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US Department of Education's Office of Civil Rights opens investigation in SC, four other states over masks in schools

South Carolina's prohibition on masks in schools may discriminate against students with disabilities who are at risk.

COLUMBIA, S.C. — The U.S. Department of Education has started a civil rights investigation against South Carolina and four other states over their decision to prohibit mask mandates in public schools.

It involves South Carolina's Proviso 1.108 -- the mask mandate ban -- which will now be looked into by the U.S. Department of Education's Office of Civil Rights (OCR)

RELATED: Gov: SC law 'very clear' in banning school mask mandates

At issue is the question if the statewide provision prohibiting the mandated use of face masks in classrooms discriminates against students with disabilities who are at a higher risk for severe illness from COVID-19 by preventing them from safely accessing in-person education.

South Carolina now joins Iowa, Oklahoma, Tennessee and Utah as having received letters from ORC officials on Monday, August 30, 2021. 

RELATED: 5 states with mask bans facing federal civil rights investigations

The OCR had warned the states earlier in the summer that investigations might be a result of states' ban or restrictions on mask mandates in schools. The letter reads in part, "OCR is concerned that state mask restrictions on schools and school districts may be preventing schools…from meeting their legal obligations not to discriminate based on disability and from providing an equal educational opportunity to students with disabilities who are at heightened risk of severe illness from COVID-19."

RELATED: Education Secretary Cardona sends letter to SC governor, state school head over mask mandate debate

RELATED: States banning mask mandates could face civil rights probes

U.S. Secretary of Education Miguel Cardona said, "The Department has heard from parents from across the country – particularly parents of students with disabilities and with underlying medical conditions – about how state bans on universal indoor masking are putting their children at risk and preventing them from accessing in-person learning equally. 

"It’s simply unacceptable that state leaders are putting politics over the health and education of the students they took an oath to serve. The Department will fight to protect every student’s right to access in-person learning safely and the rights of local educators to put in place policies that allow all students to return to the classroom full-time in-person safely this fall.”

RELATED: Midlands mom of kids with disabilities urges others to mask up

RELATED: Disability rights groups sue South Carolina over mask proviso

According to OCR, investigations will explore:

  • Each state's compliance with Section 504 of the Rehabilitation Act of 1973, a federal law that "protects students with disabilities from discrimination based on their disability and guarantees their right to a free appropriate public education in elementary and secondary education. This includes the right of students with disabilities to receive their education in a regular educational environment, alongside their peers without disabilities, to the maximum extent appropriate to their needs."
  • If "statewide prohibitions on universal indoor masking violate Title II of the Americans with Disabilities Act of 1990, which prohibits disability discrimination by public entities, including public education systems and institutions."

While the South Carolina proviso does not prohibit children wearing masks in schools, it does prohibit local school districts and municipalities from mandating or creating an ordinance requiring masks in schools. South Carolina Governor Henry McMaster has taken the stance that it is the parent's choice to make their child wear a mask in a classroom.

RELATED: SC ban on school mask mandates has no clear penalty or way of enforcement, state leaders say

You can read the letter sent to South Carolina Education Superintendent Molly Spearman at this link.

In the three weeks since school has started in South Carolina, the state has seen a sharp increase in the number of positive cases of COVID-19 and COVID-19-related deaths.

During the week of August 23, three Midlands elementary schools went to virtual learning because the high number of students and teachers being quarantined due to positive COVID tests or proximity to someone who had tested positive for the virus.

RELATED: 'I disagree with the governor:' Education superintendent says everyone should wear masks at school

RELATED: 'We have to do what's right': State education superintendent urges mask wearing at schools

On Monday, August 30, SC Department of Health and Environmental Control (DHEC) reported 4,005 cases of COVID and one death. Both DHEC and Center for Disease Control and Prevention (CDC) suggest that everyone over the age of three wear a mask while out in public and anyone age 12 and over get vaccinated to help reduce the spread of COVID-19.

DHEC offers free COVID testing and vaccination sites throughout the state. Find a location near you online.

RELATED: DHEC calls for masks in SC schools, suspension of anti-mask mandate proviso

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