Biden Admin Launches Spurious “Civil Rights” Investigations Into States Banning School Mask Mandates
Biden has opted to sic the Department of Education on those states that have not fallen in line with his preferred view by bringing civil rights investigations against them. It’s a federal power grab.
First Biden had the Centers for Disease Control and Prevention stop landlords from evicting tenants who failed to pay their rent. That ended with a Supreme Court loss, but not until the directive had been in place in various forms for almost seven months.
Then, in late June 2021, the Department of Justice commenced a civil rights lawsuit against the State of Georgia claiming that its legislation to ensure the integrity and security of the election process violated the federal Voting Rights Act. This highly politically partisan exercise was brought (by the supposedly apolitical DOJ) to allow the federal government to regulate Georgia’s elections – a patently unconstitutional infringement of state’s rights under the Tenth Amendment.
Now the Biden administration is at it again, turning to another federal agency to try to force states to implement his agenda – this time to compel K-12 schools to impose universal mask mandates.
As of Aug. 30, sixteen states and the District of Columbia are requiring that masks be worn in schools, and nine states have prohibited school districts from setting mask mandates, though wearing masks voluntarily is not banned.
The prudence of compelling children to wear masks indoors at school is hotly debated by medical and epidemiological experts. The competing arguments make this the sort of dispute that should be left to the political branches at the state level to resolve.
But rather than respect federalism and allow the laboratories of democracy to work through these issues as the Constitution intends, Biden has opted to sic the Department of Education on those states that have not fallen in line with his preferred view by bringing civil rights investigations against them. It’s a federal power grab.
These investigations stand on very wobbly legal legs. Still, the process of defending against and responding to the OCR investigation will be extremely time-consuming and costly to the states being targeted.
And, if these investigations result in adverse findings – and make no mistake, the fix is in – essential federal educational funding to these states could be cut off and referrals to the Department of Justice for enforcement proceedings could result.
By dangling this Damoclean sword over their heads, Biden is trying to cow these states into submission.
The Department of Education’s Office of Civil Rights (OCR) has opened investigations into whether statewide prohibitions on universal indoor masking in five states – Iowa, Oklahoma, South Carolina, Tennessee, and Utah – discriminate against students with disabilities.
While Florida, Texas, Arkansas and Arizona also have imposed bans on universal indoor masking, investigations have not been commenced into them because, according to the OCR, those state laws “are not currently being enforced as a result of court orders or other state actions.”
The following state prohibitions are in the OCR’s cross hairs:
- Iowa: A state law prohibits public schools and school districts from requiring their students and staff, or members of the public, to wear a facial covering “for any purpose” while on school property, unless the facial covering is necessary for a specific extracurricular or instructional purpose.
- Oklahoma: A state law prohibits public schools and school districts from implementing a mask requirement for students who have not been vaccinated against COVID-19, unless the school or district consults with the local health department and there is a current state of emergency declared by the Governor.
- South Carolina: A state law prohibits public schools and school districts from requiring their students or employees to wear masks at any of their education facilities.
- Tennessee: An executive order states that a student’s parent or guardian must have the right to opt out of any order or requirement for a student in kindergarten through twelfth grade to wear a face covering at school, on a school bus, or at school functions, by affirmatively notifying in writing the local education agency or personnel at the student’s school.
- Utah: A state law prohibits public schools and school districts from requiring any individual to wear a face covering to attend or participate in in-person instruction, district-sponsored athletics or extracurricular activities, or in any other place on the campus of a school or school facility.
The OCR maintains that these state’s prohibitions on universal mask mandates in their schools may violate Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990.
Specifically, the OCR’s letters state that Section 504 and the ADA “guarantee[ ] qualified students with disabilities the right to a free appropriate public education in elementary and secondary school,” including “the right of students with disabilities to receive their education in the regular educational environment, alongside their peers without disabilities, to the maximum extent appropriate to their needs.”
Section 504 and the ADA
Section 504 of the Rehabilitation Act of 1973 is a national law that protects qualified individuals from discrimination based on their disability, but it applies only to entities that receive federal funds.
Title II of the Americans with Disabilities Act, or ADA, extends the prohibition on discrimination established by section 504 to practically all entities in the country, regardless of whether they receive federal financial assistance. The ADA thus prohibits discrimination on the basis of disability in all services, programs, and activities provided to the public by State and local governments.
Schools that receive federal funds must comply with both Section 504 and the ADA.
Disability under Section 504 and the ADA
Both Section 504 and the Americans with Disabilities Act define a disability in part as “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.”
The statutes provide a non-exhaustive list of “major life activities,” as well. These include “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”
The OCR’s Vague Standard
In letters sent to the five targeted states, the OCR cautions that statewide “restriction[s] on schools and school districts from putting masking requirements in place may be preventing schools … from meeting their legal obligations not to discriminate [against] … students with disabilities who are at heightened risk of severe illness from COVID-19.”
The OCR’s approach is plagued by ambiguity, and it’s plain that any “investigation” will involve a subjective analysis based largely on guesswork.
For example, what sort of “disabilities” place students “at heightened risk of severe illness” from COVID-19, who determines that, and how will the government measure whether a person’s risk is normal or heightened?
The immunosuppressed and those who suffer from underlying respiratory conditions might seem like obvious candidates, but what about students who are simply overweight? After all, in a study of COVID-19 cases in patients aged 18 years and younger, obesity was associated with a 1.42 times higher risk of severe illness. Is that marginal risk elevation sufficient to satisfy OCR’s standard?
Further, how many – or how few – of these students must the OCR find before they can sanction the state? What percentage of the total K-12 student population must fall into the category of “students with disabilities who are at heightened risk of severe illness from COVID-19” before the federal government can cut off the flow of money to needy school districts?
Unsurprisingly, the OCR’s letter doesn’t answer any of these questions.
Legal Infirmities with the OCR’s Definition of Discrimination
Under the ADA, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” Section 504, which applies only to programs or activities receiving federal financial assistance, contains a nearly identical standard.
Such discrimination may take the form one of three theories of liability: disparate treatment, disparate impact, or failure to make a reasonable accommodation.
The OCR’s legal theory is essentially that compelling all students in a school to wear a face mask while indoors is a reasonable accommodation to those students with qualifying disabilities who are at heightened risk of severe illness from COVID-19 – however small in number. Disallowing such an accommodation by banning mask mandates is therefore discriminatory.
First, courts have generally held that no viable ADA or Section 504 discrimination claims exist where, as here, the harms are speculative.
Next, while a reasonable accommodation is one that gives the person with disabilities meaningful access to the program or services sought, courts have not interpreted this phrase to require others to modify their behavior (see here and here and here).
Indeed, the statutory language of the ADA provides that accommodations include “modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services.” None of this reasonably can be interpreted as encompassing a requirement that others adorn masks.
Finally, the federal government claims that statewide prohibitions on K-12 school mask mandates – by ostensibly putting certain students with qualifying disabilities at higher risk of COVID infection – may result in those students having to attend school through remote means. According to the OCR, this would deny those students the benefits of a school’s services, programs, or activities by depriving them of receiving their education in the regular school environment.
This is an astonishing contention, since it is tantamount to asserting that all virtual schooling – which teachers unions and school districts fought for last year – is unlawful.
Nor is such a premise legally tenable, as the Supreme Court has held that under Section 504 and the ADA, an accommodation is reasonable as long as it allows the individual to enjoy “meaningful access” to the benefits of the public services.
The Real Section 504 and ADA Violations
Several blue states and the District of Columbia have taken the decision about whether to require masks out of the hands of local school districts and imposed universal mask mandates on all students and staff in K-12 schools. Indeed, according to burbio.com, 38.4% of all K-12 students nationwide are required to wear masks pursuant to such state directives.
These states include New York, Massachusetts, New Jersey, Connecticut, Rhode Island, Washington, Oregon, California, Nevada, New Mexico, Louisiana, Delaware, Virginia, Kentucky, Illinois and Hawaii.
If the ADA and Section 504 are to be invoked at all, however, they should be invoked to invalidate the mask mandates in these jurisdictions.
After all, if as the federal government claims, those who are more susceptible to illness are being discriminated against by state prohibitions on mask mandates, isn’t it also the case that those for whom prolonged masking exacerbates physical and behavioral disabilities are being discriminated against by compelling them to wear face coverings all day long while at school?
While the Centers for Disease Control and Prevention and the American Academy of Pediatrics support universal masking in schools, credible arguments exist on the opposite side of the ledger.
In an August interview on “The Hugh Hewitt Show,” National Institutes of Health Director Francis Collins said there is no clear data “showing that those kids are at greater risk of hospitalization or illness of serious sort from taking their mask off.” He also admitted it is “rare” for school-aged children to contract COVID whether masked or not.
Further, the CDC conducted a month-long comparative study in which it examined more than 90,000 Georgia elementary school students from 169 schools in 51 counties. The study revealed that the lower incidence of COVID in schools that required mask use among students schools “was not statistically significant compared with schools where mask use was optional.”
In August last year, the CDC also published a report of a study conducted of 666 child care centers (encompassing 18,945 children) in Rhode Island where mask use was required only for adults. The report identified only four possible in-center transmissions.
Moreover, according to a month-long Lancet study published in August 2021, the most common symptoms of schoolchildren who become infected with COVID are headache and fatigue, and in 75 percent of the cases, these symptoms disappear in less than one week.
Conversely, researchers have documented the potential damage to children from long-term masking. A research letter published in JAMA Pediatrics in June 2021 concluded that the evidence base for compulsory nose and mouth coverings for schoolchildren “is weak,” that mask-wearing led to children aged 6 to 17 inhaling unhealthy doses of carbon dioxide, and concluding that “children should not be forced to wear face masks.” This report also referenced a well-known German survey of 25,930 children that revealed that 68% of the participating children suffered adverse effects when wearing nose and mouth coverings.
These studies and reports demonstrate that whether to require masking of schoolchildren – which is an exercise of the state’s police powers – is a quintessential public policy decision that should be made at the state level by elected officials who can suffer political consequences at the ballot box.
Four of the five states targeted by the Department of Education’s OCR enacted their bans on mask mandates through the legislative process.
Yet despite the fact that these same legislatures created the states’ education systems and their local school boards, the Biden federal government, through a radically expansive, nay boundless, interpretation of disability anti-discrimination laws, now seeks to prevent these legislatures from deciding what these education systems and school boards can do.
This remarkable assault on federalism is designed to achieve a singular purpose: a nationwide mask mandate that the federal government lacks the power to impose directly.
Biden is delivering on a campaign promise to impose such a mandate.
Further, during a October 23, 2020 speech in Wilmington, Delaware about his strategy to combat COVID-19, Biden stated, “First, I’ll go to every governor and urge them to mandate mask-wearing in their states. And if they refuse, I’ll go to the mayors and county executives and get local masking requirements in place nationwide.”
That is precisely what he’s doing by having his Department of Education initiate these spurious “civil rights” investigations.
At bottom, Biden is abusing federal disability laws for partisan purposes to nationalize a political issue that belongs categorically to the states.
Long ago, Alexander Hamilton decried this type of federal intrusion into state rights as being “repugnant to every rule of political calculation.”
It seems that the more things change, the more they stay the same.
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“But rather than respect federalism and allow the laboratories of democracy to work through these issues as the Constitution intends, Biden has opted…”
If you can’t make any person in the country respond “yes, master” to every whim you have, what’s the point in being president?
The d/progressive crave power. They exercise power where they have a majority; blue States. They hate Federalism because it allows red States to defy their power.
Soon enough the pendulum of political power will swing away from them and when it does they must be made to regret their rejection of Federalism. They don’t really respect anything else but the exercise of raw political power.
Teachers Unions want their pound of flesh.
Based on the performance of the past year and half of Rona alone the teacher unions have already received it and then some.
The only thing they respect as much as raw political power is raw physical power. And they seem just as inclined to exercise either.
The prudence of compelling children to wear masks indoors at school is hotly debated by medical and epidemiological experts.
Actually, there is no evidence whatsoever that suggest face diapers do anything meaningful in preventing the Wuflu. No study that has reach this conclusion has ever withstood scrutiny. Not one.
This is another example of the corrosive effect the Federal government can have on science. Federal research grants have become the lifeblood of many university researchers struggling to obtain tenure. Researchers know if they come back with results that contradicts the Federal fundamentalist religious beliefs (“man-made climate change is real”…”vaccines and paper masks prevent the spread of the Wuflu”), then their chances of getting a NSF grant ever again are zero.
Not to mention it’s an outright lie.
It’s not ‘hotly debated’ at all.
It’s decreed by a bunch of idiot jackasses that rely on power to make them do it. There’s no ‘debate’.
Ummmmm, blocking mask mandates doesn’t prevent people from making personal decisions to wear masks. Bans on mask mandates don’t stop mask-wearing, they merely prevent subdivisions of the state from requiring their use. There’s no “civil rights” violation here. Indeed, there’s civil rights empowerment by keeping the choice to mask or not mask with the only authority authorized by the Constitution to make such decisions – the individual.
Well, you don’t get an IEP or a 504 plan for being diabetic or fat. Are we talking about some vanishingly rare disorder that almost nobody has heard of.?
My 504/sped kids are harmed much more by masking. Usually because they suck at reading and it is harder to understand what people are saying through a mask.
They don’t care about the kids
They only care about power
This is just harassment, so the plebes understand who REALLY makes the rules.
Thank you for discussing this topic ! I have been reading this website fir years but have never left a comment because honestly I’d rather just learn then add in my two cents. But this time I think my personal experience might be helpful. I am a school psychologist in Hillsborough County Public Schools in Tampa Florida and I have been living through this political mess of mask mandates for going on the 2nd year. Hillsborough decided to defy the government ban on mask mandates And institute one anyway , supposedly out of concern for the students abs the “we gotta do something “ mentality. This mandate similar to last years policy includes sending students home who do not comply or wear the mask improperly , so us educators get to spend the whole day saying things like “pull the mask up over you nose “ “not in your mouth “ “stop chewing on your mask “ “ don’t chew gum under your mask “ etc etc etc . How is it not a violation of 504 and ADA that I can deny a child the right to their education because they either can’t or won’t wear a mask properly but they don’t meet the stringent requirement for a medical opt out ( only given really to students with severe cognitive disabilities and severe Autism ) ? That’s my question , and how is all of this hyper focus on cloth masks taking away from our ability to teach and students ability to learn ? It’s such a razor hot issue that no one in my district can even voice those questions without fear of retribution. All I can say is after a year plus of mandatory masks , all I can see are the very obvious downsides and none of the supposed benefits.
“No one in my district can even voice those questions without fear of retribution.”
This tells us everything we need to know.
This atmosphere of fear is “the new normal.”
Time to seriously consider getting on board with secession.
It can be accomplished nonviolently, despite all the “Civil War” bullshit one may hear as an ignorant rebuttal to the proposition: “Individual liberty is under serious threat from the federal government’s far-reaching bureaucratic control in collusion with the public education apparatus from Kindergarten through graduate school. The only course left is nonviolent secession, a gradual disengagement from all federal control and regulation, to be codified in the various State Constitutions of those States seeking divorce from the federal government.”
Postoperative wound infections and surgical face masks: a controlled study
Effectiveness of Adding a Mask Recommendation to Other Public Health Measures to Prevent SARS-CoV-2 Infection in Danish Mask Wearers
Physical interventions to interrupt or reduce the spread of respiratory viruses
A deceptive sense of safety, a viable legal indemnity, and placebo effect that will be normalized, again, with the progress of symptom suppressed, high viral load, fully vaccinated experiments in the general population.
The Biden/Harris handlers don’t give a rat’s ass about anything we care about. They’re going full steam ahead on their fascist agenda.
Watch this interesting analysis about the lack of stress on Jen Psaki and Kamala Harris: they just don’t care.
Who voted for this?
Those that voted for Biden will never own up to it.
Find these people and ostracize them, exclude them from your life. Tell them why.
Voting has consequences.
Surely for there to be a civil rights breach someone must be FORCED to do something they don’t want to so.
But here no one is being forced NOT to wear a mask…unless the left now considers people are being FORCED to make a choice?
If masks work as the left wishes them to work then every immunocompromised child can wear a mask in public and their civil rights are fine.
But no, that’s not how the counts on the left work. Don’t kid yourself here people. After warning us of Truuuuuuuuumps fascism these fucks are determined to FORCE you to bend a knee to their benevolence.
So the pedophile-in-chief seems to think that people have a civil right to abuse other people and other people’s children.
These people act as if the tenth amendment and dual sovereignty doesn’t exist.
Every state should simply refuse to enforce any federal law and act as tax collector for the federal government. They should also make it clear that federal employees that violate state law will be arrested.
What we need is a comprehensive unified conspiracy theory that will help guide us through all of these obvious conspiracies. Maybe this helps:
The walls on all fronts are caving in on these Marxists and they are desperate to pull off their revolution before they are rounded up and hanged. One thing that would help a lot would be for governors to stop obeying court orders that will easily be overturned. Fight fire with fire.
Biden ignores SCOTUS decisions with impunity as do the rest while we continue to obey. We will surely lose if we aren’t willing to fix this disadvantage. We are at war and yet we allow ourselves to be bogged down in courts where constitutional law is not being enforced. How dumb is that?