Feds to Probe Whether Texas Ban on School Mask Mandates Violates Disability Rights Laws

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The U.S. Department of Education will investigate whether an executive order by Texas Gov. Greg Abbott that prohibits school districts from requiring masks violates federal civil rights laws, the agency told state officials Tuesday.

Federal officials are concerned that the Texas rule “may be preventing schools in Texas 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,” Acting Assistant Secretary for Civil Rights Suzanne Goldberg wrote in a letter to Texas Education Commissioner Mike Morath.

The department’s office for civil rights has previously opened similar investigations in states that ban schools from setting universal masking requirements. It’s part of a more confrontational approach President Joe Biden’s administration has taken with some GOP leaders amid surging cases of the COVID-19 Delta variant.

The Texas probe will determine whether the state is in violation of Title II of the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act of 1973, which requires schools to provide a free and adequate public education to students with disabilities.

That argument has been made by parents of children with various medical conditions in lawsuits around the country, including in Texas. Education Week recently spoke to one of the plaintiffs in the Texas lawsuit, a San Antonio mother who said she would fear for the safety of her daughter, who has severe asthma, if she attended school with unmasked classmates.

The San Antonio district is one of several that have defied the state ban. Some have tried to skirt the prohibition by including masks in their dress codes, later facing legal challenges from the state’s attorney general.

Amid legal challenges, the Texas Education Agency previously said the ban on school mask rules was not being enforced. But in updated Sept. 17 guidance, it said that “school systems cannot require students or staff to wear a mask.”

The Biden administration has encouraged local leaders to defy such bans, and it has created a federal grant program to reimburse them for any state financial penalties they may face.

The administration argues universal masking is key to helping schools stay open and ensuring that all students can safely attend. But state leaders like Abbott have called it an issue of personal freedom that is better left to parents to decide.

The Biden administration has launched similar probes in Florida, Iowa, Oklahoma, South Carolina, Tennessee, and Utah. 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.

This information is no longer being updated. The last data update was on May 23, 2022.

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

On Dec. 10, 2021, a federal judge temporarily blocked Tennessee from preventing schools from issuing mask mandates. An appeals court upheld the court's order on May 10, 2022.

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