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WASHINGTON — With eight states so far prohibiting schools from levying mask requirements, President Joe Biden is pledging that his administration will use all of its oversight and legal authority to stick up for local officials trying to keep their schools safe.
What remains to be seen is how far the federal government can or will go in trying to check Republican governors and their mask bans—and whether the standoff ends up in the courts. The Biden administration has limited authority to regulate local school policies, though it does wield significant influence through the sizable sums of money flowing to school districts.
The feds also could launch civil rights investigations, which Secretary of Education Miguel Cardona alluded to in a blog post Wednesday.
He emphasized that the federal Education Department has the authority “to investigate any state educational agency whose policies or actions may infringe on the rights of every student to access public education equally.”
That could include digging into complaints from parents who believe their student is facing discrimination because a state won’t allow a school district to reduce virus transmission risk through masking requirements and other mitigation measures, Cardona wrote.
He added that the department’s Office of Special Education Programs also will be monitoring any effects on the free, appropriate public education guaranteed under the federal special education law.
“The federal government is trying to do everything they can, within the power that they have,” said Dan Domenech, executive director of the American Association of School Administrators and former superintendent of the Fairfax County, Va., Public Schools.
Only children over 12 are eligible for a COVID-19 vaccine, with approval of a shot for younger children not expected until later this fall or winter. That leaves mask-wearing as a critical protection step as COVID-19 infections and hospitalizations rise nationally.
Twelve states and the District of Columbia require everyone to wear masks in K-12 schools, according to data compiled by Pew Charitable Trusts. The eight states that Cardona wrote to prohibit any such requirement and 29 states leave the decision up to local school districts. New Mexico requires masks for non-vaccinated people in schools.
In states where students have returned to the classroom to begin the school year, thousands of students already have been required to quarantine after exposure to someone who has tested positive for COVID-19.
So far, the Biden administration’s public actions have been written and verbal missives directed at governors who Biden says are trying to block and intimidate local officials that want to protect students and school staffers.
“Some politicians are trying to turn public safety measures — that is, children wearing masks in school — into political disputes for their own political gain,” Biden said during remarks Wednesday from the White House, adding, “We are not going to sit by as governors try to block and intimidate educators protecting our children.”
Cardona in his letters to the eight states with bans emphasized that school districts are allowed to use federal COVID-19 relief money to implement masking policies — though he stopped short of explicitly saying the relief dollars could be revoked if state officials do not relent.
That prompted U.S. Rep. Virginia Foxx, (R-N.C.), who is the ranking GOP lawmaker on the House Education and Labor Committee, to ask Cardona to confirm by Friday if states are required to allow districts to mandate masks if they receive federal COVID-19 relief dollars for schools.
So far, instead of threatening to withhold money, the Biden administration has pledged to ensure districts have sufficient funding available if state officials penalize them for enacting policies aimed at mitigating virus-related risks.
That includes paying salaries for educators and administrators, Biden and other officials have said.
Domenech said backfilling any local dollars withdrawn by a state could be done by federal officials boosting money to a district, adding that substantial federal dollars already go directly to school districts beyond what they also receive filtered through state coffers.
Julie Underwood, dean emerita for the University of Wisconsin’s School of Education, said the federal government has long influenced education policy through a financial carrot-and-stick approach, most notably in special education requirements.
She described the civil rights route that the Biden administration is eying as a “logical” approach. Immunization requirements for schools have shown that “we do draw the line in favor of children’s health,” Underwood said.
“Are they thinking about health as a civil rights matter?” she asked. “Do we all have a right, a civil right, to in fact be protected from contagious disease all over the United States?”
That question will likely be up to the determination of a federal judge.
Domenech said he does expect the state-federal dispute over masking in schools to eventually end up in court, creating another layer of chaos and uncertainty for local school officials
“In the interim, it does open a door for the right of a school district to mandate” masks, Domenech said.
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