On Wednesday I noticed a stunning new proposal for confronting the governors who are blocking uniform mask mandates in their states’ public schools. The authors of the proposal are shocked that “governors and legislators in eight states—the very states with the lowest vaccination rates and highest number of COVID infections—have taken the audacious step of blocking uniform mask mandates on schools.”
Here is the proposal: “The time for pleading with politicians to reverse course has run short. The Biden Administration has a tried and tested tool for protecting the nation’s children from politicians who persist in elevating ideology above the interests of their citizens—the power of the purse. The Administration also has a duty to use that power… When states knowingly put children in harm’s way and openly defy federal law, the federal government has no alternative but to use all available authority to protect them. This means withholding federal COVID relief money from states until they lift or rescind anti-mask policies and allow local districts to comply with the CDC’s universal mask guidance.”
The proposal’s authors are David Sciarra, a nationally known authority on school law and Executive Director of the Education Law Center, and Derek Black, the Ernest F. Hollings Chair in Constitutional Law at the University of South Carolina. These are legal experts who know federal education law and who believe it is time for Miguel Cardona, the U.S. Secretary of Education to do what he must.
Here is their charge to Secretary Cardona: “No one should envy Secretary of Education Miguel Cardona for the situation he faces. He can count on one hand the number of times prior administrations have held back federal funds owed to states. But when states act willfully under color of law to put their children in harm’s way, the Secretary has no other choice. Federal funds should only flow to states that follow the law and actively provide students a safe place to learn.”
How are governors violating federal law when they refuse to follow CDC guidance requiring that children wear masks at school? Sciarra and Black explain: “These actions directly violate the letter of the law on multiple levels. No policy that ignores CDC guidance and deprives schools of the most important tool available to protect the health, safety, and lives of students under the age of twelve can be said to conform to Congress’s express direction to reopen schools safely. No policy that substantially increases the risk that schools will again be forced to go virtual can be said to carry out the Congressional mandate to ensure the continuity of in-person instruction. And no policy that denies students with health-related disabilities the reasonable accommodations necessary to receive equal educational access can be said to comply with the Americans with Disabilities Act.”
Sciarra and Black compare today’s federal responsibility to protect children’s health to steps the federal government took during the Civil Rights Movement to protect children from state imposed racial segregation: “These anti-mask policies parallel southern states’ response to Brown v. Board of Education…. Like politicians decades ago, today’s governors and legislators insist that individual rights somehow trump the law of the land. When the federal government hit schools where it hurts—their pocketbooks—they begrudgingly began to heed Brown‘s command to dismantle segregation.”
Sciarra and Black conclude by challenging Secretary Cardona: “Everything now rests on the Secretary. He must act to protect our school children.” Surely Secretary Cardona will feel called to fulfill what these experts define as his obligation under federal law.