Mask mandate ban in Texas could violate federal law, warns the U.S. Department of Education

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The federal agency, which holds Texas accountable for its problems serving students with disabilities, is now calling into question the state’s ban on mask requirements.

In yet another signal that the federal government is ready to rush into the mask wars in Texas public schools, the U.S. Department of Education has warned the Texas Education Agency that the state’s mask ban could harm children with disabilities. Failure to comply with the Disabled Education Act could ultimately jeopardize federal funding.

The governor’s executive order “may also impact the provision of free adequate public education in the least restrictive environment for students with disabilities and promote an unsafe learning environment,” wrote David Cantrell, acting director of the department’s Office of Special Education Programs, in a letter on Friday to Education Commissioner Mike Morath.

Disability Rights Texas has raised concerns about how Governor Greg Abbott’s order will affect students with disabilities. In a federal lawsuit against the state, the advocacy group represents students under the age of 12 with disabilities and underlying illnesses who pose an increased risk of complications or death if they become infected with the coronavirus.

Disability Rights attorneys argue that by banning school districts from requiring students and staff to wear face covers, Abbott and TEA prevent students with disabilities from safely returning to school for face-to-face teaching. A trial is scheduled for early October.

Last week, President Joe Biden directed US Secretary of Education Miguel A. Cardona “to use all of his regulators and, if necessary, legal action against governors attempting to block and intimidate local school officials” in order to safely reopen schools.

The Federal Ministry of Education is empowered to investigate any state education authority with guidelines that could “violate” the right of students to equal access to public education, Cardona wrote in a blog post.

Cardona warned Abbott and Morath in mid-August that Texas’s mask mandate ban could violate school district officials.

“The CDC has given schools clear guidelines on how to use science-based strategies to prevent the spread of COVID-19,” Biden wrote in a memo to Cardona. The Centers for Disease Control and Prevention recommend the use of masks in schools regardless of vaccination status.

In accordance with Biden’s direction, Cantrell’s department plans to “follow up with TEA on this matter,” the acting director wrote. It wasn’t clear how the department was going to follow up.

The Department of Education has already promised to use its civil rights arm to adopt mask policies in Republican-run states, including Texas and Florida, that discourage schools from requiring face-covering.

The agency can initiate its own investigations into possible violations and also reacts to civil rights complaints from parents and the public.

The authority’s office for civil rights can impose a number of sanctions in the event of civil rights violations, including the complete loss of federal education funding.

“The ministry has the power to investigate any government education agency whose policies or actions could violate the right of all students to equal access to public education,” Cardona wrote in a blog post.

In particular, he noted that the ministry’s special education office “oversees the implementation of the federal law on special schools that requires students with disabilities to receive free, adequate public education”.

Representatives from the TEA and the governor’s office were not immediately available for comment.

Texas has a difficult history of providing inadequate assistance to its most vulnerable students, an issue that has been reported by federal agencies.

Three years ago, the US Department of Education found that schools in Texas were denying students services in an attempt to limit the number of children enrolled in special schools. The federal investigation followed in 2016 Houston Chronicle Report that proposed schools exclude students from special education programs because the agency wanted to limit enrollment in these more expensive classes to 8.5%.

Most of Cantrell’s letter raises questions about TEA’s corrective actions related to the division’s 2018 investigation. TEA did not respond adequately to a 2018 surveillance report and failed to address most of the issues identified at the time, Cantrell wrote.

In 2016, Michael Crighton, 12, looked at all of the paperwork his mother has collected over the years relating to his struggles at school in The Woodlands.  Crighton has autism and is easily overwhelmed.  His mother also kept the paperwork he would do at school in order to negotiate with the school to provide him with the services Crighton needs.

Although state education officials wrote to the federal government in October 2020 that they believed Texas had completed all necessary corrective actions, the federal government noted that TEA had more work to do.

At the end of October 2020, the federal government published a new monitoring plan based on observations from a visit in 2019 to 12 locations in six school systems.

The 2020 monitoring report concluded that TEA had only implemented one of the items included in the original list of problems.

Cantrell’s division is giving TEA 30 days to respond to newly identified issues related to the previous “long-term non-compliance” with federal law governing how school systems serve students with disabilities.

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The DMN Education Lab deepens reporting and discussion on pressing educational issues that are critical to the future of North Texas.

The DMN Education Lab is a community-funded journalism initiative with support from The Beck Group, Bobby and Lottye Lyle, Communities Foundation of Texas, The Dallas Foundation, Dallas Regional Chamber, Deedie Rose, The Meadows Foundation, Solutions Journalism Network, Southern Methodist University and Todd A. Williams Family Foundation. The Dallas Morning News retains full editorial control over the Education Lab’s journalism.


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