RICHMOND, Va.— Today, the Commonwealth of Virginia affirmed that peer masking in Virginia public schools is a reasonable modification for students with disabilities that put them at severe risk if they contract COVID-19 as part of a settlement in the Seaman et al. vs. Commonwealth of Virginia et al. lawsuit.
Parents of 12 students with disabilities filed a federal lawsuit in February of this year challenging Governor Youngkin’s Executive Order 2 and Senate Bill 739, which stripped school districts of the ability to require community masking as a COVID-19 prevention measure. In March, the plaintiffs won a preliminary injunction allowing them to request and receive community masking accommodations under federal law.
Today’s settlement clarifies that schools must make accommodations under federal disability law if a child with a disability requires peer and teacher masking, regardless of the requirements of Executive Order 2 and Senate Bill 739. The settlement requires the Virginia Department of Education and the Superintendent of Public Instruction to send guidance to school districts and post that guidance on the COVID-19 Special Education Resources webpage.
“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, deputy legal director, Washington Lawyers’ Committee.
Tasha Nelson, a plaintiff parent reacted to the settlement by saying, “This pandemic has been hard on everyone. It’s been especially hard for medically complex children, children with disabilities, and those at high risk for COVID-19. This settlement is a step toward righting a wrong. 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.”
The settlement goes into effect immediately and remains in effect as long as any of the plaintiff students attend a Virginia public school.
“We’re hopeful that every school in Virginia will view this settlement as a sign that they should make similar accommodations for their students, even if they are not part of the case," said Eden Heilman, legal director of 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.
“Keeping students safe is a core tenet of every school in the Commonwealth, and we’re pleased to see the Youngkin administration recognize it as such with today’s settlement,” said Colleen Miller, executive director, disAbility Law Center.
The parents of the plaintiff students are represented by the ACLU of Virginia, the Washington Lawyers’ Committee, Brown, Goldstein & Levy, the disAbility Law Center of Virginia, and Arnold & Porter.
“We are proud to have stood up for these parents and their children for the right to equal access to school,” said Eve Hill, partner at Brown, Goldstein & Levy. “No school in Virginia should risk the life and health of students with disabilities by refusing to require masking when necessary.”