The Biden administration is considering using the courts and federal funds to get states to end banning masks in classrooms, as a sign of growing tension between governors and the federal government over how to deal with rising coronavirus cases.
The Department of Education announced this week it would launch a civil rights investigation into government policies banning masks in classrooms. The Justice Department could also interfere, including by supporting lawsuits against these states or initiating legal disputes of its own, education lawyers said.
A quicker way to push for states could be how the Ministry of Education spends stimulus money, some of which is linked to the safe reopening of schools. Education Minister Miguel Cardona sent letters to several Republican leaders warning against it Intervention in investments in campus security is permitted by against the terms of the March Economic Act (Public Law 117-2), but on the verge of saying the department would take the money away.
Miguel Cardona wears a protective mask during his Senate confirmation hearing in February 2021.
Photographer: Anna Moneymaker / The New York Times / Bloomberg via Getty Images
This week’s threats from Biden and Cardona marked a new phase in the administration’s efforts to support school districts that impose masking requirements. The White House has argued in recent weeks that state officials should “get out of the way” banning masks in schools. That language has intensified this week as students return to classrooms across the country and positive cases increase in areas with low vaccination rates, fueled by the more contagious Delta variant.
“This is the warning shot,” said Rob Duston, attorney at Saul Ewing Arnstein & Lehr LLP. “The question is, what are they going to do next?”
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Parents across the country are starting to challenge the mask mandate ban in court – offering the Justice Department an opportunity to show its support through amicus briefs or by filing a case of their own.
In Texas, parents of students with disabilities filed a complaint in federal court, arguing that the governor’s ban on masking requirements in schools was against federal disability protection. In Florida, at least one lawsuit filed in a state court makes a similar argument against the ban on masking requirements in classrooms, saying that an unmasked child with asthma is particularly at risk of serious complications from the virus. In both cases, a judge has not yet made a decision.
A judge on Thursday denied a motion from Florida Governor Ron DeSantis (R) to file a separate lawsuit against his ban on masking mandates in schools and sparking a clash next week that could cause the court to block his order.
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At the same time, the Department of Education’s civil rights bureau could launch an investigation in response to a federal civil rights complaint – or even launch its own review before receiving a complaint, two education lawyers said.
“You don’t have to wait for a complaint to come to you,” said Duston.
Typically, institutions such as school districts or colleges agree on a voluntary solution to avoid the possible loss of federal funding. If such an agreement is not made, the authority can assert an injunction. The Justice Department could also sue a state education agency based on the results of an investigation by the Education Department.
The parents in the Texas case have already filed a complaint with the Department of Education.
The Department of Justice also has the ability to enforce the country’s disability laws, such as the Americans With Disabilities Act. Courts would have to postpone enforcement actions to the Justice Department or come up with a strong reason not to do so, said Ron Hager, an attorney with the National Disability Rights Network.
The Justice Department’s civil rights division declined to comment on the story. Representatives from DeSantis and Florida Education Commissioner Richard Corcoran (R) did not respond to news on Thursday.
DeSantis said at a press conference Thursday afternoon in Hudson, Florida that parents should decide what is best for their children, and young students cannot be expected to wear masks properly anyway.
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The government could also put direct pressure on Republican leaders by withholding Covid-19 aids provided through the US rescue plan (Public Law 117-2) in March. The bill set aside $ 122 billion to safely reopen K-12 schools during the coronavirus pandemic.
Virginia Foxx (NC), the top Republican on the House of Representatives Committee on Education and Labor, urged Cardona in a letter Wednesday to confirm that states need not require mask mandates as a condition of receiving funds from the US bailout plan. The Ministry of Education did not comment on the letter until Friday.
Cardona’s announcement of possible civil rights investigations was “a radical exaggeration by the federal government,” said Foxx.
School districts are put in a “catch-22 position” when state laws come in to mask conflicts with federal regulations, said Francisco Negrón, chief legal officer of the National School Boards Association. Local leaders should be empowered to make decisions about campus containment measures, he said.
“A single mandate, be it state or federal, is rarely the right answer,” he said.