In the showdown over masks in K-12 schools, who will blink first?

Under our Constitution, the federal government has a duty to protect and defend the rights of all its citizens — especially the most vulnerable — from anyone or anything that seeks to violate those rights. As some states ban K-12 mask mandates, the federal government must protect our most vulnerable schoolchildren when state governments will not. Backing down will only embolden states to flout federal law and put more children at risk of illness and death.  

The good news is that if the Biden administration has the will, federal nondiscrimination laws provide it the way to intervene. The question is: Who will blink — the feds or the states? 

The legal showdowns are occurring in courts and through executive enforcement. Courts in five states have intervened to strike down or pause mask mandate bans for schools, including a Florida court ruling that allows districts to require masks. Elsewhere, the American Civil Liberties Union (ACLU) filed a lawsuit against South Carolina, and parents initiated a lawsuit against the governor of Iowa.

Alongside the state-level fights, the federal Department of Education’s Office for Civil Rights (OCR) opened investigations on Aug. 30 into five mask mandate bans and is examining whether the bans violate Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990, which protect schoolchildren from discrimination on the basis of disability. These OCR investigations came on the heels of Secretary of Education Miguel Cardona’s pledge that the Department of Education would use every available tool to provide a safe return to schools this fall. 

Many schoolchildren with disabilities have medical conditions that increase their potential for severe illness, hospitalization and death from COVID-19. When districts cannot require students, teachers and staff to be masked, parents of these children face the gut-wrenching decision to either imperil the health and well-being of their child to secure an education or to protect their child’s health at the expense of their federally guaranteed right to a free, appropriate public education. 

The willingness of Republican governors to try to stop local school districts from protecting their students belies their oft-repeated claims of favoring local control of schools since “those closest to students know best for their community.”

In fact, the prerogatives of local districts to require masks are being trampled because their version of local control dissents from the views of state officials. It is ironic that houses of learning — charged with teaching science — are allegedly in the wrong for adhering to science-based guidance from the Centers for Disease Control and Prevention (CDC) and the American Academy of Pediatrics.

Unless the federal government or courts take action, state bans will continue to place schoolchildren with disabilities at risk.

Governors know that OCR is exceedingly unlikely to withdraw billions of dollars in federal education funding, including more than $122 billion for K-12 education under the American Rescue Plan. OCR primarily works collaboratively with states and districts to resolve civil rights complaints. This occurs for two reasons. Federal civil rights laws typically require voluntary compliance as the first remedy. Federal officials also may be reluctant to withdraw federal funds because it will harm most the children these civil rights laws aim to protect.

If courts do not intervene and the federal government backs down, some states will continue to feast at the federal education trough despite flouting federal conditions.

Some state leaders already apparently believe federal funding is a free lunch. In response to the OCR investigations, Arizona Attorney General Mark Brnovich said he was prepared to defend Arizona’s sovereignty from federal overreach. This position overlooks the fact that Arizona and other states ceded some of their sovereignty in exchange for generous federal funding that is conditioned upon their complying with federal civil rights laws. 

Unless the federal government is willing to take effective action, the true losers in this showdown will be not just the schoolchildren with disabilities who must either forfeit their right to a free, appropriate public education or risk their health for the sake of learning. The American people also will miss out on all that these children could have contributed to our economy, culture, civil society and democracy if we had protected them from discrimination.  

Yet the ultimate loser will be our democracy. By failing to protect our most vulnerable schoolchildren, we will have ceded further ground to the tyranny of those who reject both science and justice while wearing the mask of liberty.

Kimberly Jenkins Robinson is the Elizabeth D. and Richard A. Merrill Professor of Law and Professor of Education at the University of Virginia, a senior faculty fellow with The Miller Center at the University of Virginia, and a former attorney in the Office of the General Counsel in the U.S. Department of Education. She is the editor of “A Federal Right to Education: Fundamental Questions for Our Democracy” (NYU Press). Follow her on Twitter @ProfKJRobinson.