Does the ADA Require Masks in School?

The latest question working its way through the courts is whether the Americans with Disabilities Act requires schools to institute masking rules in order to protect children with compromised immune systems. There is no doubt that immunocompromised people, including children, are at greater risk from COVID-19. The question is what is "reasonable accommodation" of that disability in the school context. Last week, two different judges in the same district reached differing conclusions.

In the first opinion, a judge for the Western District of Pennsylvania granted a temporary restraining order against the North Allegheny School District. That school district offered only online instruction for at-risk students. The court found that "the proffer of the cyber school accommodation fails to account for the impact to the immunocompromised students’ educational needs and potential family needs to assist their homebound children." The court noted that full development of the evidence might support a contrary opinion, but that such evidence was not possible at the early stage of obtaining a TRO:

This case and claims are better addressed following a period where the parties have conducted discovery and/or potentially undertaken the proper administrative routes. The prudent and practical approach, given the potential negative impacts on the putative Plaintiffs’ health and education, is that a reasonable period of maintaining the status quo is necessary.

Four days later, another judge in the same district denied a TRO against the Upper Saint Clair District. The second judge noted the earlier contrary opinion, but stated, "[W]ith both cases proceeding only on emergency motions thus far, it is impossible to determine with any degree of certainty how similar their facts, when fully developed, will be." The judge concluded that the plaintiffs, parents of medically-fragile students, had not demonstrated a likelihood of success on the merits:

There is no allegation, nor have facts been adduced, to suggest that any policy of the School Board prevents Plaintiffs' children from masking. They remain free to do so. Rather, they contend that, unless the School Board requires the entire school community to mask, it will subject them to an increased risk of COVID-19 infection, which could increase their chances of suffering a severe case. Their request for injunctive relief is premised on the position that universal masking is the only reasonable accommodation to which they are entitled under the ADA and the Rehabilitation Act.

The court then determined that universal masking is not a reasonable accommodation. It cited the school's other safety measures, including including physical distancing, cleaning and ventilation, contact tracing, diagnostic and screening testing, and efforts to provide vaccinations to school communities. It noted that the plaintiff's request had no ending date, and that no one had ever sought a masking requirement for previous communicable diseases. "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." The court noted the fact that cloth masks might not be effective and that the plaintiffs did not require any more protective type of mask.

Finally, the court found that the plaintiffs' position undercut principles of democracy:

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.

These two cases offer a fascinating window into the opposing legal arguments on ADA accommodation. With differing opinions at the district level, the next step undoubtedly will be the appeals court, unless the Omicron and later variants prove to be sufficiently benign to make the controversy moot.