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.
Nine states have banned school districts from setting universal mask mandates. Those bans are in effect in five states. In the remaining four states, mask mandate bans have been blocked, suspended, or are not being enforced. Sixteen states and the District of Columbia require masks be worn in schools.
State-wide mask policies may include exemptions for certain districts, schools, groups, or individuals.
MASK MANDATE BAN IN EFFECT
MASK MANDATE BAN BLOCKED, SUSPENDED, OR NOT BEING ENFORCED
- South Carolina*
- District of Columbia
- New Jersey
- New Mexico
- Rhode Island
*On Sept. 22, Florida‘s newly-appointed surgeon general instituted a rule that gives parents and legal guardians “sole discretion” over masking in schools.
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.
Tennessee‘s governor has signed and extended an executive order requiring schools to allow families to opt out of mask mandates. In some districts, judges have paused or overruled the governor’s order.
Updated guidance released by the Texas Education Agency on Sept. 17 states that per the governor’s executive order, school systems “cannot require students or staff to wear a mask.”
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.
On Sept. 27, a judge in Arizona blocked the state laws banning mask mandates that were set to take effect on Sept. 29.
In Arkansas, a judge paused the state law that prohibits local officials from setting mask mandates, meaning school districts can—at least for now—set their own local mask requirements.
On Sept. 13, a federal judge ordered Iowa to halt enforcement of its law banning mask mandates in schools. The order was later extended.
On Sept. 28, a federal judge suspended South Carolina from enforcing the rule that banned school districts from requiring masks for students.
Updated 10/15/2021 | Sources: Local media reports | Learn more here