The U.S. Department of Education's Office for Civil Rights (OCR) opened directed investigations in five states on Monday.
They will explore whether statewide prohibitions on universal indoor masking discriminate against students with disabilities who are at heightened risk for severe illness from COVID-19 by preventing them from safely accessing in-person education.
OCR 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, including those with underlying medical conditions related to their disability. 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 letter states.
OCR has not opened investigations in Florida, Texas, Arkansas, or Arizona because those states’ bans on universal indoor masking are not currently being enforced as a result of court orders or other state actions.
The investigations will explore each state’s compliance with Section 504 of the Rehabilitation Act of 1973 (Section 504), which is a federal law that protects students with disabilities from discrimination based on their disability. Section 504 guarantees qualified students with disabilities the right to a free appropriate public education in elementary and secondary school, commonly referred to as FAPE.
The investigations 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.
State Superintendent Hopes Mandate Ban 'Stricken'
The news of the investigation comes as state Superintendent Joy Hofmeister said she wants to see SB 658 "stricken" in court on Twitter this weekend.
She said this would allow schools to "fulfill their legal duty to protect and provide all students an opportunity to learn more safely in person."
Hofmeister's comments come as positive COVID cases and exposures continue to increase in schools, sending kids and teachers home to quarantine.