Biden just hit back at anti-mask GOP governors. Here’s what happens now.

Biden just hit back at anti-mask GOP governors. Here’s what happens now.

Opinion by Greg Sargent

Columnist

Today at 11:03 a.m. EDT

For months, President Biden and his advisers believed they must avoid attacking GOP governors who were actively thwarting efforts to combat covid-19. Injecting “culture war” controversy into the covid response would further polarize it, driving GOP voters away from masking and vaccines.

This position was fated to be unsustainable. Now the Biden administration is responding to that reality in a new way, by launching a fresh broadside against GOP governors who are blocking local mask mandates and vowing to use federal power to defend their victims.

This is an acknowledgment of something fundamental: The covid response was and is inevitably going to be polarized under Biden, because many Republicans have deliberately adopted Donald Trump’s project of using it to foment civil conflict wherever possible.

Story continues below advertisement

Biden’s education secretary, Miguel Cardona, is now vowing to use the Education Department’s civil rights enforcement division to investigate states that ban local officials from implementing mask mandates.

This comes after Biden escalated the assault on GOP governors Wednesday, declaring that he had instructed Cardona to use “all of his oversight authorities and legal actions” against governors barring school officials from protecting their students from covid spread.

“We’re not going to sit by as governors try to block and intimidate educators protecting our children,” Biden vowed.

That’s important as a statement of intent. So how far will this take us?

President Biden ordered his Education Department on Aug. 18 to explore legal actions against governors who have blocked mask mandates in schools. (The Washington Post)

Gauntlet, thrown

The vow to use the Education Department’s civil rights authorities is premised on the department’s power to investigate state agencies whose policies interfere with the right of students to equal access to public education.

Story continues below advertisement

The idea here is that the suspension of in-person learning has disproportionately harmed the learning of vulnerable students, such as students of color. If a GOP governor’s ban on mask mandates is — by making schools less safe — preventing them from resuming in-person learning, that could be subject to investigation.

How would this work? An Education Department official tells me the relevant laws are a federal statute guaranteeing a right to free public education, and the Civil Rights Act’s prohibition against racial discrimination or exclusion by any program benefiting from federal funds.

An investigation of such a violation, the official continues, could result in an official finding. When violations are found, the official says, parties typically reach resolutions. But federal funds can be used as a lever to push the offender into compliance, or violations can be referred to the Justice Department for additional enforcement efforts.

Story continues below advertisement

The education secretary is also sending new letters to six additional GOP-run states, advising them that prohibitions on mask mandates may infringe on the authority of school districts to implement policies that protect kids and teachers, as recommended by federal health officials.

‘We totally need the help’

These efforts will likely be welcomed by school districts working to implement public health protections in the face of GOP governors standing in their way. The most serious offenders here are Texas’s Greg Abbott and Florida’s Ron DeSantis, in states where covid is surging horrifyingly.

“We totally need the help,” Carlee Simon, the superintendent of Alachua County Public Schools in Florida, told me, referring to these new federal moves. Simon said: “We need that support.”

Story continues below advertisement

Five school districts in Florida — Alachua, Broward, Miami-Dade, Hillsborough and Palm Beach counties — have implemented mask mandates, with opt-outs only with justification provided by a medical doctor. These defy DeSantis’s executive order banning such mandates by allowing parents to opt out without any such justification.

Those school districts, Simon told me, cover “over one third of the entire student population in Florida,” adding that all together, “we’re a little more than a million students.”

That’s a striking rebellion against DeSantis, and the state of Florida is now authorizing investigations and potential removal against these local officials.

Story continues below advertisement

It bears repeating that governors such as DeSantis and Abbott don’t appear motivated by any genuine conception of the public interest here. They are blocking local officials from taking steps to protect their communities that were recommended to them by medical professionals, a blockade plainly shaped around the preoccupations of Trump and his political movement.

Why this matters

It remains to be seen how far the administration will go. But the mere fact that the federal government is throwing down this gauntlet could prove important. It shows the feds are thinking about new ways to use their authorities to lend support to these beleaguered communities.

Story continues below advertisement

There are other things the feds can do. Harvard’s Laurence Tribe suggests that the Justice Department might support local legal challenges to these governors with “friend of the court” briefs, or explore the possibility of various civil rights lawsuits. Another possibility is exploring the withholding of federal funds, though all these would be dramatic.

Along these lines, the public declaration of this goal from Biden also matters. As political scientist Jonathan Bernstein recently said on Bloomberg Radio, such declarations send a signal to the federal bureaucracy that it should see this as something the president wants, and think about how to accomplish it.

This is not an easy situation. It is reasonable to worry that an overheated public battle could have downsides. Getting the balance right in a way that maximizes public health isn’t a simple matter.

But plainly, these communities cannot be abandoned to the fate that these governors, motivated by such naked venality and depravity, are trying to lock them into.