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My son, a 14-year-old autistic boy with Down syndrome, is entitled to an education thanks to federal civil rights laws that were passed in the 1970s and updated in the years since. These laws promise him free and adequate education in the least restrictive environment that is appropriate to his needs.
Notice the different components: One type of law focuses on the content of the training itself and provides the support and adaptation to ensure that it learns. Another makes sure that education is safe and accessible for him, including the school building itself. Taken together, laws like the Americans with Disabilities Act (1990); the Law on Education for All Disabled Children (1975) and its update of the Law on Education for Persons with Disabilities of 1990; and Section 504 of the Rehabilitation Act 1973 provide a proven, albeit controversial, set of safeguards, rights, and obligations for disabled children in school.
Now lawsuits in Florida and Texas, along with emerging statements from the Department of Education under the Biden administration, argue that laws mandating safe schools for disabled children can be applied to one of the most controversial problems in our pandemic-stricken society: masks.
During the pandemic, according to preliminary investigations, the systems that gave many disabled children access to education collapsed. To his credit, the Betsy DeVos-led Ministry of Education refused to waive disabled children’s rights in schools, but enforcement became rare. As our third pandemic school year begins, there are signs that things are about to change. At the federal level, President Biden issued a memorandum directing the Department of Education to use whatever tools are available to ensure that governors “allow students to participate and remain in safe, full-time and face-to-face learning, without endangering their health or the health of their families or communities. ”
In an interview with the New York Times, Education Secretary Miguel Cardona said he would use the wing of his civil rights enforcement department to protect students from marginalized groups who have been particularly hard hit by Covid-19. In a blog post, Cardona wrote: “The ministry has the power to investigate any government education agency whose policies or actions could violate the right of all students to equal access to public education.”
Meanwhile, the Disability Independence Group, a Florida nonprofit, and Disability Rights Texas, a protection and advocacy group, have filed lawsuits on behalf of parents and children against their respective governors and education officials, making one simple claim: Federal law requires fair Precautions to make school safe. For children with all kinds of disabilities, this means that everyone in school has to wear a mask. Therefore, governors cannot ban mask mandates without violating federal law.
I spoke to attorneys behind both lawsuits and two other attorneys who were not involved in either case. I asked Matthew Dietz, Litigation Director at Disability Independence Group Inc, if this lawsuit represented a new legal strategy. Laughing, he said to me, “I try not to make new arguments because new arguments usually lose. This is the oldest ADA argument in existence. Children have to go to school. You are entitled to reasonable accommodation. It is not an undue burden on someone else to wear a mask at all. That is an argument that is 40 years old. ”
Kym Rogers, Texas Disability Rights Trial Attorney, said that “Both the ADA and Section 504 guarantee access for people with disabilities. These children, like children without disabilities, are entitled to education. The ban on the use of masks is effectively a barrier. ”
Ruth Colker, a law professor at Ohio State University, said the core of the argument is that “a mask is a ramp” during the Covid-19 pandemic. In other words, the same legal authority that requires schools to have ramps can be used to get schools to require people to wear masks. Colker says she loves the approach because it allows for structural action rather than trying to fix things for just one child at a time. A stronger analogy, she suggested, was peanuts. If a child has a peanut allergy, the school district must mandate a housing structure that excludes peanuts from the building to keep particles of the allergen out of the air. It is not enough to make sure that the allergic child does not have peanuts in the food. “Peanut particles are a bit like Covid,” she said, and are “an analogy that people can understand”. She also added: “It is easier to get a mask mandate than a policy without a peanut. Simply hand out the masks. [It’s] It’s hard to say where peanuts are hidden. ”
Tauna Szymanski, the executive and legal director of Communication First, emailed me that she believes there is “a strong legal argument under ADA and other civil rights laws for these mandates,” but she is “skeptical That these steps alone “will make schools accessible to high-risk students with the greatest disabilities.” Masking may not be enough to protect children at risk, especially in schools with overcrowded classrooms and poor ventilation.
When security becomes the standard, she wants students to continue to have virtual learning opportunities. “The Ministry of Education should really focus on ensuring equal access for students who cannot return to school even if they wear a mask,” she said. Returning to school, masked or not, will force students “to risk their lives once again to show up in person or not get support at home”. This is certainly a problem for our son who, despite being vaccinated, has just been infected with Covid-19 for the second time.
I asked Matthew Dietz in Florida if the arguments he makes about masking requirements in schools could be applied to work and other public places under the ADA. He said that to some extent it is actually the other way around. The Equal Opportunity Employment Commission published technical guidance on “What is and is not appropriate in the workplace. And there is nothing that EEOC has done that cannot be applied to schools. ”He wants not only Cardona but also the Justice Department to follow suit. “Unlike the EEOC,” he told me, “the Department of Education and Justice have not issued guidelines on how to ensure a safe environment and reasonable accommodation. That was and is a big mistake because it would not only apply to places like schools, but concerts, fairs and other things as well. ”The Ministry of Education did not return voicemails left with its public affairs officials. The Justice Department did not respond to an email request through its website.
What happens next is not clear. On August 19, the Texas Supreme Court temporarily prevented Governor Greg Abbott from banning mask mandates, but did not rule on the merits of the cases. In addition, in these cases the debate depends on the limits of governor’s power, which, according to Dietz, has a very high claim to be overcome. And he pointed out that the Disability Rights Act should provide a stronger legal argument: “Our measure of whether it is reasonable accommodation is an extremely low standard,” and the burden of proving that a mask order is an unreasonable burden or fundamental change , is much higher. Rogers and her colleagues therefore continue to seek provisional legal protection before a federal court, as does Dietz. In Florida, school authorities and the state have until August 24 to testify, after which they may receive a quick preliminary ruling on whether the Florida mask mandate ban can continue.
The children are now going back to school, the number of cases is increasing and the children’s hospitals are filling up. At one hospital in Houston, hospital admissions for children rose from single-digit numbers to over 30. In Hillsborough County, Florida, approximately 13,000 employees and students – over 5 percent of all public school staff and students – are currently due to a Exposure to Covid-positive or in quarantine.