RICHMOND, Va. (WRIC) — Following a lawsuit from Virginia parents of children with disabilities, a settlement has been reached, deeming peer masking in Virginia public schools a reasonable modification for students with disabilities at risk of COVID-19.
In February 2022, a lawsuit was filed against Gov. Glenn Youngkin’s Executive Order 2 and Senate Bill 739 — which prevented school districts from being able to require community masking from students as a COVID-19 preventative measure — in an attempt to get a permanent injunction to lift the order.
The plaintiff parents and their legal representation argued that the mask mandate ban was exclusionary to Virginia public school students with disabilities, including cancer, cystic fibrosis, moderate to severe asthma, Down syndrome, lung conditions and weakened immune systems, and made it unsafe for them to learn.
The American Civil Liberties Union (ACLU) — a nonprofit organization representing the parents — said that the settlement clarifies that schools are required, under federal disability law, to protect children with disabilities by requiring peer and teacher masking, regardless of Executive Order 2 and Senate Bill 739.
“This settlement is a step toward righting a wrong,” said Tasha Nelson, a plaintiff parent in the settlement. “Children like mine should not be told they cannot participate safely in school or that they have to be segregated. They have a right to the same education as every other child. As adults, it’s our responsibility to make sure that we include everyone in our decisions and come up with solutions that provide equity in school.”
According to the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, public schools cannot exclude students with disabilities and are required to provide reasonable modifications to policies, practices and procedures to give students with disabilities equal opportunities in public education.
“The law and the guidance from the Virginia Department of Education ensure that students with disabilities throughout Virginia can attend school safely,” said Kaitlin Banner of the Washington Lawyers’ Committee, another representative of the parents in the lawsuit.
Should the settlement be accepted by the court, it will go into effect immediately and remain in effect as long as each of the plaintiff students attends a Virginia public school. Non-public schools in Virginia will not be affected.
