In Pennsylvania, one judge has ordered a school district to require students to wear masks, citing the federal disabilities-rights laws. Meanwhile, another judge in the same state has refused to require a school district to wear masks, ruling that federal law does not require schools to mandate masks. In Europe, many countries do not require young children to wear masks in school, even though Europe has disabilities-rights directives similar to American disabilities-rights laws. The Supreme Court has never ruled on this question.
Judge Marilyn Horan issued a temporary restraining order to a school system telling it to require students to wear masks, on January 16 in Doe 1 v. N. Allegheny School Dist. “It is the combination of these measures [vaccination, masking, quarantining, contract tracing, social distancing, and increased building ventilation] that make them effective and, without any one of them, individuals with disabilities … are at increased risk of contracting the virus and severe illness or death,” she wrote, adding:
Turning to the Plaintiffs in this case, Child Doe 1 is alleged to have medical conditions that can be classified as immunocompromised, which presents legitimate concerns and risks to health and life from COVID-19 exposure and infection. The Plaintiff has alleged that significant expert opinions exist within the medical and infectious disease fields to support that a layered approach, which includes vaccination, masking, quarantining, contract tracing, social distancing, and increased building ventilation are all required to effectively reduce the spread of COVID-19. It is the combination of these measures that make them effective and, without any one of them, individuals with disabilities, like Plaintiffs and those similarly situated, are at increased risk of contracting the virus and severe illness or 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…..immunocompromised students at higher risk are less able to safely attend classes in-person with an optional masking environment….requiring masks in the District weighs in favor of the public interest because it will help to slow the spread of COVID-19
Plaintiffs’ position if accepted, would essentially graft the recommendations of the CDC into the ADA and the Rehabilitation Act. And as a practical matter, elevating CDC recommendations to the level of law would serve to take many decisions relating to health policy and directly impacting citizens out of the hands of their elected representatives and put them into the hands of unknown and unanswerable CDC decisionmakers and unelected and unanswerable federal judges….
Although immunocompromised children have always been present in our schools, and communicable diseases have always circulated, prior to COVID-19 there was never an argument for mandatory, indefinite, universal masking in schools-much less the argument that the failure of a school district to mandate universal masking constitutes a violation of federal law. Aside from cases addressing COVID-19, the Court was unable to locate a single case where a court held that a reasonable accommodation for an immunocompromised or otherwise vulnerable person was to require all other students and staff of a school, or constituents of an institution or community, to wear a mask or any other type of personal protective equipment.
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. In other words, Plaintiffs may still become infected with COVID-19. It is common knowledge that wearing a mask is no guarantee against infection. Counsel for Defendants stated that, even with universal masking, the School District still had a number of cases since the onset of Omicron. 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.
In a case arising in Texas, the Fifth Circuit Court of Appeals suggested that mask-mandates are not required by the federal disabilities-rights laws, in a decision in December 2021 finding that the disabled plaintiffs in the case before it had not established a concrete or imminent injury from the abrogation of mask mandates. The former Education Department lawyer Hans Bader earlier argued that the lack of a mask mandate is not a sufficiently tangible injury to support a lawsuit under the Americans with Disabilities Act or the Rehabilitation Act. The New York Post reported:
“It’s massive federal overreaching,” says Hans Bader, a former senior attorney at the Competitive Enterprise Institute, who also has worked in the Education Department’s Office for Civil Rights. “The federal government essentially wants to dictate systemic changes to states’ school policies because of speculation [about] how those policies may affect disabled students in particular school districts….Bader says Cardona’s position is inconsistent with the relevant case law, which rejects discrimination claims based on speculative harms or parents’ voluntary decisions. “The health benefits of wearing masks are so modest that European countries don’t require young children to wear them,” he says, “so the failure to attend school is due to parental or student choice, not effectively compelled by school policy.”
The Fifth Circuit Court of Appeals later echoed this argument, suggesting in footnote 2 of its decision in favor of a Texas school district that the injury relied on by the challengers demanding mask mandates — the decision to stay home from school — is “self-inflicted” in the sense of being the product of their own choices, and thus probably not a reason to sue their school district.