Department of Education launches probe of Utah for prohibiting mask mandates

Utah currently prohibits public schools and school districts from implementing mask mandates. Photo: Kelly Sikkema

SALT LAKE CITY — On Monday, August 30, the Department of Education’s Office for Civil Rights (OCR) opened directed investigations in Utah and four other states (Iowa, Oklahoma, South Carolina, Tennessee) to explore whether statewide prohibitions on universal indoor masking discriminates against disabled students who are at an increased risk of severe illness from COVID-19.

“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,” said 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.”

The state of Utah currently prohibits public schools and school districts from requiring any individual to wear a mask to attend in-person instruction.

OCR is concerned the restriction may be preventing Utah schools from meeting their legal obligations not to discriminate based on disability.

Section 504 of the Rehabilitation Act of 1973 (Section 504), is a federal law that protects students with disabilities from discrimination based on their disability. Section 504 guarantees qualified students with disabilities the right to a free appropriate public education in elementary and secondary school, commonly referred to as FAPE.

Title II of the Americans with Disabilities Act of 1990 (Title II), similarly prohibits disability discrimination by public entities, including public education systems and institutions, regardless of whether they receive federal financial assistance from the Department.

“OCR will examine whether, in light of Utah’s prohibition on local school districts and schools from requiring the use of masks on school property and during in-person school-sponsored activities, the Utah State Board of Education may be preventing school districts in the state from considering or meeting the individual educational needs of students with disabilities or otherwise enabling discrimination based on disability in violation of Section 504 and Title II,” the OCR letter to State Superintendent of Public Instruction Sydnee Dickson reads.

“In this investigation, particular attention will be given to whether the Utah State Board of Education 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.”

Superintendent Dickson released the following statement on Monday responding to the letter:

“While we appreciate OCR’s efforts to protect children, specifically students with disabilities, we think they have unfairly defined Utah as a state where mask mandates cannot occur. 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,” said State Superintendent of Public Instruction Sydnee Dickson. “Our schools continue to utilize the many health and safety protocols developed and implemented last year to keep our students learning in person.”

“We look forward to working with OCR to clarify Utah’s position on the issue. We continue to urge districts and charters to work with their local public health care professionals to continue providing Utah students and public school staff with safe and effective schools,” Dickson said.

These investigations are normally time-consuming and do not have a set outcome or deadline.

At @USEdGov, we will fight to protect every student’s right to safely learn in person. https://t.co/dr8jEySZ8W pic.twitter.com/vlCCG7DIJO

— Secretary Miguel Cardona (@SecCardona) August 30, 2021