Can parents of disabled students demand that school systems have mask mandates, because of a tiny alleged increase in health risks to such students absent a mask mandate? Liberal trial judges have said yes. But a federal appeals court has now said the answer is probably no, and that as a result, states can ban mask mandates in their school systems. That is a rejection of the Biden administration’s position.
(“Schools do not, in fact, appear to be major spreaders of COVID-19,” said Brown University Professor Emily Oster. Shutting schools actually increased COVID-19 deaths, according to researchers at the University of Edinburgh. There is “little evidence that schools have contributed meaningfully to community transmission,” according to the federal Centers for Disease Control.)
Reason Magazine reports on a recent ruling reinstating Texas’ ban on mask mandates, issued last week by a federal appeals court:
The U.S. Court of Appeals for the 5th Circuit last week temporarily restored Texas Gov. Greg Abbott’s ban on face mask mandates in public schools, signaling that it is skeptical of the argument that his executive order violates federal laws prohibiting discrimination against people with disabilities. The decision does not bode well for that argument, which Secretary of Education Miguel Cardona has embraced, suggesting that federal COVID-19 guidelines for K–12 schools are effectively mandatory.
In response to a lawsuit by the parents of seven students with various disabilities, U.S. District Judge Lee Yeakel last month enjoined Texas from enforcing GA-38, the July 29 order in which Abbott said “no governmental entity” may “require any person to wear a face covering.” Yeakel agreed that the order unlawfully forced the students to choose between staying home or risking COVID-19 infection by attending school. The 5th Circuit imposed a stay on Yeakel’s injunction pending appeal, saying the plaintiffs lacked standing, had failed to exhaust administrative remedies, and in any case probably could not succeed in arguing that the ban on face mask mandates amounted to illegal discrimination.
Because the seven students have disabilities that make them especially vulnerable to COVID-19, Yeakel concluded, they are entitled to accommodations addressing that risk. By taking mask requirements off the table, he said, Abbott’s order ran afoul of the Rehabilitation Act, which bans discrimination against people with disabilities in federally funded programs, and the Americans With Disabilities Act (ADA)…
The 5th Circuit is inclined to disagree, saying the plaintiffs “likely” failed to show…”any concrete, or actual or imminent, injury as a result of the enforcement of GA-38.”
The plaintiffs argued that Abbott’s order effectively deprives them of in-person instruction because that would entail unacceptable risks unless students and staff are required to wear masks. “Plaintiffs have not shown that they face such an ‘either/or’ choice as a result of GA-38, and the district court’s conclusion that they do was likely erroneous,” the 5th Circuit says. “The risks of contracting COVID-19 for these plaintiffs are certainly real, but the alleged injury to plaintiffs from the enforcement of GA-38 is, at this point, much more abstract. This is so because the binary choice envisioned by the district court—either stay home or catch COVID-19—is a false one: it wholly elides the various accommodations available to the plaintiffs (e.g., distancing, voluntary masking, class spacing, plexiglass, and vaccinations) to ensure a safer learning environment, regardless of GA-38’s prohibition of local mask mandates.”….
Another threshold requirement for the lawsuit is that the remedy sought by the plaintiffs actually would address the injury they claim. But in this case, the 5th Circuit notes, barring enforcement of the ban on mask requirements would not necessarily cause school districts to impose them, since that decision would be left to their discretion….
[Moreover] “Because IDEA likely applies,” the court says, “and because nothing in the record establishes that plaintiffs pursued any administrative remedies before filing suit, the district court likely lacked jurisdiction over their claims for this reason as well.”…
Even if the plaintiffs were able to satisfy these threshold requirements, the appeals court says, their ADA and Rehabilitation Act claims are dubious….Of the “various accommodations available to the plaintiffs” that the court mentions, vaccination, which is now approved for anyone 5 or older, is likely to be the most effective precaution, since it dramatically reduces the risk of life-threatening symptoms. Even if some of the plaintiffs are medically disqualified from vaccination or are apt to have less robust immune responses because of their preexisting conditions, vaccination of their fellow students would reduce the risk of in-school transmission….K–12 mask mandates are controversial in the United States and eschewed by many other developed countries. The evidence that the benefits of such policies outweigh the substantial burdens they impose is limited and equivocal.
Even without vaccination, COVID-19 cases among children and teenagers are typically mild and almost never fatal…The whole premise of this lawsuit, of course, is that children with certain disabilities face a higher-than-average risk of life-threatening COVID-19 symptoms. But even if their risk of death were 10 or 100 times as high, it would still be very, very small.
At bottom, then, the plaintiffs are demanding a safeguard of uncertain effectiveness to protect against a tiny risk, and they are arguing that federal law requires it. If so, lifting Abbott’s order would not simply leave masking policies to individual school districts, as Yeakel and Cardona imply. The threat of litigation would pressure local officials to impose mask mandates, whether or not they honestly think that policy makes sense.