On Sept. 22, Florida's surgeon general instituted a rule that gives parents and legal guardians "sole discretion" over masking in schools. On Nov. 5, a judge sided with the state health department in a legal challenge to rule. On Nov. 18 Gov. DeSantis signed a bill that allows parents to sue school districts that require masks.
As the start of the school year approached, Julia Longoria felt like she was being forced to choose between her daughter’s physical health and the 3rd grader’s academic flourishing.
On the one hand, she feared health complications for 8-year-old Juliana, who has asthma, if she went to her San Antonio school with unmasked classmates during the COVID-19 pandemic. On the other, she feared another year of remote learning would further exacerbate the challenges posed by the 3rd grader’s attention-deficit/hyperactivity disorder.
“It shouldn’t be that we have to chose between her health and her education,” Longoria said. “Science says me wearing a mask protects you, and you wearing a mask protects me. I need you to wear a mask to protect my child.”
An executive order signed by Texas Gov. Greg Abbott, a Republican, in May prohibited Texas schools from setting a universal mask requirement, even as the more-contagious Delta variant of COVID-19 changed the calculus of risk for many families. Abbott, and GOP governors in other states, have argued that decisions about masking should be left to parents.
Longoria was relieved when the San Antonio school district, acting on an order from county officials, chose to defy the governor. But she fears for other children in other schools that didn’t make that choice. So she’s joined an effort to get the order, subject to a flurry of overlapping legal challenges, struck down for good.
Longoria is one of 14 parents who’ve jointly sued to overturn the state’s ban on behalf of their children, who have special health vulnerabilities that put them at higher risk for severe infections from COVID-19.
It’s part of a growing legal strategy adopted by parents around the country: the argument that such policies violate disability rights laws by making schools unsafe for their children. The U.S. Department of Education recently used the same justification to launch civil rights investigations into six of the nine states that tie local schools’ hands in a similar way.
Even in states that allow universal school mask requirements, many parents of children with disabilities and vulnerable immune systems say they’ve approached the return to school with fear. That’s especially true for parents of children under 12, who are too young to be vaccinated for COVID-19.
It shouldn’t be that we have to chose between her health and her education.
In some schools, children are ineligible for remote learning unless they have one of the targeted conditions designated by their district. Some parents of children with physical disabilities have no assurance that the paraprofessionals who work one-on-one with their children are vaccinated. And, as the dynamics of the pandemic keep shifting, even the thought of pulling off a mask to eat lunch can stoke concern.
“Those are things outside of our control,” Longoria said. Requiring students to wear masks “is within our control. I want us to just do everything that we can do to keep our kids safe. I don’t want to fight science.”
And, while health officials say children remain at lower risk for complications from COVID-19, such assurances aren’t comforting to parents who’ve navigated health challenges with their children, especially as they watch case numbers climb, she said.
Longoria has helped her daughter recover with a rescue inhaler on the sidelines of soccer games as Juliana gasped for air. The family is diligent about getting their children annual flu shots to reduce their risk of illness that could affect their lungs. And Longoria has hard memories of seeing one of her two younger children hospitalized for breathing problems unrelated to the coronavirus.
It was unthinkable to her that schools couldn’t set a policy she saw as key to protecting her child from a respiratory illness.
Parents of students with disabilities face tough choices
But, as Juliana prepared to enter 3rd grade, staying home for another year wasn’t an option either due to her ADHD and generalized anxiety.
Despite adjustments to her special education plan and the best efforts of her teachers, she had struggled through remote learning since her school first shut its doors in March 2020. Juliana experienced frequent panic attacks. She was overwhelmed by staring at a screen all day and sometimes dragged her computer into a closet to help focus. Longoria’s demanding work-from-home job made it difficult to help. She hired a remote tutor to help Juliana in the evenings, but she wanted her back in the classroom this fall.
As new information came out about the Delta variant in July and the Centers for Disease Control walked back its relaxed guidelines on masks in schools, Longoria expected the state to give schools the authority to set their own virus prevention strategies.
“I thought surely there will be a more logical response, a more responsible response,” Longoria said. “Not only was there not a response, there was this digging of heels happening, and I became terrified. I didn’t know what to do.”
Abbott’s executive order quickly got tangled up in litigation and has been subject to conflicting court orders about whether or not it should remain in place. Some schools in Texas went rogue, incorporating masks into their dress codes as a workaround, and they’ve faced legal challenges from the state’s attorney general as a result. Some, like San Antonio, openly defied Abbott’s order.
Juliana eventually returned to the classroom in August wearing a thick N95 mask, her mother comforted that her classmates would also be required to cover their faces.
San Antonio set its universal mask requirement Aug. 10, even as school boards around the state held marathon emotional public hearings on the issue, confronted by angry community members who downplayed the severity of the pandemic, spread misnformation, and called mask rules a violation of personal liberty.
San Antonio schools required masks to comply with an order from county officials that mandated masks indoors, including in schools. The district kept its mask rule in place, even after those local orders were put on hold by the state’s supreme court Aug. 26 in a lawsuit brought by the state. The district has also required staff vaccines, with some exemptions, in defiance of the governor.
“I think it’s sad because we should all be on the same side,” said San Antonio Superintendent Pedro Martinez, who was announced as the new CEO of Chicago Public Schools Wednesday, pending school board approval.
Parents’ concerns become a key legal strategy
The Biden administration has pledged to stand by local leaders who set rules about masking, contact tracing, and other COVID-19 precautions in defiance of bans set by their state leaders. The U.S. Department of Education even created a grant program to repay schools for any state financial penalties they may face as a result of those decisions.
And concerns from parents like Longoria contributed to the agency’s decision to challenge such actions on civil rights grounds. The federal office for civil rights has launched investigations in six states that have bans on universal school mask requirements. The department concluded that such policies may violate the Americans with Disabilities Act, along with Section 504 of the Rehabilitation Act of 1973, which requires schools to provide a free and adequate public education to students with disabilities. The Education Department is monitoring Texas, but it has not launched an investigation there because Abbott’s order is the subject of ongoing existing litigation.
As of Jan. 24, five states have bans in effect that prevent school districts from setting universal mask mandates, according to an Education Week analysis. Five additional states have such bans, but they have been blocked, suspended, or are not being enforced. Fifteen states and the District of Columbia require masks be worn in schools.
MASK MANDATE BAN IN EFFECT
MASK MANDATE BAN BLOCKED, SUSPENDED, OR NOT BEING ENFORCED
Note: In Missouri, the state attorney general has sued some school districts that require masks, citing a November ruling by a county judge that said local health orders tied to COVID-19 are illegal. (The ruling is being interpreted differently by different districts.) The state’s treasurer announced he was also cracking down on schools with mask mandates.
Updated 01/26/2022 | Sources: Local media reports | Learn more here
That disability rights argument is the focus of lawsuits by parents and civil rights groups around the country, including challenges in Florida, Iowa, South Carolina, and Texas.
On Monday, a federal judge temporarily halted a ban on school mask requirements signed into law by Iowa Gov. Kim Reynolds, a Republican. The ruling came in response to a lawsuit by 11 parents of children who are too young to be vaccinated and who have disabilities including a rare organ disorder, cerebral palsy, and asthma.
On Wednesday, a federal judge in Florida said parents who brought a similar lawsuit there needed to seek to work directly with their schools to resolve their concerns about issues like the adequacy of remote learning before asking a court to overturn the state’s ban on school mask mandates.
Also on Wednesday, a federal judge in Texas who is hearing the case brought by Longoria and other parents refused to temporarily suspend Abbott’s order on masks. His decision came after the state argued that the Texas Education Agency is not enforcing the order. That argument came even as the state’s attorney general sued additional school districts over their mask rules.
The judge will hear the full case in October, and disability rights advocates working with the parents have vowed to press on.
Even after Juliana’s Texas school began requiring masks in August, Longoria empathized with parents of vulnerable children in other districts where school leaders confronted a confusing legal landscape and intense political pressure as they charted their pandemic responses.
And she scoffed at arguments that masks are too uncomfortable or restrictive for children to wear for long periods. Juliana has sensory issues and breathing concerns, and yet she keeps her face covered for long stretches without problems, Longoria argued.
Longoria explained the lawsuit to Juliana, and the two agreed to participate.
“She’s really really smart and very emotionally intelligent,” Longoria said. “She understands that, as a person whose voice is being listened to, it’s really important that we be a part of this so that the voice of children who aren’t being listened to can be protected. She’s really sensitive to that.”
Coverage of strategies for advancing the opportunities for students most at need, including those from low-income families and communities is supported by a grant from the Walton Family Foundation, at www.waltonk12.org. Education Week retains sole editorial control over the content of this coverage.
A version of this article appeared in the September 22, 2021 edition of Education Week as ‘I Need You to Wear a Mask to Protect My Child.’ A Mom Fights for Vulnerable Students