The Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973 require schools to provide disabled students with equal access to a safe learning environment and to provide the accommodations disabled students need to access school. More and more courts are applying the ADA and Section 504 to the issue of universal mask mandates in schools. Most courts are finding in favor of students with disabilities who are at higher risk of severe illness or death from Covid-19 and who require universal masking in order to access school.
This new body of case law is developing very quickly. At the end of January, the United States Court of Appeals for the Eighth Circuit definitively stated: “mask requirements are reasonable accommodations required by federal disability law to protect the rights” of children with serious disabilities that place them at heightened risk of severe injury or death from Covid-19. Arc of Iowa v. Reynolds, No. 21-3268 (8th Cir. Jan. 25, 2022).
Just this past week, a federal judge in Pennsylvania entered a permanent injunction to reinstate a school division’s universal mask policy, finding that a universal masking policy “constitutes a reasonable accommodation that will ensure [disabled] Child-Plaintiffs have meaningful access to in-person instruction.” Doe v. Perkiomen Valley School Dist., No. 22-cv-287 (E.D. Pa. Feb. 7, 2022).
In case after case, federal courts have ordered school districts to provide universal masking and have enjoined state laws and orders that seek to deny public schools the ability to adopt masking requirements, in order to protect students with disabilities:
- Arc of Iowa v. Reynolds, No. 21-3268 (8th Cir. Jan. 25, 2022): “Plaintiffs are entitled to a preliminary injunction because mask requirements are reasonable accommodations required by federal disability law.”
- M.B. v. Lee, No. 21-6007 (6th Cir. Dec. 20, 2021): The Court of Appeals denied the school district’s motion to stay a preliminary injunction requiring the district to enforce a universal mask mandate. The preliminary injunction was granted upon a finding that plaintiffs are likely to succeed on their claim that the school division violated the ADA by not providing the reasonable accommodation of universal masking.
- G.S. v. Lee, No. 21-5915 (6th Cir. Nov. 19, 2021): The Court of Appeals denied the governor’s motion to stay an order enjoining enforcement of the governor’s executive order granting parents the right to opt out of school district’s mask mandates. The court found that “Plaintiffs provided ample evidence in the district court that, without reasonable accommodations to mitigate the risk of contracting COVID-19 while attending public school, they will be denied the benefits of a public education because of their disabilities.”
- Doe v. Perkiomen Valley Sch. Dist., No. 22-cv-287 (E.D. Pa. Feb. 7, 2022): The court granted a permanent injunction reinstating the school division’s universal mask policy to ensure disabled students have meaningful access to in-person instruction.
- Doe v. North Allegheny Sch. Dist., No. 2:22-cv-00055 (W.D. Pa. Jan. 17, 2022): The court granted a temporary restraining order requiring the school district to reinstate a mask mandate to enable disabled plaintiffs to access school in-person. It rejected the district’s proposed alternative accommodation of cyber school.
- R.K. v. Lee, 2021 WL 4942871 (M.D. Tenn. Oct. 22, 2021): The court enjoined the governor from enforcing an executive order that gave parents a unilateral right to opt their children out of school divisions’ universal mask mandates. The court found that universal masking is a reasonable modification that would provide disabled students with equal access to in-person school, and other mitigation measures are insufficient.
- S.B. v. Lee, 2021 WL 4755619 (E.D. Tenn. Oct. 12, 2021): “[T]he Court ordered a universal mask mandate, and the Court fully expects its mask mandate to be exactly that: universal, to every possible extent, with ‘very few’ medical exemptions.”
While masking in schools is a new concept thanks to the Covid-19 pandemic, the underlying legal analysis is nothing new. Just as schools accommodate students with severe peanut allergies by providing a peanut-free classroom, schools also need to accommodate students who are immunocompromised by providing the accommodation of universal masking.