Court Concludes, for TRO, that Federal Disability Law Does Require School Districts to Mandate Masks

Judge Marilyn Horan’s Monday opinion Doe 1 at N. Allegheny School Dist.It is an opposite opinion to the one I noted in my note down.

This Court is left with few options because of the timing and nature of this TRO Motion. The school would resume on Monday [Jan. 18]With a masking policy. However, the Court has limited its ability to perform a complete TRO analysis. This is due to the arguments and briefing of the parties. After discovery has been completed and the administrative procedures have been taken, this case and its claims will be more easily resolved. Given the possible negative effects on Plaintiffs’ education and health, it is prudent to maintain the status quo for a reasonable time.

At the moment, cyber school is offered by the School District to those students with immunocompromised. Cyber school accommodation is not being offered by the School Board because it does not account for students with immunocompromised who may have educational difficulties or family members that might need to help their children at home. The CDC also provided mask guidance and information about community spread.[s]In-person learning is beneficial for students, so returning safely to instruction in person will continue to be a top priority.

The Court found that imposing a cyberschool only option on immunocompromised students who are faced with optional masks versus putting the District under the burden of students performing universal masking was not a reasonable accommodation. This violates Congress’ intent of the ADA. Although the School Board presented the cyber school accommodation, it failed to consider the potential impact on the educational and family support needs of immunocompromised students. The Court cannot say, at this stage, that such accommodation meets the protections provided for under the ADA and Section 504….

Section 504 (Rehabilitation Act) and the ADA both require plaintiffs to prove that they: (1) are disabled individuals within the meaning Section 504(Rehabilitation Act), (2) will be denied or excluded from such services, programs or activities; (3) their exclusion, denial or discrimination were based on their disability. Discrimination under the ADA includes any failure to make reasonable adjustments in policies, procedures or practices when these modifications are required to provide goods, services or facilities that allow individuals with disabilities to enjoy privileges, benefits, accommodations, and other amenities.

A failure-to accommodate claim is a lawsuit that a plaintiff can bring against a state agency, such as a school board. A failure-to-accommodate claim differs from other ADA claims in that the plaintiff is not required to show that his injury was the result of purposeful discrimination….

Plaintiffs and Defendants have both agreed that Plaintiffs are persons with disabilities. A mask mandate was reinstated by the Board at its September 22, 2021 meeting. It was established on the basis of express criteria. The benchmark provision was to allow universal masking when there was either a substantial or high community transmission rate. The Delta variant circulated among the community as of September 22nd, 2021 with an average community transmission rate (5.3%) and positive rate (6.0%). The District has mandated masks for all of its school years 2020-2021, 2021-2022, and beyond. Although mask wearing in District was controversial and uncomfortable, the mask mandate status has been achieved and maintained without any unreasonable expense or difficulty.

The Board decided to allow masks in the District starting January 18th 2022. This was despite the fact the community transmission rate had been measured at 10.2% of the total of 3,277 infection for the week ending December 5, 2021. The Department of Health’s mandatory mask ban was vacated by the Pennsylvania Supreme Court on December 10, 2021. Therefore, District residents would see the optional mask policy take effect on January 18, 2022.

Additionally, the Board’s December 8, 2021 action removed the restriction that masks could be worn inside the District when community transmission rates were in “substantial” and “high” categories. It did not explain why the Board lifted the mask requirement when transmission rates were in the “high” category or why the categories of community transmission rates of “substantial” and “high” no longer served as guidelines for masking.

The Omicron version has been available since September 22nd, 2021. Omicron is more transmissible than Delta. Therefore, community transmission rates are currently at 3500 infections per hour and 37.1% of positive rates. These numbers were six times greater than those recorded on September 22nd, 2021, when the Board reinstated mask mandates and set criteria regarding when masks can be worn within the District. It is still classified as “high” in transmission.

Given the very early stages of litigation and little documentation, it’s curious that while the Board in September 2021 determined that mandatory mask use based on the transmission rates categories of “substantial and high” was reasonable and appropriate, in December 2021 transmission rates increased so that category was at “high”, the Board voted that optional masks should be made voluntary and that the benchmark was removed. It is alarming that, beyond December, the District has failed to act to restore the masking mandate. This was in view of Omicron’s proliferation, which has led to significantly higher infection rates in the community, and especially for children.

Referring to this case’s Plaintiffs, Child Doe 1, a child of the plaintiffs, is said to be suffering from medical conditions that are immunocompromised. These conditions pose legitimate health risks, including infection, and exposes her to COVID-19. Plaintiff claims that there is substantial evidence from the infectious diseases and medical fields that supports a multi-layered approach to reducing the spread of COVID-19. It includes social distancing, increased building ventilation, masking, quarantining and contract tracing. The combination of all these steps is what makes them work. Individuals with disabilities like the Plaintiffs or those in similar situations are more likely to contract the virus, resulting in severe illness and death.

Plaintiffs allege that the increased risk of infection due to optional masking within the District creates a barrier to attending in-person classes with their non-immunocompromised peers. They also claim that they have been denied reasonable accommodation by the District in order to gain access to educational services. This has put them at greater risk of being physically injured. It is not clear if the Board considered any accommodations that might be needed for students with disabilities in District schools when it lifted the school mask requirement.

John and Jane Doe 1 are the plaintiffs. They make claims in behalf of Child Doe 1. Although the record is still not available, it cannot be determined if any of these claims will succeed or if they have standing. The court will decide that Child Doe 1 has immunocompromised, and John Doe 1 and Jane Doe 1 for Child Doe 1 have established enough of a probability of success in their claim that the District’s optional masking policies has had the effect of exclusion Child Doe 1 of in-person attendance in public schools or otherwise denied Child Doe 1 access to in-person services. Any such exclusion was based on Child Doe 1’s disability.

The District came down with the implementation of a benchmark for mask mandates in December. It was used when community transmission categories were “substantial” and “high”. The District’s implementation of the benchmark provided an efficient and manageable accommodation that allowed immunocompromised students to participate in classes alongside their peers who are not disabled. In such circumstance, Plaintiffs have demonstrated a likelihood of success on the merits of their ADA and Section 504 claims based upon the failure of the District to provide a reasonable accommodation for immunocompromised students within the District….

Child Doe 1 could suffer irreparable harm from being denied such access by the District due to its optional mask policy. Section 504 and the ADA require that all disabled plaintiffs have equal access to the most restrictive methods possible. Irreparable harm will be done to immunocompromised Plaintiffs if they are denied the right to education opportunities in the District.

Further, the Plaintiffs’ Brief and Complaint in Support of the Temporary Restraining order suggest that masking was part of the layering approach to reduce the speed of COVID-19 transmission. Recent weeks have seen an increase in transmission rates in the community due to the Omicron variant. There are increased risks for the safety and well-being both of the Plaintiffs as well as all District students. Students with immunocompromised are more likely to be unable to attend class in person with the optional masking environment. In such circumstances, Plaintiffs have demonstrated a likelihood of establishing that they will suffer irreparable harm….

For the vast majority of 2020-2021 and 2022 school year, District students have worn masks. Without unreasonable expense or difficulty, the Mask Mandat status was achieved and maintained in District. In their Brief, the Defendants do not provide any evidence that masks would place undue hardship on the District. As such, the District not will experience significant hardship if the District again requires the wearing of masks in school….

As Plaintiffs in their Brief suggest, masks can slow down the spread of COVID-19. As such, requiring masks in the District weighs in favor of the public interest because it will help to slow the spread of COVID-19 ….