Feds investigating Utah for ban on schools enacting mask mandates

Utah is one of five states now under review by the U.S. Department of Education for possible violations.

(Francisco Kjolseth | The Salt Lake Tribune) Students watch the game in masks as American Fork hosts Copper Hills in boys football on Friday, Oct. 30, 2020. For the 2021-2022 school year, the Utah Legislature has banned school districts from enacting their own mask mandates. Now, the Department of Education is opening an investigation on the legality of that.

Utah is now under federal investigation for its ban on schools enacting mask mandates — which the U.S. Department of Education believes is discriminatory toward students with disabilities or health conditions that make them more susceptible to COVID-19.

The department announced the civil rights investigation here and in four other states with similar prohibitions Monday. Those are: Iowa, Oklahoma, South Carolina and Tennessee, all of which are also led by Republican governors.

“It’s simply unacceptable that state leaders are putting politics over the health and education of the students they took an oath to serve,” said Education Secretary Miguel Cardona in a statement.

The investigations come after Cardona sent warning letters to several state governors and superintendents earlier this month, asking them to reconsider their bans or face a review over whether they’re in violation of federal law. He suggests that states that limit mask wearing in schools are willfully putting young kids at risk.

The Biden Administration has been challenging conservative governors over face coverings as school has started, with the more contagious delta variant of the coronavirus spreading and kids under age 12 not yet eligible to get the vaccine.

But Utah leaders have resisted the pressure and stood by the ban. Gov. Spencer Cox previously called the letter from the Department of Education “extremely unhelpful.”

He added, in part: “In Utah, the last thing we need is threats from out-of-touch bureaucrats.” Cox’s office didn’t immediately respond to a request for comment from The Salt Lake Tribune on Monday.

But Cox told Fox13, a content sharing partner with The Tribune, that he plans to meet with legislative leadership to discuss what options they have for masking.

Cardona has said that the mask bans prevent all students from safely attending school. The department is looking into whether the prohibitions specifically discriminate against students with disabilities and those with health conditions.

If a student is immunocompromised, for instance, a school not having a mask mandate or being able to enforce one may mean that the individual cannot attend in person because of the risk of getting sick.

Cardona said he’s heard from parents across the country with those concerns.

Universal masking, according to the Centers for Disease Control and Prevention, makes everyone in a classroom safer and limits the spread of COVID-19.

In Utah, most schools were open for in-person learning last year, and all public K-12 students were required to mask up then. As a result, there was limited spread in the classroom.

But this year, the Utah Legislature has banned school districts from creating any requirements for masks.

Instead, any face covering mandates in schools must come as a recommendation from a county health department, with the local county governing body having the authority to repeal them.

The only district that has successfully gone through the approved process is Grand County School District in southeastern Utah, which started with a 30-day mask mandate for K-6 students. Summit County has said it will require masks for kids in elementary classrooms if infection rates get above 2%.

The Salt Lake County Health Department had previously tried to issue a mask requirement for schools countywide. But that order, issued by its health director, Dr. Angela Dunn, was voted down earlier this month by the County Council on party lines, with Republicans against it and many parents shouting in favor of personal freedom.

Since then, Salt Lake City Mayor Erin Mendenhall has put into place an emergency order for masks in city schools for students K-12.

It’s unclear, though, if that will be allowed to stand; some lawmakers have already discussed challenging her. The Legislature also gave itself the authority to veto any county’s mask mandate for schools.

State Superintendent Sydnee Dickson released her own statement Monday, saying she thinks the Department of Education has “unfairly defined Utah as a state where mask mandates cannot occur.”

She added: “State law places these decisions at the local level with local health departments and locally elected officials. We have witnessed the process occurring in several counties and currently Salt Lake City and Grand County School districts have indoor mask mandates in place.”

Regardless, a group of Utah parents announced last week that they were filing a lawsuit to challenge lawmakers’ decision. Many of their kids also have a learning disability or health condition.

They are fighting in state court. In other states, including Texas, though, parents have filed federal lawsuits citing violations of the Americans with Disabilities Act — taking a similar approach to Cardona’s investigations.

The reviews from the U.S. Department of Education will focus on that act and Section 504 of the Rehabilitation Act of 1973, which similarly guarantees against discrimination of students. All students are entitled to a free and public education under the law.

Other states have also banned mandating masks in schools. But the department said Monday it wasn’t opening investigations into those — including Florida, Texas, Arkansas and Arizona — because the prohibitions aren’t currently being enforced due to court orders blocking them.

Cardona noted, though: “The department will continue to closely monitor those states and is prepared to take action if state leaders prevent local schools or districts from implementing universal indoor masking or if the current court decisions were to be reversed.”

His investigations will start with fact-finding, he said, and if they determine that schools have discriminated against students with disabilities, there could be possible sanctions. That might mean the federal government withholding education funding.