that had reinstated mask requirements.
    On Feb. 23, 2022, New Hampshire’s governor announced the state was no longer recommending universal indoor masking and therefore schools have to end mask mandates, arguing they violate state education department rules. Soon after, the department advised districts that the mandates “are inconsistent with” their rules. There’s disagreement over whether districts still have the authority to require masks, but at least one district changed its policy in response. A bill that would have banned mask mandates was vetoed by Gov. Sununu in May 2022.
    Updated 5/23/2022 | Sources: Local media reports, Education Week reporting | Learn more here

States that ban school mask requirements say the decision of whether to wear a face covering should be left to individual students and their families.

“To suggest that bureaucrats in Washington should tell parents that they must force their children to wear a mask in school against their wishes is a drastic error,” South Carolina Gov. Henry McMaster, a Republican, said last week. “I think it’s wrong.”

But CDC guidance suggests it is necessary to use masks broadly to limit transmission within school buildings.

Several state school chiefs in the states targeted by the investigations said they agreed that their local school districts should have the flexibility to set mask requirements if they deem them necessary.

South Carolina Superintendent of Public Instruction Molly Spearman “has repeatedly implored the legislature to… allow local school boards to make decisions affecting the health and well-being of the students they serve,” said a statement from the state’s education department. The agency “is particularly sensitive to the law’s effect on South Carolina’s most vulnerable students and ... acutely aware of the difficult decisions many families are facing concerning a return to in-person instruction.”

South Carolina’s law is one of several that face legal challenges from families of students with disabilities.

Oklahoma state Superintendent Joy Hofmeister said her state would “fully cooperate” with federal officials and that she is “not surprised” by the investigation. The state’s law “is preventing schools from fulfilling their legal duty to protect and provide all students the opportunity to learn more safely in-person,” she said in a statement.

Utah state Superintendent Sydnee Dickson said she believed the federal Education Department had “unfairly defined Utah as a state where mask mandates cannot occur.” State law there does not allow school districts to independently require masks. Rather, county health departments can set such requirements, subject to repeal from country governments, the Salt Lake Tribune reports.

U.S. Secretary of Education Miguel Cardona has pledged to support school leaders who defy their states on mask requirements, assuring them they can backfill with federal relief aid to make up for any financial penalties they may face as a result.

He telegraphed potential civil rights investigations after President Joe Biden directed the Education Department in an Aug. 18 memo 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.”

“It’s simply unacceptable that state leaders are putting politics over the health and education of the students they took an oath to serve,” Cardona said in a statement Monday. “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.”

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