Biden Administration to Use Federal Civil Rights Office to Deter States From School Mask Bans

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The Biden administration, escalating its fight with Republican governors who are blocking local school districts from requiring masks to protect against the coronavirus, will use the Department of Education’s civil rights enforcement authority to deter states from banning universal masking in classrooms, Secretary of Education Miguel Cardona said Wednesday.

The move puts the department at the center of bitter local debates over how to mitigate against the coronavirus in schools, just as the highly infectious Delta variant is fueling a spike in pediatric cases. Mr. Cardona said he was acting at the direction of President Biden, who is scheduled to speak about the pandemic later Wednesday and to instruct the department to use all of its powers to ensure a safe return to in-person learning this fall.

“The president is appalled, as I am, that there are adults who are blind to their blindness, that there are people who are putting policies in place that are putting students and staff at risk,” Dr. Cardona said in an interview on Wednesday, referring to bans on mandatory masks in schools in more than half a dozen states.

“At the end of the day,” he said, “we shouldn’t be having this conversation. What we’re dealing with now is negligence.”

The Centers for Disease Control and Prevention recommends that everyone in schools wears masks, regardless of vaccination status, so that schools can more safely resume in-person instruction. A vast majority of counties across the United States are experiencing either “substantial” or “high” transmission rates that call for indoor mask-wearing even among the vaccinated, according to the C.D.C.

Invoking the Education Department’s civil rights enforcement arm marks a major turning point in the Biden administration’s effort to get as many students back to in-person schooling this fall, and the urgency felt nationwide about blunting the impact of a pandemic has wreaked havoc on students’ educational careers since March 2020.

The nation’s most vulnerable students, namely students with disabilities, low-income students and students of color have suffered the deepest setbacks when districts pivoted to remote learning, and their disproportionate disengagement have long drawn concern from education leaders and civil rights watchdogs.

Under Section 504 of the Rehabilitation Act of 1973, students are entitled to a Free Appropriate Public Education, known as FAPE, and Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color and national origin.

The department could initiate its own investigations into districts, if state policies and actions rise to potential violation of students’ civil rights. It could also review complaints from parents and advocates who make the case that prohibiting masks mandates is, in effect, a civil rights violation because it could deny a student their right to an education by putting them in harm’s way in school. Such investigations could result in resolution agreements, as many investigations by the office often do, and in the most extreme cases result in revocation of federal funding.

Dr. Cardona said conversations with parents of children with autism, respiratory illness or weak immune systems, “who rely on school for socialization and the important building blocks of learning,” had contributed to his sense of urgency.

“I’ve heard those parents, saying ‘Miguel, because of these policies, my child cannot access their school, I would be putting them in harm’s way,” Dr. Cardona said. “And to me, that goes against a free appropriate public education. That goes against of the fundamental beliefs of educators across the country to protect their students and provide a well rounded education.”

The administration will also send letters to six states — Arizona, Iowa, Oklahoma, South Carolina, Tennessee and Utah — admonishing governors’ efforts to ban for barring universal masking in schools.

Last week, Dr. Cardona sent similar letters to the governors of Texas and Florida, reminding them that districts had both the funding and the discretion to implement safety measures that the C.D.C. recommended for schools. The secretary also made clear that he supported district leaders who defied the governors’ orders.

In his letter to Texas, Mr. Cardona warned that the state was jeopardizing its federal relief funding. The state’s attorney general, Ken Paxton, doubled down in response, suggesting on Twitter that he would take the state’s ban on school mask mandates to the Supreme Court.

Dr. Cardona, who has been traveling around the country to promote the administration’s school reopening agenda , signaled he had lost his patience with students and desperate parents being at the mercy of partisan politics, even in places where the virus is surging.

He said that students being denied access to their right to an education as a result of unsafe school conditions was “unacceptable,” and that “If you look at the hospitalization rates, if you look at the full ICUs, it’s not working.”

“The fact that they’re not adjusting based on the illness, and the outcry from medical experts, is astonishing,” Dr. Cardona said. “But we cannot sit around. We have to do everything in our power, including civil rights investigations and even referring matters to the Department of Justice for enforcement if necessary.”

He said he has also communicated by phone with education leaders in Texas and Florida. In the conversations, he said, “we agree on vaccinations, we disagree on the use of mitigation strategies to keep students safe.”

So far, the federal threats have fallen on deaf ears in states where the partisan war over masks continues to rage. On Tuesday, the governor-appointed school board in Florida doubled down. In a board meeting,the board voted to investigate penalties against district officials in two counties — Broward County and Alachua County — that defied their orders.

The federal intervention comes as school districts face a monumental task of trying to get students back to in-person learning and reverse the devastating setbacks experienced by a range of students.

A report released by the department’s civil rights office this summer provided a snapshot of the suffering experienced in the year since schools abruptly shut down in March 2020.

The report noted that the pre-pandemic barriers experienced by groups such as English Language Learners, students of color and low-income students, who struggled to access virtual learning, were exacerbated.Mental health challenges were experienced by all students, the report noted, particularly among lesbian, gay, bisexual, transgender and queer students in elementary and secondary schools. In general, students failing grades had soared and engagement had plummeted. The report noted that the pandemic challenges were particularly acute for students with disabilities whose educational success particularly relies on classroom time and hands-on services.

Suzanne B. Goldberg, the acting assistant secretary of the office for civil rights, warned in the June report that the challenges students faced could run afoul of civil rights laws

“Although this report provides a data-driven account of Covid-19’s disparate impacts on students, rather than a legal analysis, it is important to recognize that disparities can sometimes be evidence of legal injuries under federal civil rights laws, even when policies and practices do not directly single out a group of people for harm,” she wrote.

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