The U.S. Department of Education (USDE) has opened an investigation into the Texas Education Agency (TEA) over the state’s ban on mask mandates. In a letter to TEA Commissioner Mike Morath, USDE Assistant Secretary for Civil Rights Suzanne Goldberg said the ban may constitute discrimination against disabled students.
“[The department’s] investigation will focus on whether, in light of this policy, students with disabilities who are at heightened risk for severe illness from COVID-19 are prevented from safely returning to in-person education, in violation of Federal law,” Goldberg wrote.
“In this investigation, particular attention will be given to whether TEA may be preventing schools from making individualized assessments about mask use so that students with disabilities can attend school and participate in school activities in person, consistent with their right to receive a free appropriate public education and to be free from discrimination based on their disability.”
According to the CDC, the coronavirus hospitalization rate for Americans under the age of 18 recently hit an all-time peak in early September at 0.51 new admissions per 100,000 population. For context, hospitalizations for the most vulnerable age group — 70 years or older — hovered just under 9 new admissions per 100,000 population during the late August and early September peak. The same age group hit its own all-time peak in January with 19.5 new admissions per 100,000. Youths under 18 have consistently had the lowest hospitalization rate of any age group.
The CDC has also gathered several studies to support the effectiveness of masks. For example, a study of elementary schools in Utah that implemented mask wearing found very low transmission in December 2020-January 2021.
Courts are still unraveling the multifarious challenges to Greg Abbott’s executive order banning mask and vaccine mandates. The Supreme Court of Texas momentarily sided with Abbott at the end of August by pausing mask mandates in Bexar County, but litigation is far from final.
In another legal challenge similar to the new federal investigation, an advocacy group called Disability Rights Texas also sued the state under the same claim that a prohibition on mask mandates discriminated against disabled children. The judge denied their motion to pause Abbott’s ban a week ago, but the case is still ongoing.
The new guidance was also developed under the influence of national teachers’ unions like the American Federation of Teachers. Notably, schools are the only exception to the CDC’s general guidance, which recommends universal masking only in areas of surging transmission. Daycares, universities, courthouses, jails, and other public areas all fall under regular guidance.
“Per GA-38, school systems cannot require students or staff to wear a mask. GA-38 addresses government-mandated face coverings in response to the COVID-19 pandemic,” the new guidance reads.
“School systems must allow individuals to wear a mask if they choose to do so.”
The USDE has opened similar investigations into state education agencies around the country.
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