Parents of children with disabilities in Virginia’s public schools filed a federal lawsuit challenging Governor Youngkin’s Executive Order 2, which provides that parents of students attending Virginia public schools can elect for their children to not be subjected to mask mandates in effect at the child’s school or educational program. This order was issued despite the Centers for Disease Control (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 went into effect on January 24 and comes at a time when infection rates in Virginia for children are higher than ever.
Under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, public schools cannot exclude students with disabilities, deny them equal access to their education, or segregate them unnecessarily, and they are obligated to provide reasonable modifications to policies, practices, and procedures to give students with disabilities an equal opportunity to benefit from their public education.
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 – all conditions the CDC has identified as risk factors for severe COVID-19 illness. The lawsuit argues the repeal of mask mandates effectively excludes these students from public schools, in violation of the Americans with Disabilities Act (ADA) and the Rehabilitation Act.
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 Order 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.
The lawsuit asks the court for a temporary restraining order and a permanent lifting of Executive Order 2.
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.