American school mask bans prompt civil rights investigations

By Melissa Coade

Tuesday August 31, 2021

The US Education Department will be opening civil rights investigations into states that have either banned or limited mask-wearing requirements in schools. (JackF/Adobe)

The US Education Department has announced that it will be opening civil rights investigations into states that have either banned or limited mask-wearing requirements in schools to prevent the spread of the COVID-19 virus.

AP News reports that investigation letters have been sent to education chiefs in the states of Iowa, Oklahoma, South Carolina, Tennessee and Utah over their mask-wearing policies. According to the department’s office for civil rights, a range of prohibitions on mask-wearing requirements at schools in these states could prevent students safely attending school.

Education Secretary Miguel Cardona expressed concern about the states implementing political measures above the health and education needs of students.

“The department will fight to protect every student’s right to access in-person learning safely,” Cardona said in a statement.

Among some of the mask-wearing policies at issue include one in Iowa that forbids school boards from mandating their use, an executive order in Tennessee (where mask mandates are allowed) allowing families to opt their children out of a requirement to wear a mask.

The department said its civil rights investigation will consider whether the identified policies run against a federal law that protects students living with a disability or medical conditions, and guarantees those students ‘free appropriate public education’ equivalent to their peers.

Republican states have tousled with US president Joe Biden over whether mask-wearing should be mandatory or a matter of personal choice. Last week Biden asked Cardona to explore what legal action could be taken against policies that defied public health and safety measures. This resulted in the department reviewing whether the policies amounted to civil rights violations. 

The range of school policies subject to the civil rights investigations do not accord with guidance from the US Centres for DIsease Control and Prevention that says universal mask wearing should be in place in every classroom – with masks to be worn by teachers and students. The guidance was made in light of the virulent Delta strain of COVID-19 that has swept across the US and led to an uptick in new COVID hospitalisations. 

The education department’s investigations letters outline concern that states ‘may be preventing schools from making individualised assessments about aske use so that students with disabilities can attend school and participate in school activities in person’

Subject to the outcome of the investigations, the department can revoke federal education funding but most investigations tend to conclude with parties entering voluntary agreements to remedy the alleged violations of federal law. 

Several Republican politicians responded to the move by the Education Department, with Iowa’s governor Kim Reynolds arguing that individuals should be able to make decisions over whether or not to wear a mask for themselves.

“Iowa was able to reopen schools safely and responsibly over a year ago. President Biden and his team know this, yet they’ve decided to pick a political fight with a handful of governors to distract from his own failures,” Reynolds said in a statement.

Another governor from Oklahoma, Kevin Stitt, responded to the investigation announcement by saying that “until every American citizen is safely out of Afghanistan, President Biden shouldn’t spend a single second harassing states like Oklahoma for protecting parents’ rights to make health decisions for their kids.”

Oklahoma’s education chief State Superintendent Joy Hofmeister took a more diplomatic stance. In a statement, Hofmeister told AP News that the state was preventing schools from meeting their legal duty to protect and provide all students the opportunity to learn safely in person.

Elsewhere in the US, states such as California, New York and Louisiana have made mask-wearing in school mandatory. A Florida judge recently ruled in that state that school are legally permitted to require mask-wearing, overturning a state order that barred mask-wearing mandates.

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