Education Law Update: United States Department of Education Office for Civil Rights Launches Investigations Regarding Prohibitions of Indoor Masking in Schools

On August 30, 2021, the United States Department of Education Office for Civil Rights (the “OCR”) opened directed investigations in five (5) states to explore whether statewide prohibitions on universal indoor masking discriminates against students with disabilities who are at heightened risk for severe illness from COVID-19 by preventing them from safely accessing in-person education. OCR sent letters to the chief state school officers of Iowa, Oklahoma, South Carolina, Tennessee, and Utah outlining how prohibitions of universal indoor masking prevent schools from implementing health and safety policies that they determine are necessary to protect students from exposure to COVID-19, including those with underlying medical conditions related to their disability. On September 10, 2021, OCR opened an investigation in Florida regarding its masking rules in schools. The Secretary for the United States Department of Education, Miguel Cardona had previously sent letters to each of the states who will be subject to OCR’s investigations. In it, he noted that “the safe return to in-person instruction requires that school districts be able to protect the health and safety of students and educators, and that families have confidence that their schools are doing everything possible to keep students healthy.”

OCR has not formally opened investigations in states such as Texas, Arkansas, or Arizona because those states’ bans on universal indoor masking are not currently being enforced as a result of on-going litigation, court orders, or other state actions. However, OCR will continue to monitor these states.

In its investigations, OCR will explore each state’s compliance with Section 504 of the Rehabilitation Act of 1973 (“Section 504”) which is a federal law that protects students with disabilities from discrimination based on their disability. Section 504 guarantees qualified students with disabilities the right to a free appropriate public education in elementary and secondary school. This includes the right of students with disabilities to receive their education in the regular educational environment, alongside their peers without disabilities, to the maximum extent appropriate to their needs.

OCR’s investigations will also explore whether statewide prohibitions on universal indoor masking violate Title II of the Americans with Disabilities Act of 1990, which prohibits disability discrimination by public entities, including public education systems and institutions. OCR’s regional offices will begin collecting data from each state educational agency as part of the directed investigations over the coming weeks.

In its investigations, particular attention will be given to whether the investigated states may be preventing schools from making individualized assessments about mask use so that students with disabilities can attend school and participate in school activities in person, consistent with their right to receive a free appropriate public education and to be free from discrimination based on their disability.

During its investigations, OCR is a neutral factfinder, collecting and analyzing relevant evidence from state education agencies and other sources as appropriate prior to reaching determinations in these matters.  Opening a directed investigation does not imply that OCR has decided whether there has been a violation of a law that OCR enforces.

It is important to note that the laws and policies around schools and the wearing of masks are constantly evolving. As OCR’s investigations proceed and as court decisions are issued, the attorneys at Barton Gilman will keep you updated. Should you have any questions regarding this update, please contact Chris Barrett or your Barton Gilman education attorney for further information.

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