The Biden Administration Seems To Think Every Public School Is Legally Obligated To Require That Students Wear Face Masks
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, tha
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