The attorneys argued their case before a U.S. District Court judge on Monday in a case that could temporarily block SB 739 and allow the return of mask mandates in certain situations inside Virginia public schools.
Last month, parents of 11 students with disabilities — including a public school student in the city of Manassas — asked a federal judge to grant a temporary injunction blocking the implementation of SB 739 and Governor’s Executive Order 2. Glenn Youngkin, who effectively ended school-wide mask mandates. from March 1.
To do so, the parents are suing Youngkin and a number of other state officials, but are not suing local school divisions themselves. Ahead of Monday’s hearing, the Fairfax County School Board submitted a brief in support of the plaintiffs, calling the state law unconstitutional.
On Monday afternoon, Judge Norman Moon of the U.S. District Court in West Virginia heard oral argument in the case, saying he would try to get a decision quickly. Representing the parents, Eve Hill told Judge Moon that the plaintiffs’ case was not an attempt to reinstate universal mask mandates in Virginia public schools.
Hill said the new law — which was passed by the General Assembly in February — and Youngkin’s order violated the Americans with Disabilities Act, which requires schools to make reasonable accommodations for students with disabilities to allow public education.
For students like Jack Nelson, a 10-year-old at Jennie Dean Elementary in Manassas with cystic fibrosis (a condition that can interfere with breathing and make patients especially susceptible to lung infections), that could mean an individualized plan requiring classmates to wear masks while in the same classroom or other mitigation strategies like social distancing, according to Hill.
“[Plaintiffs] seek not to be denied reasonable modification of a mask requirement to the extent that a student with a disability needs their peers to be masked to be safe at school. The mask requirement for any given student will vary,” Hill told the court Monday afternoon. “For Jack’s situation, only one classroom will need to be masked as he stays in the same class with his peers all day – and only until COVID transmission rates in the district are low.
A recent National Institutes of Health study found that more than 10% of patients with cystic fibrosis require intensive care within one month of a COVID diagnosis, but the study was conducted before vaccines were rolled out.
Hill said school divisions have their hands tied by the new Senate bill, which bans any type of mandatory masking inside public schools. In turn, Jack and other students had to stay home on the advice of their doctors, depriving them of the public education they are entitled to by law. Their schools either said they couldn’t implement an individualized masking plan or didn’t respond, according to Hill. MCPS declined to comment.
“The state has an obligation under the ADA not to exclude students with disabilities and to reasonably modify policies as necessary to allow access for students with disabilities. SB739 and Executive Order 2 are state laws, and if they conflict with federal law, they must give way,” Hill said.
But Moon probed a number of Hill’s claims, at one point asking if every school in the state with a student at high risk of serious illness from COVID-19 could require masks for their classmates. Hill responded that masking would only be required to the extent it was necessary to protect the student, such as in his classroom.
Virginia Solicitor General Andrew Ferguson, advocating for the state, pushed back on multiple fronts. For starters, he said, Youngkin and Attorney General Jason Miyares strongly support the rights of students with disabilities to access public education. But, he told the court, the plaintiffs were suing the wrong side. If schools do not respond to or implement federally mandated plans for students with disabilities, parents must take action against their local school divisions for violating the ADA.
He further argued that even with the ban on mandatory masking in Virginia public schools, there were a number of other reasonable accommodations available to schools and parents to keep their students safe.
“That can include vaccination, social distancing, better isolation…providing high-quality masks to students with disabilities,” Ferguson said.
He also pointed to evolving federal COVID guidelines, including the recent change in Centers for Disease Control guidelines that dropped the recommendation for indoor mask mandates in most of Virginia.
“Even the President of the State of the Union celebrated the end of universal masking in his speech,” he said.
Finally, Ferguson argued that an injunction in this case would cause hardship and confusion following the recent change in most school divisions to optional mask policies, while still likely not winning parents the remedy that they were looking at with rapidly declining case rates across Virginia.
“I think it’s just unbelievable to claim that school divisions would now follow the same policies they originally adopted a year ago. If, however, the court decides that it has jurisdiction … then the question is whether forcibly masking plaintiffs’ classmates universally and indefinitely is the only reasonable accommodation that could possibly satisfy the requirements of the ADA,” Ferguson said. “The answer to that question is no.”
Last month, an Arlington County Circuit Court judge granted seven school boards an injunction against Youngkin’s executive order on the grounds that it contradicted a 2021 state law passed by the General Assembly. . The move prompted majorities in both houses of the General Assembly to pass SB 739, removing all mask mandates in schools by March 1 and rendering the Arlington case obsolete.
Concluding on Monday, Moon told the parties that he would try to come to a decision quickly.