The U.S. Department of Education recently launched civil rights investigations into whether bans against mask mandates in local schools in five states — Iowa, Oklahoma, South Carolina, Tennessee, and Utah — violate federal laws protecting individuals with disabilities from discrimination. Disability law and policy expert Michael Ashley Stein ’88 says that, while federal action is needed, the focus on students with disabilities is misguided. Instead, he argues, the federal government should be motivated by the risk that mask mandate bans pose to all students and staff, including those with disabilities, but also people of color, seniors, and people who are immunocompromised.

Harvard Law Today recently reached out via email to Stein, a visiting professor of law and co-founder and executive director of the Harvard Law School Project on Disability, to ask about the federal investigation, the disability laws behind it, and what the likely outcome will be.

Harvard Law Today: Can you briefly describe what is behind this investigation?

Michael Stein: These states, as well as others not currently under investigation, are aggressively and insensibly endangering their vulnerable populations, including children under 12 who are ineligible for vaccinations, children over 12 who have not been vaccinated, and certain persons with disabilities, elders, people who are immunocompromised, and persons of color, by prohibiting or encumbering sensible public health strictures, including the wearing of masks indoors and mandatory vaccinations for eligible staff and students. These states’ actions contradict all available known scientific evidence regarding the safety, efficacy, and necessity of the COVID vaccines, and the protective impact of mask-wearing.

HLT: Can you talk a bit about how the absence of masks might be especially harmful to students with disabilities?

Stein: Although the department is using the rights of children with disabilities as its stated motivation, it is the health and safety of all children under 12 — who are currently ineligible for vaccination — as well as their families, and other populations vulnerable to transmission – that is at issue. Frankly, I personally dislike the use of and focus on individuals with disabilities — some of whom will have enhanced risk, and some of whom will not — as the rationale for enforcing an evidence-based minimally-invasive public health rule. Having said that, certain children with disabilities, as well as all unvaccinated children, children from socio-economically vulnerable populations, including children of color, can be especially vulnerable to infection and therefore potentially placed at great risk by these policies.

HLT: The department is specifically investigating each state’s compliance with two federal laws: Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act. Can you explain what those laws involve and how they might apply?

Stein: Again, I am concerned with the implied messaging that all persons with disabilities are more vulnerable than other groups, even as I encourage the department to use all available legal means to protect children and their families. Section 504 of the Rehabilitation Act prohibits discrimination against individuals with disabilities by the recipients of federal funds, which all states are. Title II of the ADA prohibits discrimination against those with disabilities by states and local governments. The Department is asserting, correctly, that the actions of these states discriminate against students with disabilities by increasing their vulnerability to COVID through the prohibition of public health mandates including vaccinations and masking. Analogously, those statutes require schools to put into place protections for children with allergies. Unlike allergies, everyone is at risk of transmission from COVID. Effectively, consider a world in which every student has an allergy but some are more at risk than others.

HLT: How are these types of investigations usually conducted?

Stein: Formally and in an expedited fashion when there is time sensitivity and imminent danger to impacted populations.

HLT: If violations are found, what is the remedy?

Stein: Usually a negotiated consent agreement.

HLT: Do you expect that there might be follow-on litigation?

Stein: The ordinary course for these investigations is to derive a consent agreement. If litigation follows, it would be unusual and also signal particular recalcitrance among the locales investigated. Given the current political environment that informs these states’ actions, they may be more opposed than usual to entering into consent agreements.

HLT: Why isn’t the department also investigating Texas, Florida, Arkansas and Arizona, each of which also has a mask mandate ban?

Stein: I cannot speak to the strategies or priorities of the department. Other states are likewise endangering their vulnerable populations, including children under 12 who are ineligible for vaccinations, children over 12 who are unvaccinated, and certain persons with disabilities, elders, persons who are immunocompromised, and persons of color, and ought to be investigated and pressed into compliance with sensible public health mandates. Ultimately, the actions of these states greatly endanger the health and well-being of their own populations, and because of contagion, all of us in this country.