SALT LAKE CITY (ABC4) – Utah is one of five Republican-led states facing civil rights investigations by the U.S. Department of Education Office for Civil Rights (OCR). The OCR is reviewing whether statewide prohibitions on indoor masking discriminate against students with disabilities, who are at a heightened risk for severe illness from COVID-19, by preventing them from safely accessing in-person education.

The chief state school officers of Utah, Iowa, Oklahoma, South Carolina, and Tennessee have all received letters from OCR outlining how preventing mask mandates keeps school districts from implementing health and safety policies deemed necessary to protect students from exposure to the virus. OCR is concerned state mask restrictions on schools and school districts “may be preventing schools…from meeting their legal obligations not to discriminate based on disability and from providing an equal educational opportunity to students with disabilities who are at heightened risk of severe illness from COVID-19,” the letter states.

“The Department has heard from parents from across the country – particularly parents of students with disabilities and with underlying medical conditions – about how state bans on universal indoor masking are putting their children at risk and preventing them from accessing in-person learning equally,” says U.S. Secretary of Education Miguel Cardona. “It’s simply unacceptable that state leaders are putting politics over the health and education of the students they took an oath to serve. The Department will fight to protect every student’s right to access in-person learning safely and the rights of local educators to put in place policies that allow all students to return to the classroom full-time in-person safely this fall.”  

Current Utah law says local health departments can issue mask mandates for schools in conjunction with elected county officials. The mandate could stand for 30 days before the county council or commission would need to approve that moving forward. In early August, after Salt Lake County Health Department executive director Dr. Angela Dunn proposed requiring masks for school children under the age of 12, county officials overturned it on a 6-3 vote. Salt Lake City Mayor Erin Mendenhall recently issued an emergency order requiring K-12 students, faculty, and visitors to wear masks while in schools.

Several Utahns, including numerous parents, have filed a lawsuit suing the state of Utah and Salt Lake County over restrictions on mask requirements in schools. The lawsuit says two state statutes violate the rights of at-risk children like those who are immunocompromised to access a free education under the state’s constitution.

The U.S. Dept. of Education says OCR will explore whether Utah and the other states involved are in compliance with a federal law that protects students with disabilities from discrimination based on their disability. The law, Section 504, says students with disabilities have the right to a free appropriate public education in elementary and secondary school. This includes the rights of these students to receive their education in the regular educational environment to the maximum extent appropriate to their needs.

OCR will also determine whether statewide bans on indoor masking violates Title II of the Americans with Disabilities Act of 1990, which prohibits disability discrimination by public entities, including public education systems and institutions.OCR will collect and analyze evidence from state education agencies and other sources during the investigations.

On Aug. 18, President Joe Biden issued a Presidential Memorandum directing the Secretary of Education to “assess all available tools in taking action, as appropriate and consistent with applicable law” to ensure that governors and other officials are giving all students the opportunity to participate and remain in full-time, in-person learning safely, without compromising their health or the health of their families.