Education Secretary Miguel Cardona Begins to Take Action Against Governors Blocking School Mask Mandates

On September 20, 2021, the U.S. Department of Education published a notice in the Federal Register of a new Project SAFE Grant Program to “provide grants to eligible LEAs (Local Education Agencies, which is the Department’s name for local school districts) to improve student safety and well-being by advancing strategies consistent with CDC guidelines to reduce transmission of COVID-19 in schools… The priority is: Supporting LEAs’ and local education leaders’ efforts to improve student safety and well-being in LEAs that have been financially penalized by their State Education Agency or other State entity for adopting and implementing strategies consistent with CDC guidance to prevent the spread of COVID-19.”

The first federal SAFE Grant to a school district harmed by a state ban on a school district’s mandatory mask mandate was awarded on September 23rd.  NPR‘s Cory Turner reports: “The U. S. Department of Education announced Thursday that it would send roughly $148,000 to one Florida school district, Alachua County Public Schools, reimbursing it for money that has been withheld by the state. The award is the first under the department’s new… Project SAFE grant program and the latest salvo in an escalating fight over masking in schools between Florida’s Republican governor, Ron DeSantis, and President Biden’s secretary of education, Miguel Cardona.”

CNN‘s Chandelis Duster quotes Secretary Cardona justifying the need to confront governors who are blocking school districts’ requirements that their students wear masks to prevent the spread of the Delta Variant of COVID-19: “We should be thanking districts for using proven strategies that will keep schools open and safe, not punishing them. We stand with the dedicated educators in Alachua and across the country doing the right thing to protect their school communities… We’re making sure schools and communities across the country that are committed to safely returning to in-person learning know that we have their backs.”

Meanwhile, the Department of Education seems to be moving forward to investigate Civil Rights Violations in states where governors have banned mask mandates, with the possibility of withholding of federal funding as a penalty. Last Thursday evening, the Washington Post‘s Laura Meckler reported that Education Secretary Miguel Cardona has stated he is willing, by withholding federal funding if necessary, to punish states whose governors have banned mask mandates in public schools. The federal government is investigating whether the governors’ bans on mask mandates are violating the federal rights of students with disabilities.

Meckler describes Secretary Cardona’s remarks: “Cardona’s department continues to wage a battle with a half dozen Republican governors who have barred their school districts from requiring masks. This week, the department’s Office for Civil Rights added Texas to the list of states being investigated for these policies. The department argues these states may have violated the rights of students with disabilities…. The agency typically comes to settlement agreements with states and school districts under investigation, but it has the power to withhold federal funds from them. Cardona declared in an interview that he is willing to hold back funding if necessary. ‘I am prepared to do it. I don’t want to do it, but I am prepared to do it… The last thing I want to do to the students in Texas and Florida is to withhold resources that support them. That’s not something that I would do lightly.’ He added he would prefer to work with the governors, but also acknowledged that the governors do not appear interested in working with him.”

Late last month Meckler reported that letters had been sent to warn the governors of Iowa, Florida, Oklahoma, South Carolina, Tennessee and Utah that their states were under federal investigation: “(T)he Education Department’s Office for Civil Rights ‘will focus on whether… students with disabilities who are at heightened risk for severe illness from COVID-19 are prevented from safely returning to in-person education, in violation of federal law.'”

Then last Tuesday, the Washington Post‘s Valerie Strauss reported that the federal Department of Education has also notified Texas that it is being similarly investigated: “The letter sent to Texas, like the ones to the other states, said the bans on mask mandates ‘may be preventing schools in Texas from meeting their legal obligations not to discriminate based on disability and from providing an equal educational opportunity to students with disabilities….'”

Last week in a moving profile of several disabled Tennessee students, the NY TimesErica Green described legal challenges which have also been filed locally on behalf of disabled students whose conditions make COVID-19 especially dangerous for them:

“Tennessee is one of seven states that the federal Education Department is investigating to determine whether governors’ orders allowing families to flout school mask mandates discriminate against students with disabilities by restricting their access to education. Even though many local school boards, including Williamson County’s, have voted to require universal masking, an executive order issued by Gov. Bill Lee, a Republican, allows parents to send their children to school maskless, no questions asked… Parents of special education students in two Tennessee counties covering the eastern and western parents of the state have sued to block the governor’s order; one lawsuit has succeeded. A third, covering Williamson County, had a hearing before a judge this week. In the most recent complaint, three lawyers argued that the governor, the Williamson County school board and a carve-out district within the county called the Franklin Special School District, are violating the rights of special education students by allowing parents to opt their children out of the mandate.  The suit was filed on behalf of a student with Down syndrome and another with Type I diabetes, but seeks protections for all ‘similarly situated’ students. ‘Defendants’ actions have pitted children against children, while placing the health and safety of medically vulnerable children with disabilities in danger,” the complaint said.”

On September 15, two of the nation’s prominent experts in education law challenged Secretary Cardona to use the power of the Department’s Office for Civil Rights to withhold federal funding in states where students’ rights are clearly being violated by governors banning masks at school.  David Sciarra, executive director of the Education Law Center, and Derek Black, the Ernest F. Hollings Chair in Constitutional Law at the University of South Carolina, explain several ways governors are violating federal law by banning masks at school: “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 charge Secretary Cardona: “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.”

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