RICHMOND, Va. - Parents of children who have disabilities filed a federal lawsuitMonday challenging Gov. Glenn Youngkin’s Executive Order Two, which gives parents of students attending Virginia public schools the choice for their children to opt out of wearing masks in school,the American Civil Liberties Union of Virginia announced.
The order was issued despite the U.S. Centers for Disease Control and Prevention (CDC) guidance that “recommends indoor masking for all individuals ages 2 years and older, including students, teachers, staff, and visitors, regardless of vaccination.”
“The Executive Order shows a reckless disregard for students with disabilities across Virginia,” said Kaitlin Banner, Deputy Legal Director, Washington Lawyers’ Committee. “The Order prevents schools from taking reasonable steps to make sure their students can go to school and enjoy the same educational experiences as their friends.” The Executive Order went into effect on January 24 and comes at a time when infection rates in Virginia for children are higher than ever.
According to the ACLU of Virginia, under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504), public schools cannot exclude students with disabilities, deny them equal access to their education or segregate them unnecessarily. They are also obligated to provide reasonable modifications to policies, practices and procedures to give students with disabilities an equal opportunity to benefit from their public education.
In this latest lawsuit, the plaintiffs are students whose disabilities make them particularly susceptible to severe illnesses if they contract COVID-19. These conditions include cancer, cystic fibrosis, moderate to severe asthma, Down syndrome, lung conditions and weakened immune systems.
The lawsuit argues that forcing schools to repeal their mask mandates effectively excludes these students from public schools, in violation of the ADA and Section 504.
“Children with serious medical conditions need to feel safe at school. Mask mandates allow them to access the educational services to which they are entitled," said Colleen Miller, Executive Director of the disAbility Law Center of Virginia.
The ACLU of Virginia says Executive Order 2 prohibits school districts from implementing reasonable modifications, like universal mask requirements, that these students need to attend school without risking their lives. The group says it also makes it impossible for schools to comply with their obligations under federal law, leaving parents of students with disabilities to make the untenable choice between their children’s education and their health and safety.
“By refusing to allow school districts to even consider whether to implement universal mask requirements as needed to protect the health and safety of the children they serve, the Governor’s order has placed unlawful barriers to educational access for students with disabilities,” said Eden Heilman, the ACLU of Virginia's legal director. “The governor is preventing some of the state’s most vulnerable children from returning to, or remaining in, public schools.”
The lawsuit is asking the court for a permanent injunction lifting Executive Order Two.
The parents are represented by the ACLU of Virginia, the Washington Lawyers’ Committee, Brown Goldstein & Levy, the disAbility Law Center of Virginia and Arnold & Porter.