As COVID-19 cases reach record highs in many states, the nation is watching in shock as several governors and legislatures stand directly in the way of school safety. By banning mask requirements in schools, these elected officials are ignoring established scientific evidence and placing students’ and teachers’ health and lives at risk. The time for pleading with politicians to reverse course has run short. The Biden Administration has a tried and tested tool for protecting the nation’s children from politicians who persist in elevating ideology above the interests of their citizens—the power of the purse. The Administration also has a duty to use that power.

Last March, Congress made a monumental investment in the nation’s public schools. The one-time allocation of $122 billion in COVID-19 relief is nearly eight times the size of Congress’s annual appropriation for low-income students.

Congress also told states and local school districts exactly how to use those funds: reopen schools safely and give students and teachers the resources they need to remedy the pandemic’s negative impacts on education. More specifically, Congress directed states to adopt plans “in line with guidance from the Centers for Disease Control and Prevention (CDC)” that will allow for the “safe return to in-person instruction” and ensure “continuity of services.”

Unfortunately, the alarming rise in COVID-19 from the more contagious delta variant has complicated school reopening and increased risks. But the CDC’s guidance for school reopening is clear. First, vaccinate all teachers, staff, and students. Second, require “universal indoor masking by all students (age 2 and older), staff, teachers, and visitors to K-12 schools, regardless of vaccination status.”

Yet, governors and legislators in eight states—the very states with the lowest vaccination rates and highest number of COVID infections—have taken the audacious step of blocking uniform mask mandates in schools. Florida Governor Ron DeSantis has gone so far as to threaten the salaries of superintendents who follow CDC guidance on masks.

These actions directly violate the letter of the law on multiple levels. No policy that ignores CDC guidance and deprives schools of the most important tool available to protect the health, safety, and lives of students under the age of twelve can be said to conform to Congress’s express direction to reopen schools safely. No policy that substantially increases the risk that schools will again be forced to go virtual can be said to carry out the Congressional mandate to ensure the continuity of in-person instruction. And no policy that denies students with health-related disabilities the reasonable accommodations necessary to receive equal educational access can be said to comply with the Americans with Disabilities Act.

When states knowingly put children in harm’s way and openly defy federal law, the federal government has no alternative but to use all available authority to protect them. This means withholding federal COVID relief money from states until they lift or rescind anti-mask policies and allow local districts to comply with the CDC’s universal mask guidance.

Withholding funds is no small matter. But if the federal government ignores blatant defiance of the law, it will incentivize behavior that places more and more students’ health, life, and education in jeopardy.

These anti-mask policies parallel southern states’ response to Brown v. Board of Education—in all the wrong ways. Like politicians decades ago, today’s governors and legislators insist that individual rights somehow trump the law of the land. When the federal government hit schools where it hurts—their pocketbooks—they begrudgingly began to heed Brown’s command to dismantle segregation. Unfortunately, it increasingly looks like the only way these states will mask up is if the federal government takes a similar stance and holds back the billions it is providing them to bounce back from the pandemic.

No one should envy Secretary of Education Miguel Cardono for the situation he faces. He can count on one hand the number of times prior administrations have held back federal funds owed to states. But when states act willfully under color of law to put their children in harm’s way, the Secretary has no other choice. Federal funds should only flow to states that follow the law and actively provide students a safe place to learn. Everything now rests on the Secretary. He must act to protect our school children.

David Sciarra is Executive Director of Education Law Center; Derek Black is Ernest F. Hollings Chair in Constitutional Law at the University of South Carolina and author of Schoolhouse Burning: Public Education and the Assault on American Democracy


Press Contact:

Sharon Krengel
Policy and Outreach Director
973-624-1815, x 24

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Press Contact:
Sharon Krengel
Director of Policy, Strategic Partnerships and Communications
973-624-1815, x240