Lawsuit challenges Youngkin masking order under federal disability rights law

A group of parents of students with disabilities — including several Northern Virginia families — has filed a lawsuit challenging Virginia Gov. Glenn Youngkin's controversial executive order ending the statewide school mask mandate in favor of parents choosing to mask or not mask their children.

The complaint argues that the order violates disabled students' right to access public education under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. The lawsuit represents a new line of legal reasoning against the order, which has two other legal challenges pending.

"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 complaint says.

Lawyers from the ACLU of Virginia, the Washington Lawyers' Committee, Brown Goldstein & Levy, the disAbility Law Center of Virginia, and Arnold & Porter filed the suit in U.S. District Court on Tuesday on behalf of more than 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 Centers for Disease Control and Prevention define as at high risk.

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.

"This is exactly the kind of discrimination that Americans with Disabilities Act is supposed to protect," says Kaitlin Banner, the deputy legal director at Washington Laywers' Committee. "Public schools cannot exclude students with disabilities."

"The thing that's significant to me is that there are no exceptions in Governor Youngkin's executive order," says Eve Hill, a lawyer with the firm Brown Goldstein & Levy. "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."

The CDC and the American Academy of Pediatrics recommend universal masking in schools, along with other pandemic mitigation measures, to reduce COVID-19 spread. The Youngkin executive order suggests the CDC advice is outdated, given the mildness of the omicron variant and the difficulty of getting kids to wear masks correctly for an entire school day. The order also questions some of the underlying scientific data backing up the CDC position. Given the changing pandemic situation, the order says, and the discomfort and possible developmental effects of masking children, parents should be able to choose to send their children to school without masks.

Another lawsuit filed Tuesday by three parents supports the governor's order, and argues that the Loudoun County School Board is in violation of the order by still requiring masking in schools.

But the plaintiffs in the lawsuit say allowing other parents to choose to unmask their children will present their families with a still more difficult choice: whether or not to send their high-risk child to school at all. Among the Virginia children who stand to be affected is Jack Nelson, 10, a Manassas City Public Schools student who has cystic fibrosis. Jack's mother, Tasha Nelson, is one of the plaintiffs in the case.

"I often explain to people that today is no different for us than April of 2020 was," Nelson says. "My kids still don't go anywhere but school, particularly during times of moderate to high transmission. If I want to take them to a park just to get them out of the house, we specifically go when it's raining or snowing or the weather is bad, and we drive around to find a park that nobody is at because nobody is going to be masked at the park, and we can't risk an exposure to somebody outside of our exposure risk bubble."

The people inside Jack's "exposure risk bubble" are his immediate family and the students in his classroom, who are currently masked. (Manassas City Schools has not complied with the executive order, instead keeping its mask mandate in place — at least for now.)

Though going back to school has felt precarious at times — Nelson remembers a morning when a school staff member rushed out to her car before Jack headed into the building to tell her about a recent COVID case that could have affected staff he interacts with on a daily basis — she feels being in person has been essential to Jack's learning experience. Some of the educational services he needs are nearly impossible to provide virtually, making virtual and even hybrid schooling difficult for him.

"He basically lost the whole year," Nelson says.

Nelson is in constant discussions with Jack's doctors at Johns Hopkins University, who have advised the family throughout the pandemic — at one point this fall even recommending that Jack leave in-person school and stay home when cases were especially high. Cystic fibrosis patients' lungs are especially vulnerable to infection, which puts them at extremely high risk of severe illness if they contract COVID-19. Nelson also notes that at times of significant community spread, such as the ongoing omicron surge, the scarcity of hospital beds and medical care can also have serious effects.

"We had to make decisions about what we could do based on the fact that even if he had a need for his disease, cystic fibrosis, the potential that he couldn't access the health care he would need was very, very great," she says.

When the executive order ending the school mask mandate came out last month, Nelson was shocked — and then decided to join the lawsuit.

"He's 10 years old and his governor is essentially telling him that he can't access school because he happened to be born with a disability," she says.

The previous two lawsuits — one brought by parents in Chesapeake, Virginia, and one brought by a group of school districts — challenge the executive order under state law and the Virginia constitution, not federal statutes.

"We're hopeful that those state law cases will resolve the issue in the way that lets our clients' kids back into school, but we can't count on that," Hill says. "We felt it was important to use all the tools that are available to make sure that all children are not left out."

Virginia Attorney General Jason Miyares has said he won't enforce the executive order until the court cases against it play out, but Hill says the legal team will be watching — and potentially taking action — if that changes. An Arlington County court will hear arguments for a temporary injunction to keep the order from taking effect. In the meantime, some of the local school districts defying the order and keeping their mask mandates are sending unmasked students home.

This story is from DCist.com, the local news site of WAMU.