Extra One-Aspect-of-the-Ledger Considering from the ACLU

The ACLU is suing South Carolina for leaving the issue of school masking to parents. By organization:

Disability rights groups and parents of children with disabilities today filed a federal lawsuit against a law in South Carolina that prohibits school districts from requiring masking in schools. The parenting and disability rights groups represent students whose disabilities, including underlying health conditions, make them particularly susceptible to serious illness from COVID-19, arguing that the masking ban effectively excludes these students from public schools in violation of the law Americans with Disability Act and Rehabilitation Act.


“The prohibition of schools from taking reasonable steps to protect the health of their students is forcing parents to make an impossible choice: their child’s education or their child’s health,” said Susan Mizner, director of the ACLU’s disability rights program. “This is a question of disability rights. Students with health problems or disabilities that make them vulnerable to COVID have the right to attend school without endangering their health or safety. Schools that have children with these conditions have legal obligations under federal disability laws. “

Under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, public schools must not exclude, deny equal access to, or unnecessarily segregate students with disabilities, and are required to make reasonable changes to policies, practices, and procedures in order to keep students safe to give people with disabilities an equal opportunity to benefit from their public education.

I don’t think the legal case is strong for the ADA or Section 504 to apply. But suppose for a moment that it was. Why should it only go in one direction?

The arguments for keeping peanuts out of schools, for example, are obvious: the presence of peanuts can kill certain children, while the absence of peanuts is just an inconvenience for everyone else.

With masks, however, it is more complicated. Some people with disabilities can actually be injured by the lack of a mask mandate. But others can be hurt by someone’s presence. And you can’t accommodate one of these people without influencing the other.

On its website, the CDC recognizes that “any person with a disability who cannot wear a mask for reasons related to the disability or who cannot safely wear a mask” should be “exempt from the mask requirement”. Now what if that disabled person meets the other disabled person who is needed by everyone to carry one? If “public schools fail to exclude students with disabilities, deny them equal access to their education, or fail to segregate them unnecessarily,” is it likely to work both ways? And if so, why should we automatically assume that the burden of proof is in favor of a mandate rather than against it?

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