As the COVID-19 pandemic enters its third year, school and district leaders are facing a fresh set of challenges with mask mandates evaporating across the country. Now they must figure out other ways to protect medically vulnerable students, a high-wire act that requires great delicacy and carries a huge price tag鈥攍egally and medically鈥攊f they err.
Only two weeks after the U.S. Centers for Disease Control and Prevention relaxed its school masking rules, and as nearly every state is dropping its own face-covering requirements, many school districts are offering children two options: attend in person and mask if you wish, or learn virtually. Fewer and fewer schools are requiring others to mask to protect medically vulnerable children.
鈥淢ost districts right now seem to be saying, 鈥榃e鈥檙e free of the onus of masking, and good luck to anybody who still needs it,鈥欌�� said Ken Behrend, an attorney who represents several Pennsylvania families that successfully sued their schools for universal masking rules to protect their students, who have medical conditions that boost their risk of complications from COVID-19.
Legal and medical experts caution mask-optional districts against relying too heavily on virtual learning or voluntary masking as the only protections for students whose disabilities or medical conditions make COVID-19 a particularly threatening disease. They note that many children can鈥檛 wear masks, or produce insufficient antibodies from vaccines, because of their medical conditions. Additionally, a subject many people to increased risks from COVID-19.
Federal laws such as the , of the Rehabilitation Act of 1973, and the require districts to provide 鈥渞easonable accommodations鈥� and a 鈥渇ree and appropriate public education鈥� for students with a wide range of disabilities. Legal experts said that districts may need to consider a suite of protections for such students, including, in some cases, requiring some people to mask around them.
鈥淚t can鈥檛 just be, 鈥楽chool is back to normal, and if that doesn鈥檛 work for these kids, they can learn at home,鈥欌�� said Dr. Sara Bode, a pediatrician who is the chair-elect of the American Academy of Pediatrics鈥� Council on School Health.
鈥淚t has to be, 鈥業 have kids at higher risk, so what additional mitigation measures can I use to ensure they鈥檙e safe?鈥� 鈥�
Using the now-familiar list of standard mitigation measures鈥攙accination, frequent COVID testing, social distancing, hand-washing and improving air quality鈥攃an also play a part in keeping at-risk students safe, she said. Bode encouraged district and school leaders to reach out to families, asking if there are any health conditions that warrant additional safety measures. Conversations can then begin with them and their doctors to find solutions, Bode said.
That outreach should go beyond a school鈥檚 roster of students who have individualized education programs under the IDEA or Section 504, she said. Many additional children might need safety plans because they have conditions such as serious asthma, or they have at-risk families members at home.
For school districts, these carefully customized plans pose yet another challenge in a two-year period that鈥檚 been tougher than any in recent memory.
鈥楬oping we鈥檙e on the right side of the law鈥�
Ken Greene, the assistant superintendent for student services in the Barrow County school district, in Winder, Ga., said his district isn鈥檛 offering virtual learning to most students, so he鈥檚 working on in-person solutions for at-risk students.
He鈥檚 updating the district鈥檚 inventory of children with disabilities and other medical conditions that might put them at risk, and working with families to come up with solutions. His district is mask-optional, but Greene said he鈥檇 be willing to consider requiring small groups of staff or students to mask around a particularly vulnerable colleague or peer.
鈥淲e鈥檙e trying to be sensitive to students and staff and meet needs in ways that seem reasonable, and hoping we鈥檙e on the right side of the law,鈥� he said.
In the Willis Independent school district, 50 miles north of Houston, Superintendent Tim Harkrider said he doesn鈥檛 see required masking as an option, even if it鈥檚 applied to just a few people. Texas doesn鈥檛 allow it鈥攁lthough an imminent court ruling could change that鈥攁nd his school community wouldn鈥檛 tolerate it, he said.
鈥淲hat it boils down to,鈥� he said, 鈥渋s what can you offer a child with a disability in a regular setting without infringing on other people鈥檚 desire not to wear masks? It鈥檚 a gray area that sits there, and no one wants to touch it.鈥�
- Reach out to families now to ask about children鈥檚 medical conditions
- Aim for individualized safety plans
- Don鈥檛 rely exclusively on virtual learning
- Prioritize keeping children in classrooms
- Use multiple safety strategies
- Don鈥檛 rule out limited masking as one piece of the solution
Lawyers who often represent school districts, and those who specialize in the rights of students with disabilities, caution that drawing a clear line in the sand over limited masking could backfire on districts.
Mark Bresee, whose California law firm represents 500 school districts in the state, including San Diego Unified in its bid to defend its vaccine requirement, said districts likely have 鈥渁 very high bar to clear鈥� if they argue that medically at-risk students have only two options: schools that are mask-optional or virtual.
There鈥檚 precedent for protections that are shouldered by a group, not just an at-risk individual, Bresee said. If a child has a peanut allergy, 鈥測ou can鈥檛 just say, 鈥榊ou assume the risk, no one has to modify their behavior in any way to aid in protecting you,鈥� 鈥� he said.
But there鈥檚 also a limit to what parents can demand, and districts have the right to claim that some accommodations pose an undue hardship, Bresee said. Federal law envisions individualized solutions, reached through compromise, he said.
Adam Wasserman, a California lawyer specializing in disability-rights cases, advised districts to think carefully about discrimination claims that could arise from making virtual learning the only option to mask-optional in-person schooling.
鈥淲e have to be careful when we start removing clusters of students and putting them in their own spaces,鈥� he said. 鈥淲e know separate is not equal.鈥�
In Wasserman鈥檚 view, reasonable accommodations could include districts enhancing online instruction with 1-to-1 aides. But they should focus on keeping children in classrooms, using mitigation strategies like improved air quality and hand-washing to boost safety. Requiring others to mask around certain students, he said, 鈥渃ould also be considered a reasonable accommodation.鈥�
Districts edge onto difficult legal terrain
Behrend said districts must recognize that the CDC鈥檚 guidance doesn鈥檛 align perfectly with federal laws鈥� required protections for medically at-risk students.
鈥淭he idea that it鈥檚 just up to the kid and their parents to make sure a kid masks, that falls in line with the new CDC guidance, but it ignores ADA [Americans with Disabilities Act] requirements,鈥� he said. 鈥淭his could get districts into trouble if they鈥檙e not mindful of it.鈥�
Even with a flurry of lawsuits over masking and vaccine requirements, the law is not entirely clear yet on the question of just what districts must do to protect vulnerable students if masks are optional, lawyers told EdWeek.
They noted the differing messages emanating from two closely-watched cases.
In Texas, a three-judge panel of the 5th U.S. Circuit Court of Appeals dissolved a lower-court order halting Gov. Greg Abbott鈥檚 ban on local mask mandates. In its unanimous December suggested that students with disabilities could find sufficient protection in measures such as good ventilation, voluntary masking, distancing, plexiglass dividers, and vaccinations.
But the , in an Iowa case, that parents would probably win on their argument that mask requirements are a reasonable accommodation for students with disabilities. Gov. Kim Reynolds鈥� ban on mask mandates, it said, shouldn鈥檛 be interpreted to mean that masks can鈥檛 be required when they鈥檙e needed to protect such students.
