Biden to Challenge Bans on Mask Rules Using Students’ Civil Rights Protections

President Joe Biden announced on Wednesday that his administration would utilize civil rights protection powers within the Department of Education in order to challenge governors that are imposing bans on mask mandates in school districts within their states.

Biden said the actions, which will be carried out by Education Secretary Miguel Cardona, were necessary to “take additional steps to protect our children” against the continued spread of coronavirus. He described governors choosing to punish school districts as “setting a dangerous tone” amid a surge of cases and hospitalizations due to COVID-19.

“Some politicians are trying to turn public safety measures — that is, children wearing masks in school — into political disputes for their own political gain. We are not going to sit by as governors try to block and intimidate educators protecting our children,” Biden said in his remarks.

Cardona also described several governors’ actions as being negligent, and said the Department of Education could investigate civil rights violations — specifically Section 504 of the Rehabilitation Act of 1973, which says students are entitled to free, appropriate public education, and the 1964 Civil Rights Act — to examine whether the prohibition of masking rules are denying students the right to a safe learning space.

Inquiries from the department could be opened in order to look into alleged violations of students’ rights, particularly those who have been hurt the most by setbacks in education standards since the pandemic started (including students with disabilities, those who are from low-income households, and students of color).

“The department has the authority to investigate any state educational agency whose policies or actions may infringe on the rights of every student to access public education equally,” Cardona said in a statement.

If the Education Department deems a state to have violated students’ rights, penalties could be imposed, including the limiting of federal funding for those states.

Several states have imposed masking guidelines, with three states’ Republican governors, Greg Abbott of Texas, Doug Ducey of Arizona and Ron DeSantis of Florida, imposing the most stringent rules against local school districts seeking to implement masking requirements.

Several school districts in Florida, however, are implementing masking rules for students and staff, despite threats from DeSantis to withhold administrators’ paychecks in retaliation. On Wednesday, three more school districts in the state (including Miami-Dade County, the fourth-largest district in the country) voted to institute mask mandates, bringing the total to five districts that have made rules about the need for facial coverings at school in the state so far.

While the number of districts is small, the proportion of schoolchildren who will be affected by the rules is significant, amounting to 40 percent of kids enrolled in Florida’s public schools. According to reporting from The Washington Post, that number is likely to increase as more districts consider imposing masking rules of their own.

The masking rules come as Florida grapples with incredibly high rates of COVID. The state is one of the hardest-hit in the country with the latest wave of coronavirus infections and is leading the country with the highest rate of hospitalizations. Florida also has the second-highest daily rate for residents testing positive for the virus.

The rate of deaths associated with the current wave of COVID in the Sunshine State also mirrors what it witnessed during last winter’s outbreak of the virus, with more than 960 recorded deaths in the past week alone.

The masking rules adhere to guidelines recommended by the Centers for Disease Control and Prevention (CDC), which has noted that, while children “benefit from in-person learning,” masks should be worn while such instruction is happening, due to the continued presence of the coronavirus.

“CDC recommends universal indoor masking by all students (age 2 and older), staff, teachers, and visitors to K-12 schools, regardless of vaccination status,” the agency says on its website.

Polling on the subject shows that most Americans want masking rules to be implemented. According to Axios/Ipsos survey results released this week, 69 percent of voters think that districts should impose measures requiring facial coverings to prevent the spread of coronavirus, while only 30 percent say they oppose such rules.