The U.S. Department of Education sent a warning to five states on Monday that their statewide bans on mask mandates, including in schools, could violate students' civil rights. Suzanne B. Goldberg, the department's acting assistant secretary for civil rights, sent letters to state education leaders in Iowa, Oklahoma, South Carolina, Tennessee and Utah, informing them that the department's Office for Civil Rights is investigating whether their bans are discriminatory.
At the center of the department's concerns, according to Monday's letters, are students with disabilities who may be at heightened risk for severe illness from COVID-19. Goldberg's letters say these investigations will focus on whether the state bans are discriminatory by preventing students with disabilities from safely returning to in-person education.
Federal law "guarantees qualified students with disabilities the right to a free appropriate public education in elementary and secondary school," Goldberg wrote in each of the letters. "This includes the right of students with disabilities to receive their education in the regular educational environment, alongside their peers without disabilities, to the maximum extent appropriate to their needs."
If students with disabilities do not feel safe returning to school because their classmates cannot be required to wear masks, the department's argument goes, then these bans could be considered discriminatory and violate either Section 504 of the Rehabilitation Act of 1973 and/or Title II of the Americans With Disabilities Act of 1990.
The announcement comes after President Biden issued a memorandum on Aug. 18 in which he directed Education Secretary Miguel Cardona to ensure that "Governors and other officials are giving students the opportunity to participate and remain in safe full-time, in-person learning without compromising their health or the health of their families or communities."
If the Education Department ultimately finds that these mask mandate bans do run afoul of federal civil rights law, it could threaten to withhold federal funding, though, on a recent appearance on NBC's Meet the Press, Cardona conceded that this was less than ideal.
"When we talk about withholding funds, those who suffer are the students," Cardona said. "Withholding funds doesn't usually work. If anything, it adds insult to injury to these students who are trying to get into the classroom."
The department says it is not at this time investigating other states with similar bans — including Texas, Florida, Arkansas and Arizona — because those bans are not currently being enforced, due to either court orders or other actions.
In a statement to NPR, Oklahoma State Superintendent of Public Instruction Joy Hofmeister, an elected Republican, said she supports the investigation:
"Regrettably, we are not surprised by this civil rights investigation spurred by passage of a state law prohibiting mask requirements in Oklahoma public schools. That law, Senate Bill 658, is preventing schools from fulfilling their legal duty to protect and provide all students the opportunity to learn more safely in-person. We will fully cooperate with USDE."
In short, Hofmeister told NPR: "I want the law to be stricken."
Utah's state superintendent of public instruction, Sydnee Dickson, said in a statement: "While we appreciate [the Office for Civil Rights'] efforts to protect children, specifically students with disabilities, we think they have unfairly defined Utah as a state where mask mandates cannot occur. State law places these decisions at the local level with local health departments and locally elected officials. ... We look forward to working with OCR to clarify Utah's position on the issue."
A MARTINEZ, HOST:
The U.S. Department of Education is investigating five states that banned mask mandates in schools. The department says that those bans in Iowa, Utah, South Carolina, Tennessee and Oklahoma might violate students' civil rights and put children with disabilities at greater risk. NPR's Cory Turner has more. Cory, so walk us through the basics here. What exactly is the Department of Education arguing?
CORY TURNER, BYLINE: Yeah. So as you said, the states that got these warning letters all have some form of state ban on requiring masks in schools, even as the delta variant surges right now. The department's Office for Civil Rights is specifically concerned about students with disabilities who may be at heightened risk for severe illness from COVID-19. You know, in the past year, I've spoken with lots of parents of kids with disabilities whose kids are also many of them immunocompromised. And they are really worried about this idea of having to send their kids back to schools where masks are essentially optional. The department says its investigations will focus on whether these bans are discriminatory insofar as they prevent students with disabilities from safely returning for in-person education.
MARTINEZ: You know, I'm curious about this, Cory, because maybe I've had blinders on and I'm only focused on Texas and Florida because we've heard so much about Texas and Florida. Why aren't they being investigated? Because they weren't on the list of states I mentioned.
TURNER: Right. I had the same question when I saw the list - also Arkansas and Arizona. The department says it is not investigating those states right now because as a result of court orders or state actions, those bans are not being enforced. It's also worth noting that in Florida, for example, when some districts defied the state's ban, U.S. Education Secretary Miguel Cardona reached out directly to those district leaders and said, I've got your back. And when state leaders threatened to withhold pay from those district leaders, Cardona told them, you know what? You can use your COVID relief funds. And this obviously all goes back to a memo that President Biden issued a few weeks ago where he basically told Cardona to use the full force of the Ed Department to pushback on these statewide mask mandate bans.
MARTINEZ: Leverage, though - I mean, what kind of leverage does the department ultimately have? I mean, what happens if a state is found to be in violation of federal civil rights law?
TURNER: Yeah, that's really unclear because the short answer is when it comes to schools, the department's best leverage is usually money. But federal funding is meant to generally help the most vulnerable school communities in a given state. So withholding it could do more harm than good. In fact, on a recent appearance on NBC's "Meet The Press," Cardona was asked specifically about this and he conceded. He said, quote, "when we talk about withholding funds, those who suffer are the students." He said withholding funds doesn't usually work. And if anything, quote, "it adds insult to injury to these students who are trying to get into the classroom."
MARTINEZ: Cory, have you had a chance to talk with any of the state superintendents who got these letters who are now facing these civil rights investigations?
TURNER: Yeah, this is really interesting, A. So Utah's top education official issued a statement very quickly saying Utah's policy is misunderstood. It does allow local governments and public health officials to require masking in schools. In South Carolina, the state superintendent has said already publicly she's worried about the same discrimination that the Ed Department is. And then I spoke last night - had a very interesting conversation - with Oklahoma State Superintendent Joy Hofmeister. She is an elected Republican, and she told me she supports the investigation. She said Oklahoma's ban on mask mandates is, quote, "preventing schools from fulfilling their legal duty to protect and provide all students the opportunity to learn more safely in person." She did not mince words, telling me she wants that state law to be stricken.
MARTINEZ: NPR's Cory Turner, thanks a lot.
TURNER: You're welcome. Transcript provided by NPR, Copyright NPR.