Takeaways for special educators from OCR probes into ban on mask mandates

Letters to five states signal to other states and districts that ED is taking the position that prohibitions on universal masking violate the rights of some students with 504 plans or IEPs under IDEA and that schools had better accommodate them.
By: | September 3, 2021
Seal of the U.S. Department of Education

The U.S. Education Department’s Office for Civil Rights recently opened investigations into statewide prohibitions on mask requirements to determine if they discriminate against students with disabilities.

The letters were sent to chief state school officers in Iowa, Oklahoma, South Carolina, Tennessee, and Utah outlining how prohibitions against universal indoor masking prevent school districts from implementing health and safety policies that local officials deem necessary to protect students from COVID-19, including those with underlying medical conditions.

Special educators across the country can find cautionary lessons reading between the lines of the five letters. The letters signal to other states and districts that ED is taking the position that prohibitions on universal masking violate the rights of some students with 504 plans or IEPs under IDEA and that schools had better accommodate them, said school attorney Jackie Wernz with Thompson & Horton LLP in Houston and former civil rights attorney with OCR.

OCR may initiate a directed investigation in response to information that indicates a potential failure to comply with a law OCR enforces. 34 CFR 104.61. The OCR Case Processing Manual (subscription) states that a complaint must be filed within 180 calendar days of the date of the alleged discrimination, unless the complainant is granted a waiver. OCR investigations typically take almost the full 180 days.

If OCR enters a finding of noncompliant with federal law in its investigations of the five states, the states could lose their federal education money. Wernz says, “Once you get to enforcement, almost everyone falls in line.” She added, “About 99.9% of the subjects of OCR enforcement cases comply.”

Most laws designating federal funds for schools include anti-discrimination language, said attorney Sue Gamm, president of Educational Strategies & Support and former OCR investigator. The money might be stopped under such a provision. OCR could potentially investigate and act quickly, Gamm said, although it usually does not. And, Gamm said, after OCR makes its findings, the case typically goes to an administrative hearing, another lengthy delay, before funding is halted.

Wernz said OCR most likely hopes that the directed investigations will influence the states’ policymakers. Some state policymakers might dig in their heels for a fight for a while, but she predicts they will eventually back down because districts need federal education funds.

Red flags

Prohibitions of universal masking in schools may prevent some students with disabilities from safely accessing in-person education, and FAPE, because they are at heightened risk for severe illness from COVID-19, ED said in the press release announcing the investigations. Under Section 504 and Title II, a district has a duty to provide FAPE to all eligible students with disabilities. 34 CFR 104.33. This includes the rights 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 need, ED said in letters to states. 34 CFR 104.34.

The letters to the five states indicate ways mask mandates could discriminate against students with disabilities.

For example, students with conditions such as moderate asthma who are at heightened risk for severe COVID-19 may now need a 504 plan even if they didn’t have one before, Wernz said. She said districts should consider whether they have a child find responsibility to these students based on their knowledge of the student and of the changed circumstances of the Delta variant.

The letters also hint at why arguments to following mask mandate bans may fall short.

“OCR has a lot of precedent of requirements for FAPE superseding other parents’ desires,” Wernz said. “For example, other parents may object to their child being recorded in school, but a recording device might be necessary for a classmate to receive FAPE, so the device is used. OCR has said that you can’t condition FAPE on the agreement of all these other students’ parents,” Wernz said.

There are other example of where requirements for FAPE supersede the desires of others. In ruling on a lawsuit against Florida Education Commissioner Richard Corcoran and the state Department of Education, Circuit Judge John C. Cooper used peanut-free schools and classrooms as an example where every family complies to protect a student with severe allergies.

To achieve FAPE, plans must be individualized. When it comes to mask mandates, the needs of some students with disabilities or 504 plans would not allow an across-the-board mandate but would have to be tailored to individual students and classrooms.

Schools may require masks in some classrooms. However, compliance concerns may arise if either type of classroom has too many students with disabilities. Then, such a classroom would no longer be the least restrictive environment required by law, Wernz said.

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