Biden’s own legal theory implies it was racially discriminatory for schools to go remote.
Biden’s own legal theory implies it was racially discriminatory for schools to go remote.
D id the Biden administration just take the position that states’ and cities’ denying in-person education violates federal civil-rights laws? It sure looks that way.
Secretary of Education Miguel Cardona has threatened legal action under federal civil-rights laws against states that do not allow local governments to mandate masks for school kids. Here is how the New York Times explains the legal theory behind this:
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. If state policies and actions rise to potential violations of students’ civil rights, the department could initiate its own investigations into districts and investigate complaints made by parents and advocates who argue that prohibiting mask mandates could deny students’ right to education by putting them in harm’s way in school.
To start with, there is no such freestanding federal right. Section 504 is designed to prevent discrimination against students with disabilities. As the Department of Health and Human Services explains on its website, “Section 504 protects qualified individuals with disabilities.” A disabled person under the statute might include someone who already has COVID; the Supreme Court in School Board of Nassau County v. Arline (1987), for example, concluded that it protected a teacher who had tuberculosis, so that a school district could not just refuse out of hand to hire her for fear that she would be contagious. But the administration is pretending that the statute protects uninfected children from the risk of disease. Title VI is likewise an anti-discrimination statute. Neither of them guarantees some sort of generalized police power of the federal government to override state judgments about the safety of their schools.
Where did the Biden administration get this nutty legal theory? It should not surprise you to learn that, like the legal fig leaf justifications for the reinstated CDC eviction moratorium, the notion appears to comes from Laurence Tribe, the once-eminent 79-year-old Harvard Law professor who has spent the past several years spinning crackpot conspiracy theories and wild legal justifications for them on Twitter. Tribe sold his latest fantasy to Greg Sargent of the Washington Post, who went grasping for some straws:
“The federal government could explore the possibility of suing states for endangering their own children,” Tribe told me. The grounds for this, Tribe said, is that these states are burdening families with “an impermissible choice between depriving their children of education and subjecting their children to contagious disease.” . . . The broader point here, though, is that the federal government should think creatively and explore all avenues. . . . Andy Slavitt, a former Biden administration health official . . . told me: “Everything should be on the table.”
“Think creatively” and “explore all avenues” so that everything, legal or illegal, is on the table, then offer a preposterous legal justification to backfill a huge expansion of federal power unilaterally asserted by the executive branch? Yes, that’s the Biden administration’s view of the law all right.
As Charlie Cooke observes, this theory puts the administration in the position of arguing that it is a civil-rights violation for state governments to let parents decide whether or not their children will wear masks to school, and if taken seriously, it would require a national mask mandate:
Neither Joe Biden nor Secretary Cardona has said explicitly that the administration’s goal is to achieve ubiquitous masking in schools. Nor, for that matter, has the Times, which allows only that “prohibiting mask mandates could deny students’ right to education by putting them in harm’s way in school.” And yet the argument that the administration has outlined must lead inexorably to that outcome. If, as Secretary Cardona claims, the mere existence of unmasked children in the classroom is depriving others of “access” — and if that lack of access represents a civil-rights violation, as he proposes — then all 50 states must surely be obliged to impose mask mandates. It cannot logically be the case that unmasked children are fine if they are the product of a decision made by a school board that is acting under the state’s authority, but present a civil-rights challenge if they are the product of a decision the state has left to their parents.
In fact, the administration’s legal theory implies — rather openly — that it is a civil-rights violation to refuse in-person schooling in favor of remote education. That would mean that school boards and teachers’ unions who fought for months against reopening schools were, in the legal judgment of a Democratic administration, engaging in racial discrimination.
Don’t believe me? The theory that unmasked students deny “access” to education only works if the option to attend remotely is not an adequate substitute for children who fear infection. Moreover, the administration’s argument, as explained by the Times, leans directly into the argument that remote learning has denied students an adequate education, and acknowledges that the burden of that has fallen disproportionately on racial minorities and disabled students:
The nation’s most vulnerable students, namely students with disabilities, low-income students and students of color, have suffered the deepest setbacks since districts pivoted to remote learning in March 2020, and their disproportionate disengagement has long drawn concern from education leaders and civil rights watchdogs. . . . A report released by the department’s civil rights office this summer provided a snapshot of the suffering students have experienced. It noted that the pandemic challenges were particularly acute for students with disabilities, whose educational success relies on classroom time and hands-on services.
Now you tell us? Conservatives have been yelling about reopening schools for a year now, and have been met with all sorts of “what are you, in a death cult?” responses from liberals and progressives. Last July, the Times published a piece highlighting a nurse calling in-person school reopenings “Russian roulette.” Even after the vaccine became available, Joe Biden was still aiming only to get the majority of schools open one day a week. In March, Biden’s CDC caved to teachers’-union pressure against recommending in-person school reopenings. In April, White House press secretary Jen Psaki called school reopening a “sideshow.” But now that the issue can momentarily be used as a partisan club against Republican governors, it is suddenly racist to oppose in-person schooling.
Maybe they should have listened to us a year ago.