In response to state mandates prohibiting local school districts from implementing mask requirements in public K-12 schools, The Center for Learner Equity calls upon state leaders to reverse those decisions and allow districts and local authorities to implement policies that will afford safer, equal access to school for all students, including those with disabilities. These prohibitions are bad public policy and a violation of the federally guaranteed right to a free appropriate public education (FAPE) for students with disabilities under the Individuals with Disabilities Education Act. Likewise, these prohibitions constitute a denial of the protections guaranteed under Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act. In addition, we offer the following:
- Since March of 2020, schools across the country have been unable to provide in-person education to millions of students, including many with disabilities, due to school closures, health and safety concerns, and other impacts of COVID-19.
- As schools grapple with the impact of distance learning, appropriate safety protocols for in-person learning remain location-dependent, with vaccination rates, COVID-19 transmission rates, safety protocols, and other factors playing a role.
- During the 2020-21 school year, districts were empowered to develop safety measures that were appropriate in their communities, including mask requirements that included waivers for students whose individual circumstances made masking inappropriate.
- In fact, guidance on mask requirements provided by the U.S. Department of Education (ED) in September of 2020 highlighted the need for schools to balance safety concerns with the needs of students with disabilities whose circumstances made masking inappropriate. ED recognized that this balanced approach was necessary to “avoid discrimination on the basis of disability”.
- State-level blanket prohibitions against mask mandates deprive school districts of the power to make these necessary localized decisions, which are essential to protect public health while also ensuring that the rights of students with disabilities are upheld.
- These prohibitions discriminate against students who are unable to safely attend schools where reasonable masking policies are forbidden. In states where remote learning is an option, thousands of students with disabilities are being forced to choose between online learning, which has left them with little to no education or services or attending schools where the absence of a mask policy puts them at risk for hospitalization or even death. Where states also forbid remote instruction, students must either remove themselves from public education, voluntarily forfeiting their legal right to FAPE, or attend schools where they face significant risk of severe illness or even death.
- Locally developed masking policies can best strike an appropriate balance between public health needs and the best interests of students, allowing students with disabilities to access FAPE while also significantly mitigating the risk of COVID transmission and making in-person instruction safer.