Disability rights advocates are taking on Republican governors who block school mask requirements, launching a slew of federal civil rights lawsuits that could serve as a blueprint for the Biden administration as it weighs legal options to fight the policies.
The legal challenges — filed separately in recent weeks against Texas, Florida and South Carolina — argue that those states‘ bans on universal masking in schools run afoul of federal anti-discrimination laws meant to protect children with disabilities.
The GOP bans on school mask mandates were already facing a torrent of lawsuits in state courts. The Texas Supreme Court last week temporarily blocked Gov. Greg Abbott’s mask policy, for example. And a judge in Arkansas similarly has paused a state law prohibiting mask requirements that was signed by Gov. Asa Hutchinson, who has said he regrets doing so.
But disability rights groups are now charting a separate legal path through the federal courts — which could have sweeping implications if the Biden administration embraces the arguments, as it has already hinted it is considering.
The advocacy groups argue that GOP states forcing schools to adopt mask-optional policies effectively present the parents of children with disabilities a Hobbesian choice: either they risk their child’s health by sending them to school or risk their education by keeping them home.
“The states that have done this are essentially throwing their students with disabilities under the proverbial school bus,” said Susan Mizner, who directs the disability rights program at the American Civil Liberties Union. The ACLU, along with other groups, filed the latest federal lawsuit on Tuesday over South Carolina’s ban on mask mandates from Gov. Henry McMaster.
“Prohibiting schools from requiring universal masking is essentially excluding students with disabilities from school,” Mizner said. “It is outright discrimination.”
The federal lawsuits argue that GOP bans on mask mandates violate the civil rights of students with disabilities under two laws: Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, which requires schools receiving federal funds to provide students with disabilities a “free, appropriate, public education.”
“Many kids with disabilities have health situations that make them more vulnerable than others in terms of the potential impact if they get Covid,” said Miriam A. Rollin, director of the Education Civil Rights Alliance at the National Center for Youth Law. Not requiring masks in schools could potentially mean some of those students must stay home, she added. “It’s compounding the disadvantage they’ve already experienced with Covid.”
The GOP policies that forbid school leaders from requiring masks make it impossible, the lawsuits argue, for those schools to provide a safe environment for students with disabilities who also have health conditions that put them at increased risk of severe illness.
In Florida, the federal lawsuit against Gov. Ron DeSantis was filed earlier this month by the parents of 15 children with disabilities, including Down syndrome, kidney disease, asthma and other conditions that compromise their immune system.
Lawyers for DeSantis and other Florida officials named in the suit responded in court papers on Tuesday, arguing that the families should pursue options through their various school districts for addressing the special needs of their children through individual education plans, not seeking a sweeping injunction of statewide policy.
Christina Pushaw, a DeSantis spokesperson, said that the governor was confident in the legality of his policy and believes that "one-size-fits-all mandates do not work for everyone," including students with disabilities.
"There is no empirical evidence to support the assertion that the benefits of forced masking of schoolchildren outweigh the potential harms," she said in an email. "In fact, some students who have disabilities (Deaf/hard-of-hearing, speech impediments, autism, etc.) may be harmed by mandatory masking."
The lawsuits present “a novel question” about how federal civil rights laws apply to state mask policies for schools, said Ron Hager, managing attorney for education and employment at the National Disability Rights Network. One of the network’s members, Disability Rights Texas, filed the federal lawsuit over Abbott’s executive order last week.
“The blanket prohibition on mask mandates is the thing that is most legally troubling,” Hager said, adding that it prevents local school districts from following health guidance and accommodations that students with disabilities might need.
Republican governors in at least eight states — Arizona, Arkansas, Florida, Iowa, Oklahoma, South Carolina, Texas and Utah — have enacted bans on school mask mandates. In Missouri, Attorney General Eric Schmitt, a Republican, on Tuesday filed a class action lawsuit seeking to block school districts in the state from requiring students and teachers to wear masks.
GOP governors have said the policies are aimed at giving parents the choice of whether kids wear a mask in school, and they’ve downplayed the importance of masks. The Centers for Disease Control and Prevention and other public health experts like the American Academy of Pediatrics has recommended universal mask-wearing in schools this fall.
Texas and South Carolina have not yet responded to the federal disability rights lawsuits in court but the governors in both states have vocally defended their policies.
“Governor Abbott cares deeply about the health and safety of disabled students, as he does for all Texas students," Renae Eze, a spokesperson, said in a statement. "Since his accident that left him paralyzed, the Governor has worked throughout his career to protect the rights of all those with disabilities in Texas.”
Brian Symmes, a spokesperson for McMaster, declined to comment on pending litigation. But he said "the only truly inclusive option is to allow every parent to decide whether their child will wear a mask in school," which he said is the goal of the mask policy passed by South Carolina.
The Biden administration has blasted the GOP policies as anti-science and an obstacle to safely reopening schools. It has voiced support and federal resources for school districts that require masks in defiance of their state policies.
President Joe Biden last week signed a directive for the Education Department to examine “all available tools” — including “possible enforcement actions” — to take action against governors and other state officials who are preventing schools from following CDC guidance on masking and other Covid mitigation strategies.
Biden said that he wanted Education Secretary Miguel Cardona to use “all of his oversight authorities and legal actions, if appropriate, against governors who are trying to block and intimidate local school officials and educators.”
Cardona has said that his agency may open civil rights probes into state masking policies. “We are prepared to launch investigations with our Office for Civil Rights to ensure that all students have access to this fundamental right of education,” he said in an interview on NBC’s “Meet the Press” on Sunday.
Rollin said that it’s possible that bans on masking could also implicate other federal civil rights laws, especially given the disparate racial impact that Covid has had on students of color.
“If a decision made by a government entity related to schooling is impeding the ability of a protected class of students to get the education to which they’re entitled — that is what federal anti-discrimination law is supposed to protect against,” she said.
The Office for Civil Rights is responsible for enforcing Section 504 of the Rehabilitation Act, but the department could also use Title VI of the Civil Rights Act, which prohibits disparate impact for students of color, as the base of its legal theory for launching investigations, said David Hinojosa, director of the Educational Opportunities Project at the Lawyers’ Committee for Civil Rights Under Law.
Civil rights investigations can take several months to launch and get compliance from school agencies, which may not be timely enough for the fall semester. Several civil rights groups have asked Congress to boost funding for the Office for Civil Rights to respond to discriminatory policies during the pandemic.
"Given the heightened health risks, students need additional protections,” Hinojosa said.
“The department has limited resources, but they could re-allocate those resources to address imminent risk — this is an imminent risk," he said. Most enforcement efforts, he added, are successful as school districts and education entities typically “bend when it comes to getting their federal funds taken away.”
The threat of a civil rights investigation has yet to make some Republican governors and state officials stand down.
Conservatives have pushed back on the Biden administration’s plans to consider using federal civil rights enforcement authorities to discourage states from banning universal masking in schools.
“This is the worst kind of federal overreach, and it’s clearly illegal,” former Education Secretary Betsy DeVos said on Twitter last week. “Education is an issue the states – and more importantly, families – should control
Bianca Quilantan contributed to this report.
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