This past week, the ACLU of Virginia and its co-counsel announced a settlement in Seaman vs. Commonwealth of Virginia. Families of 12 children with serious medical conditions and disabilities brought this case to challenge Virginia Governor Glenn Youngkin’s Executive Order 2 (EO 2) and Senate Bill 739 (SB 739). EO 2 and SB 739 require public schools in Virginia to allow parents to opt their children out of masking requirements, if desired. The Plaintiffs contended that EO 2 and SB 739 violated their right to request and obtain peer masking as a reasonable modification under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973. The court had already issued a preliminary ruling in the Plaintiffs’ favor early in the case.
In the settlement, the Commonwealth acknowledges that peer masking is a reasonable modification under federal disability law. The settlement confirms that schools must make this modification if a child with a disability requires it, and a school’s obligation to provide this accommodation is not negated by EO 2 or SB 739.
The settlement also requires the Superintendent of Public Instruction to send a Dear Colleague letter to each of the Plaintiffs’ school divisions and to post the letters on the COVID-19 Special Education Resources webpage on the Virginia Department of Education’s website.
The Dear Colleague letters are required to contain this language:
“The Court … held that the parents of the children in the case have the right to request, and if necessary, receive, some amount of required masking of their child’s peers as a reasonable modification under the ADA and Rehabilitation Act. Therefore, neither SB 739 nor EO 2 pose any obstacle to a parent requesting some amount of required masking as a reasonable modification under the ADA or Rehabilitation Act. And if some amount of required masking is a reasonable modification necessary to satisfy the ADA and Rehabilitation Act rights of a student with disabilities, SB 739 and EO 2 do not prohibit this modification.”
As with all situations, the guidance clarifies that a school must engage in an interactive process with the family to determine if some amount of masking is necessary for the particular student. In making this determination, schools should consider whether alternative modifications can meet the student’s needs, such as one-way masking, staff/teacher masking, improvements to ventilation, and social distancing. But “if a school nevertheless determines that peer masking is the reasonable modification necessary to satisfy the ADA and Rehabilitation Act rights of a student with a disability, SB 739 and EO 2 do not prohibit this modification.” Importantly, the guidance also affirms that schools may not segregate or exclude students with a need for peer masking. This too is in line with federal disability law requirements, which have a strong legal presumption in favor of inclusion.
The settlement provides guidance on how schools should balance the state-law rights of parents who do not wish for their children to wear a mask under EO 2 and SB 739. Schools can accomplish this by offering such students an alternate seat or classroom assignment, if possible, and by not requiring students to wear a mask when doing so would violate their ADA/504 rights due to a demonstrated medical condition. Moreover, any required peer masking should be limited to the places and times necessary to satisfy the ADA and Rehabilitation Act.
Finally, in this settlement, the Commonwealth commits not to take enforcement actions under EO2 or SB 739 with regard to peer masking as a reasonable modification for the Plaintiffs in their respective schools.