UPDATE: Sept. 21, 2021: The Texas Education Agency is now under an Office for Civil Rights investigation for its statewide ban on mask mandates, the U.S. Department of Education announced in a letter Tuesday. That state policy, which was restated in a Sept. 17 TEA public health guidance memo, "may be preventing schools in Texas 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," the OCR letter said.

UPDATE: Sept. 13, 2021: The U.S. Department of Education announced in a letter Friday it has opened an Office for Civil Rights investigation into Florida's masking policy, citing evidence in support of the universal use of masks to reduce the spread of COVID-19. An executive order from Gov. Ron DeSantis bans mask mandates in schools and threatens penalties for districts that try to enforce such mandates. The state currently places decisions over whether students wear masks in the hands of their parents or legal guardians.

The Ed Department's letter contends the state's mask policy may be preventing schools from meeting legal obligations for students with disabilities at higher risk of severe illness from COVID-19.

Dive Brief:

• Five states are being investigated by the U.S. Department of Education for prohibiting indoor mask mandates at schools and whether those policies are discriminatory toward students with disabilities, according to letters sent Monday from Suzanne Goldberg, the U.S. Department of Education's acting assistant secretary for civil rights.

• Chief state school officers in Iowa, Oklahoma, South Carolina, Tennessee and Utah were alerted of investigations that will examine those states’ compliance with Section 504 of the Rehabilitation Act of 1973, as well as potential violations to Title II of the Americans with Disabilities Act of 1990. 

• The department's Office for Civil Rights is not investigating mask policies in Florida, Texas, Arkansas and Arizona because those states’ bans on indoor mask requirements are not currently being enforced as a result of court orders or other state actions. In a press release, however, the department said it is “prepared to take action” if state leaders prevent local schools or districts from implementing universal indoor masking. 

Dive Insight:

U.S. Secretary of Education Miguel Cardona hinted in a blog two weeks ago at using the teeth of civil rights laws to give local school leaders the authority to set masking policies for students and staff. That warning followed a memo from President Joe Biden urging Cardona to “access all available tools” to ensure governors and state officials give students the opportunity to participate in full-time, in-person learning without compromising their health or the health of their families or communities. 

Although previous Department of Education guidance has stated school systems need to be understanding of students with disabilities who could not wear masks because of their disabilities, in some areas of the country, the beginning of the 2021-22 school year has been a hotbed of fierce debate and legal fights about parents' rights not to have their children wear masks in schools. 

The opposition to mask requirements has concerned some parents of students with disabilities whose health conditions may put them at greater risk of serious illness if they contract COVID-19. In states such as South Carolina and Texas, parents and disability rights groups have sued state officials citing violations of ADA and Section 504. Students younger than 12 are not yet eligible for a COVID-19 vaccine. 

The masking arguments in areas with statewide bans on mask mandates have put local school and district leaders in tough positions where they have been threatened with their jobs or salaries if they don’t comply. 

"At no point shall a threat against my salary factor into the decision that I will make regarding the best interest of students and teachers in our community. I cannot compromise on that,” Miami-Dade County Public Schools Superintendent Alberto Carvalho said during a press conference earlier in August. 

As part of the OCR investigation into the five states, OCR’s regional offices will collect data from each state’s education agency. The initiation of an OCR investigation does not imply a violation has occurred. 

Disability and civil rights advocates said they were pleased about OCR’s reviews. 

"Schools across the country seem to be in utter pandemonium about this issue — and well intentioned, but misguided, policies have the potential for discrimination and running afoul of the law," said Denise Marshall, CEO of the Council of Parent Attorneys and Advocates, in an email. "We hope an OCR investigation and resulting opinion/guidance will help move things forward in a way that both protects students and honors their rights."

Miriam Rollin, a director at the National Center for Youth Law, said in an email that states that have prohibited district mask mandates are not only endangering the health and lives of students and staff, they're also creating barriers to in-person school attendance by health-vulnerable students with disabilities.

"Such barriers can create discrimination against students with disabilities, many of whom have already endured severe education deprivations, due to school closures since March 2020," Rollin said.