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Civil rights law is the wrong weapon for fighting bans of masks in schools

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Whatever you think of mask mandates in schools, the Republican governors who stepped in to ban them are making a big mistake. Majorities of the public oppose these bans, and although they are popular with the Republican base — barely — few Republicans actually favor the harsh measures necessary to make them stick.

Florida’s governor is now locked in a fight with rebellious school boards, spending political and institutional effort he could be using to address his state’s health-care crisis. And if that doesn’t seem enough reason to forbear, how about some old-fashioned conservative principles, such as federalism and local control?

But that same caution against overreach applies equally to Democrats who seem willing to deploy any tool at their disposal to fight back against the errant governors — including completely inappropriate ones, such as the Civil Rights Act. Last week, Education Secretary Miguel Cardona floated the possibility of bringing civil rights complaints against states that ban masks in schools.

This certainly wouldn’t be the first time that civil rights enforcement went well beyond its initial intent. For example, Title IX of the Education Amendments Act of 1972, originally designed to keep schools from reserving the best resources for men, was eventually read as requiring the elaborate sexual conduct codes of the modern American university, something its authors certainly didn’t intend.

But that was clear-cut compared to what Cardona is suggesting: Civil rights law was never intended to let the federal government override local public health decisions, even bad ones. Cardona argues that since Covid-19 disproportionately affects people of color, eliminating mask mandates constitutes an illegal barrier to their education. But this is a ludicrously broad reading that would effectively allow the federal government to override any state policy that affects the education system in any way, since few policies affect each racial group identically.

Even if courts permit this overreach (they shouldn’t), this kind of tactic is more corrosive than the Republican bans it is aimed at.

Of course, the law does need a certain amount of flexibility in true emergencies. Many libertarians, myself included, make just such an exception for the Civil Rights Act: Its massive expansion of government power was justified only because of the even more massive wrongs it was needed to address. Can’t we say the same thing about Covid-19?

Yes, but not in this case. We already have public health laws that let us intervene in epidemics. The Biden administration just disapproves of how those laws are being implemented in a handful of states. And while masks probably do pass a cost-benefit test, they’re not so beneficial that they merit abusing civil rights law to mandate them.

Even if masks reduce transmission by 50%, that still may not be enough — given how transmissible the delta variant is — to halt an outbreak. Moreover, the risk to children from Covid-19 remains very low, especially now that older children are eligible to be vaccinated. If Cardona presses forward, the risk to the civil rights law itself may be much larger than the risk he is trying to mitigate.

Civil rights law occupies a hallowed place in America’s civic religion: Almost everyone agrees that it was a good and necessary law, even if they disagree with this or that provision. But Americans feel that way precisely because they see laws like the Civil Rights Act as a purpose-built tool, designed to fulfill America’s sacred promise of equality and freedom for all.

If the law instead becomes a sort of legal Swiss Army knife, useful whenever an administration wants to do something otherwise forbidden by the Constitution, it will begin to lose that luster — especially after Republicans start using it for their ends, as they no doubt will.

The Supreme Court wars provide a useful warning here. Fifty years of escalating fights for control of the court have heightened the partisan divide and created two parties that too easily think in terms of all or nothing — because parties are no longer intent on crafting legislative compromises, instead preferring to focus on rewriting the rules to hand them a decisive victory. This has badly damaged the institution itself; just as conservative billboards once blared “impeach Earl Warren,” consequential rulings that go against the left now trigger a raft of prominent legal commentators muttering dark prophecies about the court’s legitimacy.

That should give pause to anyone who looks at a real policy problem and decides that the only solution is a radical reading of old laws to confer expansive new authorities. Such institutional revolutions have a way of eating their own.

Distributed by The Washington Post Writers Group.

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