Department of Education's Office for Civil Rights Opens Investigations in 5 States Regarding Prohibitions of Universal Indoor Masking

letters sent today to the chief state school officers of Iowa, Oklahoma, South Carolina, Tennessee, and Utah, outlining how prohibitions of universal indoor masking prevent school district…

About Time and spare me the federal overreach argument. It’s a non-sequitur argument

Meaning you can’t claim state’s rights if your Governor continues to issue edicts banning mask wearing. If you accept Federal Dollars to help fund your public education system then you are by law, obligated to protect all students, especially those students who have a disability. Period. Full Stop.

“The safe return to in-person instruction requires that school districts be able to protect the health and safety of students and educators, and that families have confidence that their schools are doing everything possible to keep students healthy."

The Department of Education -Office of Civil Rights- sent letters today to the chief state school officers of Iowa, Oklahoma, South Carolina, Tennessee, and Utah…

…outlining how prohibitions of universal indoor masking prevent school districts from implementing health and safety policies that they determine are necessary to protect students from exposure to COVID-19. Importantly here’s students with underlying medical conditions, related related to a student’s disability status.

The OCR is concerned that state mask restrictions on schools and school districts...

"may be preventing schools…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," 

The footnotes are kind of important as well - especially the data for school aged children and hospitalization

• Centers for Disease Control and Prevention (CDC), COVID Data Tracker (last updated Aug. 30, 2021), https://covid.cdc.gov/covid-data-tracker/#demographicsovertime

• CDC, COVID Data Tracker (last updated Aug. 30, 2021), https://covid.cdc.gov/covid-data-tracker/#new-hospital- admissions

The Department of Education’s OCR also noted that it has not opened investigations in Florida, Texas, Arkansas, or Arizona — As those aforementioned state bans on “universal indoor masking are not currently being enforced as a result of court orders or other state actions”

The legal framework Sec 504 of Rehabilitation Act and Title II of the Americans with Disabilities Act..

The Department of Education OCR will investigate each state's compliance with Section 504 of the Rehabilitation Act of 1973 (RA of 1973) -Public Law 93-112, which was later codified in 1976 as 29 U.S.C. §701 et seq

Section 504 of the Act protects qualified individuals from discrimination based on their disability.

…Under this law, individuals with disabilities are defined as persons with a physical or mental impairment which substantially limits one or more major life activities. People who have a history of, or who are regarded as having a physical or mental impairment that substantially limits one or more major life activities, are also covered. Major life activities include caring for one's self, walking, seeing, hearing, speaking, breathing, working, performing manual tasks, and learning. Some examples of impairments which may substantially limit major life activities, even with the help of medication or aids/devices, are: AIDS, alcoholism, blindness or visual impairment, cancer, deafness or hearing impairment, diabetes, drug addiction, heart disease, and mental illness…

Under Section 504 -offers protections for students with disabilities from discrimination based on their disability. Additionally, Section 504 also guarantees qualified students;

with disabilities the right to a free appropriate public education in elementary and secondary school, commonly referred to as FAPE

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.

Title II of the Americans with Disabilities Act

Title II of the ADA prohibits discrimination against qualified individuals with disabilities in all programs, activities, and services of public entities

As the Department of Education explains in their letters to;

• Iowa, 

• Oklahoma, 

• South Carolina, 

• Tennessee, and 

• Utah,

The Dept of Ed’s OCR state in very clear terms that their investigation;

…will also explore whether statewide prohibitions on universal indoor masking violate Title II of the Americans with Disabilities Act of 1990, which prohibits disability discrimination by public entities, including public education systems and institutions. OCR's regional offices will begin collecting data from each state educational agency as part of the direct investigations over the coming weeks.

The Department of Education OCR investigation is a direct result of the August 18, 2021, President Biden’s Presidential Memorandum. Which directed the Secretary of Education to "assess all available tools in taking action, as appropriate and consistent with applicable law" to ensure that governors and other officials are giving all students the opportunity to participate and remain in full-time, in-person learning safely, without compromising their health or the health of their families.

Thereafter the Secretary of Education Cardona published the steps the Department of Education would take to “protect the rights of all students to access safe in-person learning equally, including using the enforcement authority of the Office for Civil Rights” -in the August 18, 2021 Blog Post Secretary Cardona

enumerated what steps the Department of Education would undertake pursuant to the August 18th Presidential Memorandum, which reads in partL

Meeting the President’s Call to Support the Safe and Sustained Reopening of Schools:

• The Department may initiate a directed investigation if facts indicate a potential violation of the rights of students as a result of state policies and actions.

• The Department will also receive and respond as appropriate to complaints from the public, including parents, guardians, and others about studentswho may experience discrimination as a result of states not allowing local school districts to reduce virus transmission risk through masking requirements and other mitigation measures.

• Office for Civil Rights evaluates allegations of discrimination on a case-by-case basis, looking at the specific facts of each case. 

• The Department’s Office of Special Education Programs monitors states’ implementation of the federal special education law that requires that students with disabilities receive a free, appropriate public education.

And lastly on August 27, 2021 the CDC released the following report

Outbreak Associated with SARS-CoV-2 B.1.617.2 (Delta) Variant in an Elementary School — Marin County, California, May–June 2021

As the CDC’s MMWR Infographic explains the School let their guard down and the Delta Variant spread like wildfire. And I’m certain this teacher feels horribly guilty because as I’ve previously stated “teaching is one of the last noble professions” and your children’s teacher probably loves your children as much as you do…

The moral of the story is with the rampant Delta Variant —we can’t let our guard down. Is in person schooling safe? Yes but with utmost care of precautions