SALT LAKE CITY — The U.S. Department of Education announced Monday it has opened an investigation in Utah and four other states looking into whether their bans on indoor masking "discriminate" against students with disabilities, who are at increased risk for severe illness due to the coronavirus.
"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," U.S. Secretary of Education Miguel Cardona said in a statement.
"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," he added.
But Utah Superintendent of Public Instruction Sydnee Dickson said Monday that the federal agency has "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," Dickson said in a statement. "Our schools continue to utilize the many health and safety protocols developed and implemented last year to keep our students learning in person."
She noted a recent study by the Centers for Disease Control and Prevention "heralded" Utah's efforts for students during the pandemic.
"We look forward to working with (the Office for Civil Rights) 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," Dickson said.
The announcement of the investigation comes less than two weeks after President Joe Biden ordered his education secretary to explore possible legal action against Republican-led states that have blocked school mask mandates and other public health measures meant to protect students against COVID-19.
Utah Gov. Spencer Cox blasted the Biden administration's threat of litigation as "out of touch," noting that "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 on Aug. 18.
The 2021 Utah Legislature passed a law outlining who can order health mandates, leaving the decision up to county councils with the guidance of local health department officials. A health department executive can request a health mandate through an "order of constraint," which a county council or commission can then vote to uphold or overturn. An additional law passed during a spring "extraordinary" session of the Legislature also banned local education agencies or the State Board of Education from unilaterally ordering mask mandates.
Grand County is the only county in Utah that has implemented a universal mask mandate for schools. Salt Lake County health director Dr. Angela Dunn attempted to order masks through an order of constraint, but the Salt Lake County Council overturned it along party lines with Republicans voting to overturn it. Salt Lake City Mayor Erin Mendenhall then ordered masks for students in Salt Lake City.
The U.S. Department of Education Office for Civil Rights sent letters to chief school officers in Iowa, Oklahoma, South Carolina, Tennessee and Utah "outlining 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," according to the statement.
Officials noted investigations have not been opened in other states that implemented bans on mask mandates, including Florida, Texas, Arkansas and Arizona because those bans aren't being enforced due to court orders or other state actions, allowing districts to implement indoor masking requirements.
"However, the department will continue to closely monitor those states and is prepared to take action if state leaders prevent local schools or districts from implementing universal indoor masking or if the current court decisions were to be reversed," the statement said.
The Department of Education will investigate each state's compliance with the Rehabilitation Act of 1983, which protects students with disabilities from discrimination. That law "guarantees qualified students with disabilities the right to a free appropriate public education in elementary and secondary school." The probe will also look into whether statewide bans on indoor masking requirements violate the Americans with Disabilities Act, which prohibits disability discrimination by public institutions.