Here's How Mask Mandates Can Violate the Civil Rights of Students With Disabilities

This fall most parents celebrated the return to in-person instruction after witnessing their children struggle with remote learning. For parents of many students with disabilities, this return to the traditional school setting was even more important, as remote learning was incredibly challenging for many students with disabilities. Some were unable to access education at all in the online environment, due to the nature of their disabilities. 

Even when schools were able to successfully deliver some instruction virtually, special education services such as physical and occupational therapy, which are traditionally provided in a “hands on” manner, were canceled or converted to consultation services that proved to be a poor substitute for in-person supports. Many of these parents saw their children lose skills that they had worked hard to obtain. Despite this, for a significant group of these parents, the thought of sending their children back to school is absolutely terrifying.  

[pullquote]For parents of students with disabilities in states where public schools are prohibited from requiring masks as a COVID-19 prevention measure, any worries about the academic impacts of the pandemic are secondary to the grave concerns they have for the safety and well-being of their children.[/pullquote] In these states, parents of children with disabilities who are immunocompromised, have neurological or respiratory disorders, or have other disabilities that make them high risk for severe illness if infected with COVID-19 now struggle with an impossible choice—further hinder their childrens’ education by keeping them home, or send them into school buildings where masking requirements are not allowed, placing them at high risk of serious illness or even death.

As the COVID-19 pandemic has become increasingly political, the battles around mask requirements have continued to escalate. In states like Texas, Florida and Tennessee, governors and state lawmakers who traditionally emphasized the importance of “local control” in government have done an about-face, creating state-level policies prohibiting local school districts from instituting mask requirements to help protect students, educators and others from COVID-19.

Parents of students with disabilities that place them in the high-risk category filed lawsuits in states across the country where these prohibitions were in place. They did not claim violations of special education law, although recent guidance from the U.S. Department of Education indicates that federal education leaders believe those violations could also be present. Instead, these are federal civil rights claims, based on the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.  The argument is that state-level mask policy prohibitions deprive these students of their right to access education by denying them the reasonable accommodations (here, masking policies in the school buildings) that would allow them equal access to in-person education. 

While temporary orders enjoining the states from implementing their prohibitions have been issued in most of the cases, policymakers, educators and the disability advocacy community have all been waiting to see how courts would rule on the central issue. At least in one state, that wait is now over. On November 10, 2021, a Texas Federal District Court ruled that Texas Governor Abbott’s Executive Order prohibiting mask requirements does, indeed, violate the federal civil rights of the plaintiff students in that case. The Court permanently enjoined Texas from enforcing the prohibition.

While Texas is sure to appeal the Court’s decision, parents of students with disabilities in Texas can at least breathe a sigh of relief for now. With this court ruling, they no longer have to choose between safety and education for their children. Here’s hoping courts act soon in the other states where these lawsuits are pending. [pullquote]With so much damage already done by the pandemic, there is no time to waste.[/pullquote]