The legal challenges argue that those state’s bans on universal masking in schools run afoul of federal anti-discrimination laws meant to protect children with disabilities.
Twin brothers Marshall Groves and Charlie Groves pose in anticipation of the start of school Aug. 19, in Nashville, Tenn. | Disability rights advocates are taking on Republican governors who block school mask requirements, launching a slew of federal civil rights lawsuits that could serve as a blueprint for the Biden administration as it weighs legal options to fight the policies.
The advocacy groups argue that GOP states forcing schools to adopt mask-optional policies effectively present the parents of children with disabilities a Hobbesian choice: either they risk their child’s health by sending them to school or risk their education by keeping them home. “Many kids with disabilities have health situations that make them more vulnerable than others in terms of the potential impact if they get Covid,” said Miriam A. Rollin, director of the Education Civil Rights Alliance at the National Center for Youth Law. Not requiring masks in schools could potentially mean some of those students must stay home, she added. “It’s compounding the disadvantage they’ve already experienced with Covid.
"There is no empirical evidence to support the assertion that the benefits of forced masking of schoolchildren outweigh the potential harms," she said in an email. "In fact, some students who have disabilities may be harmed by mandatory masking." Texas and South Carolina have not yet responded to the federal disability rights lawsuits in court but the governors in both states have vocally defended their policies.
President Joe Biden last week signed a directive for the Education Department to examine “all available tools” — including “possible enforcement actions” — to take action against governors and other state officials who are preventing schools from following CDC guidance on masking and other Covid mitigation strategies.
“If a decision made by a government entity related to schooling is impeding the ability of a protected class of students to get the education to which they’re entitled — that is what federal anti-discrimination law is supposed to protect against,” she said.
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