Universal masking in school is a hot button political issue these days. It is also a legal issue. For students with disabilities who are at higher risk of a severe case of Covid-19, universal masking is a fundamental need so they can access their education, a right that is protected by federal disability laws.
School boards and state governments that removed mask mandates in schools are facing federal investigations and litigation.
Under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, schools must provide disabled students who are at high risk for Covid-19 with equal access to the benefits that in-person learning provides. School districts have a duty under the ADA to make reasonable modifications to avoid discrimination against students with disabilities.
A school system that does not require universal masking could fail to provide high-risk students with disabilities the “opportunity to participate in or benefit from” in-person instruction that is “equal to that afforded others,” who are not disabled and who are not at high risk of Covid-19, that is “not separate or different” from that provided to non-disabled students, and that is “in the most integrated setting appropriate,” in violation of the ADA.
According to the US Department of Education’s Office of Civil Rights (OCR), the ADA and Section 504 require public school divisions to provide students with disabilities with a “medically-safe” school environment.
A universal mask requirement in a school can be a reasonable modification to provide high-risk disabled students with equal access to a safe, integrated, in-person learning environment. Without a mask mandate in schools, together with other recommended risk mitigation strategies, high-risk children would be more likely to be hospitalized, need intensive care, require a ventilator to help them breathe, or even die.
For these reasons, OCR opened investigations into states that tried to bar school divisions from requiring masks, and the US Department of Justice filed a legal brief in support of disabled plaintiffs who challenged the state of Texas’s attempt to ban local school divisions from requiring masks. While this body of law is still evolving, federal courts have already struck state-level bans on mask mandates in schools, based largely on the increased risk of harm to students with disabilities if they are exposed to unmasked individuals in their schools. Additionally, parents of disabled students have sued school districts directly for not implementing mask mandates.