Federal Disability Law Doesn’t Require School Districts to Mandate Masks

Today’s opinion of Judge William S. Stickman IV, (W.D.) is so. Pa. Doe 1 v. Upper Saint Clair School Dist.:

Plaintiffs … allege that their children are “medically fragile disabled students” and that permitting families and students to choose whether to mask will subject them to increased risk of catching COVID-19 and increased risk of harm from the virus. They allege that, in light of their children’s medical conditions, the School Board’s decision to make masking optional violates both Title II of the Americans with Disabilities Act … and Section 504 of the Rehabilitation Act of 1973 ….

The School Board policy was not designed to prevent Plaintiffs from wearing a mask. Instead, Plaintiffs claim the policy is in violation of the statutes by allowing other students to use masks and families to make their own decisions. Plaintiffs … [ask, in effect,] that, notwithstanding the vote of the School Board, universal masking would be ordered to remain in place for an indefinite period, provided that transmission of COVID-19 remains “substantial” or “high” in Allegheny County…. Their request for injunctive relief is premised on the position that universal masking is the only reasonable accommodation to which they are entitled under the ADA and the Rehabilitation Act….

The School District is known for enacting safety measures to reduce the spread of COVID-19. [including physical distancing, cleaning and ventilation, contact tracing, diagnostic and screening testing, and efforts to provide vaccinations to school communities]…. Importantly, the Plan provides the following:[a]”Ppropriate Accommodations for Students with Disabilities with Respect to Health and Safety Policies” “The School District will examine additional mitigation options to support staff and students.” You are more at risk for serious illness. This includes accommodation under the ADA Section 504, the IDEA, or the IDEA.Counsel for Defendants referenced these provisions in argument. He explained that accommodation granted to students “who have a higher risk for serious illness” includes distancing, special seating and at-home instruction.

Plaintiffs argue that despite these safety precautions and accommodations, they are entitled to the Only reasonable accommodation appropriate in light of child Plaintiffs’ conditions is a requirement of universal masking in the School District … so long as transmission of COVID-19 in Allegheny County is at a “substantial” or “high” level.

Plaintiffs also request relief without limitation in terms of duration. Plaintiffs counsel expressed hopes that COVID-19 infected persons will be below “substantial” levels this year. They suggested that they limit the relief requested to the current year. However, that is not a guarantee. The TRO order and the proposed order, which specifically requests relief, would not allow for masking, as long as there are “substantial” cases. (Tr. (Tr. The metric that we are using is that used by medical professionals. It is that if COVID transmission rates, as per the CDC Allegheny County, exceeds the significant or high base, masking should be maintained.”)….

Allegheny County, with a population of 1.216 millions, would have 607 infections per seven days. The CDC used the older Delta version of COVID-19 to define Allegheny County. This was in contrast to Omicron, which is more easily transmitted and accounts for almost all new infections. One wonders if COVID-19 will become endemic, with a more transmissible variant. Or if the number of respiratory infections will continue to rise each winter to the point that Plaintiffs will have to mask it.

The plaintiffs acknowledged that there could be a problem and their counsel admitted that they may revise the guidelines by the CDC. They may increase the number transmissions if the Omicron level is changed.

While the position of Plaintiffs is not necessarily conclusive it highlights its absurdity. Even though immunocompromised kids have been in school since childhood, communicable diseases are still a problem. However, before COVID-19 there wasn’t any argument for universal, mandatory masking. And, even if a school district failed to make universal masking compulsory, it is still a violation to federal law. Except for cases dealing with COVID-19 the Court couldn’t locate one case in which a court ruled that it was reasonable to make all school students or staff wear masks or any other protective gear.

The unreasonable nature of Plaintiffs’ position is further highlighted by the fact that, while it imposes an unprecedented requirement upon the School District—i.e., mandate universal masking of all students, faculty, and staff or violate the ADA and the Rehabilitation Act—it is not guaranteed to be effective. The Plaintiffs could also be able to still COVID-19 infection. Common knowledge is that the wearing of a mask doesn’t guarantee you will be infected. Counsel for the Defendants indicated that the School District had still received cases from Omicron even after using universal masking. Moreover, Plaintiffs’ request does not specify a particular type of mask—notwithstanding the fact that public health authorities have called into question the effectiveness of, for example, cloth masks against the Omicron variant.

 For these reasons, the Court holds that Plaintiffs’ request for the indefinite imposition of universal masking will not be found to be a reasonable accommodation when the claims are finally decided on the merits. {See, e.g., L.E. v. Ragsdale (N.D. Ga., Oct. 15, 2021). “While plaintiffs may choose to have a mask mandate or other more restrictive policies, defendants are not obliged to give Plaintiffs the accommodation they desire. So long as Plaintiffs are offered meaningful access to education—and the Court finds that they have been—Defendants have adequately accommodated Plaintiffs and their disabilities.”).} …

The Court [also]This TRO is granted because it would cause substantial harm to the School District, and contrary to the public interests. The Court believes that the Court should deny the requested relief because it would disrupt the popular governance system for schools, which is an integral part of the government system that is layered and accountable.

Plaintiffs demanded that the School Board make the sole accommodation. This is a topic that provokes strong feelings from not only Plaintiffs but other members of public. The legal argument advanced by Plaintiffs amplifies CDC’s authority while severely restricting the practical authority of people through elected school directors to make prudential judgements.

Acceptance of plaintiffs’ position would essentially graft CDC’s recommendations into the ADA/Rehabilitation Act. As a matter of practicality, elevating CDC recommendation to the legal level would mean that many decisions relating health policy and directly affecting citizens are taken from the hands and hands of elected representatives to be made by unknown and unanswerable CDC decisionmakers as well as unelected federal judges.

COVID-19 poses a serious challenge to all American institutions. The Country will face new challenges, whether they are technical or scientific in nature. Experts from within and outside government can help. At all levels, governments should weigh and take into consideration the recommendations of experts. But in democratic republics, it is the people, through elected representatives, who decide.

In this case, the Court believes that the entry of a TRO would damage the independence and authority of the School Board—the directly elected body entrusted by State law with setting policy for the School District. Practically, it would result in the elevation of CDC’s recommendations above their proper level of authority, and the exclusion local democratic authority on matters of prudential judgement. The Court holds that these considerations weigh in favor of a finding that entry of a TRO would be contrary to the public interest….