The Biden administration took a much-needed step toward protecting the health and wellness of America’s schoolchildren and educators last month by directing U.S. Secretary of Education Miguel Cardona last month to take all necessary legal steps to ensure that governors are facilitating a safe return to in-person learning. With the school year underway, this is the right move at a critical moment.  

Despite the virulent delta variant attacking our nation’s young people, some U.S. governors are relying on science fiction versus actual science while risking the lives of children and adults who are unable to be vaccinated. Thankfully, local leaders have aggressively worked to take head to CDC guidance for protecting students—only to be undermined by their state leaders. In more extreme cases, some are going as far as giving more resources to districts that refuse to mandate masks—incentivizing schools to not practice evidence-based strategies for limiting the spread of COVID-19.  

The Biden administration can take several legal steps to address barriers governors like Ron DeSantis (R-Fla.) and Doug Ducey (R-Ariz.) are creating against safely reopening schools. First, they can rely on the original jurisdiction of the Supreme Court to file suit against state governments on any of several grounds. Jurisdiction for protecting public health rests with the federal government—not with states—under the Public Health Service Act to control the spread of disease. Further, the Commerce Clause of the U.S. Constitution rests the right to ensure the economy still functions across state lines with the federal government, which arguably gives grounds to ensure school operations are not disrupting the ability to continue interstate commerce. Additionally, the 14th Amendment requires equal protection under the law for all Americans. Violation of rights of a protected class, which includes race, requires a judicial response. The pandemic’s outsize impact on communities of color is a ready argument to make with the courts when some states have sent students back to in-person learning without mask mandates, reverting to school closures based on COVID outbreaks and a need to quarantine. Based on what we know about reducing viral spread, these crises were avoidable through masking, if not wholly preventable by more targeted quarantine and vaccination standards.  

The U.S. Department of Education should also take a more targeted and aggressive approach to support school districts establishing permanent hybrid strategies for learning. This work must prioritize options for virtual learning that keep students connected to educators in their communities and brick-and-mortar schools, to maintain their social and emotional well-being. Some students thrived in the hybrid model; most working families cannot afford homeschooling or private schooling; and, as the past 18 months has shown, future health and weather emergencies should not disrupt our students’ ability to continue their education. The administration must act now if a continuation of quality learning is the goal. 

The Biden administration must also revisit its decision not to push for budgetary dollars supporting the modernization of America’s public school buildings and the availability of new childcare centers. While the purpose of schools is not primarily to provide children with a place to be while parents and guardians work, the absence of safe and affordable options affects young people’s well-being, particularly those who face financial instability or food insecurity if their caregivers cannot work. Aligned with Rep. Bobby Scott’s (D-Va.) Reopen and Rebuild America’s Schools Act of 2021, the Biden administration’s Build Back Better agenda included billions of dollars for rehabilitation of the 54 percent of school districts with crumbling infrastructure—buildings that, on their own, were making America’s children sick. The bipartisan infrastructure bill failed to include these funds despite commentary about sending all children back to school in person. Congress now has an opportunity to reverse this misstep through budget reconciliation. 

The American public has experienced conservative regimes so confident in their priorities that they have been unyielding and strategic in positioning themselves to legislate. Whether it be filling judicial vacancies while deriding political opponents not to do the same, attacking voting rights to preserve electoral power, or calling for restricting quality teaching and learning for the sake of denying a history of injustice, they do not waver. Building back better must prioritize people over politics. As governors in states like Washington and Oregon are demonstrating by requiring educators to be vaccinated—with no opt-out testing loopholes—political will is what is needed most to protect students from COVID-19 to ensure their continued learning.