Running on a platform tweaked to align with Virginian values, businessman Glenn Youngkin beat out his competitor by about two percentage points to take the governorship last November. Upon inauguration, one of the first things on Youngkin’s agenda was nixing mask mandates in Virginia schools.
Unsurprisingly, ending the statewide mask mandate—while also forbidding districts to institute local policies—was not welcome news to parents of children with disabilities, many of whom are immunocompromised and vulnerable to COVID infection plus vulnerable to a more intense bout of COVID if contracted.
A group of these parents has joined forces with lawyers from the ACLU to file suit against Gov. Youngkin and the executive order that ended the statewide school mask mandate, an order that leaves the decision to mask or not up to individual parents.
Youngkin’s order and the ADA
The ACLU suit argues that Youngkin’s executive order violates the rights of students with disabilities to have equal access to public education under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act. In removing schools' abilities to institute mask mandates according to student needs, the lawsuit states, the executive action functionally segregates students with disabilities from their peers and denies them an equal education.
The complaint states:
"Executive Order 2 is a blanket ban on school districts requiring universal mask use. It provides for no exceptions. It applies regardless of how narrow a mask mandate is (e.g., requiring masks only when students are in classrooms, cafeterias, and other group spaces). It does not recognize that universal mask use may be necessary to protect some children.”
The suit was filed in U.S. District Court on Tuesday, February 2nd, 2022, by the ACLU of Virginia along with the Washington Lawyers' Committee, Brown Goldstein & Levy, the disAbility Law Center of Virginia, and Arnold & Porter on behalf of over a dozen families whose children have disabilities such as cancer, cystic fibrosis, asthma, Down syndrome, lung conditions, organ and blood stem cell transplants, and weakened immune systems, all conditions the CDC define as at high risk for COVID infection.
In interviews with WAMU, attorneys involved in the case noted that the most troubling thing about Youngkin’s order is that it provides no exceptions and no guidance for considering the health of compromised students. Eve Hill, a lawyer from Brown Goldstein & Levy, stated "the thing that's significant to me is that there are no exceptions in Governor Youngkin's executive order. It doesn't provide an exception for students with disabilities that you need to accommodate. It doesn't let school districts take into account local conditions. It doesn't take into account that school districts might invoke limited mask mandates."
Parents struggle with an impossible choice
Without mask mandates in place or any guidance to address the needs of students vulnerable to infection, parents of those students may be left with only one option: take their children out of school or risk their life or an intense bout of COVID that could exacerbate existing health problems. When children are forced out of school, they are by definition not receiving “equal access” to education. As the deputy legal director at Washington Lawyers’ Committee says, "this is exactly the kind of discrimination that the Americans with Disabilities Act is supposed to protect. Public schools cannot exclude students with disabilities."
As parents with vulnerable children weigh the costs of in-person classes, it’s important to point out that for many students with disabilities, some of the educational services they need are nearly impossible to receive virtually, making virtual and even hybrid schooling difficult for them. For this reason, even a virtual or hybrid option still doesn’t fulfill the promise of equal access to education under the ADA.
Another issue that was weighing on the minds of parents on the lead-up to filing the lawsuit was hospital bed availability. During local surges of infection, hospital beds will fill up and COVID patients will require much of the medical staff’s time and resources. In such conditions, if an immunocompromised or vulnerable child needs hospitalization due only to their existing condition not related to COVID, finding space for them may prove difficult with so much space and resources going to COVID patients.
The role that masks play in preventing infection and stopping the spread is not small, and masking in schools where many individuals mix with each other on a daily basis would lead to significantly fewer COVID hospitalizations and thus more space and resources for people with other conditions who require hospitalization.
Trust the experts
Mask mandates in schools are still recommended by the CDC and the American Academy of Pediatrics to help reduce COVID-19 infections and prevent spread, along with sanitation, distancing, and other mitigation measures. But Youngkin through his executive order indicates that he believes that the CDC recommendations are inaccurate and that the omicron variant is “mild” and thus the prohibitive burdens of requiring masks are not outweighed by their successes in mitigating the spread of the virus.
As of now, the executive order is not being enforced by Virginia Attorney General Jason Miyares who is waiting for the court cases against it to be resolved.
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