By With much of the public frustrated, exhausted, and uncomfortable with the pandemic and public mask-wearing, some states are considering whether and when to roll back mask mandates in public schools. These moves are sure to generate controversy; the Centers for Disease Control and Prevention, for instance, continues to recommend universal indoor masking at K-12 schools. But one thing is clear—if states do rescind their statewide school mask mandates, they must ensure that schools preserve the ability to require masks if doing so is necessary to protect the health of students with disabilities. That is what the Americans with Disabilities Act requires.
The ADA requires schools to afford students with disabilities an equal opportunity to participate in, and benefit from, the school’s services, programs, and activities, and also provides that schools cannot otherwise discriminate against students with disabilities. What the ADA proscribes is not merely mean-spirited exclusion or discrimination but also the thoughtlessness and indifference that many people with disabilities face every day. The ADA’s broad legal requirements reflect its underlying purpose—to ensure that individuals with disabilities are integrated into in all aspects of American life, including education.
States like Virginia or Texas that have moved to bar schools from requiring masks under any circumstances run afoul of the ADA. Students with disabilities may be more likely to contract COVID-19 and more likely to suffer severe negative health outcomes if they do. Prohibiting schools with such students from implementing basic public health measures (such as a mask requirement) forces the parents of such students to make an impossible choice: they must choose between placing their child in an inferior, remote learning environment (if that’s even an option) and sending their child to school even though a “masks are optional” policy jeopardizes their child’s health. In ADA-speak, these students with disabilities are not getting an equal opportunity to participate in, and benefit from, the school’s services, programs, and activities. And barring schools from responding to the particular needs of their students with disabilities also displays the very “thoughtless and indifference” that the ADA proscribes.
The Eighth Circuit Court of Appeals underscored these basic principles in a decision released late last month. The plaintiffs—Iowa parents whose children have serious disabilities that place them at heightened risk of severe injury or death from COVID-19—sued to enjoin enforcement of Iowa’s law prohibiting mask requirements in schools. The Eighth Circuit affirmed that plaintiffs are entitled to a preliminary injunction; mask requirements, it explained, “are reasonable accommodations required by federal disability law to protect the rights of Plaintiffs’ children.” (Technically, the Eighth Circuit found Plaintiffs were entitled to an injunction under Section 504 of the Rehabilitation Act, which is similar to the ADA).
The attorneys at Brown, Goldstein & Levy are working to ensure that schools retain the flexibility required by federal law for responding to the needs of students with disabilities. For instance, earlier this month, BGL lawyers filed a federal lawsuit, followed by a temporary restraining order, challenging Virginia Governor Youngkin’s Executive Order 2, which bars schools from requiring students to wear masks.
This latest lawsuit is part of BGL’s nationwide disability rights practice, which strives to ensure that individuals with disabilities from California to Texas to Virginia receive the accommodations they need when attending school, visiting a hospital, taking a standardized test, or logging onto a website. If you or your child have a disability and have been denied an accommodation, or if you have any questions about your right to disability-related accommodations under federal law, consider contacting us to discuss your situation.
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