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Feds to probe whether Utah’s statewide prohibitions on universal masking violate disabled students’ civil rights

Aubrianna Trujilo and classmates wear masks while working in their sixth grade class at Nibley Park School in Salt Lake City.
Aubrianna Trujilo and classmates wear masks while working on computers in their sixth grade class at Nibley Park School in Salt Lake City on Tuesday, Aug. 24, 2021. The Department of Education is investigating whether Utah’s statewide prohibitions on universal masking violate the civil rights of students with disabilities.
Spenser Heaps, Deseret News

The Department of Education is investigating whether Utah’s statewide prohibitions on universal masking violate the civil rights of students with disabilities.

Utah is one of five states under investigation by the department’s Office for Civil Rights, the agency announced Monday.

The probe is exploring whether prohibitions on masking discriminate against students with disabilities who are at heightened risk for severe illness from COVID-19 by preventing them from safely accessing in-person education.

Education Secretary Miguel Cardona, in a statement, said “the department has heard from parents from across the country — particularly parents of students with disabilities and with underlying medical conditions — about how state bans on universal indoor masking are putting their children at risk and preventing them from accessing in-person learning equally.”

His statement continues, “It’s simply unacceptable that state leaders are putting politics over the health and education of the students they took an oath to serve. The department will fight to protect every student’s right to access in-person learning safely and the rights of local educators to put in place policies that allow all students to return to the classroom full-time in-person safely this fall.”

Earlier this month, Utah Gov. Spencer Cox called the threat that the Department of Education could investigate the state’s laws against mask restrictions “extremely unhelpful.”

“Utah has been praised for safely keeping schools open last year and for making better masks available to students and teachers this year. As we continue conversations with legislators, public health leaders, school leaders, parents, and local health departments about the best way to safely return to schools given the unique circumstances in Utah, the last thing we need is threats from out-of-touch bureaucrats at the U.S. Department of Education,” Cox said in a statement.

The Office of Civil Rights sent a four-page letter to Utah’s State Superintendent of Public Instruction that outlines how prohibitions of universal indoor masking prevent school districts 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

“OCR is concerned that state mask restrictions on schools and school districts may be preventing schools … from meeting their legal obligations not to discriminate based on disability and from providing an equal educational opportunity to students with disabilities who are at heightened risk of severe illness from COVID-19,” the letter states.

The department is also investigating impacts of universal masking bans in Iowa, South Carolina, Oklahoma and Tennessee.

Absent a statewide masking order, some counties in Utah have exercised an option in state law in which local health officers have issued emergency health orders for masking in elementary schools, which has occurred in Grand, Summit and Salt Lake counties, although the Salt Lake County order was quickly overturned by the Salt Lake County Council on a vote of 6-3.

Salt Lake City Mayor Erin Mendenhall issued an executive order for masking in Salt Lake City’s K-12 schools, which has had high compliance, but some lawmakers question whether she had authority to issue the order. No other mayor in Salt Lake County has followed suit to date.

Last week, a group of Utah parents filed a complaint in 3rd District Court challenging the constitutionality of laws passed by the Utah Legislature and signed into law by Utah Gov. Spencer Cox that limit pandemic restrictions, such as mask orders, which they claim hinder Utah public schools’ ability to safely fulfill children’s right to a free public education.

The plaintiffs’ attorney, Greg Skordas, said the plaintiffs may also file a complaint in federal court.

One of plaintiffs, Ashley Weitz, said she was heartened to hear the Department of Education was investigating possible civil rights violations.

“This lawsuit in Utah was filed because we believe that our children’s civil rights are being violated. So for the Department of Education to take notice of this legislation as well was extremely validating,” she said.

The Department of Education will examine whether Utah’s bans violate Section 504 of the Rehabilitation Act of 1973, which 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” according to the letter.

It will also look at whether the prohibitions violate the Americans with Disabilities Act of 1990, which prohibits disability discrimination by public entities, including public education systems and institutions.

In Utah’s case, the prohibition on masking — and requirements for reopening for K-12 schools and public colleges and universities this fall — were established in state laws passed by the Utah Legislature. However, it created a pathway for a local option for health orders, but they only remain in place 30 days. County commissions or councils can vote to extend an order or rescind it.

Utah’s State Superintendent of Public Instruction Sydnee Dickson responded to the letter in a statement:

“While we appreciate OCR’s efforts to protect children, specifically students with disabilities, we think they have unfairly defined Utah as a state where mask mandates cannot occur. State law places these decisions at the local level with local health departments and locally elected officials. We have witnessed the process occurring in several counties and currently Salt Lake City and Grand County School districts have indoor mask mandates in place.”

The statement continued: “Our schools continue to utilize the many health and safety protocols developed and implemented last year to keep our students learning in person.”

Dickson’s statement noted a recent Centers for Disease Control and Prevention study that “heralded Utah’s efforts in keeping students safe amid COVID-19 concerns.” Utah law continues to allow school districts and charter schools to work with local health departments that can continue to issue public health orders on indoor mask mandates.

“We look forward to working with OCR to clarify Utah’s position on the issue. We continue to urge districts and charters to work with their local public health care professionals to continue providing Utah students and public school staff with safe and effective schools,” she said.

The Office of Civil Rights, according to its letter, will examine “whether, in light of Utah’s prohibition on local school districts and schools from requiring the use of masks on school property and during in-person school-sponsored activities, the Utah State Board of Education may be preventing school districts in the state from considering or meeting the individual educational needs of students with disabilities or otherwise enabling discrimination based on disability in violation of Section 504 and Title II.”

The letter says particular attention to whether the state board “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.”

The letter explains that the opening of an investigation “in no way implies that OCR has decided whether there has been a violation of a law OCR enforces,” which could result in a loss of federal funding. The letter describes the civil rights office as a “neutral fact-finder.”

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