Anti-mask rhetoric in K-12 schools shows how public abuse can limit the effectiveness of civil rights laws.
The use of public insults and misinformation by the political right acted both as a headwind and as a means of taking away the implementation of a structural civil rights reform. These tactics act as a headwind by making it difficult to build effective remedies into a law and then, after the law goes into effect, act as deadweight to make enforcement of the limited existing remedies difficult. In order to withstand the force of this public insult playbook, it is important that civil rights laws have strong, structural enforcement mechanisms in place, rather than neoliberal remedies that are dealt with individually.
The current “masking wars” in K-12 classrooms are an excellent example of the tension between the rights of disabled students who have to wear masks in the classroom for their own safety and the use of public insults and misinformation to make them more difficult to access Right.
Anti-masking groups have mobilized using the power of insults and misinformation and even physical violence to get their message across. Superintendents have reported screams wearing a mask were torn from a teacher’s face at school committee meetings. New York police reportedly said that a masked Asian woman was attacked in a subway station by two men who she described as “sick”. In the middle were students with medical conditions that pose an increased risk of side effects from COVID-19.
The headwind effect of insults has in the past restricted the rights of students under disability law. The anti-mask insults add to the deadweight effects that have made it difficult to use the limited legal rights for people with disabilities. Negative stereotypes about people with disabilities have limited the enforcement regime of the Americans with Disabilities Act (ADA). The ADA’s strict need for reasonable accommodation and extensive protection from undue hardship limit the means of attestation available to workers with disabilities.
The Job Accommodation Network found that the typical employer provides minimal accommodation to employees with disabilities – at an average cost of less than $ 500. In addition, these precautions are only taken on a case-by-case basis for individual complainants; they do not lead to further structural changes that both better meet the needs of the complainant and help others in the same workplace.
As law professor Doron Dorfman has documented, “The public is suspicious of disability and various types of rights for people with disabilities, believing that disability prevails in multiple contexts.” It is generally accepted that the ADA, due to its lack of structural Impact has done little to improve the employment outcomes of people with disabilities.
Another major disability law – the Individuals with Disabilities Education Act (IDEA) – has the same kind of restrictions built in, again due to negative stereotypes about people with disabilities that Congress put into law from the start. IDEA proponents advocated a broad definition of disability and a vigorous enforcement system, but negative stereotypes about children with disabilities led Congress to enact a limited, parent-driven enforcement system for a chronically underfunded law.
Like the ADA, IDEA codified a person-by-person enforcement system that was unlikely to achieve effective structural reforms.
Fast forward to the COVID-19 pandemic, the United States Department of Education has highlighted that school closings and the switch to online education had different effects on groups already faced with educational disparities, including students with disabilities. Aware of the shortcomings in online education, almost all school districts accepted the American Academy of Pediatrics (AAP) recommendation to return to face-to-face training in the fall of 2021, as “the benefits of face-to-face training outweigh the risks in almost all circumstances.” . “
However, AAP’s universal masking recommendation did not meet with an enthusiastic response. A harmful public disinformation campaign about masking and vaccines has convinced many parents not to believe the effectiveness of masking and vaccines. Although national data shows huge regional variations, 54 percent of parents of school-age children rejected a vaccination mandate, even when the FDA approved a COVID-19 vaccine for use in children. Only 63 percent of parents agreed that unvaccinated students and employees must wear a mask.
The availability of the COVID-19 vaccine for children was not received with the same “wild enthusiasm” as the polio vaccine for children was in the 1950s. Unsurprisingly, some governors and state lawmakers gave in to the anti-Vax parents and began banning local school districts from imposing mask requirements.
The federal government and some parents are trying to fight back against this mask denial to protect the entire community, including protecting students with medical conditions that put them at increased risk from COVID-19. However, their efforts are hampered by the limited – sometimes ineffective – enforcement options in disability laws.
Parents of a child with a disease that is particularly negatively affected by COVID-19 can file a lawsuit against their school district and insist that all children in the classroom be masked as a security measure. Such lawsuits are comparable to successful lawsuits involving children with allergies to foods such as peanuts. School districts create no-peanut rules to enable such children to attend school safely. Because it is easier to enforce a mask mandate than to search children’s lunch boxes, a mask rule should be even easier to implement than a peanut ban.
While such an individual lawsuit were likely to be effective, a school could satisfy such a lawsuit by requiring masking only for the children within that child’s classes, or at most the entire building. It is unlikely that a court can issue a system-wide order. And parental hostility to wearing masks would likely deter many school principals from doing more than the minimum required by a court order.
Parents could band together to bring class action lawsuits against a governor who banned mask mandates. But even in the event of a – very likely – court victory, the outcome would only allow local school districts to impose masking requirements. Many counties could still choose not to. And these lawsuits are only possible in the few states where governors or lawmakers have completely banned masks.
The most promising option would be for the federal government to take on an aggressive enforcement role. Earlier this month, US Secretary of Education Miguel Cardona announced the Department of Education’s responsibility under the Disability Act to “investigate any state education agency whose policies or actions may violate the right of all students to equal access to public education.” Cardona mentioned a number of enforcement positions, from narrow, one-off actions to comprehensive, nationwide actions. The broadest approach would be more effective than the comparatively limited approaches available to parents, as it could lead to a statewide ordinance mandating masks in all schools.
In response to this federal position, Florida Governor Ron DeSantis has used some of the classic tools from the public abuse playbook. Instead of commenting on whether masks and vaccines are effective, he shot back with, “Why aren’t you doing your job, why aren’t you making that line safe and until you do I don’t want to hear an excerpt about it”. COVID from you. “
DeSantis’ attack appears to have been reasonably effective, with Cardona responding in a conciliatory tone, “Ultimately, I want to work with … Florida. I want to make sure these students have access to personal learning. ”He didn’t say,“ See you in court ”.
Whether Cardona is willing to use the breadth of his powers to enforce mask mandates across the country remains a political challenge. The heavy hand of the public insult playbook is a vice for the use of its unique assertiveness by the federal government. But federal enforcement powers are one of the few tools available to help overcome the power of anti-mask slur and misinformation.
Ruth Colker is a professor at Ohio State University’s Moritz College of Law. Her latest book is The Public Insult Playbook: How Abusers in Power Undermine Civil Rights Reform.