America has been beleaguered with a wealth of public health mandates during the COVID pandemic, from the OSHA vaccine mandate to the Centers for Disease Control and Prevention's (CDC) eviction moratorium. These agency mandates arrive with few self-limiting principles to accompany them.

Now, modern conflicts between personal liberty, federal power, and public health are playing out at the U.S. Department of Education.

The Department of Education’s Office for Civil Rights (OCR) has launched directed investigations into seven states to determine whether statewide “prohibitions on universal indoor mask mandates” discriminate against students with disabilities who are sometimes at heightened risk for severe illness from COVID-19 by preventing them from safely accessing in-person education.

A word about wording: no state has “banned” masking. After all, it would be a strange thing to ban American school students from wearing masks in the classroom during the ongoing COVID-19 pandemic, particularly as the CDC is announcing new variants faster than Johnny can sing “Jingle Bells.” But the OCR tries to disguise the word “mandate” by using the term “universal masking” throughout its press release announcing the investigations.

While the efficacy of cloth masks as a preventative measure has been called into question (consider, for example that while the CDC recommends “universal indoor masking of all students age 2 and older,” the leading study on which the CDC bases this recommendation found that the COVID-19 infection rate in schools requiring students to wear masks “was not statistically significant compared with schools where mask use was optional”), some red states have prohibited the mandating of masks in school, relegating the choice of whether to mask or not to mask to the parents of public school children—those whose rights to direct the care, safety, and upbringing of their children have been recognized for nearly a century by the Supreme Court, beginning with Meyer v. Nebraska.

OCR’s argument is that if schools don’t mandate that every child wear a mask, it could have a disproportionate impact on students with special needs, and as such, violate those students’ federally protected access to Free Appropriate Public Education, as required under federal law. OCR is specifically  investigating whether bans on mask mandates violate Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans With Disabilities Act of 1990.

To ensure a Free Appropriate Public Education (FAPE), student “504” plans (developed by schools for students with special needs) and individualized education plans must focus on the individual student, requiring public schools to provide appropriate education and modifications, aids, and related services free of charge to students with disabilities. The “appropriate” component means that such an educational plan must be designed to meet the individual educational needs of the student as determined through appropriate evaluation and placement procedures.

But the Department seeks to turn such legal requirements on their head by focusing instead on a modification of group behavior and removing the emphasis on the individualized needs of a student with a disability`1. That colors the Department’s investigations with the hue of a partisan power grab, preventing local educational associations from educating children as they see fit.

On December 1, in a case brought by the parents of public school students with disabilities challenging a state mask mandate prohibition due to its claimed discriminatory effects, the U.S. Court of Appeals for the Fifth Circuit considered the district court’s blanket injunction preventing enforcement of the Texas governor’s executive order prohibiting mask mandates in all public schools. In granting the Texas attorney general’s emergency motion, and staying the district court’s injunction, the appellate court noted the alternate accommodations available to (but not sought by) the students, writing:

The risks of contracting COVID-19 for these plaintiffs [with disabilities] are certainly real, but the alleged injury to plaintiffs from the enforcement of [the executive order] is, at this point, much more abstract. This is so because the binary choice envisioned by the district court—either stay home or catch COVID-19—is a false one: it wholly elides the various accommodations available to the plaintiffs (e.g., distancing, voluntary masking, class spacing, plexiglass, and vaccinations) to ensure a safer learning environment, regardless of [the order’s] prohibition of local mask mandates.

The plenary police power to regulate health and safety of the citizenry lies with the states under the 10th Amendment to the Constitution. That power—the inherent authority of the state (and, through delegation, local governments) to enact laws and promulgate regulations to protect, preserve, and promote the health, safety, morals, and general welfare of the people—is extensive. United States Supreme Court Justice Thurgood Marshall made that point in Hillsborough County, Fla. v. Automated Medical Laboratories, Inc., explaining that “the regulation of health and safety matters is primarily, and historically, a matter of local concern.”

The CDC’s recommendations on masking are just that: recommendations. But according to OCR’s apparent reading, they have the force of law. State and local educational agencies making their own decisions on masking would appear to OCR to be violating federal civil rights law by failing to provide FAPE for students with disabilities. OCR believes that states choosing to make their own determinations on masking mandates based on a cost versus benefit analysis, or according to available scientific evidence, raise a red flag warranting a directed investigation.

The novelty of using OCR’s anti-discrimination laws to regulate voluntary mask use in the states argues for cabining the breadth of the investigatory scope given to the Office for Civil Rights by the president on COVID-related issues. OCR is trying to make a claim of discrimination out of a state’s difference of opinion.

The mask wars aren’t likely to subside anytime soon, which is why such decisions should be left in the hands of those who know their child’s education and health needs best: namely, parents.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. To join the debate, please email us at [email protected].