To our knowledge, not a single state, school district, or individual school has banned students from wearing masks in the classroom.
Yet, the ever-politicized Office for Civil Rights within the U.S. Department of Education has decided to use the heft of the federal government to investigate states that don’t mandate children to wear masks.
The Office for Civil Rights tries to disguise the word “mandate” by using the term “universal masking” throughout its press release announcing the investigation of five states that have banned mask mandates.
Again, no state has banned “universal” masking; several have prohibited mask mandates. If any or every child in a school chooses to wear a mask, not a single state has ever suggested that’s a problem.
The Office for Civil Rights’ hunt once again expands the force of Washington into local school policy, as it also did under the Obama administration.
The office’s argument is that if schools don’t mandate every child to wear a mask, that could have a disproportionate impact on students with special needs, and as such, violate their federally protected access to Free Appropriate Public Education, as required under federal law.
The Office for Civil Rights will specifically investigate whether bans on mask mandates violate Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans With Disabilities Act of 1990.
Indeed, the Centers for Disease Control and Prevention recommends children over the age of 2 wear masks while indoors. Yet, as Heritage Foundation senior fellow Doug Badger recently noted, “The leading study on which the CDC bases this recommendation found that the COVID-19 infection rate in schools requiring students to wear masks ‘was not statistically significant compared with schools where mask use was optional.’” (The Daily Signal is the news outlet of The Heritage Foundation.)
Seven states—Arizona, Florida, Iowa, Oklahoma, South Carolina, Tennessee, and Utah—have banned mask mandates. The Office for Civil Rights is currently investigating five of them: Iowa, Oklahoma, South Carolina, Tennessee, and Utah.
As conservative commentator Ben Shapiro tweeted, if that is their standard “… there is no limiting principle. How about flu? How about common cold? Authoritarian nonsense from the feds.”
Gov. Henry McMaster of South Carolina responded: “Under South Carolina law, anybody who wants to wear a mask—in a school setting or elsewhere—is free to do so, but the governor isn’t going to ignore a parent’s fundamental right to make health decisions for their children.”
As required by Free Appropriate Public Education, student “504” plans (developed by schools for students with special needs), and individualized education plans must focus on the individual student, requiring public schools to provide appropriate education and modifications, aids, and related services free of charge to students with disabilities.
The “appropriate” component means that such an educational plan must be designed to meet the individual educational needs of the student as determined through appropriate evaluation and placement procedures.
But President Joe Biden’s Department of Education seeks to turn such legal requirements on their head by focusing instead on a modification of group behavior and taking the emphasis off the individual student with a disability altogether.
That makes the department’s investigations nothing more than a partisan power grab—and another way to intimidate local educational associations from educating children as they see fit.
Although there is an argument that states should not overstep local control and decision-making on the part of schools by prohibiting them from mandating masks within their schools, elevating the debate to Washington erodes state education decision-making authority even further.
The mask wars aren’t likely to subside anytime soon, which is why such decisions should be left in the hands of those who know their child’s education and health needs best; namely, parents.
Choice—not federal mandates and investigations—is the answer, something several states have already recognized within the COVID-19 context.
Amid ongoing debates around coronavirus-related mandates, Florida is providing families access to the Hope Scholarship school voucher program if they find their child’s public school mask requirements to be too lax or too rigid.
Arizona recently followed suit, using funding from the Biden administration’s American Rescue Plan to provide income-eligible families with a $7,000 voucher if their child’s school closes or if they disagree with a school mask mandate. Lawmakers in Tennessee are considering similar options.
The debate over schools’ COVID-19 policies is growing support for school choice among self-identified Democrats as well. A full 79% of respondents to a nationwide poll who had an opinion on the subject supported allowing students to take their education dollars to a private learning option if their public school did not require masks.
As the American Federation for Children’s Corey DeAngelis explained in The Wall Street Journal, “Democrats favored this school-choice proposal more than Republicans, with support at 82% and 78%, respectively. … Democratic voters are now also realizing that uniform school systems won’t always work in their favor.”
Education choice is an answer to the ongoing debates around school closures and coronavirus-related mandates. And as the 2021-22 school year begins, more children than ever have access to school choice options, such as vouchers and education savings accounts.
Eighteen states have expanded school choice options this year, with seven enacting entirely new school choice programs.
The last thing states and school districts need right now are heavy-handed investigations from the U.S. Department of Education.
For their part, state leaders should enable parents to take their money elsewhere if their child’s school doesn’t reopen to in-person instruction, or if they disagree with masking or COVID-19 vaccination policies at their child’s school, finding those policies either too rigid or too lax.
Funding flexibility—having dollars follow children to schools that align with their needs—can help prevent further disruptions in schooling and enable families to find options with which they’re comfortable.
This piece originally appeared in The Daily Signal