How do bans on masks hurt disabled students?
Featured Articles

Credit:
Β©ramirezom / Adobe Stock
How do bans on masks hurt disabled students?
Disabled students with certain morbidities are at higher risk of severe illness from COVID-19.
Claire Raj,Β University of South Carolina
As if back-to-school season werenβt stressful enough already amid a U.S.Β surge in the delta variant,Β bitter wrangling over school mask mandatesΒ has added to the fear and confusion for many students and parents.
Nine states β Arizona, Arkansas, Florida, Iowa, Oklahoma, South Carolina, Tennessee, Texas and Utah β have passed laws or issued executive orders that restrict local school districtsβ ability toΒ enact mask requirementsΒ in public schools.
Supporters of such actions tend to frame school masking as a question of parentsβ rights. Iowa Gov.Β Kim Reynolds characterizedΒ her state Legislatureβs action as βa law to support a parentβs right to decide whatβs best for their own children.β South Carolina Gov. Henry McMasterΒ has statedΒ that masks themselves inhibit studentsβ ability to learn.
However,Β parents in South Carolina,Β TexasΒ andΒ FloridaΒ have filedΒ class-action lawsuitsΒ that argue the bans on mask mandates violate the rights of disabled students.
As aΒ law professorΒ who specializes in special education law, I offer four answers to some questions parents might have about mask mandate bans and howΒ bans on masks hurts disabled students.
1. How do mask mandate bans discriminate against disabled students?
Two federal statutes, theΒ Americans with Disabilities ActΒ andΒ Section 504Β of the Rehabilitation Act of 1973, prohibit public schools from discriminating against disabled students.
Discrimination in this context means more than just treating disabled students differently from their non-disabled peers. Rather, both the ADA and Section 504 require schools to make reasonable modifications that are necessary to ensure equal access to public schools. Further, both laws prohibit schools from needlessly segregating disabled students into separate learning environments when they could participate in regular classrooms with appropriate supports.
Some disabled studentsΒ have underlying health conditionsΒ that make exposure to the coronavirus riskier. For these students, a case can be made that both Section 504 and the ADA require schools to require masks as a way to ensure equal access to a safe learning environment.
Read more:Β Should non-disabled actors play disabled characters?
2. What are βreasonable modificationsβ?
There is no bright-line rule setting the limits of what modifications β often referred to as βreasonable accommodationsβ β a school must provide to ensure equal access for students with disabilities. Thatβs because these decisions are highly individualized and based on studentsβ needs arising out of the impacts of their disability.
Certainly there are limits to what is considered βreasonable,β and schools are not required to undertake modifications that would fundamentally alter the nature of their programs or activities. However, the Department of EducationΒ has statedΒ that schools must ensure that learning environments are as safe for disabled students as they are for students without disabilities.
For example, in certain instances schools must offer allergen-free spaces such as nut-free classrooms when tasked with educating students with severe or life-threatening allergies to certain foods. Schools may have to take other precautions to ensure safe classrooms for students with severe allergies, such as wiping down tables frequently, installing or changing air filters, or running air-quality tests to ensure that a child with chemical or other allergen sensitivities can safely attend.
How do bans on masks hurt disabled students?CLICK TO TWEET
3. What has the federal government said?
On Aug. 30, 2021, the U.S. Department of Educationβs Office for Civil RightsΒ opened investigationsΒ into five states β Iowa, Oklahoma, South Carolina, Tennessee and Utah β to determine whether statewide prohibitions on mask mandates discriminate against disabled students. They declined to investigate the other four states β Florida, Texas, Arkansas and Arizona β because court orders or other state actions currently prevent the bans on universal indoor masking from being enforced in those states.
The Department of Education has not taken a position on whether prohibitions on mask requirements do, in fact, violate federal anti-discrimination laws. But the Office of Civil Rights will begin itsΒ investigative process, which may include interviews and site visits, and eventually issue its conclusions about whether these prohibitions violate federal law.
4. What happens next?
If the Office of Civil Rights determines that states are discriminating against disabled students, it may then negotiate agreements with individual states to bring them into compliance with federal laws. It could also refer its findings to the U.S. Department of Justice for prosecution, and in some cases withdraw federal funding. However, Education Secretary Miguel CardonaΒ has suggestedΒ that last scenario is unlikely.
Claire Raj, Associate Professor of Law,Β University of South Carolina

The Conversation
The Conversation is a network of not-for-profit media outlets that publish news stories written by academics and researchers.
Caption:
Bans on masks hurt disabled students by violating their rights to equal access to a safe learning environment.