On February 7, 2022, a federal judge ruled that Perkiomen Valley School District must continue to enforce their mandatory masking policy, holding that to end the mandate would violate the Americans with Disabilities Act by putting immunocompromised students at risk.
The action was brought by children with disabilities and their parents, on behalf of themselves and similarly situated children, in response to the Perkiomen Valley School Board’s recent decision to move from universal indoor masking to an optional masking policy.
Following the Perkiomen Valley School Board vote to make face coverings optional, Plaintiffs filed a complaint alleging violations of the Americans with Disabilities Act (the “ADA”) and Section 504 of the Rehabilitation Act of 1973. A Temporary Restraining Order was granted requiring masks in all Perkiomen school buildings and at all activities, set to expire on February 8, 2022. Following a hearing, the Plaintiff’s Motion for Preliminary Injunction was granted, requiring Perkiomen Valley School District to enforce a mandatory masking policy.
Perkiomen Valley School District argued that Plaintiffs were required – and did not – exhaust their administrative remedies under the exhaustion provision of the Individuals with Disabilities Education Act (the “IDEA”). The court noted the core guarantee of the IDEA is a free appropriate public education (“FAPE”), and under the IDEA, an individual education program (“IEP”) serves as the primary vehicle for providing each child with the guaranteed FAPE. The goal of the IDEA is to provide each child with meaningful access to education by offering individualized instruction and related services appropriate to a student’s specific or unique needs. The primary goal of the ADA and Section 504 is to root out disability-based discrimination, enabling each cover person to participate equally to all others in public facilities and federally funded programs. While there is an exhaustion provision under the IDEA, neither the ADA nor Section 504 require an individual to exhaust all administrative remedies before bringing a complaint.
To determine whether exhaustion is required, the following questions must be asked: (1) whether a plaintiff could have brought the same claim if the alleged conduct had occurred at a public facility that was not a school, and (2) could an adult at the school, i.e., a visitor or employee, have brought the same grievance? If the answer to those questions is yes, then is likely the suit follows under the ADA or Section 504 rather than the IDEA. Fry v. Napoleon Cmty. Sch., 137 S.Ct. 743, 756 (2017).
In this case, the court reasoned the claims did not center on the quality of the education being provided, but rather inadequate access to the education being provided.
The court held there is no need for Plaintiffs to have exhausted any administrative remedies because this case concerns accessing the facility rather than accessing the curriculum. In the alternative, if these claims were governed by the IDEA, exhaustion of administrative remedied would likely be excused because it would be futile anyway.
Under the ADA or Section 504, a plaintiff must establish: (1) they are a qualified individual with a disability; (2) they will be excluded from participation in or denied the benefits of services, programs, or activities of the public entity, or subjected to discrimination by the public entity; and (3) that such exclusion, denial, or discrimination occurred by reason of his or her disability. Furgess v. Pa. Dept. of Corr., 933 F.3d 285, 288-89 (3d Cir. 2019); 42 U.S.C. § 12132.
Here, the defendants argue that the plaintiffs did not show they would be excluded from participation in or denied the benefits of services, programs, or activities of the school, or subjected to discrimination by the school. However, the court ruled the defendant’s optional masking policy prevents the Child-Plaintiffs from “meaningfully accessing” the benefits of in-person education at this time because they cannot attend school alongside their unmasked peers without incurring a real risk of serious illness or worse.
Further, the court noted that absent any evidence showing that returning to the mandatory masking policy would impose an undue burden or hardship on the defendants, its reinstatement constitutes a reasonable accommodation that will ensure the Child-Plaintiffs have meaningful access to in-person instruction and maintaining a universal indoor masking policy during school hours would not cause significant changes to the school’s current programs.
The federal court held the plaintiffs set forth enough evidence to show a likelihood of irreparable harm in the form of a heightened risk of serious illness and death, and an inability to access the benefits of their education. While the defendants argue that they have a strong interest in the deference of their own policy implementation, and that an injunction would prohibit them from exercising such decision-making authority, the court held the plaintiffs showed a likelihood of success on the merits, and the defendant’s interest in having authority over their policies does not override statutory requirements under the ADA and Section 504.
If an optional masking policy were executed under the current COVID-19 conditions, the court reasoned there would be two possible outcomes: (1) Plaintiffs could attend school remotely, while their peers attend in-person; or (2) Plaintiffs could attend school with their peers under a real risk of serious illness or worse. The court held under either scenario, there is a reasonable probability that the plaintiffs would suffer a disparate impact by reason of their disabilities, and an inability to access services in the most integrated setting appropriate to their needs.
In balancing the equities, the court noted that parents have a fundamental liberty interest in making decisions concerning the care, custody, and control of their children, and while a universal mask mandate interferes with such a liberty, it is notable that society already tolerates such restrictions in the name of public health, including early childhood immunizations.
Bottom Line for Schools
It is important for school board policies to show deference to apparent criteria or applicable guidelines from state and federal health agencies.
In making policies related to health and safety, schools are reminded of their special legal obligations to students with disabilities and the extent to which, if any, those policies may negatively impact access to education or the obligation to provide FAPE.
School Law Bullets are a publication of KingSpry’s Education Law Practice Group. This article is meant to be informational and does not constitute legal advice.