My son, a 14-year-old autistic boy with Down syndrome, has the right to be educated thanks to federal civil rights legislation passed in the 1970s and updated in the years since. These laws promise him a free and appropriate education in the least restrictive environment adapted, within reason, to his needs.
Notice the different components: One type of law focuses on the content of the education itself and provides the supports and adaptations to ensure he’s learning. Another makes sure the education is safe and accessible to him, including the school building itself. Together, laws like the the Americans with Disabilities Act (1990); the Education for All Handicapped Children Act (1975) and its 1990 update to the Individuals with Disabilities Education Act; and section 504 of the Rehabilitation Act of 1973, provide a well-tested, if always contested, set of protections, rights, and obligations for disabled children in school.
Now, lawsuits in Florida and Texas, along with emerging statements from the Department of Education under the Biden administration, are arguing that the laws mandating safe schools for disabled children can be applied to one of the most contentious issues in our pandemic-ridden society: masks.
During the pandemic, according to preliminary research, the systems helping many disabled children access education collapsed. To its credit, the Betsy DeVos–led Education Department refused to waive the rights of disabled kids in schools, but enforcement became rare. As we enter our third pandemic school year, there are signs that things are about to change. On the federal level, President Biden issued a memorandum instructing the Department of Education to use all available tools to make certain that governors “are giving students the opportunity to participate and remain in safe full-time, in-person learning without compromising their health or the health of their families or communities.”
In an interview with The New York Times, Education Secretary Miguel Cardona said that he would use the civil rights enforcement wing of his department to protect students from marginalized groups who have been hit especially hard by Covid-19. In a blog post, Cardona wrote, “The Department has the authority to investigate any state educational agency whose policies or actions may infringe on the rights of every student to access public education equally.”
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Meanwhile, the Disability Independence Group, a nonprofit organization in Florida, and Disability Rights Texas, a protection and advocacy organization, have filed lawsuits on behalf of parents and children against their respective governors and education officials making a simple claim: Federal law requires reasonable accommodations to make school safe. For children with a wide range of disabilities, that means everyone in school needs to wear a mask. Therefore, governors cannot ban mask mandates without violating federal law.
I spoke to attorneys behind both lawsuits and two other attorneys not involved in either case. I asked Matthew Dietz, litigation director at Disability Independence Group Inc, whether this lawsuit represented a new legal strategy. Laughing, he told me, “I try not to do new arguments because new arguments usually lose. This is the oldest ADA argument that there is. Kids need to go to school. They are entitled to a reasonable accommodation. It’s not an undue burden at all for somebody else to wear a mask. This is an argument that’s 40 years old.”
Kym Rogers, litigation attorney for Disability Rights Texas, said that “both the ADA and section 504 guarantee access to individuals with disabilities. So these children are entitled to access their education, just as children without disabilities are. Prohibiting the use of masks is effectively a barrier.”
Ruth Colker, a law professor at Ohio State University, explained that the core of the argument is that during the Covid-19 pandemic, “a mask is a ramp.” In other words, the same legal authority that requires schools to have ramps can make schools compel people to wear masks. Colker said she loves the approach because it allows for structural action, rather than trying to fix things for just one child at a time. A more potent analogy, she suggested, was peanuts. If there’s a child with a peanut allergy, the school district needs to impose a structural accommodation barring peanuts from the building in order to keep the particles of the allergen out of the air. It’s not enough to make sure the allergic child doesn’t have any peanuts in their food. “Peanut particles are a bit like Covid,” she said, and is “an analogy people can grasp.” Plus, she added, “it is easier to enforce a mask mandate than a no peanut policy. Just hand out the masks. [It’s] hard to know where peanuts may be hidden.”
Tauna Szymanski, the executive and legal director of Communication First, told me via e-mail that she thinks “there’s a strong legal argument under the ADA and other civil rights laws for these mandates,” but that she was “skeptical that these steps alone are going to make schools accessible to high-risk students with the most significant disabilities.” Masking may not be enough to protect vulnerable children, especially in schools with overcrowded classrooms and poor ventilation.
If safety is going to be the standard, then she wants students to continue to have virtual learning options. “The Department of Education really should be focusing on ways to ensure equal access for students who cannot return to school even with mask mandates in place,” she said. Returning to school, masks or not, is going to force students “to choose, once again, between risking their lives to show up in person, or receiving no support at home.” That’s certainly a concern for our son, who despite being vaccinated, just caught Covid-19 for a second time.
I asked Matthew Dietz, in Florida, whether the arguments he’s making about mask mandates in schools might be applied to work and other public sites under the ADA. He said that, to some extent, it’s actually the other way around. The Equal Opportunity Employment Commission published technical assistance “about what’s reasonable and what’s not in the workplace. And there’s nothing that EEOC has done that can’t be applied to schools.” He’d like to see not only Cardona but also the Department of Justice follow this lead. “Unlike the EEOC,” he told me, “the Department of Education and the Department of Justice have not put out guidelines for ensuring a safe environment and what a reasonable accommodation should be. That was and is a huge mistake, because it would apply not only to places like schools, but would also apply to concerts, fairs, and other things.” The Department of Education did not return voicemails left with its public affairs officers. The Department of Justice did not reply to an e-mail query sent via its website.
What happens next isn’t clear. On August 19, the Texas Supreme Court temporarily blocked Governor Greg Abbott from banning mask mandates, but didn’t decide on the merits of the cases. What’s more, these cases hinge on debates about the limits of gubernatorial power, which Dietz explained, have a very high standard to overcome. And he pointed out that the disability rights legislation should provide a stronger legal argument: “Our standard as to whether it’s a reasonable accommodation is an extremely low standard,” and the burden of proof that a mask mandate is an undue burden or fundamental alteration is much higher. So Rogers and her colleagues continue to seek preliminary relief from a federal court, as does Dietz. In Florida, school boards and the state are required to submit testimony by August 24, after which they may quickly get a preliminary ruling as to whether the mask mandate ban in Florida can proceed.
Meanwhile, kids are going back to school, case counts are rising, and pediatric hospitals are filling. At one Houston hospital, hospitalizations for kids soared from single digits to more than 30 in less than a week. In Hillsborough County, Fla., about 13,000 staff and students—over 5 percent of the total staff and public school student population—are currently Covid positive or in quarantine due to exposure.