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:
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 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.
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.”
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.
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.
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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