Same Issue Leads To Opposite Decisions From Two Different Courts.

Two different courts and judges have come to different conclusions as to the masking of kids in school. Specifically, the issue is whether requiring masks on all children is a violation of the Americans with Disabilities Act (ADA) which requires places to make “reasonable accommodations” for those who have a disability. With COVID and masks, the question is whether the ADA forces all children to be masked in order to protect those with compromised immune systems or are immunodeficient.

From Judge Marilyn Horan’s opinion Monday in Doe 1 v. N. Allegheny School Dist.

The timing of this TRO motion has left this Court with limited options. School was set to resume tomorrow [Jan. 18] with a masking optional policy. The Court’s ability to conduct a full TRO analysis has been limited to the briefing and argument of the parties. This case and claims are better addressed following a period where the parties have conducted discovery and/or potentially undertaken the proper administrative routes. The prudent and practical approach, given the potential negative impacts on the putative Plaintiffs’ health and education, is that a reasonable period of maintaining the status quo is necessary.

At this stage, the School District has offered the accommodation of cyber school to students who are immunocompromised. The School Board’s proffer of the cyber school accommodation fails to account for the impact to the immunocompromised students’ educational needs and potential family needs to assist their homebound children. In addition to providing mask guidance and information on community spread, the CDC has also advised that “[s]tudents benefit from in-person learning, and safely returning to in-person instruction continues to be a priority.”

In weighing this accommodation, the Court finds, for purposes of this TRO only, that effecting a cyber school only option upon immunocompromised students when faced with optional masks versus burdening the District with students conducting universal masking is not a reasonable accommodation and such violates the spirit of the ADA as enacted by Congress. The School Board’s proffer of the cyber school accommodation fails to account for the impact to the immunocompromised students’ educational needs and potential family needs to assist their homebound children. The Court cannot say, at this stage, that such accommodation meets the protections provided for under the ADA and Section 504….

Both the ADA and Section 504 of the Rehabilitation Act require Plaintiffs to establish that: “(1) they are qualified individuals with a disability within the meaning of Section 504 of the Rehabilitation Act or ADA; (2) they will be excluded from participation in or denied benefits of such services, programs, or activities of the public entity; and (3) their exclusion, denial of benefits, or discrimination occurred by reason of their disability.” The ADA prohibits discrimination that includes “a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities.”

When a state entity, like a school board, fails to make reasonable modifications to its facilities and practices, a party may sue the school board by bringing a claim known as a failure to accommodate claim. A failure-to-accommodate claim differs from other ADA claims in that the plaintiff is not required to show that his injury was the result of purposeful discrimination….

For the purposes of their ADA and Section 504 claims, Plaintiffs and Defendants both agree that Plaintiffs are qualified individuals with disabilities. At the September 22, 2021 Board meeting, the Board reimplemented a mask mandate, based upon express criteria, one of which was a benchmark provision for universal masking based upon when the community transmission rate was at a rate of “substantial” or “high.” As of September 22, 2021, the Delta variant was circulating amongst the community with a community transmission rate of 513 cases per day and a 6.0% positivity rate. As a consequence, for the majority of the 2020-2021 and 2021-2022 school years to date, masks have been mandated within the District. Although wearing masks in the District has been inconvenient and controversial, this mask mandate status has been attained and maintained within the District without unreasonable expenditure or difficulty.

On December 8, 2021, despite the fact that the community transmission rate was measured at a positivity rate of 10.2% of a total of 3,277 infections for the week beginning December 5, 2021 and still within the “high” category, the Board voted to make masks optional within the District beginning January 18, 2022, conditioned upon whether the Pennsylvania Department of Health’s mask mandate was lifted and the Pennsylvania Supreme Court’s stay order was no longer in effect. As of December 10, 2021, the Pennsylvania Supreme Court vacated the Department of Health’s mask mandate. Thus, the mask optional policy would become effective in the District on January 18, 2022.

The December 8, 2021 Board action also removed the provision that masks were to be required to be worn within the District whenever the community transmission rate was within the “substantial” or “high” categories. The Board provided no explanation for why it decided to lift the mask mandate when the transmission rate was in a category of “high” or for why it removed the community transmission rate categories of “substantial” and “high” as benchmarks for when to require masking within the District.

Presently, since September 22, 2021, the Omicron variant has emerged. The Omicron variant is even more highly transmissible than the Delta variant. As such, the community transmission rate is currently at 3,500 infections per day and a 37.1% positive rate, which is six times higher than the positivity rate on September 22, 2021, when the Board reinstated the mask mandate and established criteria for when masks should be worn in the District based upon rates of community spread. The transmission classification remains at its highest category of “high.”

At this early stage in the litigation and with the little record yet developed, it is curious that, while the Board determined in September 2021 that mandating masks, based upon the transmission rate categories of “substantial” and “high,” was manageable, appropriate, and reasonable, but that in December 2021, when the transmission rates were increased and the category was still at a status of “high,” that the Board voted to eliminate the benchmark and make masks optional. Beyond December and in light of the proliferation of the Omicron variant, which has resulted in significantly increased numbers of infections within the population, with particular increases in infection rates for children, it is concerning that the District has not acted to reinstate the masking mandate and transmission rate categories to avoid the optional masking policy’s January 18, 2022 effective date.

Turning to the Plaintiffs in this case, Child Doe 1 is alleged to have medical conditions that can be classified as immunocompromised, which presents legitimate concerns and risks to health and life from COVID-19 exposure and infection. The Plaintiff has alleged that significant expert opinions exist within the medical and infectious disease fields to support that a layered approach, which includes vaccination, masking, quarantining, contract tracing, social distancing, and increased building ventilation are all required to effectively reduce the spread of COVID-19. It is the combination of these measures that make them effective and, without any one of them, individuals with disabilities, like Plaintiffs and those similarly situated, are at increased risk of contracting the virus and severe illness or death.

Plaintiffs allege that the increased risk of infection due to optional masking within the District creates a barrier to attending in-person classes with their non-immunocompromised peers. The Plaintiffs also allege that the District has failed to make reasonable accommodations for them to access educational services and has placed them at increased risk of physical harm. The Board has provided no explanation for whether it took into consideration any needed accommodations for disabled students in the District when it made the decision to lift the school mask mandate.

Plaintiffs, John and Jane Doe 1, make claims on behalf of Child Doe 1, as an immunocompromised student, plus claims for a class of similarly situated students. The record has not yet been developed to ascertain whether the asserted class will be qualified or have standing. However, at this stage the court will consider that Child Doe 1 is immunocompromised and that John and Jane Doe 1 on behalf of Child Doe 1 have sufficiently established a likelihood of success on their claim that the District’s optional masking policy has the effect of excluding Child Doe 1 from in-person attendance at public school or has otherwise denied Child Doe 1 the opportunity to participate in the in-person services of the District and that any such exclusion is based upon Child Doe 1’s disabilities.

In December, the District removed the benchmark that it had established and implemented for mask mandates when the community transmission category was “substantial” or “high.” Said benchmark and its implementation provided an effective and manageable accommodation to enable immunocompromised students to attend in-person classes with their non-disabled peers. In such circumstance, Plaintiffs have demonstrated a likelihood of success on the merits of their ADA and Section 504 claims based upon the failure of the District to provide a reasonable accommodation for immunocompromised students within the District….

The Court finds that Child Doe 1 is likely to suffer irreparable harm if such access to the District is denied on account of the District’s optional mask policy. The ADA and Section 504 of the Rehabilitation Act mandate that disabled plaintiffs must have equal access to opportunities using the least restrictive means possible. Denying immunocompromised Plaintiffs the opportunity to access educational opportunities in the District will cause the immunocompromised Plaintiffs to suffer irreparable harm.

Additionally, Plaintiffs’ Complaint and Brief in Support of the Temporary Restraining Order suggest that masking is part of the layered approach used to help slow the rate of transmission of COVID-19. The rate of transmission in the community has increased in recent weeks due to the spread of the Omicron variant. The optional masking policy increases risks to the health and wellbeing of the Plaintiffs and all students in the District. Further, immunocompromised students at higher risk are less able to safely attend classes in-person with an optional masking environment. In such circumstances, Plaintiffs have demonstrated a likelihood of establishing that they will suffer irreparable harm….

Students have been wearing masks in the District for the majority of the 2020, 2021, and 2022 school years to date. The mask mandate status has been attained and maintained within the District without unreasonable expenditure or difficulty. The Defendants cite no evidence in their Brief of how masks place an undue burden upon the District. As such, the District not will experience significant hardship if the District again requires the wearing of masks in school….

Additionally, and as Plaintiffs suggest in their Brief, wearing masks slows the transmission of COVID-19. As such, requiring masks in the District weighs in favor of the public interest because it will help to slow the spread of COVID-19 ….

So there you have it. Judge Horan says that schools can require masks in order to protect students under the ADA.

Judge William S. Stickman IV (W.D. Pa.) in Doe 1 v. Upper Saint Clair School Dist. disagrees:

Plaintiffs … allege that their children are “medically fragile disabled students” and that permitting families and students to choose whether to mask will subject them to increased risk of catching COVID-19 and increased risk of harm from the virus. They allege that, in light of their children’s medical conditions, the School Board’s decision to make masking optional violates both Title II of the Americans with Disabilities Act … and Section 504 of the Rehabilitation Act of 1973 ….

To be clear, Plaintiffs do not allege that the policy adopted by the School Board hinders their own child’s ability to wear a mask. Rather, they allege that, by permitting other students and families to choose whether to wear masks, the policy violates the cited statutes. Plaintiffs … [ask, in effect,] that, notwithstanding the vote of the School Board, universal masking would be ordered to remain in place for an indefinite period, provided that transmission of COVID-19 remains “substantial” or “high” in Allegheny County…. Their request for injunctive relief is premised on the position that universal masking is the only reasonable accommodation to which they are entitled under the ADA and the Rehabilitation Act….

There is no question that the School District has enacted a number of safety measures designed to curb the spread of COVID-19 [including physical distancing, cleaning and ventilation, contact tracing, diagnostic and screening testing, and efforts to provide vaccinations to school communities]…. Critically, the Plan also provides for the following “[a]ppropriate accommodations for students with disabilities with respect to health and safety policies”: “The School District will review additional mitigation options for staff members and students who are at higher risk for severe illness, including necessary accommodations under the ADA, Section 504, or the IDEA.” During argument, these provisions were referenced by counsel for Defendants, who explained that accommodations granted to students “who are at higher risk for severe illness” include a variety of measures, including distancing, special seating in classrooms and, if necessary, at-home instruction or virtual classes.

Despite those safety measures and possible accommodations, Plaintiffs take the position that the only reasonable accommodation appropriate in light of child Plaintiffs’ conditions is a requirement of universal masking in the School District … so long as transmission of COVID-19 in Allegheny County is at a “substantial” or “high” level.

Moreover, Plaintiffs’ request is without limitation on duration. While Plaintiffs’ counsel expressed hope that COVID-19 infection numbers fall beneath the “substantial” threshold this year, and suggested that the requested relief is limited to this year, there is no guarantee that will occur. Moreover, the specific relief requested by the TRO and proposed order would require masking indefinitely, so long as the number of cases is “substantial” or higher. (Tr. at 14-15) (“Since the science and the medicine tells us that a virus doesn’t go away by a deadline, we have to use a different metric. And the metric we’re doing is the one that medical professionals rely upon, and its that if the COVID transmission rate, per the CDC for Allegheny County only, is in the substantial or high basis, then masking should stay in place.”)….

With a population of 1.216 million, 607 cases per 7 days would be enough to bring Allegheny County into the “substantial” category. The CDC’s definitions were calibrated to the earlier Delta variant of COVID-19, rather than the significantly more transmissible Omicron variant, which currently accounts for nearly all new infections. With COVID-19 becoming endemic and with a much more transmissible variant, one wonders whether the numbers will ever be low enough to fall below the “substantial” category and/or whether each winter, as respiratory infections seasonally increase, the number will again increase to a level requiring masking under Plaintiffs’ position.

Plaintiffs seem to acknowledge that this could be an issue, and their counsel conceded that the CDC “may revise those guidelines. And if they revise them based upon the level of Omicron, they may up the number of transmissions so that the barometer they’re using makes it more flexible.”

While not alone dispositive, the unreasonableness of Plaintiffs’ position is highlighted by its unprecedented nature. Although immunocompromised children have always been present in our schools, and communicable diseases have always circulated, prior to COVID-19 there was never an argument for mandatory, indefinite, universal masking in schools-much less the argument that the failure of a school district to mandate universal masking constitutes a violation of federal law. Aside from cases addressing COVID-19, the Court was unable to locate a single case where a court held that a reasonable accommodation for an immunocompromised or otherwise vulnerable person was to require all other students and staff of a school, or constituents of an institution or community, to wear a mask or any other type of personal protective equipment.

The unreasonable nature of Plaintiffs’ position is further highlighted by the fact that, while it imposes an unprecedented requirement upon the School District—i.e., mandate universal masking of all students, faculty, and staff or violate the ADA and the Rehabilitation Act—it is not guaranteed to be effective. In other words, Plaintiffs may still become infected with COVID-19. It is common knowledge that wearing a mask is no guarantee against infection. Counsel for Defendants stated that, even with universal masking, the School District still had a number of cases since the onset of Omicron. Moreover, Plaintiffs’ request does not specify a particular type of mask—notwithstanding the fact that public health authorities have called into question the effectiveness of, for example, cloth masks against the Omicron variant.

For these reasons, the Court holds that Plaintiffs’ request for the indefinite imposition of universal masking will not be found to be a reasonable accommodation when the claims are finally decided on the merits. {See, e.g., L.E. v. Ragsdale (N.D. Ga. Oct. 15, 2021) (“While Plaintiffs may prefer a mask mandate and other stricter policies, Defendants are not required to provide Plaintiffs with their preferred accommodation. So long as Plaintiffs are offered meaningful access to education—and the Court finds that they have been—Defendants have adequately accommodated Plaintiffs and their disabilities.”).} …

The Court [also] holds that granting this TRO would risk imposing substantial harm upon the School District and that doing so would run contrary to the public interest. Specifically, the Court believes that granting the relief sought would risk upsetting the system of popular governance of schools that is an important part of our system of layered and answerable government.

The sole accommodation demanded by Plaintiffs would supersede the democratic vote of the School Board on an issue that elicits strong feelings not only from Plaintiffs, but also from other members of the public. Further, the legal theory proffered by Plaintiffs unduly amplifies the authority of CDC recommendations while, at the same time, severely curtailing the practical authority of the people, through their elected school directors, to make decisions on matters of prudential judgment.

Plaintiffs’ position if accepted, would essentially graft the recommendations of the CDC into the ADA and the Rehabilitation Act. And as a practical matter, elevating CDC recommendations to the level of law would serve to take many decisions relating to health policy and directly impacting citizens out of the hands of their elected representatives and put them into the hands of unknown and unanswerable CDC decisionmakers and unelected and unanswerable federal judges.

There is no question that COVID-19 has challenged every American institution. This Country will continue to face challenges that have scientific or technical considerations which are informed by experts within or outside of government. Governments at all levels would do well to weigh and consider the advice offered by those experts. However, in a democratic republic, the ultimate answer to the question of “who decides” must be the people through their elected and answerable representatives.

In this case, the Court believes that the entry of a TRO would damage the independence and authority of the School Board—the directly elected body entrusted by State law with setting policy for the School District. It would lead, in practical effect, to the elevation of CDC recommendations beyond their appropriate level of authority and to the exclusion of local, democratic authority over matters of prudential judgment. The Court holds that these considerations weigh in favor of a finding that entry of a TRO would be contrary to the public interest….

Oh how spiffy.

Two judges, in different courts in Western Pennsylvania, came to the opposite conclusion as to whether masks can be required in schools under the ADA.

It is always interesting to see how the same issue in the minds of the average person can be seen by different courts who see that issue from opposite sides of the same coin.

In the end, you end up with conflicting decisions that are as clear as mud.

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