Are Mandatory Masks in Schools a Civil Right?

Using federal law to override state and local policy decisions would start a dangerous trend.

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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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  1. Avatar photo
    Ben Connelly

    From the grounds the OCR is basing their argument on, one could just as easily say every disabled child has a right to a private teacher (masked, vaccinated, frequently tested), to go to their home (at no cost to the parents), to teach them solo while all the other students go to school without masks.

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    George.Skinner

    A civil right? I can see the flaws in that argument. However, I can also see the federal government grasping at any tool it thinks it might use to counter utterly counterproductive and frankly dangerous anti-mask and anti-mitigation policies adopted by some states.

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    Kevin C. Smith

    Excellent piece!

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    Patrick O'Rouke

    From a purely legal standpoint, I agree with this. I think Charlie Cooke is correct that states are the original jurisdictions and therefore have the right to dictate masking orders to school systems if they want to. I agree with the author here that any federal attempts to subvert that are opening a massive can of worms.

    But I also don't think states banning mask mandates at the local level is a prudent decision. Ron DeSantis isn't fighting this fight because he thinks all school systems in Florida should be run from Tallahassee. He's doing it because his loudest fans see masking as an important fight and he's just trying to figure out how to have that fight on their behalf (and, perhaps more importantly, for their entertainment). And that's indicative of the bigger problem here: we're rapidly approaching a bipartisan consensus that we should expand government power at whatever levels we control at any given moment to reward our supporters and punish our political opponents. How often do we hear any politician today say "while I'd appreciate X outcome, that's not an appropriate thing for me to do in my position?" The minute a Republican says anything like that, the RINO brigade immediately start screaming about how all Republicans do is surrender, while they, themselves, ironically surrender any notions of limited government going forward.

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    1. Avatar photo
      Pat Riot

      While I'm far from a Libertarian these days, the DOE actually *is* an agency we could mostly do without. 95% of the money for public schools comes from states and localities, so most of what they do is ceremonial.

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  5. mle

    I would oppose a national mask mandate. Mask mandates should be up to localities and private businesses. Now, in the case of states like Florida or Texas, where the governor is trying to ban mask mandates at local levels, I don't mind the national government offering to support the local governments who are butting heads with the state government (that's too many governments in one sentence!).

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    Nick H

    President Biden may have campaigned on eliminating politicized law enforcement, but his definition of "politicized" is "what the other side does." To be fair, that's been the position of every politician for a long time now.
    Good article addressing the problems with the OCR actions that are separate from the merits of the masking debate itself.

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    Pat @ Tavi Hall

    While I follow Mr. Driscoll's concerns, I'm not totally sold. First, schools make these kinds of broad concessions more than he understands. I'd guess that no public school and few private schools cook with peanut products or even other nuts due to peanut allergies. I'd also guess this is for a much smaller portion of the population than those at risk for Covid. The Covid risk is even greater if you consider who children might be living with at home.

    Next I think his solution is backwards. This is not a state level decision. It's a local one. Much like New York City did in 2019 with gun carrying laws (SCOTUS 18-280), so these states need to moot their laws and rules before court decisions are handed down. If we have a "bad" court decision on this, it won't be due to federal assistance but state inflexibility. States are not in my opinion making these rules to protect their citizens, but for partisan purposes.

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      Jesse.Wick

      And mitigation strategies other than masking (restrictions on adult visitors/volunteers, cancellation of off-campus field trips, etc.) do in fact vary from locality to locality. Mitigation in our county is not identical in neighboring counties. Masking is just the partisan lightning rod du jour, so we have to fight over it.

      This case, though, rests on a pretty tenuous interpretation of ADA & IDEA. I don’t think it holds water.

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    2. tla

      You're right, the conflict right now is between the State and Local control. State that are banning local masking mandates are effectively creating problem that in the mind of some is the job of the Federal government to solve. The solution to bad centralized government solutions is not more decentralized government. It's all so stupid.

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    3. EJH

      Exactly. Our elementary schools are 100% nut free this year. (Partly because with social distancing and lunches split between classrooms and cafeterias, there is no room for a "peanut-free table.") Regardless, local school boards should be able to make decisions for the students and parents they serve. 4 of 5 school board members responded to me individually within a day of writing a letter in support of universal masking. I have never gotten a timely, personal response from a state or federal elected official. The mask decision that works for one district can and will look different than another district depending on local vaccination and case rates as well as risk tolerances.

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