Authored by: Tracy Waller, Esq., MPH; With contribution by: Tiffany Banks, MSW, LCSW
Schools that do not require masking fail to meet the needs of children with disabilities
Based on the rise of the delta variant of COVID-19, and the increasing number of breakthrough infections, the Centers for Disease Control and Prevention (CDC) revised its masking guidance on July 27, 2021. The CDC continues to recommend that people ages 2 and older and those who are not fully vaccinated should wear a mask in indoor public places. In addition, the CDC guidance recommends that fully vaccinated people should wear a mask indoors in public in areas of substantial or high transmission.
In the U.S., the Pfizer-BioNTech vaccine is the only COVID-19 vaccine available to people ages 12 and older. On August 23, 2021, the Pfizer-BioNTech vaccine received full U.S. Food and Drug Administration (FDA) approval for protection against COVID-19 in people ages 16 and older.
But as the summer winds down and children return to school, those under 12 are still not eligible for any of the COVID-19 vaccines.
On July 18, 2021, the American Academy of Pediatrics (AAP) issued its “COVID-19 Guidance for Safe Schools” urging in-person learning because “[r]emote-learning highlighted inequities in education, was detrimental to the educational attainment of students of all ages, and exacerbated the mental health crisis among children and adolescents.” In its guidance, the AAP recommends universal masking in school for several reasons, including that “a significant portion of the student population is not eligible for vaccination” and to protect “unvaccinated students from COVID-19 and to reduce transmission.”
On August 5, 2021, the CDC issued guidance recommending “universal indoor masking by all students [ages 2 and older], staff, teachers, and visitors to K-12 schools, regardless of vaccination status.” The protective efficiency of masks is higher when worn by a virus spreader, highlighting the importance of universal masking.
Schools and Masking
Studies have indicated a reduction in SARS-CoV-2 (the virus that causes COVID-19) transmission with universal masking in schools. Despite mounting evidence and the CDC and AAP recommendations for universal masking in schools, the topic of masking in schools continues to be a polarizing one for parents and policymakers.
Florida Governor Ron DeSantis issued an executive order on July 30, 2021, seeking to ban mask mandates—and make masks optional for all Florida students. Under the order, school districts are prohibited from implementing mask mandates—if a school district does implement a mandate, the state will withhold state funds from that district on a monthly basis. On July 29, 2021, Texas Governor Greg Abbott issued an executive order prohibiting any county, city or school district from requiring or mandating face coverings.
According to EducationWeek, “[a]s of [August] 19, eight states had prohibited school districts from setting mask requirements. Fourteen states and the District of Columbia require masks be worn in schools.”
Despite these orders, mask requirements are largely being determined by the school districts. The Texas Education Agency said it would temporarily stop enforcing Governor Abbott’s ban on mask mandates, and the Supreme Court of Texas issued a ruling allowing school districts to require face coverings. Until the issues have been fully litigated, school districts in Texas can move forward with mask mandates.
Even with Governor DeSantis’ order, seven Florida school districts have required nearly all of their students to be masked in school.
Across the country, some school districts have chosen to move forward with mask mandates while others have not. That leaves many students at higher risk for contracting the COVID-19 virus. Children under 12 and children who are immunocompromised are especially vulnerable.
Every state and the District of Columbia has established, via state law, vaccine requirements and regulations for illnesses such as measles, polio, etc. for public school children. Through these vaccine requirements, school districts have created policies that prevent the spread of communicable diseases. Nonetheless, the topic of vaccine requirements and mask mandates to prevent COVID-19 has caused a ripple—and whether the states or state health departments can mandate either remains a fiercely divisive topic.
Violation of Rights
As lawsuits across the country begin to emerge and school districts waffle on masking requirements, parents with children who are immunocompromised worry about their children’s health and safety. Families across the country are wondering what rights they have to protect themselves.
A group of parents and their children with disabilities filed suit against the state of Florida on Friday, August 20, 2021, claiming Governor DeSantis’ ban on mask mandates in schools violates the Americans with Disabilities Act (ADA).
Americans with Disabilities Act
Under the ADA, “[a] public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.”
A mask mandate is a reasonable accommodation that does not “fundamentally alter” any school district’s ability to provide services, facilities, privileges, advantages, programs or activities to educate children in school. Because many children under age 12 are in school, and the delta variant has created breakthrough infections increasing pediatric hospitalizations, universal masking not only accommodates children with disabilities and their family members but also protects all children in school. There are no studies to support that masking traumatizes children.
The Individuals with Disabilities Education Act and Section 504 of the Rehabilitation Act
School districts across the country educate children eligible for Individuals with Disabilities Education Act (IDEA) and Section 504 services and children with underlying medical conditions.
In the 2019–2020 school year, 14% of students, or about 7.3 million children between the ages of 3 and 21, received special education and related services under IDEA in public schools.
Under IDEA, children with disabilities are guaranteed a “free appropriate public education” in the “least restrictive environment.” Over 60% of students receiving IDEA services spend 80% or more of their time within their school in general education classrooms.
Under Section 504, “[n]o otherwise qualified individual with a disability in the United States … shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
If school districts fail to mandate masking, immunocompromised students with disabilities will be excluded from participation in public education because of COVID-19 infection concerns. Under both the IDEA and Section 504, schools have a responsibility to provide a free appropriate public education and to integrate students to the maximum extent possible. By not requiring masking, schools will have failed to meet the needs of qualified children with disabilities.
If complete integration is not possible, then under IDEA, schools must provide a substantially equal educational opportunity. Over the last 18 months, many schools have provided students with online or at-home learning. On Friday, August 20, 2021, the Florida Board of Education approved the use of private school vouchers for children who choose not to wear a mask. However, online education and forcing children out of public school is neither “appropriate” nor “equal.” Additionally, many school districts may not have virtual programs available to students on a modified curriculum.
The AAP expressed concerns for the mental health of children isolated during the COVID-19 pandemic. By not requiring universal masking, some parents will be forced to choose between a free public education and their child’s safety.
Children from underrepresented groups are disproportionately affected by the failure to mandate masking. More children from underrepresented racial and ethnic backgrounds are identified as having a disability than are children who are white, highlighting the racial and ethnic inequities of the current policy concern. Children living in poverty are also more likely to have a disability than their peers are, highlighting the socioeconomic inequity of the current policy concerns as well.
Some immunocompromised children may not receive special education and related services. In the 2019–2020 school year, about 1.09 million children ages 3 through 21 were identified as having an “other health impairment,” a federal eligibility category that includes chronic illnesses such as asthma, leukemia and other immunosuppressed conditions that put children at higher risk for developing COVID-19 complications. In 2020, 1,774 children under the age of 17 were organ transplant recipients. Studies have shown that transplant recipients do not develop the same level of antibodies from COVID-19 vaccination as do people who are not transplant recipients. These immunocompromised children may not fall under protections from the IDEA and Section 504, but schools are still required to reasonably accommodate them under the ADA.
Failing to mandate masking is a violation of the ADA, the IDEA and Section 504 of the Rehabilitation Act.
Many children reside in homes with immunocompromised parents, grandparents or siblings. In 2012, 7 million grandparents reported living with at least one grandchild, and 2.7 million reported raising their grandchildren. Four percent of these grandparents were over the age of 80.
Additionally, many children have siblings who are immunocompromised. If the only option for in-person learning for these healthy children is to attend school with unmasked children, families may be forced to choose between sending their healthy children to school and risking their immunocompromised children’s health, and keeping their healthy children at home to protect the health of their immunocompromised children. Universal masking in K-12 public school buildings has the potential to create an equitable, accessible learning environment for all children and their families.
- School mask mandates are essential to decrease the spread of COVID-19 in schools.
- Mask mandates help to protect children under 12 who are currently not able to receive the COVID-19 vaccine.
- Masking helps to protect immunocompromised children and their families.
 It should be noted that while the CDC also recommended improving ventilation, the authors of this blog acknowledge that not all schools and school districts are able to afford new or improved ventilation systems. Further, the lack of proper ventilation disproportionately affects lower-income school districts. However, the focus of this blog post is on the importance of masking to reduce the transmission of SARS-CoV-2.
 Although some studies have demonstrated that masks are not 100% effective, masks do reduce the risk of transmission. In this study, the use of cotton masks led to a 20–40% reduction in SARS-CoV-2 virus uptake compared to no mask, and N95 masks led to a 80–90% reduction in virus uptake. However, when a mask was attached to the virus spreader, cotton and surgical masks blocked more than 50% of the virus transmission, and N95 masks showed considerable protective efficacy.
 The studies include masking in addition to other mitigation strategies (hand hygiene, social distancing, etc.) in the reduction of transmission of SARS-CoV-2.
 28 CFR §35.130 (b)(7)(i)