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Biden Admin Looks to Civil Rights Office in Fight Against GOP Governors’ School Mask Mandate Bans

© AP Photo / Brittainy NewmanEducation Secretary Miguel Cardona and Schools Chancellor Meisha Porter speak to Mia Arias, 10, during their visit to P.S. 5 Port Morris, a Bronx elementary school, Tuesday, Aug. 17, 2021 in New York.
Education Secretary Miguel Cardona and Schools Chancellor Meisha Porter speak to Mia Arias, 10, during their visit to P.S. 5 Port Morris, a Bronx elementary school, Tuesday, Aug. 17, 2021 in New York. - Sputnik International, 1920, 19.08.2021
After several state governors have doubled down on their opposition to mask requirements in public schools amid rising COVID-19 cases, US President Joe Biden is looking for new weapons to push compliance with federal safety guidelines, including counting such bans as a form of discrimination against groups of children.
“[S]ome State governments have adopted policies and laws that interfere with the ability of schools and districts to keep our children safe during in-person learning,” Biden said in a Wednesday executive order.
“Some of these policies and laws have gone so far as to try to block school officials from adopting safety protocols aligned with recommendations from the CDC to protect students, educators, and staff. And some State officials have even threatened to impose personal financial consequences on school officials who are working tirelessly to put student health and safety first and to comply with their legal obligations to their communities to further the essential goal of a safe, in-person education for all students,” he said.
“Our priority must be the safety of students, families, educators, and staff in our school communities,” Biden added. “Nothing should interfere with this goal.”
On the Department of Education’s official blog, Secretary Miguel Cardona wrote the same day that he had sent letters to eight states - Arizona, Iowa, Oklahoma, South Carolina, Tennessee, Utah, Florida and Texas - informing them that by banning mask mandates in their public school systems, they were not complying with the American Rescue Plan Act.
That law, a massive $1.9 trillion COVID-19 relief bill signed into law in March, “requires each school district that receives Elementary and Secondary School Emergency Relief (ESSER) funds to adopt a plan for the safe return to in-person instruction and continuity of services” (emphasis in original), Cardona wrote, suggesting those funds may be withheld if the district’s plan is judged unsafe by the department.
“The 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,” he wrote, adding that the department could begin an investigation “if facts indicate a potential violation of the rights of students as a result of state policies and actions,” including complaints about “students who may experience discrimination as a result of states not allowing local school districts to reduce virus transmission risk through masking requirements and other mitigation measures” and violations of the federal special education law, which guarantees students with disabilities a free, appropriate public education (FAPE).
Two laws, the Rehabilitation Act of 1973 and the Civil Rights Act of 1964, require students to be given FAPE irrespective of race, color or national origin.
Data published in May from the 2020-2021 school year showed that the progress of all students suffered from a year of remote learning, as measured by test results, but that students of color, low-income students and students with disabilities had the worst setbacks. If schools are forced to close temporarily and shift to online learning due to COVID-19 outbreaks once the school year starts, that would likely mean those same vulnerable students would be left even further behind, as compared to their white and more affluent counterparts.
The statements come as battles in Texas and Florida, the two states with the most COVID-19 cases in the country, which both have Republican governors adamantly opposed to compulsive COVID-19 mitigation measures, double down against uprisings by Democrat-controlled cities and school districts looking to protect their residents.
On Sunday, the Texas Supreme Court issued a temporary order banning mask mandates in several Texas cities, including Dallas and San Antonio, after they issued orders in defiance of Governor Greg Abbott’s ban on pandemic mandates.
“Let this ruling serve as a reminder to all ISDs [independent school districts] and local officials that the Governor’s order stands,” Texas Attorney General Ken Paxton wrote on Twitter. Abbott also made a comment on the social media app, saying that his executive order didn’t ban wearing masks.
​On Tuesday, Abbott tested positive for the Delta variant of COVID-19 after having attended a maskless GOP event in Collin County. He was already vaccinated against the virus, so his symptoms have been mild, while his wife, Cecilia, has tested negative. Roughly 45% of Texans are fully vaccinated, not nearly enough to blunt the virus’ spread.
Texas’ daily COVID-19 cases  - 23,990 on Wednesday - are the second-highest in the nation, surpassed only by Florida, which counted 23,300 on Wednesday but has a much higher seven-day average, according to data from the US Centers for Disease Control and Prevention. Both states have seen their medical systems pushed to the limit, together accounting for more than 40% of hospitalized COVID-19 cases in the US.
“We are concerned about escalating numbers. Our cases yesterday were higher than our seven-day moving average, our hospitalizations higher than our seven-day moving average, ICUs higher than our seven-day moving average, so we are still real concerned about the numbers we are seeing,” Austin Mayor Steve Adler, a Democrat, told The Hill on Wednesday. The Texas capital city was one of several that defied Abbott’s mandate ban.
“We do know that the best way, and really the only way, out of this long-term is for people to get vaccinated, so we are doing everything we can to get more and more people vaccinated,” he added.
The Lone Star State counted more than 11,500 hospitalized cases of COVID-19 on Monday, with just 322 available ICU beds left in the entire state, according to Spectrum News in El Paso. In Florida, the Florida Hospital Association reported 16,721 hospitalized cases, accounting for  35.6% of all hospital inpatients and 55% of adult ICU patients.
​Like Abbott, Florida Governor Ron DeSantis has banned mask mandates in schools, casting the order as a defense of Floridians’ right to choose. Ironically, with the US Department of Education threatening to cut funding for school districts that don’t comply with federal safety standards, DeSantis has threatened to pull funding if they do put mask mandates into place.
On Wednesday, DeSantis told a crowd at the 2021 Florida Restaurant and Lodging Association Marketing Operations Summit that “politicians want to force you to cover your face as a way for them to cover their own asses,” adding “that’s just the truth.”
“They want to be able to say they are taking this on and they’re doing this even though it’s not proven to be effective, they want to continue to do it,” he added, picking up a line commonly used during former US President Donald Trump’s administration and disproven by medical experts.
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