The Texas governor was stopped by a federal judge last week. Greg Abbott was prohibited by a federal judge from ordering him to enforce his ban on the wearing of face masks in public schools. U.S. District Judge Lee Yeakel found that Abbott’s policy was in violation of federal laws against discrimination towards people with disabilities.
Yeakel’s decision seems to leave Texas school districts in control of deciding whether or not students and teachers should have to wear masks to prevent COVID-19. However, if school district decides not to mandate masks, their logic indicates that they may be subject to discrimination lawsuits. This would make federal guidance on the topic mandatory.
Seven public school students aged 12 and younger are the plaintiffs. They have various disabilities including asthma, immune deficiencies, Down syndrome and cerebral palsy. The parents of the students stated that these disabilities make it more likely for them to contract COVID-19, or to experience severe symptoms.
They argued that Abbott’s executive order of July 29, in which “no governmental entity may require any person to cover their face,” violated Section 504 and the Americans With Disabilities Act. This prevented schools districts from requiring students to wear masks. The ADA bans state and local government discrimination against persons with disabilities, as well as “all programs services and regulatory activities relating the operation of elementary or secondary education systems.” This section 504 bans discrimination against federally funded programs.
They argued that Abbott’s order placed children with disabilities “in imminent danger of being forced out of the public education system.” According to the ADA, no qualified individual with a disability may.
Because of this disability, you may be excluded or denied participation in services, programs or activities offered by a public entity or subject to discrimination.
Yeakel points out that ADA regulations cover all forms of discrimination. “Including discrimination that results in a public entity’s application of facially neutral policy.” Yeakel states that discrimination against persons with disabilities is not only intentional exclusion but also segregation, the failure to modify existing practices, relegation or other opportunities, as well as exclusionary qualifications standards and criteria.
The ADA forbids students with disabilities from being denied the ‘opportunity’ to benefit from aid or benefits provided by schools. Students with disabilities are also prohibited from participating in activities, services or programs that are separate from or differ from the ones offered to students without disabilities.
Yeakel points out that the order by Abbott “prohibits schools districts from adopting any mask mandate whatsoever, even if it is determined after an individual assessment that mask-wearing is necessary in order to give disabled students equal access and benefits of in-person learning.” He believes that this amounts to “denying students who have disabilities equal access to in-person learning.” This “means they are being excluded from or prevented from participating in or being involved in.”[ing]”They are denied access to the programs and services of public entities. Yeakel claims that Abbott’s policy prevents local school districts from fulfilling their ADA obligations. It prohibits them from providing students with disabilities an ‘opportunity’ to receive in-person instruction that’s ‘equal’ to other students. This is a setting that’s ‘intact’.
Do you think that the ADA mandates school districts to implement universal masking as recommended by CDC? Yeakel suggests that a more restrictive policy may be sufficient to conform with the ADA. Abbott’s orders “not only prevent school districts from implementing universal masquerading in schools according to CDC guidelines but also prohibit them from imposing specific mask requirements such as one wing or one classroom or requiring an individual aide wear a mask when working with a student at heightened risk for serious illness or death due to COVID-19.”
Yeakel is unable to address whether or not the COVID-19 fear of the plaintiffs are legitimate. Yeakel refers to the year’s “surge” in COVID-19 child cases as well as “the emergence and spread of COVID-19 Delta, which is nearly twice as infectious as other variants. He notes that “6,503,629 child COVID-19 total cases” have been reported to the United States as of November 4. This is more than 16.7%.
Yeakel doesn’t mention the fact that these cases are usually mild and nearly never fatal. The CDC reported that 595 Americans aged 18 and under had been killed by COVID-19 as of November 10, which is 0.08 percentage of COVID-19 related deaths in America. By comparison, the CDC estimated that 486 minors died from the seasonal flu in 2019–20. The CDC has estimated that this age group’s COVID-19 death rate is 0.002 per cent.
The lawsuit’s premise is, naturally, that children with special disabilities have a greater than average risk of developing COVID-19 symptoms. It would be extremely small even though their death risk was 10 or 100 times greater.
In this risk assessment, it is important to consider whether vaccines are available. Yeakel learned of the case last month. None of the students were older than 12. They weren’t yet eligible to receive vaccination. On October 29, however, the Food and Drug Administration approved Pfizer’s 5-to-11 year-old vaccine. Even if the plaintiffs were medically disqualified, this vaccine provides excellent protection from the worst effects of COVID-19. The risk of infection in schools will be reduced if they are vaccinated by their classmates.
Yeakel didn’t consider the risk that COVID-19 presents to children. He did not even consider whether school mandates for masks would be cost-effective. He writes that “Plaintiffs have claimed that mask use by others around them would reduce their chance of contracting the virus, and make it safer for children to go back to school or remain in in-person learning environments.” The evidence supports the claim that masks can reduce the chance of contracting COVID in groups.
It is not a strong endorsement of the school mask mandates in America, which have been controversial and are eschewed by other countries. Although there is limited evidence to support the claims that such policies are more beneficial than the significant burdens they impose, it’s not hard to see how. Local officials could be tempted to disregard the lack of empirical support and to impose policies they wouldn’t otherwise accept if it makes masks optional.
Yeakel frames his decision as one that favors local autonomy and flexibility—just as Education Secretary Miguel Cardona did when he announced that his department was investigating states that ban school mask mandates for possible violations of the ADA and the Rehabilitation Act. However, the possibility of legal action could lead to local school officials being unable to decide for themselves unless they agree with Cardona or the CDC policy.