With the federal government and state and local governments lifting mask requirements, it feels like we may be coming to the end of a two-year masking nightmare in schools. As cases begin to decline, schools across the country are allowing staff and students to come to school mask-free. When it comes to medically-fragile students, however, the risks of COVID-19 may continue for a long time after the rest of the world has moved on from the virus. What responsibilities remain for schools to require masking in the school environment to protect students with disabilities?  

There is no settled rule, as expected with such a new issue. Courts across the country wrestling with the issue have come to different decisions about when federal law requires masking as an accommodation. In this blog post, we summarize some of the notable decisions to provide a roadmap for schools to begin their analysis when faced with a request.    

Many courts have supported a parent’s right to request masking accommodations under Section 504 and the ADA. For example, in January, the U.S. Court of Appeals for the Eighth Circuit held in favor of parents challenging Iowa’s statute banning mask requirements if medically-fragile students would be placed at heightened risk of severe injury or death from COVID-19 in the absence of such an accommodation.  Arc of Iowa v. Reynolds, 24 F.4th 1162 (8th Cir. 2022).  

Generally, parents’ arguments that students with disabilities may be denied the benefits of a public education in the absence of masking accommodations have been successful. Last year, the U.S. Court of Appeals for the Sixth Circuit agreed with the parents of medically-fragile children challenging a Tennessee statute allowing parents to opt their children out of local mask mandates in K-12 schools. G.S., by and through Schwaigert, et. al. v. Lee, 2021 WL 5411218 (6th Cir. Nov. 19, 2021). There, the court held that the statute may violate both Section 504 and the ADA by preventing schools from reasonably accommodating medically-fragile students and potentially denying them the benefits of a public education. The following month, the Sixth Circuit again recognized the possibility that students with disabilities in Tennessee may be denied access to public education absent reasonable accommodation (i.e. masking) to mitigate the spread of COVID-19.  M.B. ex rel. S.B. v. Lee, 2021 WL 6101486 (6th Cir. Dec. 20, 2021).  

Courts tend to give little weight to arguments that masking requirements cause an undue burden for school districts. For example, in the M.B. case, the Sixth Circuit rebuffed the school district’s argument that universal masking was impractical and difficult to enforce, particularly because less than one percent of the district’s population refused to comply with the requirement. Similarly, another court held that the risk of irreparable harm to students with disabilities without masking outweighed the school district’s concerns regarding the difficulties of reinstating a masking policy. Doe 1 ex rel. Doe 1 v. Perkiomen Valley Sch. Dist., 2022 WL 356868 (E.D. Pa. Feb. 7, 2022). Courts have also looked to how districts handled the return to in-person learning to determine whether a masking requirement would cause an undue burden. Where a district, for example, successfully communicated masking requirements, enforced compliance, and granted lawful exemptions, a universal masking policy is likely reasonable. S.B. v. Lee, 2021 WL 4057812 (E.D. Tenn. Sep. 3, 2021).  

Other courts, however, have held otherwise. For example, another court recently found that universal masking may be an “unreasonable” accommodation where a school district has other safety measures in place, such as cleaning protocols, social distancing, and the widespread availability of COVID-19. Doe 1 v. Upper Saint Clair Sch. Dist., 2022 WL 189691 (W.D. Pa. Jan. 21, 2022). Courts also disagree as to whether virtual learning is an appropriate alternative accommodation to universal masking. While the Sixth Circuit in M.B. held that virtual learning does not constitute a reasonable alternative to masking, another court recently found that a “robust virtual learning program” sufficiently accommodated students whose medical conditions increased the risk of serious infection from COVID-19. L.E. v. Ragsdale, 2021 WL 4841056 (N.D. Ga. Oct. 15, 2021). There, the court explained that a district has no obligation to provide a parent’s preferred accommodation if the accommodation offered is reasonable, and the students’ successful performance in virtual learning served as evidence that virtual learning was a reasonable accommodation in that case. These types of conflicting rulings have left school districts wondering how to address masking requirements without violating Section 504 and the ADA. 

Unfortunately, courts in Texas have not provided a clear answer as to a school district’s responsibility to accommodate requests for masking under Section 504 and the ADA either. Last year, a Texas judge agreed with Texas parents and disability-rights advocates that Governor Abbott’s executive order prohibiting school districts from imposing mask requirements denied students with disabilities the benefits of in-person learning on an equal basis as their peers without disabilities. See E.T. v. Morath, 2021 WL 5236553 (W.D. Tex. Nov. 10, 2021). Less than a month later, however, the U.S. Court of Appeals for the Fifth Circuit overturned that decision, leaving many Texas school districts scratching their heads. See E.T. v. Paxton, 19 F.4th 760 (5th Cir. 2021). While much uncertainty remains in this area, two things are clear: First, a one-size-fits all approach to mask requirements will likely be seen as a denial of FAPE for students with disabilities at heightened risk of serious illness or death from COVID-19. Second, the lack of consistency in court rulings and the nuances of each lawsuit emphasize the need for school districts to consult with legal counsel before revising mask policies or determining how to accommodate medically-fragile students. For legal guidance regarding mask requirements and how to appropriately accommodate students during the COVID-19 pandemic on a case-by-case basis, contact the author of this post or any member of the Thompson & Horton  Special Education Team.