The ACLU is suing South Carolina for leaving the question of masking in schools up to parents. Per the organization:
Disability rights groups and parents of children with disabilities filed a federal lawsuit today challenging a South Carolina law that bans school districts from imposing mask mandates in schools. The parents and disability rights groups represent students whose disability, including underlying health conditions, makes them particularly susceptible to severe illness from COVID-19, and argue that the ban on mask mandates effectively excludes these students from public schools, in violation of the Americans with Disabilities Act and the Rehabilitation Act.
“Prohibiting schools from taking reasonable steps to protect the health of their students forces parents to make an impossible choice: their child’s education or their child’s health,” said Susan Mizner, director of the ACLU’s Disability Rights Program. “This is a disability rights issue. Students with health conditions or disabilities that make them vulnerable to COVID have a right to attend school without endangering their health or safety. Schools who have children with these conditions have legal obligations under federal disability rights laws.”
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 in order to give students with disabilities an equal opportunity to benefit from their public education.
I don’t think the statutory case for the applicability of the ADA or Section 504 is strong. But, assume for a moment that it were. Why would it run in only one direction?
The case for, say, keeping peanuts out of schools is obvious: The presence of peanuts can kill certain children, whereas the absence of peanuts is a mere inconvenience to everyone else.
With masks, though, it’s more complicated than that. Some people with disabilities may indeed be hurt by the lack of a mask mandate. But others may be hurt by the presence of one. And one cannot accomodate one of those people without affecting the other.
On its website, the CDC acknowledges that any “person with a disability who cannot wear a mask, or cannot safely wear a mask, for reasons related to the disability” should be “exempt from the requirement to wear a mask.” Well, what happens when that disabled person meets the other disabled person who needs everybody to be wearing one? If “public schools cannot exclude students with disabilities, deny them equal access to their education, or segregate them unnecessarily,” that presumably works in both directions? And if it does, why would we automatically assume that the onus is in favor of, rather than against, a mandate?
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