Are Mandatory Masks in Schools a Civil Right?

On Monday, the Department of Education’s Office of Civil Rights (OCR), apparently following President Biden’s exhortation that his administration would use “all available tools” to crack down on state-level mask mandate restrictions, notified Tennessee, Utah, South Carolina, Oklahoma, and Iowa that OCR is investigating whether such prohibitions implicate federal civil rights laws by preventing local school districts from “considering or meeting the needs of students with disabilities.” The states being investigated could, theoretically, risk a chunk of their federal education funding if violations are found. While there is clearly a degree (likely a large degree) of political posturing animating OCR’s decision to wade into this culture war issue, the investigations raise legal issues that have implications well beyond the merits of this particular dispute. However you feel about masks in schools, this dispute and the interpretation of civil rights laws by the OCR are worth paying attention to. 

What civil rights are at stake in the mandatory masking debate? 

For many people, the term “civil rights” is inextricably linked to the movements to achieve racial equality.  But that is just one of the bundle of “civil rights” that the law protects. There are also laws to protect individuals with disabilities from discrimination in accessibility, employment, and education, among other spheres. Although most Americans think of the Americans with Disabilities Act (ADA), passed in the early 1990s, as the primary law protecting the disabled from discrimination, Section 504 of the Rehabilitation Act of 1973 had already prohibited recipients of federal funds from denying individuals with disabilities an equal opportunity to participate in programs that are funded to any degree with federal money. And so it is Section 504 of the Rehabilitation Act, along with Title II of the ADA (which extended Section 504’s protections to all activities of state and local governments, whether federally funded or not) that are invoked by OCR as the source of its authority to investigate state-level prohibitions on local school board mask mandates. 

What do state level bans on mandatory masks have to do with the rights of the disabled?

OCR’s logic here is a bit convoluted, but boils down to the following syllogism: (a) some children with underlying medical conditions are at higher risk of suffering severe consequences of COVID; (b) some subset of these children qualify as having a disability under Section 504 of the Rehabilitation Act and the ADA; (c) federal disability law requires that disabled children receive a free and appropriate public education, and that the education be provided in the regular educational environment to the maximum extent appropriate given their needs; (d) state-level mask mandate prohibitions might prevent local school boards from adopting mask mandates that could allow certain high-risk disabled children to attend regular in-person classes where such children might not be able to attend such classes without a mask mandate.

Thus, the legal question will be whether state-level entities banning mask mandates are preventing local school districts from “considering or meeting the needs of students with disabilities,” as required by law.

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