Discussion: The OCR's Investigation of State Mask Mandate Bans

Civil Rights Practice Group Teleforum

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The U.S. Department of Education’s Office for Civil Rights has launched an investigation into the legality of state bans forbidding schools from imposing mask mandates on their students. OCR indicated two major bases for potential illegality: Section 504 of the Rehabilitation Act of 1973, and Title II of the Americans with Disabilities Act of 1990, which prohibit discrimination against students on the basis of a disability and guarantee students with disabilities access to a public education. 

Opponents of the mask mandate bans argue that students with disabilities cannot access public education if other students and staff are not required to be masked. Proponents of the bans argue that parents should not be deprived of the right to make health decisions for their children. Other arguments concern the proper scope and limits on federal involvement in school matters.

Featuring:

  • Prof. Robert Dinerstein, Professor of Law, American University Washington College of Law
  • Sarah Perry, Legal Fellow, Heritage Foundation, Edwin Meese Center
  • Moderator: Hon. Kenneth L. Marcus, Founder and Chairman, Louis D. Brandeis Center for Human Rights Under Law 

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Evelyn Hildebrand:  Welcome to The Federalist Society’s virtual event. This afternoon, October 20, we discuss “The Office of Civil Rights Investigation of State Mask Mandate Bans.” My name is Evelyn Hildebrand, and I’m an Associate Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s call.

 

      Today, we are fortunate to have with us an excellent group of speakers. Our discussion this afternoon will be moderated by Mr. Ken Marcus, whom I will introduce very briefly. Ken Marcus is the Founder and Chairman of the Louis D. Brandeis Center for Human Rights Under Law, the former Assistant U.S. Secretary of Education for Civil Rights, and he is also the Chairman of The Federalist Society’s Civil Rights Practice Group. And we’re delighted that he can join us this afternoon to moderate.

 

      After our speakers give opening remarks, we will turn to audience for questions toward the end of today’s program. If you have a question, please enter it into the Q&A feature at the bottom of your screen, and we will handle questions as we can, again, towards the end of this afternoon’s program. You can enter those questions at any time, and again, that’s into the Q&A feature at the bottom of your screen.

 

      With that, thank you for being with us today. Ken, the floor is yours.

     

Hon. Kenneth Marcus:  Thank you, Evelyn. Welcome, everyone. It is good to be back on another of our series of talks on current civil rights issues. We’re delighted to have an excellent panel to discuss investigations by my former agency, the U.S. Department of Education’s Office for Civil Rights, or OCR. One of our panelists also worked recently at OCR, although we did not overlap at the time.

 

      The subject of today’s webinar is OCR’s recently announced investigation of mask mandate bans. This is a fairly high-profile and unusual set of announced directed investigations. At least five states have been informed that OCR will be investigating policies in which states have insisted upon parental opt-outs from mask mandates within various school systems. OCR has announced that it would review to determine whether there was a violation of either Section 504 of the Rehabilitation Act or, alternatively, Title II of the ADA.

 

      These state level directed investigations are always both unusual and high level. This one may be a little bit more high level or prominent than others in the sense that it followed very quickly upon a statement from the President of the United States, not specific to the directed investigations, but setting forth the general principles which Secretary Cardona indicated would be enforced by his department, including through the Office for Civil Rights. And then immediately afterwards, OCR announced these initial set of five directed investigations, as it were.

 

      Two excellent speakers whom we have to welcome today. Sarah Parshall Perry is a Legal Fellow for the Edwin Meese III Center for Legal and Judicial Studies, which is part of the Institute for Constitutional Government at Heritage, where her work centers on civil rights and the proper role of the courts. She joined Heritage after serving as Senior Counsel to the Assistant Secretary for Civil Rights within OCR at the Department of Education where she focused on policy reform, technical guidance, and the Office for Civil Rights annual report to Congress, a report that I remember well.

 

      Bob Dinerstein is Professor of Law and Director of the Disability Rights Clinic at American University Washington College of Law where he has taught since 1983 and where he has had significant leadership positions, which have included acting dean of the law school, as well as associate dean for academic affairs, associate dean for experiential education, and director of the clinical program. He specializes in both disability law and clinical education and has particular experience in the ADA mental disabilities law issues, the U.N. Convention on the Rights of Persons with Disabilities, etc., etc.

 

      It is certainly an honor and a privilege to welcome both Sarah and Bob, and we will start this presentation in a moment with Sarah. Let me just say to the audience that at any point that you care to propose a question, please feel free to put it in the Q&A box and we will get to it after the presentations. We’ll start with you, Sarah Perry.

 

Sarah Perry:  Thanks, Ken. Well, we’ve seen a wealth of public health dictates coming from the administration during the COVID pandemic, everything from vaccine mandates to CDC eviction moratoriums, and it would seem that the current analysis brings us to the world of education.

 

      This is an interesting approach toward determining whether or not there have been violations of federal civil rights law. And as you’ve correctly mentioned, it’s Section 504 of the Rehabilitation Act of 1973 which guarantees students with disabilities a free and appropriate [public] education, FAPE, and also Title II of the Americans with Disabilities Act of 1990 which does largely the same, regardless of whether or not federal financial assistance is involved.

 

      So we’re looking at a situation in which these directed investigations are being used in a very novel and unique way. Never before have we been faced with a question of whether or not a student’s requirement to wear a mask by virtue of local educational management is a violation of that student’s civil rights.

 

      But there are three problems that I have with these particular directed investigations, first, that the states themselves have acted reasonably and according to their constitutional ability to manage the health, safety, and welfare of their citizenry, and the science supports their decisions; also that Biden’s directive to open these civil rights investigations is politically motivated and ultimately an effort to grow the administrative state; and lastly, that the primacy of a parents’ rights to make healthcare decisions for their children does not amount to a civil rights violation.

 

      So without stealing too much time from my co-panelist, let me first begin by saying that the states have themselves acted reasonably, and the science supports their decisions. In fact, Justice Thurgood Marshall made that point in Hillsborough County, Florida v. Automated Medical Laboratories, explaining that the regulation of health and safety matters is primarily and historically a matter of local concern. The administration has recognized, has identified no authority to issue a national mask mandate and appears to be substituting their absence of authority there for these directed investigations as the next likely vehicle.

 

      But just this year in the Alabama Realtors case addressing the CDC’s eviction moratorium, the Supreme Court once again made clear that even despite a strong national interest in preventing transmission and spreading of the Delta variant, which we know to be highly contagious, the system of government does not permit agencies to act unlawfully, even in pursuit of a desirable end.

 

      Under the Tenth Amendment, we know that the plenary power to relegate health and safety falls to the state and its extensive local networks through the power of delegation and promulgated these regulations to preserve and promote the health and safety of the general welfare of their population lies with them, not the federal government or the Department of Education vis-à-vis the Office for Civil Rights.

 

      But also, the most updated CDC guidance, that which indicates, which recommends masking for all individuals beyond age two, which obviously would incorporate all school students in the U.S., is actually based on an unscientific data set and does not demonstrate that masks are effective against COVID-19 in schools. In fact, it was a case that demonstrated 3.1 individuals who had contracted COVID-19 per 500 students. And the effects of various mitigation techniques were studied. Anything other than ventilation improvements, such as opening windows, and masking adults, teachers, administrators, was proven to be statistically insignificant, and that includes masking as well.

 

      In fact, Elissa Schechter, who is Director of Emergency Medicine and Infectious Disease at Boston Medical, has said she is not aware of any studies that show conclusively that kids wearing masks in school has any effect on their own morbidity or mortality, or on hospitalization or death rate in the community around them.

 

      And in fact, COVID has proven to be less deadly than the flu for American children. During the 2018-19 flu season, about 30 percent of those who had died, 480 flu reported deaths, had confirmed cases of influenza, whereas during the same period in one year post, only 90 American youth have been recorded to have died from coronavirus implications.

 

      So there’s a distinction in the science. Masking has not yet proven to be effective other than other mitigation efforts. And we know that these states were acting within the authority granted to them by the Constitution of the police power.

 

      The second point, the opening of a directed investigation, is politically motivated and an attempt to grow the state. The government lacks the authority to impose a national mask mandate, just as it lacks the authority to impose an eviction moratorium or a vaccine requirement. So the Biden administration is essentially just trying to take a medical issue and turn it into an OCR investigation as a precise vehicle when, ultimately, it’s a difference of opinion about what is suitable for American kids.

 

      Until recently, Section 504 was viewed mostly from a restrictive context on face mask mandates; in other words, requiring exceptions for individuals with disabilities who had difficulty complying with mask mandates because of their own disabilities. As a mother of two on the autism spectrum, I know how important, for example, it is for those particular children to recognize facial characteristics as a method to emotional interpretation.

 

      But Secretary of Education Cardona and the Biden administration seem to be arguing that Section 504 requires masks to be worn in school. So they’ve taken CDC recommendations, which are not themselves those that carry the force of law, and they’ve actually turned this into a directed investigation, not surprisingly, against, now, seven states that are Republican led, that are under the administrative techniques and management of Republican governors, who themselves have said the federal government is overreaching in the administration of the pandemic itself.

 

      We also know that these investigations, not just representing federal overreach, might present no limiting principle. What is to stop the Department of Education’s OCR office from also claiming that there’s a violation of federal civil rights law if, for example, there is no flu mask mandate as well? According to OCR’s reading of Title II and Section 504, they have declined to follow the CDC’s advice and all of its particulars involving federal civil rights law. And their interpretations imply that public schools officials are not exactly free to adopt the safeguards they believe are appropriate under the Constitution but must take as force of law the CDC guidelines, whether or not they happen to be providing FAPE.

 

      So we’re at a turning point where the federal government seems to be weaponizing investigatory intervention powers for purported violations of federal civil rights law. And it looks like a bit like a craven political stunt, not only because of the very interesting timing, as you rightly noted, Ken, as opposed to the statement that was made by the president and the ultimate directed investigation openings, but also that the president himself has made statements on Republican governors saying that if they don’t help us, the governors would not beat the pandemic, and he would use his power as president to, quote, “get them out of the way.” Again, looks a bit politically motivated.

 

      And then the last point in terms of these directed investigations is, ultimately, they divest parents of their rightful authority in making healthcare decisions for their children. Those healthcare-related decisions don’t amount to a federal civil rights violation. In fact, the liberty interest at issue in these cases, those of parents to control the care, custody, and health of their children, is perhaps the oldest of the fundamental liberty interests recognized by the Supreme Court.

 

      And the Supreme Court reiterated that in Troxel v. Granville. Meyer v. Nebraska, dating all the way to 1923, was the first iteration of this principle stemming from the Fourteenth Amendment. It was again reiterated in the Sixth Circuit in 2016, basically saying that due process of a parent to make decisions concerning the care, custody, and control of their children includes the right to make medical decisions. Parents are to be assumed to always be acting in the best interests of their children, and that’s Parham v. J.R. That dates to ’79.

 

      The government doesn’t seem to understand that these aren’t prohibitions on wearing masks but only prohibitions on making masks mandatory. In fact, they are specifically designed to leave the administration of these decisions at the local level, first with the parents, second with the school districts, and ultimately at the state level down, not with the federal government, which is appropriate.

 

      So those are my leading arguments, and, Bob, I look forward to hearing what you have to say.

 

Prof. Robert Dinerstein:  Thank you, Sarah. A variety of responses I have -- and I agree with you on some elements and disagree on others, and I guess that’s really the point of this entire session.

 

      First, let me say that with regard to your first point about that the states are acting responsibly and also have historic responsibility in the area of health and safety, that’s true. But I think that the overriding issue here, or at least an issue that has to be taken into account, is the saliency of federal law, which you properly cite Section 504 and the ADA, and that those establish federal level protections for the rights of people with disabilities that in some cases may trump, so to speak, the rights or the power that states attempt to exercise. And that’s true.

 

      If we look at the area of education, which both of you, of course, have experienced, we could say the same level. Education has historically been something that’s been regulated at the state level, which is true. But then we have the Individuals with Disabilities Education Act as a recognition by Congress that in some elements, there needs to be some federal position. And as you well know, the ADA in its findings recites the importance of having a comprehensive statute that addresses the rights of people with disabilities. So that’s one thing, which is to say this doesn’t subvert state power generally, but it is a limited intrusion because of the importance of the civil rights that are being looked at here.

 

      One of the things that I think is a little bit lost that I want to be clear here is that as I understand the OCR investigation, and even other statements that are made by the Biden administration, they’re not saying here that schools must mandate masks for those students and staff who are in the schools. They are saying that they have questions about state laws that prevent the local schools from, in fact, enforcing those mandates if, in their judgement, they think those mandates are needed.

 

      So as I look at it, a school district in Iowa or Oklahoma or one of the other states that have received these letters might say, “Well, we’re in an area where when we’re looking at the science, and the spread of the Delta variant, and who’s getting it and how serious. We would love to mandate masks in our school for the safety reasons that as we read the science,” and these laws would prevent them from doing that. In some cases, there’s exceptions. The exceptions seem rather limited. In others, there appear to be no exceptions at all.

 

      So I think in some ways, it’s a little ironic that this isn’t just a case of the big, bad federal government versus local control. It’s the states, actually, as, if you will, the middle entity here telling the local folks, you cannot have a mask mandate even if you determine, in your judgement, you should have it. And I think that’s a really big difference here.

 

      I think this would be a different discussion if we were saying that what OCR was doing was saying all school districts in the State of Iowa must have mask mandates. I think you may be right about what the president would like to do, but I think he has understood and recognized that there isn’t power to do this in ways that go beyond either what the federal government does or in some cases what large entities within public commerce do. So I do think that that’s a really important distinction.

 

      The second element I would say here is that the thrust of not only the OCR letters, but I believe the thrust of some of the lawsuits that have been brought—and there have been TROs granted and injunctions granted in a couple of instances in which I’m aware, South Carolina and Iowa in particular—is to look at what is the consequence for students with disabilities in school districts where there’s no mask mandate, and again, by hypothesis here, states where they can’t have a mask mandate.

 

      An immunocompromised young person who would otherwise like to be in person in school in a school where there is no mask mandate and consequently there is risk of exposure, is then faced with, frankly, a Hobson’s choice, either go to school and risk the danger of getting the virus, which may be a particular risk to them because of their immunocompromised state or the conditions they have or do remote learning. Not every place is set up for remote learning, and as we’ve learned over the course of the last year and a half, not every family is in a position to take advantage of remote learning, either because of the difficulties of managing the environment at home, or the lack of broadband access, or whatever that might be.

 

      And frankly, even if remote access worked perfectly, I would be very concerned, and I would hope others would be as well, if the only students who are learning remotely are those with disabilities. That seems to me to be exactly to be segregation. That seems to me to be exactly something that would violate the integration mandate of Title II and the like. And I know you’re not saying that. But I do think that that part of the population that we’re talking about, and again, particularly in the lawsuits that have been brought, have been what do we do about those kids who would, in fact, be at risk, and maybe at greater risk than children generally would be because of their preexisting health condition?

 

      You’re certainly right that there’s also been a kind of other way of looking at these cases from a disability standpoint, which is, as you point out, children or adults who can’t wear masks because of their conditions. And I think as to that, a reasonable way of regulating that would be to give them, of course, an accommodation to that policy, say you don’t have to wear it if you have health-based reason why you can’t, or, of course, as we’ve come to understand, a religious exemption or some other legitimate reason why you can’t. But that’s not this case.

 

      With respect to the politicization, I guess I will resist the temptation to compare this administration to its predecessor about politicization, particularly with regard to how the president will or will not cooperate with particular states, since I think the predecessor occupant was quite clear about not engaging with states where he thought the governors were not sufficiently praising him. So that’s a whole other issue which maybe is another panel.

 

      What I will say is I believe that the reason -- well, at least the states that the letter has been sent to are led by Republican governors, but I’m not aware of any Democratic governor led state where these laws are an issue. And I may be wrong about that, in which case I’m happy to be corrected. But it’s not just that they’ve gone after Republicans, I would say. It’s they’ve gone after those states that have these laws which seem to be passed in states that are Republican legislature and/or Republican governors. So I think that has to be taken into account as well.

 

      As far as the timing, I don’t see necessarily a problem. I assume that there probably was some reason coming down from the Secretary of Education to OCR saying, hey, this is consistent with what the president would like to see. I myself think that I work at a university that requires people to be vaccinated and requires us to wear a mask when we teach in class. If I had my druthers, I wouldn’t teach in a mask. It’s not so great. And all my students are in masks. But you get used to it.

 

      And I think it does one more thing, by the way, and that is to the extent that, for example, in an environment where some people are masked and some aren’t, it may call greater attention to, well, why aren’t you masked? Are you not masked because you have a disability, which is not an appropriate kind of enquiry. Are you not masked because you’re anti-vax? Should we be having that?

 

      It’s a little bit like, and this is not my experience, but children who go to Catholic school and wear uniforms. So one advantage that sometimes parents speak to is you get rid of all the possible distinctions about who’s got this kind of clothes or that. Everybody is wearing the same thing. So while uniformity is not always a good, the fact is that a mask mandate would essentially say we don’t have to guess at whether you are vaccinated or are not vaccinated. There may be a separate requirement for that. But with everybody masked, that becomes actually the standard.

 

      And this is truly anecdotal, but in some reports, it seems like the one group of people that doesn’t seem to have trouble wearing masks are children, who maybe it’s fun for them. Maybe as we’re approaching Halloween, they see it as kind of a humorous thing to be doing.

 

      But it has become, unfortunately, a very politicized issue. And I think that that is a whole other set of troubling assumptions, which is that somehow, a public health emergency has become something that has been the subject of which side are you on, and I think that’s unfortunate because I do think that science matters. I do think that while we have rights and, of course, care about individual rights, we also have obligations. And that obligation, particularly in a pandemic, I think, has got to be very strong.

 

      Lastly, with regard to the rights of parents, yes, of course, parents should be presumed to have the best interests of their children at heart, and most parents do, even though there are some who do not. The fact of the matter is we restrain even those rights in many instances, including in this case, the fact that schools have always, or for many years, required students to be vaccinated before they can come to school. You cannot just decide I don’t want to have the measles vaccination, or I don’t want to have the smallpox vaccination, and just go to school anyway. If you feel that strongly about it, you might then not go to the public school and go to a school that doesn’t have that requirement.

 

      So whether it’s -- in a past generation, maybe before your time, Sarah, but maybe not before Ken’s, we’d have fights about seatbelts, or motorcyclists wearing helmets, or fluoride in the water. There is always a kind of a response in the United States, understandably, given our history, that any kind of requirement is like, who are you to tell me to do this? And there’s a lot of that going on here.

 

      But in situations where, in this case, it’s not only whether I am telling you to wear a mask, it’s that your wearing a mask may also affect me. And so I think it’s kind of a dual purpose. I do think that the original rolling out of the masks and who needed to wear a mask was confusing because initially, we’ll recall, people said you don’t wear a mask for yourself, you wear it to protect others. And at that point, you could have some people who would say, that’s important to me, and others who would say, it isn’t so much.

 

      Then it became clear later that they always—they, meaning public health authorities—thought you should wear masks, but at first, they were worried that the people who would get all the masks would be not the healthcare providers and others who really needed it. So again, that, I think, was poorly done when that was said that way.

 

      But  now where we stand is whether masks are always going to make a difference. And you said there’s some science that perhaps they don’t with respect to young children. The fact of the matter is children can get COVID. They can transmit COVID. They are, as you say, unlikely, not impossible, but unlikely to get serious cases themselves. But they could transmit it to people who, in turn, would give it to someone. So a child comes to school with or without a disability, gets it from someone else at school, comes home to a family with somebody who’s aged or immunocompromised, could give it to them, and that person can then get it.

 

      Look, we cannot live in a riskless society. No one would want to live in a riskless society. But I think when we can take relatively unintrusive steps in order to protect not only ourselves but others, I find myself not having a problem with that.

 

      But lastly, I’ll just come back to the point. This is not a debate about whether the federal government through OCR or otherwise can force school districts to have mask mandates. This is an inquiry by OCR to states that are preventing those local entities from deciding on their own whether they should have a mask mandate. And with that, I will shut up.

 

Hon. Kenneth Marcus:  Thank you, Bob.

 

Sarah Perry:  Well, I’m glad to see we do have points on which we agree. I do have a few rejoinders, though. You started out by discussing the fact that there are federal civil rights laws at issue, the supremacy of the Constitution, the Tenth Amendment ability for states to be able to at the closest level possible, moderate, care for, and institute regulations based on the citizenry is, I think, of a greater concern to some of us who believe that there is an imperialism to what’s going on with the COVID-19 management strategy.

 

      I think many people have concerns about other COVID related amelioration efforts, including the vaccine mandate, for example, the CDC eviction moratorium. And so far, what we’ve seen unilaterally is the unwillingness of federal courts to say explicitly you’re acting within your authority. What they have done is said you’ve either expanded what the actual legislation says, for example, in the case of the CDC eviction moratorium, or you are acting outside the purview of your ability as the federal executive, and this is something that is better left to the states.

 

      It’s a matter that was just reiterated in the South Bay v. Newsom in 2020 in which Justice Roberts himself said specifically, “Listen, we’re always going to relegate,” -- and, of course, I’m paraphrasing. He didn’t always start out with “listen.” It was after he got a little relaxed. But in his particular opinion in United Pentecostal Church v. Newsom, they reiterated the principle of we don’t want to get involved at the federal level in healthcare decisions that are relegated to the states through their plenary police powers.

 

      So anytime we see the executive being used as sort of an investigatory bulldog, that’s really a pretextual way of being able to mandate vis-à-vis funding, for example, which transpired as well; red states divested of funding, blue states given funding. Those that prohibited mask mandates were cut out of certain federal COVID grant programs. Those who allowed mask mandates to stay in place were given COVID funding.

 

      So there appears to be some discriminatory animus between these states themselves and between the states that are traditionally Republican led red states and the federal executive as concerns these matters of health and safety. But it does, for me, present a little bit of anxiety about whether or not there is executive overreach that’s camouflaged as, for example, these directed investigations.

 

      Now, I 100 percent agree with you that if we’re seeing the only individuals who are essentially relegated to online platforms or alternative platforms as being those students with disabilities, I would have a major concern with that. And it’s obviously something that we don’t want to have happen. I do believe that the states are sufficiently akin to the appropriate executive in their particular locality to be able to determine in the context of the education that they are to manage and oversee if there is a disparate impact, a disproportionate effect on students who have disabilities.

 

      Knowing, of course -- I have three children in public school. All of them were at one point relegated to online platforms. The online platform itself isn’t necessarily discriminatory. It’s the administration of the online platform. But knowing that the science has represented to us that masks are not only ineffective, they have no significant effect on the transmission of COVID and the Delta variant, which we know to be highly transmissible, I don’t find it a necessarily concerning prevention of alternate mitigation efforts.

 

      Our children use plexiglass dividers. That also works as well. So think of a student who, for example, has a disability that prevents them from wearing a mask, that amelioration, that ability to perhaps move them to an annex room with closed-circuit television or move them to a corner of the room in which there is a plexiglass divider might also provide an alternative for FAPE that would be sufficient under federal civil rights law.

 

      So I don’t think we have yet to -- and this will all come out in the wash, I think. As these particular investigations transpire, we will learn whether or not the schools are taking the appropriate measures to provide FAPE for the students. But as an initial matter, then, from the outset, I think, using the Department of Education as sort of a bully pulpit to be able to make sure that these mask mandates are in place throughout all of the Republican led states seems a little bit politically motivated and specious to me.

 

Prof. Robert Dinerstein:  Well, we’ll just disagree on that, but…

 

Sarah Perry:  [Laughter]

 

Hon. Kenneth Marcus:  Okay. Let me ask a follow-up question. It seems to me a lot of this ultimately turns on whether the Biden administration has gotten the law right. That is to say, if they’ve gotten the law right about 504 or the ADA, then it’s hard to make the case that they’ve overreached since Congress has given them authority. If they haven’t gotten the law right, then it opens the question as to whether they’re doing exactly what Sarah says.

 

      So let me ask about this, and I want to direct this first against Bob. We don’t know exactly what OCR’s theory is, presumably. To some extent, there are hints in the letters that they’ve sent the states opening their investigation. I think we can also infer from the fact that they’ve very publicly opened these investigations suggests that there is some sort of internal determination within the administration that under at least some circumstances, parental opt-outs from mask mandates violate 504 and/or the ADA.

 

      It would be surprising for them not to have made that decision because it would be awkward for them not to find a violation after undertaking large and expensive investigation. So presumably, there’s been some sort of determination that there is some sort of theory under which there is a violation.

 

      Now, there are lots of different ways they could go about it. And I think, Bob, you’ve suggested that there may not be an absolutist view over there, that it might be that it’s only under some circumstances.

 

      So I would like to get your thoughts either predicting the Biden administration or just thinking for yourself about the law. What would be the theory? Under what circumstances, for instance, would some sort of parental opt-out violate the rights of students with disabilities, exclude them from educational benefits under 504 or the ADA? And does it depend on the local circumstances, and why would the rights of these students depend on the local circumstances?

 

Prof. Robert Dinerstein:  It’s a good question. A couple things -- I will try to answer yours, but one of the things that’s been kind of interesting, and it’s not directly relevant to, I think, what we’re talking about, is having COVID-19 a disability within ADA or 504? What the administration I believe has said is people with long-haul COVID certainly are because they have a physical impairment that substantially limits one or more major life activities. I believe they haven’t necessarily weighed in on whether asymptomatic COVID or COVID with minor symptoms might be.

 

      Now, that’s not the group we’re talking about here. We’re not talking about COVID positive people. We’re talking about people who would be at risk if they were in an environment where COVID was, let’s say, not as controlled as it could be. Again, there’s no perfect environment. Colin Powell died even though he was vaccinated. We know there are conditions, again, that make one -- it’s just not a perfect type of world here.

 

      I will say that I think one way I look at these issues is what if we substituted for disability something else. Would we say, for example, a parent could decide that they only want to be in a segregated classroom by race in a public school because that’s what they feel comfortable with. I think we would all say you can’t do that. Schools can’t be segregated. Whatever the parent’s individual interest in that is, again, you can make a choice to go to a school where that happens, but you can’t force a public entity to do that because that would be violating the law.

 

      So I don’t think an opt-out -- a parent who would opt-out, let’s say, of mask mandate, if by doing that, that child put at risk a child with a disability who is otherwise going to be there, I think that would create a real problem. I think the issue might then be is this -- and this, I guess, goes to actually what Sarah was saying earlier, it might be that there are accommodations that could take place that could actually allow for some variation as well as protecting the legitimate health interests of the students with disabilities, or I should say teachers with disabilities who are also in that building.

 

      So in these cases, for example, the flipside of the issue, which is someone who cannot wear a mask, let’s say, who goes to a grocery store where they have a mask mandate and says, “Look, as an accommodation of my disability because I can’t wear a mask, I’d like an accommodation.” We might say, okay. So if it’s a restaurant, maybe we’ll put you at a table that’s not so close to where other people are. Maybe there will be a plexiglass screen behind which you can go. Maybe there’s outside seating, and we’ll put you there. There are things you could do that would mitigate or minimize the threat you give to somebody else.

 

      But I would be worried if, again, a parent’s choice about what their child should be subjected to -- it’s fine for the parent to make that choice with regard to their child, no doubt. It’s when that choice has an effect on other children who also have certain rights, that’s where I think there’s more concern where they arguably would create a risk to those other children, and so therefore puts those children in a position where they cannot get the services that they are entitled to.

 

      I have no idea where the Biden administration is on this. I would say that a cynic might say --I’m not saying this, but a cynic would say all they really want to do is file these investigations to show that they’re doing something about this, but they don’t actually really want to address this. And both of you are better able than I to answer the question of what are the likely conclusions of directed investigations? So I worked at DOJ’s civil rights, but I did not work at OCR.

 

      Ultimately, when you’re talking about federal regulations, sometimes the hammer that the federal agency has is to withdraw funding, which is such a heavy hammer it is almost never used and, frankly, would not be a good thing to use even if you could. Presumably, OCR issues letters of findings. Again, what’s the consequence of that? I actually would be interested in learning that if we have an opportunity to talk about that.

 

Hon. Kenneth Marcus:  I could say a word about that, but then I think I would like to follow up on the question. OCR has not found a violation in a hundred percent of its directed investigations or compliance reviews. There’s not a guarantee that it’s opening a case and therefore it will close it in a particular way.

 

      On the other hand, these are all discretionary. These are not like complaint-driven investigations where it will open an investigation merely because a complaint has been filed containing allegations which, if true, would state a violation of law. This is OCR going out and saying in a very public way, “We plan to commit a substantial amount of resources to a particular area.” And they are aware that if they do that, they will be asked by Congress and others after the fact what came of this expenditure of resources.

 

      They wanted to open five state -- and these are statewide investigations. If OCR is conducting -- they might get 10,000 or 12,000 complaints each year, but they typically would involve one student. Occasionally, it would involve perhaps a school. But statewide investigations, those are somewhat of a big deal in terms of expenditure of resources. So it would be unusual if OCR and, in fact, the department probably in conjunction with the White House had not contemplated, what’s going to happen if we go in? How are we going to get out?

 

Prof. Robert Dinerstein:  And you certainly would hope they would be thinking about the endgame, at least subject to whatever their investigation reveals.

 

Hon. Kenneth Marcus:  That’s right. And then, the resolution of these cases when they find a violation is almost a hundred percent a voluntary resolution agreement as opposed to a cessation of funds. However, if there’s ever a case in which they cannot receive a voluntary resolution, it would be one in which there is a very substantial political disagreement. Those are the rare cases in which they might actually have to take this one to an administrative law judge or to the court.

 

      And it would be surprising, barring some sort of electoral changes, some sort of changes in the government officials, if OCR didn’t A) find a violation, or five, or seven, and B) the states didn’t resist that, meaning that they would head to litigation. So it seems to me simply by virtue of the fact that they’ve announced these statewide directed investigations, that means they have to be considering a prospect that they will find some number of violations which would then go the whole way, assuming that the administration lasts longer than the legal process, which doesn’t always happen.

 

Prof. Robert Dinerstein:  So it is also interesting that the states on this score are not monolithic. I think some school officials -- and, of course, we’ve seen some violations, I guess, both in Texas and Florida, ostensible violations of state laws where local school board has said, “We’re going to go ahead with our masks anyway. Come and get us.”

 

      So I think in this case, it might have been in Iowa. I thought there was at least one state where some of the officials basically said, “We’re happy you’re here.” Now, again, that’s not the governor. That’s not the AG. And they may not be able to speak for the state in those areas. But I think it is one of these things where, because there are different views about what the “ought” is, that there’s not necessarily one answer to it.

 

Sarah Perry:  Yeah, I would agree. I will just add that, Ken, I would agree with you. I think there’s enough predicate knowledge somewhere about the possibility of finding some violation in some school or some school district that they’ve anticipated already that the expenditure of resources is going to be sufficient if, for example, they want to make sure that all states are following the mask mandate approach.

 

      So I think also, there’s much to be said for the fact that the power of the purse is very effective, and I think that’s exactly what the administration was doing when it doled out COVID relief funding to states that have instituted mask mandates versus those who have not instituted mask mandates. So there’s sort of an encouragement to flout executive law at the state level in favor of what we’re hearing from the federal executive on what ought to be utilized, which is essentially this recommendation, this suggestion from the CDC that’s ultimately been elevated to informal rule of law in this circumstance.

 

Hon. Kenneth Marcus:  Bob, would you agree that it is unusual for the federal government to require schools in a disability context to require non-disabled students to do something? It seems routine for OCR and the courts to require the school district to do something, to provide some form of a reasonable accommodation, but less common, I think, to require a school district to make students do something.

 

      I know that we’ve seen some cases involving peanut allergies, for instance, in which schools have been told they need for students to omit doing something, although those seem to be -- it’d be interesting to hear on it. It’s not universal to require peanut-free schools, for instance. And there are questions, okay, maybe you need a peanut-free table. Do you need a peanut-free cafeteria?

 

      So more broadly, is this -- would you say that this is unusual, the notion that OCR is saying or implying that there may be a violation unless the schools require nondisabled students to do something? And if so, how would you say it relates to other sorts of disability cases, either like peanut allergies or any other sort of precedent you can think of?

 

Prof. Robert Dinerstein:  Yeah. Well, I guess, again, in the first instance I would just again clarify that what the OCR investigation is purporting to do is to address at the state level those state statutes preventing the local schools from making decisions. So certainly a local school, if it decided it needed to have a mask mandate, could on its own apply that to the kids with disabilities and kids without.

 

      But that aside, one of the things I want to say is, and this is always something that’s, I think, a challenge in disability rights law, period, we have a view of how to address disabilities and discrimination that essentially is individual person with a disability, and an entity, employer, state program that is providing the service. So if it’s an accommodation, again, as you both well know, if I’m a person with a disability and I need an accommodation, I talk to my employer. We have an interactive process. We come up with it.

 

      The person who is working in the office next to me who learns of my accommodation, which might be, for example, some ability to come in late and stay late in my job, might be wondering, “Well, what’s so special about him? Maybe he’s getting unfair treatment. Maybe I’m being discriminated against.” And the human side of me would want to say, “No, no, that’s not -- we’re not doing that for that reason. We’re doing it because the person has a disability.” But of course, you can’t say that because that has privacy implications for the employee.

 

      When that has come up, what I have said generally is if I were running the world in employment space, I would say, apropos of nobody in particular, “Please know that there are circumstances that we may have to make adjustments for people. We’d ask you not to spend a lot of time trying to inquire about it. We are going to follow the laws, and human resources advises us, and so please don’t go beyond that.”

 

      Now, is that going to slake everybody’s curiosity? No doubt it won’t, but at least it’s a way of saying don’t make the assumption that, somehow, you’re being mistreated when in fact what we’re doing is something we’re actually legally obliged to do.

 

      A more specific answer to your question, I would say, is that unless there was an effect on the what the nondisabled students are doing on the disabled students, then I would say to you, yes, there is no basis, it seems to me, to be regulating the practices of the nondisabled kids. But the peanut allergy is a good example. If, because of using bringing peanut butter sandwiches to school, other kids are put at risk, then you have obligations that you have to address. It doesn’t mean that you have to address them in a ban PBJs at school. It can be that there’s a special table or there’s a separate place. That’s where you get into this kind of back and forth process.

 

      So here, once again, I think we would say if requiring nondisabled kids to wear masks is a safety procedure that is in place. Now, to Sarah’s point, because you mentioned now a few times the question of whether is that in fact a valid scientific answer to it, I think a fair minded person would say we have to keep asking that. And the fact is, one of the things that’s been problematic about the pandemic has been as circumstances have changed, there have been adjustments in what the CDC has said and what other public health authorities have said. And some people have interpreted that to mean it’s all political, or why are you people so -- get your act together. Why are you so confused?

 

      And sometimes, I think confusion has been a fair interpretation. But other times, it’s just that the data, as we get more of it, we learn more different things about it. We thought for the longest time that you could get COVID-19 from surfaces. If you were like me, you’ve got groceries, and then you wipe them down and you set them aside for three days before you -- and now we learn actually that the virus doesn’t really -- even the Delta variant doesn’t live on those surfaces. You’re really worried about what gets transmitted in the air. So we adjust that. And to my mind, that’s what science ought to be doing. It ought to be making decisions based on data and not based on politics or hunches or anything else that’s not that.

 

      But that’s a very long answer to your question. My answer would be unless there was a relationship with the rights of students with disabilities, then I agree with you. It would be unusual to try to regulate what nondisabled students are doing. However, there are times when that risk is there.

 

Hon. Kenneth Marcus:  Sarah, do you care to weigh in also on whether this is different in kind from the sort of disability cases we usually see and whether this points to a potential expansion in civil rights enforcement?

 

Sarah Perry:  I agree, actually, on both of those counts, Ken. And I will say -- I could start by saying that the modification because Section 504 and Title II are focused on the individual needs of the person who has the handicap, we haven’t seen group modifications sufficient to provide FAPE for one individual. So the balance of equities there is an interpretation of civil rights law that we have yet to come up against.

 

      So this would be the first time, particularly within the context of OCR that we would see the modification of non-handicapped individual’s behavior in relation to an individual who does have the disability sufficient to be protected by federal antidiscrimination law. And it really does turn the interpretation of Section 504 and Title II of the ADA on its head. And it takes us away from the focus on the individual, finding that particular aid, that service, that modification, that meets the individual’s needs so that there are needs of handicapped and non-handicapped individuals met to as equal an extent as possible.

 

      So I do think this would be, again, a potential expansion of the way that we interpret and apply federal civil rights law if instead of dealing with the individual for whom the civil rights law exists to protect, we instead have to modify the behavior of all the others who might be oppositionally situated from that individual. So I do have a little bit of concern about that as well.

 

Prof. Robert Dinerstein:  I would just add, Sarah and Ken, and this is not so much a matter of law but more of a policy, one of the things we talk about in disability rights all the time is the principles of universal design, that while accommodation and modification are what the statutes talk about, in a lot of circumstances, if we design our environment in ways that take into account that we have people with disabilities in our midst, it may benefit both people with disabilities and people without disabilities.

 

      The famous example that’s always used is curb cuts. We put curb cuts in to permit people with mobility limitations to be able to use the sidewalks and walk up and down our streets. Who uses curb cuts? Well, that group does, but so do parents with young children in strollers. So do people who are just a little bit lazy and don’t want to lift their legs up. And we think that’s a good thing to the point that we wouldn’t say, oh my god, we’re imposing curb cuts on society that shouldn’t have had to do that, or wider doorways, or other things that we do in that way.

 

      I think you would look to see, and this would be an important element to add to your question, what is the thing we are asking of the nondisabled person to do? Something that was very intrusive I think would be problematic. Something that, again, at least in my view, is relatively trivial, wearing a mask, in the balance of equities, I have fewer concerns about.

 

Hon. Kenneth Marcus:  I appreciate that. Let me follow up on this universality notion. What are your thoughts on those students who have disabilities that may make the mask mandate a little more difficult, about lip readers, for instance, or students who had some sort of disability which makes it difficult for them to wear or maintain the mask? How does that factor in?

 

Prof. Robert Dinerstein:  Again, to me, that’s -- maybe this is where we might agree, a pretty straightforward analysis, which is there is the requirement, let’s say by hypothesis, there’s a mask mandate. The person with a disability says, “I need a reasonable accommodation for that because I can’t achieve it. But with a modification, I can do what I need to do.” So if that means you don’t wear a mask, but you take other steps to social distance, whatever else has to be done, to mitigate the risks that not wearing a mask presents, then that should be okay because we do want to permit -- we want to integrate. We want those kids who are lip reading to be in the classroom if they can be there.

 

      And just as we would say, when is a legitimate religious exemption, okay, that’s a reason that we, in some cases, will have recognized as legit. That, to me, is fine. That whole purpose of ADA and 504 conventionally is simply to say there are times when the standard rules of the road have to be modified, not because the person setting those rules has to accept less, but rather maybe has to accept different.

 

Hon. Kenneth Marcus:  We have only five minutes remaining. We have a question from an audience member, Devin Watkins, who asks, “What about a school that puts those kids with disabilities which require other students to wear masks with those students whose parents do not want their children to wear a mask?”

 

Prof. Robert Dinerstein:  I’m sorry, so mixing students with and without masks? I’m not sure I was following that exactly.

 

Hon. Kenneth Marcus:  I think the question invites us to evaluate the competing interests of disabled students who require masks and perhaps parents who presumably have a liberty interest or otherwise that they feel is violated if their student is required to wear a mask. I think that that may be the --

 

Prof. Robert Dinerstein:  -- Yeah. Again, liberty interests are balanced against other interests all the time. And my liberty interests in swinging back my arm stops at the edge of each of your noses. And so I would look at it and say, okay, all things being equal, you don’t want your kid to wear a mask, but if, in order for other kids to actually get the benefit of education, your children have to wear masks when they’re with those kids, I think that’s required. I would say it is.

 

Sarah Perry:  I think we’ve talked through a number of the modifications that might be sufficient to make sure that the children who are handicapped, who have the disabilities at issue, might be subjected to alternates that could be sufficient to protect FAPE interests for them. And I think that it is possible to make sure, by virtue of a little creativity, because we’ve all had to adjust on the fly during this pandemic, everything from online schooling to hybrid schooling to masking to masks being voluntary, now vaccination.

 

      We’ve found our way through, but it’s the first time here that we’ve seen this within the public education context where it directly implicates the behavior of individuals not so situated, not protected by federal civil rights law by virtue of not having a disability. So I think we have yet to explore the myriad ways that we can take those modifications into account. But there’s no doubt, I think, going to be a lot of interest now that we see these directed investigations in making sure that those modifications transpire so that we don’t get the clash of federal and state power because I think, ultimately, that’s where it’s headed.

 

Hon. Kenneth Marcus:  Thank you, Sarah. We have a last question from an audience member who asks whether there are psychological impacts of being required to wear masks that should be considered, whether there are perhaps students with certain disabilities for which the wearing of masks might have a negative impact.

 

Prof. Robert Dinerstein:  Yeah. My answer to that would be a conventional disability analysis, which is, is the thing that is making that a problem for you something that meets the definition of an ADA or 504 level disability. “I don’t like it,” wouldn’t. But “I’m very sensitive to touch, and I’m very sensitive to particular fabrics, and it really creates problems for me psychologically,” might well. You might need some evidence, obviously, from a doctor or other medical professional who would say those things. But I think I would be, myself, sympathetic to those who are coming in to say, “Look, I’m fine with it if it were not creating a problem, but it does create a problem.”

 

      Now, again, in the event in a specific case, maybe you work through with people, well, what is it exactly that’s causing that problem? Are there ways around it? But certainly, as we said earlier, these cases are so interesting because there is a whole group of them who came in and said, “You can’t make me wear a mask because it’s a problem for me to wear a mask,” or somebody, again, who’s a lip reader.

 

      I have a deaf student in my class, and we have interpreters with him. And one of the interpreters does wear a mask, but it’s clear, so that can help a little bit, I think, with the lip reading. So again, I think you said this, Sarah, you can be creative in trying to deal with some of these issues sometimes. And maybe that’s sometimes a better answer than the answer the law would give.

 

Hon. Kenneth Marcus:  Thank you, Bob. And that does bring us to the end of our hour. So I do want to thank you both. Bob Dinerstein, Sarah Perry, thank you for your excellent presentations. Evelyn, thank you for the support of The Federalist Society to our practice group.

 

Evelyn Hildebrand:  Thanks very much, everyone. On behalf of The Federalist Society, thank you to our speakers, to our moderator, to our participants who sent in your questions and comments. We appreciate all of the time it’s taken to prepare, so thank you for participating. If any of our audience members have questions or comments, please send them in to info@fedsoc.org. Thank you very much, everyone. We are adjourned. 

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.