The debate over student masking has at times reached feverish pitches in different parts of the country. It is an issue that brings many core beliefs and principles to the forefront – personal freedom, the safety of our children, and perceived and real Constitutional rights. At the moment, there appears to be a decline nationwide in the proliferation of Covid-19. However, we have been down this road before and if the last year and a half has taught us anything, it is that no one can predict the pandemic’s course with certainty. The issue of mandatory masking is not likely to go away any time soon.
The Department of Education weighs in
On August 30, 2021, the U.S. Department of Education's Office for Civil Rights (“OCR”) initiated investigations designed to determine whether prohibitions on indoor masking in school initiated by five states may discriminate against students with disabilities. These students are often at higher risk for significant illness from Covid-19. As such, many may not be able to safely participate in on-site learning without mandated mask protections.
The five states subject to the investigation which were sent letters advising of the inquiry are Iowa, Oklahoma, South Carolina, Tennessee, and Utah. The letters expressed the OCR’s concern that each state’s respective school mask restrictions “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.”
Secretary of Education Miguel Cardona has expressed the rationale for the aggressive approach the OCR is taking on this issue:
"The Department has heard from parents from across the country – particularly parents of students with disabilities and with underlying medical conditions – about how state bans on universal indoor masking are putting their children at risk and preventing them from accessing in-person learning equally. It's simply unacceptable that state leaders are putting politics over the health and education of the students they took an oath to serve. The Department will fight to protect every student's right to access in-person learning safely and the rights of local educators to put in place policies that allow all students to return to the classroom full-time in-person safely this fall."
The statutory basis for the OCR investigation
The investigations will seek to determine the extent to which these five states are or may be out of compliance with Section 504 of the Rehabilitation Act of 1973 (Section 504), the federal law protecting students with disabilities against discrimination.
The investigations will also look at the question of whether state prohibitions on indoor school masking violate Title II of the Americans with Disabilities Act of 1990 (“ADA”). Title II is aimed at discrimination against people with disabilities by states and other public entities, including public educational institutions.
Recent conflicting developments
Since the OCR’s initiation of its investigation, not surprisingly, numerous lawsuits have been filed throughout the country dealing with masking in school as well as other settings which have led to conflicting temporary rulings by the courts:
- On August 27, 2021, a Florida state court struck down an executive order issued by Florida’s Governor which prohibited local school districts from imposing mask mandates. The action was brought by ten Florida school boards that voted to defy the Governor’s order and impose mask requirements. On September 10, 2021, a Florida appellate court reversed the decision and reinstated Governor DeSantis’ order.
- On September 3, 2021, a federal court in Tennessee enjoined an executive order issued by Governor Bill Lee which had allowed students to opt-out of school masking mandates. According to the court, the two students bringing the action were improperly excluded (by the mask mandate) from certain activities due to disabilities arising from medical conditions, in violation of the ADA. The matter is awaiting full trial.
- On September 29, 2021, a federal judge in South Carolina temporarily blocked the state’s ban on mask mandates in schools. The Court supported the OCR and held that the ban in fact did discriminate against students with disabilities in violation of the ADA. The ruling was in the form of a temporary restraining order and preliminary injunction and therefore not an ultimate ruling on the question which will need to await a trial on the merits.
These are just a small sample of the litigation pending throughout the country dealing with mask mandates. It is likely that the U.S. Supreme Court will ultimately be required to weigh in on the issue to resolve the disparate conclusions reached by the courts.
Related Covid-19 court and government actions
In fact, the Supreme Court has addressed Covid-19 mandates more generally on at least one occasion. On August 12, 2021, the Court denied an application for an emergency writ of injunction against a vaccine mandate issued by Indiana University. The Court’s decision was rendered without a written opinion and therefore does not offer any details about the Court’s reasoning but upholding the mandate should be encouraging to mandate advocates.
On November 4, 2021, the White House announced specific Occupational Safety and Health Administration (“OSHA”) rules effective January 4, 2022, implementing President Biden’s plan announced in September 2021 to mandate that companies with 100 or more employees, require employees to be vaccinated. These rules are lengthy and complex and will certainly generate more litigation to help stir an already full pot.
Summary – What’s to come?
The OCR investigation has become a part of a much larger battle at this point playing out in courts throughout the country and it may be that this legal avenue, culminating most likely with decisions by the U.S. Supreme Court, is the more efficient way to resolve issues of mandates and discrimination.
Critics of the OCR point out the inherent difficulty in fully investigating this issue nationally and then developing, seeking comment upon, and implementing a rule. There are many variables that may make this process difficult. To take just one example, commentators have already pointed out that even students with disabilities themselves will have very real differences in how they react to mask-wearing with some perhaps finding breathing and normal activity challenging. Resolving all of these questions administratively may be overwhelming.
Finally, and hopefully, there is some thought that mask mandates and the legal challenges surrounding them may become moot if in the next months we find that the pandemic has subsided and life returns to something approaching normal.
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