Combining political chutzpah, some creative legal thinking, and the many carrots and sticks available to the federal government, Joe Biden and his administration have picked a big fight with the Republican governors who are seeking to keep local school districts from mandating mask usage by kids as schools reopen. In a press conference in which he also announced a program of booster vaccine shots, the president said he had directed Secretary of Education Miguel Cardona to use “all of his oversight authorities and legal action, if appropriate, against governors who are trying to block and intimidate local school officials and educators” who are trying to stop the Delta variant by imposing mask mandates.
Biden also repeated a direct challenge to Republican governors: “If you aren’t going to fight COVID-19, at least get out of the way of everyone else who’s trying. You know, we’re not going to sit by as governors try to block and intimidate educators protecting our children.”
In separate discussions with reporters Cardona has indicated his department will use its civil-rights enforcement powers to defend mask mandates based on the theory that exposure to COVID-19 puts federally protected students at risk, as the New York Times explains:
Under Section 504 of the Rehabilitation Act of 1973, students are entitled to a free, appropriate public education, known as FAPE, and Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color and national origin.
The department could initiate its own investigations into districts, if state policies and actions rise to potential violations of students’ civil rights. It could also review complaints from parents and advocates who make the case that prohibiting masks mandates is, in effect, a civil rights violation because it could deny a student their right to an education by putting them in harm’s way in school. Such investigations could result in resolution agreements, as many investigations by the office often do, and in the most extreme cases result in revocation of federal funding.
Earlier, Cardona had put GOP governors on notice that he might use federal incentives and disincentives to counter their actions against mask mandates, as Politico reported:
In a letter to Florida Gov. Ron DeSantis, Cardona wrote that he was “deeply concerned” by the state’s efforts to prevent schools from requiring masks. He said federal Covid relief dollars are available to pay the salaries of educators, school board members and superintendents at schools that choose to require masks if the state revokes funding, as DeSantis has threatened.
He communicated a similar message to Texas Governor Greg Abbott, another high-profile opponent of mask mandates who has threatened action against local school officials and teacher who defy his orders. The warnings would also apply to Arizona Governor Doug Ducey and Oklahoma Governor Kevin Stitt — and probably others who are thinking about demagoguing against mask mandates while championing parental control and “freedom.”
It’s dollars to doughnuts that these Republican governors (and, in some states, similarly-inclined legislators) will defy the administration’s injunctions and the whole dispute will wind up in the federal courts. But for once it’s the Democratic president on the offensive rather than the Republican executives, some of whom are angling to replace him in 2024. A large majority of Americans are on Biden’s side in this fight, but only a minority of Republicans support mask mandates, and the almighty GOP base punches far above its weight with its party’s elected officials.