By Martin E. Block
Imagine your child with a disability cannot wear a mask, but he attends a school district with a strict mask-wearing policy. As a result, the school district says your child cannot go to school in-person until he can wear a mask. The school district offers a few hours a day of homebound instruction. In addition, the district says your son can come to school for about 30 minutes a day to work on mask wearing, but not to work on IEP objectives or social skills. Are you OK with this scenario? Now imagine your child with a disability is severely immunocompromised, but she attends a different school district that does not require children to wear masks. As a result, you do not feel comfortable sending your child to school, and the school district offers a few hours a day of homebound instruction. Are you OK with this scenario? Unfortunately, both cases are real, and in both cases, parents are arguing that such policies are violating their child’s rights under the Individuals with Disabilities Education Act (IDEA) and other federal civil rights laws.
The first scenario is taking place in my home school district in central Virginia. Albemarle County Public Schools has been denying in-person learning access to students with disabilities who can’t or won’t wear a face covering. Albemarle Schools says that a student who is not comfortable wearing a mask has three choices: virtual school, home school or a private school. Parents of children with disabilities say that the mask policy and its implementation force a small but vulnerable population of students into virtual learning, which parents say doesn’t meet their children’s needs. Parents say their children will not receive the supports they need to progress academically and learn. Interestingly, other school districts in the area are being more flexible with mask policies for their students with disabilities. It is unclear why Albemarle chose to strictly enforce mask-wearing among students with disabilities during in-person instruction, especially when the State Department of Public Health issued an exception to state-wide mask mandates for “persons with health conditions or disabilities that prohibit wearing a mask.”
The US Department of Education clearly noted that state and federal special education laws cannot be suspended during the pandemic, so schools are still obligated to provide services spelled out in a student’s individual education program (IEP), a legal document. A lawyer for a legal justice center in central Virginia said that school divisions should assess each child individually to determine whether it is possible to accommodate their disability and make an exception to the general mask policy. She suggested that if children who are unable to comply with mask mandates because of their disability and also are unlikely to benefit from virtual school, then accommodations to the mask policy are warranted.
In the second scenario, parents of children with disabilities who are immunocompromised are suing school districts over a lack of mask mandates in schools. Complaints filed in Tennessee, Florida, Utah, Texas, and South Carolina argue that limiting mask mandates infringe on disability rights, and that children with disabilities and their parents are being forced to choose between their health and their education. One parent said, “We hear all the time, ‘Oh, only kids with preexisting conditions are the ones that get sick and die,’ Well, that’s my kid. That is my child. He has a lot of preexisting conditions, and he matters.” The U.S. Department of Education has also said restrictions on mask mandates may be discriminatory against students with disabilities. On Aug. 30, the department’s Office for Civil Rights announced it is investigating mask mandate restrictions in the five states mentioned above. The lawsuits are not demanding schools institute a mask mandate. Instead, the lawsuit is asking for schools to be given the right to require masks based on regional health metrics rather than having to abide by a state directive prohibiting mask mandates.
Lawyers cite IDEA and Section 504 of the Rehabilitation Act, which guarantee that children with disabilities have access to a public education. Both laws also require schools to provide “reasonable accommodations” to help make that education accessible — and the complaints argue those accommodations can include masks for everyone. Matthew Dietz, one of the lawyers who filed that lawsuit, says mask mandates meet the benchmarks for a reasonable, necessary accommodation. “If they don’t get that mask when they go to school, they’re at higher risk of death. So yes, it’s necessary,” Dietz says. “Is it reasonable? It’s a piece of cloth, it’s not difficult. Would it cause a fundamental alteration or an undue burden to the school system as a total? Not at all.” Dietz adds that it’s just as reasonable as accommodating peanut allergies, which schools have been doing for years. So, where does that leave parents and school districts? On the one hand parents are asking for exemptions from mask mandates, while on the other hand parents are asking for stricter mask mandates. In both cases IDEA and Sec 504 of the Rehabilitation Act have been cited as guaranteeing all children with disabilities have access to public education. Furthermore, both laws specify that reasonable accommodations must be made to ensure that access. Seems like one needs the wisdom of Solomon to satisfy parents in both scenarios! There clearly is no easy answer, but permit me to give it a shot. In the first scenario, parents working with Albemarle County Schools have suggested better ventilation and air filtration systems in special education classrooms, teaching outside when possible, great spacing between children, and having teachers and therapists wear masks and shields when teaching students who cannot wear masks. These seem like reasonable accommodations that do not impose an undue hardship. In the second scenario, having teachers and children in the child’s classroom as well as teachers and specialist within the child’s sphere (e.g., physical education teacher, speech therapists) wear masks when in contact with the child. Similar to above, efforts for greater ventilation and spacing as well as teaching outside when possible seem reasonable and do not present an undue hardship to the teachers, therapists, other students, or the school. While some parents may be generally against mask mandates, they may be more receptive to having their children wear masks if they know a specific child in their children’s classroom is immunocompromised and in danger of dying if she contracts COVID. Starting from a place of “what is best for this particular child with a disability” is most likely to help everyone focus on what is most important and end with a compromise that is satisfactory for all parties.
Martin E. Block is professor at UVA and the Program Director of Kinesiology for Individuals with Disabilities (KID). His coursework includes classes on Physical Education for Children with Autism Spectrum Disorder, Physical Education for Children with Severe Disabilities, Kinesiology for Individuals with Development Disabilities, Motor Development and more. Beyond teaching, Professor Block has done considerable work for the Virginia Institute for Autism, Little Keswick School, University of Virginia Children’s Hospital, Charlottesville Area Special Olympics, and the Virginia School for the Deaf and Blind. Notably, Block has also served as the past president of the International Federation of Adapted Physical Activity (IFAPA) and past president of the National Consortium of Physical Education for Individuals with Disabilities (NCPEID).