The return to in-person learning in SY 2021-22 came with one complication districts may not have anticipated: Litigation over face mask policies.
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Districts in at least 14 states — California, Colorado, Florida, Georgia, Iowa, Kentucky, Louisiana, Michigan, New York, Ohio, Pennsylvania, South Carolina, Tennessee, and Texas — are currently involved in some form of legal dispute over the use of face masks on school grounds. Courts have issued interim or final rulings in at least 32 of those disputes, with more complaints being filed every day.
3 categories of claims
Litigation over mask mandates tends to fall into one of three categories: 1) constitutional challenges; 2) disability discrimination; and 3) enforcement of state law.
Constitutional challenges. Approximately half of the current lawsuits involve alleged constitutional violations. Parents in several states have claimed that mask mandates violate their children’s rights under the First, Fourth, Fifth, or 14th Amendments. Although many of these complaints address perceived health risks of masking — several include nearly identical references to “an overall possible simultaneous drop in oxygen saturation of the blood and increase in carbon dioxide” — others focus on issues such as socialization and discipline. See, e.g., Oberheim v. Bason, No. 4:21-CV-01566 (M.D. Pa. 09/13/21, complaint filed) (alleging that a Pennsylvania district’s mask mandate violated students’ rights to free association); and Lloyd v. School Bd. of Palm Beach County, No. 9:21-cv-81715-KMM (S.D. Fla. 09/12/21, complaint filed) (alleging that a Florida district’s mask mandate violated the Fifth and 14th Amendments by requiring progressive discipline for noncompliant students).
Disability discrimination. Nearly one-third of the pending cases are Section 504 and ADA Title II lawsuits brought on behalf of medically vulnerable students. These cases typically involve challenges to bans on mask mandates in K-12 schools, and generally include allegations that the bans are discriminatory because they prevent districts from offering mask mandates as a reasonable accommodation for students at higher risk of serious COVID-19 infection. While most Section 504 and ADA cases are filed by parents of medically vulnerable students, at least one district has sued to challenge a ban on universal indoor masking. See Douglas County Sch. Dist. RE-1 v. Douglas County Health Dep’t, No. 21-cv-02818-JLK (D. Colo. 10/20/21, complaint filed).
Enforcement of state law. These cases are relatively rare when compared to other types of face mask litigation involving school districts. They arise when a district fails or refuses to comply with a state law or executive order governing face mask policies in K-12 schools. If a district adopts a mask mandate despite a state ban or parental opt-out rule, the state may sue the district to enforce its ban. See, e.g., Florida Dep’t of Health v. School Bd. of Broward County, Fla., No. 1D21-2854 (Fla. 1st Dist. Ct. App. 09/22/21); and In re: Round Rock Indep. Sch. Dist., 03-21-00472-CV (Tex. Ct. App. 09/17/21, petition filed).
Regional trends
There’s a strong correlation between the types of claims filed and the region in which a district is located. Because districts in northern and western states tend to have more stringent masking requirements, it should come as no surprise that most complaints from these states challenge the constitutionality of mask mandates in public schools. Districts in these states could find themselves defending Section 504 or ADA claims based on their failure to make disability-related exceptions to universal indoor masking requirements. However, they are unlikely to find themselves caught up in a dispute over a statewide ban on mask mandates.
Districts in southern states can expect just the opposite. Parental opt-out provisions and outright bans on mask mandates make constitutional challenges unnecessary (unless, of course, a district is challenging the constitutionality of a statewide ban). However, because bans on mask mandates prevent districts from adopting broad or targeted mask mandates to accommodate medically fragile students, districts in these states are more likely to find themselves involved in Section 504 and ADA disputes. Those that defy statewide bans on mask mandates may also be sued for their noncompliance.
Stay tuned to Special Ed Connection® for further developments in these cases and other disputes over face mask requirements for public school students.
COVID-19 Face Mask Litigation by State
Few issues arising out of the COVID-19 pandemic have been as polarizing as the debate over whether K-12 public schools should require universal indoor masking. Some parents have sued districts for adopting mask mandates that they believe are a violation of their child’s constitutional rights. Others have sued districts for failing to adopt mask mandates they believe are necessary to accommodate students with disabilities. In some instances, the state itself has sued districts for violating bans on mask mandates. Use this chart to keep track of face mask litigation involving or affecting school districts.
NOTE: All judicial and administrative decisions that have been published in LRP Publications’ Individuals with Disabilities Education Law Report® (IDELR) are cited to that publication. Citations containing an “LRP” number appear on LRP’s Special Ed Connection® website. For more information, visit specialedconnection.com or shoplrp.com.
Amy E. Slater, Esq., covers special education legal issues for LRP Publications.
