Secretary of Education Miguel Cardona thinks governors or state legislators who prohibit public schools from forcing students to wear face masks may be violating federal law. This argument, although useful for scoring political points and castigating Republicans who disagree with the Biden administration's position on mask mandates in K–12 schools, seems like quite a stretch. Furthermore, it implies that federal COVID-19 guidelines for schools, heretofore viewed as merely advisory, are actually mandatory.

Cardona cites Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination against people with disabilities in programs that receive federal funding. A regulation that the Department of Education issued under that statute requires that school districts provide "free, appropriate public education" (FAPE) to students with disabilities.

Until recently, Section 504 was viewed mainly as a restriction on face mask mandates, requiring exceptions for people who have difficulty complying because of their disabilities. By contrast, Cardona is arguing that Section 504 requires mask mandates in public schools.

"I've heard [parents of students with disabilities] saying, 'Miguel, because of these policies [against mask mandates], my child cannot access their school; I would be putting them in harm's way,'" Cardona told The New York Times last week. "And to me, that goes against a free, appropriate public education. That goes against the fundamental beliefs of educators across the country to protect their students and provide a well-rounded education." Education Week reports that the Department of Education's Office for Civil Rights "may take action if state policies mean that children with medical vulnerabilities, like respiratory illnesses or weakened immune systems, cannot safely attend school during the COVID-19 pandemic."

In other words, Cardona thinks schools fail to provide FAPE when they do not comply with the COVID-19 guidelines issued by the Centers for Disease Control and Prevention (CDC), which include a recommendation that all staff members and students, regardless of their age or vaccination status, wear face masks. Those guidelines also recommend that schools improve ventilation, clean and disinfect surfaces once a day, "practice handwashing and respiratory etiquette," require "physical distancing to the extent possible within their structures," "promote vaccination," use "screening testing" to identify "infected people," and implement "contact tracing in combination with isolation and quarantine."

According to Cardona's reading of the Rehabilitation Act, all of these suggestions have the force of law: States that decline to follow the CDC's advice in all of its particulars are violating the statute, and so are individual school districts. Contrary to Cardona's emphasis on local autonomy regarding mask mandates, his argument implies that public school officials are not free to adopt the safeguards they think make sense, because deviating from the CDC's guidelines means they are not providing FAPE. If they decide, based on the scientific evidence, that the likely benefits of mask mandates do not outweigh their costs, they are still obligated to impose them, and the same goes for all the other measures recommended by the CDC.

The Times reports that Cardona also thinks Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, or national origin in federally funded programs, is relevant to the debate about mask mandates. His argument seems to be that racial and ethnic minorities suffered disproportionately from the pandemic-related interruption of in-person schooling, so anything that stands in the way of safely resuming classes—such as declining to follow the CDC's advice—could be a violation of Title VI. "If state policies and actions rise to potential violations of students' civil rights," the Times says, the Department of Education "could initiate its own investigations into districts and investigate complaints made by parents and advocates who argue that prohibiting mask mandates could deny students' right to education by putting them in harm's way in school."

In a blog post last week, Cardona said "the Department may initiate a directed investigation if facts indicate a potential violation of the rights of students as a result of state policies and actions." He averred that students "may experience discrimination as a result of states not allowing local school districts to reduce virus transmission risk through masking requirements and other mitigation measures." He added that "the Department's Office of Special Education Programs monitors states' implementation of the federal special education law that requires that students with disabilities receive a free, appropriate public education."

Cardona is responding to an August 18 memorandum in which President Joe Biden complained that "some State governments have adopted policies and laws that interfere with the ability of schools and districts to keep our children safe during in-person learning." Biden noted that "some of these policies and laws have gone so far as to try to block school officials from adopting safety protocols aligned with recommendations from the CDC to protect students, educators, and staff."

Biden instructed Cardona to "assess all available tools in taking action, as appropriate and consistent with applicable law," to ensure that "governors and other officials are taking all appropriate steps to prepare for a safe return to school for our Nation's children, including not standing in the way of local leaders making such preparations," and that "governors and other officials are giving students the opportunity to participate and remain in safe full-time, in-person learning without compromising their health or the health of their families or communities" (emphasis added).

The implication, again, is that the federal government has the authority not only to stop governors from "standing in the way of local leaders" but also to demand that local officials follow the CDC's advice, even when they disagree with some of it. The CDC has decided that mask mandates are appropriate, for example, so every public school in the nation has to impose them. That is a remarkable assertion of federal supremacy in two areas—education and disease control—that have long been recognized as primarily the province of state and local governments.

"It's massive federal overreaching," says Hans Bader, a former senior attorney at the Competitive Enterprise Institute who also has worked for the Department of Education's Office for Civil Rights. "Under Cardona's logic, what would stop the federal government from forcing schools to have mask mandates forever, as a way of reducing the transmission of seasonal flu that could harm disabled students with health conditions more than healthy students, and affect minority groups with lower vaccination rates more than whites?"

Bader argues that "giving the federal government such expansive power to mandate masks would ignore Congress's admonition that the Education Department should not usurp control of the 'administration' of America's schools." He also says case law does not support Cardona's interpretation of Section 504 or Title VI.

"It's the voluntary decisions of parents, not schools, that could lead to students with health conditions not attending school because of mask [mandate] bans," Bader says. "The health benefits of wearing masks are so modest that European countries don't require young children to wear them. So the failure to attend school is due to parental or student choice, not effectively compelled by school policy. Schools aren't liable for such voluntary decisions. The Supreme Court ruled that it didn't violate the Rehabilitation Act for hospitals to allow disabled infants to die without medical care when parents were not consenting to treatment of those infants….Such denials of care were attributable to the voluntary decisions of parents, not hospitals."

As for Title VI, Bader says, "not having a mask [requirement] doesn't treat students differently based on race, so it doesn't violate the Title VI statute itself, which is only violated by 'intentional discrimination' based on race, not 'disparate impact.'" And while Title VI regulations "do purport to prohibit disparate impact," he says, "not all negative impact rises to the level of illegal disparate impact if it doesn't deny access to an education."

Even assuming that "a somewhat higher number of black students are unvaccinated and thus would marginally benefit from others wearing masks," Bader says, "the school isn't denying them access to an education: The risk is too low to treat the students' failure to attend school as coerced non-attendance under a constructive-discharge theory. Virtually no minors die of COVID even when they catch it. The risk does not create an intolerable educational environment. Constructive discharge requires an 'intolerable' environment, even assuming it can be invoked by students, as opposed to employees."

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