When federal officials changed their recommendations on masks Friday, it created uncertainty for many parents of students with disabilities—and complicated one of the key legal arguments they have used to push for universal face covering in their children’s schools during the COVID-19 pandemic.
The Centers for Disease Control and Prevention switched from metrics that put nearly every county in a red “high transmission” area—and guidance that said all schools should require masks regardless of virus level—to new measures that labeled 63 percent of counties as “low” or “medium” risk areas, where universal masking isn’t recommended in schools.
The rapid change, announced after many schools had closed for the weekend, left parents of medically vulnerable children with big questions about how to ensure their children are safe at school.
“It was extremely difficult for the parents,” said Ken Behrend, a Pittsburgh attorney who represents Pennsylvania families in federal lawsuits over their school districts’ mask-optional policies, which they say discriminate against children with disabilities. Behrend met with the parents, who are unnamed in their lawsuits, Sunday night to discuss the development.
“They were all expressing dismay, nervousness,” he said. “Some were visibly shaken by what happened. It was such an abrupt change.”
Dilemma for students with disabilities
Parents of students with disabilities have faced difficult choices during the pandemic. On the one hand, their children often benefit from therapies and academic interventions that are difficult to deliver in a remote learning environment. On the other, the CDC has said people with conditions like moderate to severe asthma, diabetes, and intellectual and developmental disabilities may be at higher risk for severe illness from COVID-19.
That assertion, combined with the CDC’s previous recommendation of universal masking in schools, has been key in lawsuits brought by disability rights groups and parents around the country. It also formed the basis of civil rights investigations the U.S. Department of Education launched into seven states—Florida, Iowa, Oklahoma, South Carolina, Tennessee, Texas, and Utah—that ban school districts from setting local mask requirements.
“National data also show that children with some underlying medical conditions, including those with certain disabilities, are at higher risk than other children for experiencing severe illness from COVID-19,” then-Acting Assistant Secretary for Civil Rights Suzanne Goldberg wrote in August letters to leaders in those states. “At the same time, extensive evidence supports the universal use of masks over the nose and mouth to reduce the risk of COVID-19 transmission.”
Even as the national guidance, and virus rates, have changed, disability rights advocates said their legal challenges would continue.
Behrend’s clients, who live in Allegheny County, Pa., said that, though their region is currently deemed low risk under the new metrics, they want assurances that their schools will reinstate mask requirements if cases surge and risk levels rise. Some of those clients have already secured accommodations under the Americans with Disabilities Act, like requirements that people who sit within 6 feet of their children will be masked, Behrend said.
Disability Rights Texas, which sued alongside 14 parents of students with disabilities to challenge their state’s ban on school mask requirements, said in a statement to Education Week that “schools must have the ability to require masks as an accommodation for students at the individual level, in an individual classroom or on an entire campus based on a variety of factors,” and the new CDC guidance didn’t change that. Large swaths of Texas remain in high-risk zones, where universal school masking is recommended.
“We aren’t medical experts and aren’t in a position to comment on CDC guidance for district policies generally,” supervising attorney Dustin Rynders said. “However, we believe strongly that if a student, because of disability, remains at high risk of serious health consequences, schools must be able to look at available accommodations to ensure the student can attend safely.”
Protecting access to in-person learning
A spokesperson for the U.S. Department of Education said the agency would not comment on its ongoing state civil rights investigations, but said that schools must continue to “assess their policies and make adjustments needed to protect the civil rights of students with disabilities and ensure their equal access to safe in-person learning.”
In announcing the new guidance Friday, CDC Director Rochelle Walensky said higher vaccination rates, new treatments, and greater accessibility to testing and “high-quality masks” led to the new approach. The agency’s new metrics rely on factors like hospital capacity, rather than simple virus rates, to calculate risk. The aim is to ensure adequate medical resources rather than to avoid transmission entirely.
“We want to give people a break from things like mask wearing when our levels are low and then have the ability to reach for them again, should things get worse in the future,” Walensky told reporters on a media call.
But school districts haven’t demonstrated agility in reinstating mask requirements as conditions changed. When the highly contagious omicron variant led to surging case rates this winter, for example, some school boards saw angry public pushback when they sought to put masking rules in place.
Federal health officials also stressed Friday that higher-quality masks, like N95s, do a better job than fabric masks of protecting the wearer, even if those around them have not covered their faces. The Biden administration has delivered shipments of such masks, including child-sized versions, to states for distribution through community organizations.
The changes come as some advocates for medically vulnerable people express fears that their needs will not be considered as the country seeks a return to normal.
“We believe that in classrooms where high-risk students are present, indoor universal masking should be recommended and advised by the CDC,” said Bethany Lilly, senior director of income policy at The Arc of the United States, a disability rights organization involved in an Iowa lawsuit over school masking.
Federal agencies have also said requiring people around high-risk individuals to wear masks is a reasonable accommodation under the Americans with Disabilities Act, she said, calling it “extremely concerning” that the CDC hasn’t stressed that position as it shifted its recommendations.
The bottom line, said Behrend, is that parents need assurances that their schools will adapt if the dynamics of the pandemic shift yet again, as they have many times before.
“You’re having to make legal arguments on shifting sand beneath your feet,” he said. “Never have I had a situation that was changing so rapidly, and the courts are not set up to change in a rapid manner.”