Students with disabilities could sue their schools to require masks

The school year is upon us, and the mask wars have flared up again. School board meetings attract parents adamantly opposed to their children wearing masks as well as parents, pediatricians and public health experts who say that mask-wearing is crucial to keeping children safe and curbing the pandemic.

Educators face special challenges in those states - including Florida, Arizona, Texas and Iowa - where governments have barred state-funded schools, colleges and universities from requiring their students to wear masks in the classrooms.

While ordinances barring mask mandates are harmful to our community at large, they particularly hurt individuals with certain disabilities such as cancer or various forms of autoimmune diseases who are especially vulnerable to the coronavirus. Which raises a question: Could disability rights law offer a way to cut through the controversy - establishing a legal right for some students (and teachers) to receive the "accommodation" of being protected by masks in schools? We believe the answer is yes.

Section 504 of the Rehabilitation Act of 1973 protects qualified individuals with disabilities in federally funded institutions such as public schools, state universities and hospitals against discrimination. Similarly, Title II of the Americans With Disabilities Act protects the same population from discrimination in state and local government entities. The ADA's definition of disability discrimination includes the failure to make "reasonable modifications" in policies and practices, when such modifications are necessary to allow people with disabilities full participation in services, programs and activities. (Institutions do have some leeway to forgo changes to programs if they would fundamentally alter the nature of those programs.)

We believe that a modification requiring masks in class, to allow immunocompromised students to participate in school programs - particularly in districts that no longer offer remote options - meets the ADA's definition of a reasonable accommodation. In other contexts, the Supreme Court and the Justice Department have determined that schools have to allow service dogs into the classroom, and that colleges must accommodate students with food allergies, for instance by providing gluten-free food, to pick just two examples. Many accommodations change somewhat the nature of the educational experience for other children in the class; yet that in itself is not enough to render them unreasonable.

It seems unlikely that states could plausibly argue masks in the classroom - which would allow immunocompromised people to attend more safely - would fundamentally and negatively alter the nature of the educational experience. For one thing, mask-wearing in schools (and elsewhere) has been, and continues to be, widespread throughout this pandemic. For another, objectively, asking someone to wear a mask is just not that onerous.

It may seem obvious, but to gain protection under Section 504 or the ADA, one needs to have a disability, meaning a physical or mental impairment. This means that the ADA could not be used to protect students who are simply too young to be legally vaccinated - even though those students also may be at risk from unmasked students. It is tempting to try to extend the ADA to cover such students, but stretching the law beyond its proper use could create alienation and a backlash against the concept of disability rights. We fervently believe that all children deserve protection from the spread of communicable disease by simple means such as masking and distancing, but the ADA is not the appropriate legal method to provide this relief to all.

Still, we anticipate seeing a "curb cut" effect with mask mandates imposed to comply with the ADA. Just as simple accommodations such as curb cuts improve the lives of not just individuals with disabilities (notably wheelchair users) but for many other community members (such as parents with strollers or shoppers with carts), acts of inclusion can be beneficial for society at large. A mask mandate accommodation for one child with a disability could help a whole class of unvaccinated students, as well as the broader community.

Immunocompromised teachers could also request accommodations under the ADA. Title I of the ADA imposes an active duty on employers to provide reasonable accommodations to allow for equal opportunities for, and participation by, employees with disabilities. Furthermore, in 2019, a 2nd Circuit ruling clearly recognized that parents who care for children with disabilities are eligible for the legal protections of the law - meaning a teacher who has children with disabilities at home could seek an accommodation, requesting a mask-wearing policy for those who are in proximity to them to protect the other people in her family.

To determine whether an accommodation is reasonable and thus required under the ADA, a qualified employee with a disability needs to show that the accommodation is both necessary for the employee to do the job and that it is "reasonable on its face," meaning feasible for the employer to implement. An employer may be relieved of the duty to create an accommodation if it would create an "undue hardship" for the employer. To determine what constitutes an undue hardship, the law considers the nature and cost of the accommodation, the employer's financial resources, and the nature of the operation that the employer runs.

Does a mask mandate create an undue hardship for a school system? It's hard to imagine. The costs on families and schools are trivial and, again, the inconvenience on other students and employees is minimal.

How can a teacher or parent go about seeking this form of accommodation? The first step is to request that a school implement a mask-wearing requirement (for people in the vicinity of the individual who has a disability) as a form of disability accommodation. This request sets into a motion a process that includes the negotiation of accommodations. The school or employer may offer alternative accommodations and engage in a conversation with the individual about what exact changes are needed. If the school district ultimately says no to mask-wearing, the next step is to file a charge with the Equal Employment Opportunity Commission, which will then try to mediate. Only if this process fails can an employee turn to federal courts. (On the other hand, a student with disabilities who is not accommodated by their school can turn directly to federal courts.)

Based on our analysis, we believe that courts would be receptive to the claim that requiring people in proximity to students with disabilities and teachers to wear masks is required by the ADA; after all, the claim aligns with the law's goal of integrating people with disabilities into society. We also suspect that offering mask-wearing as a disability accommodation would be preferred by the courts to alternative and more restrictive accommodations such as resuming hybrid or remote options. Judges may note that organizations such as the Centers for Disease Control and Prevention and the American Academy of Pediatricians already recommend mask-wearing as a matter of course, underscoring the reasonableness of the request.

Protecting students and teachers who have disabilities would not fully resolve the conflicts over mask mandates, but it would be an important step forward. Doing so would also reflect the ideals of the ADA, helping to create a fully inclusive society that protects its most vulnerable.

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Doron Dorfman is an associate professor at Syracuse University College of Law. Mical Raz is Charles E. and Dale L. Phelps professor in public policy and health and associate professor of history and medicine at the University of Rochester and author of "What's Wrong with the Poor? Psychiatry, Race and the War on Poverty."

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