ACLU Lawsuit: Banning Masks in Schools Harms Disabled Students

As children start a new academic year, many parents are anxious about sending their children back to school amid the pandemic.  

These anxieties are only heightened by the uncertainty surrounding COVID-19 safety precautions. In a number of states, including Arizona, Florida, Texas, and South Carolina, governors have passed legislation banning schools from putting mask requirements in place.

However, in South Carolina, the governor is facing pushback. On August 24, the American Civil Liberties Union (ACLU), representing disability rights groups and parents of children with disabilities, filed a federal lawsuit against the ban.

The ACLU alleges the mask mandate ban will disproportionately affect students whose disabilities, including underlying health conditions, make them more at risk of becoming seriously ill if they contract COVID-19.

The ACLU also says that the ban on mask mandates is in violation of the Americans with Disabilities Act and the Rehabilitation Act. This law states that public schools can’t exclude, deny access, or segregate students with disabilities from public school education.

Under the Americans with Disabilities Act and the Rehabilitation Act, schools are also required to provide reasonable accommodations to disabled students.

Why Masks Are Still Important

Many people with autoimmune disorders are still at an increased risk of contracting and transmitting COVID-19, even after vaccination. And for children, most of whom aren't yet eligible for vaccination, masking is especially crucial.

The American Academy of Pediatrics (AAP) recommends masks be worn in all schools, regardless of children's disabilities.

"School policies should be guided by supporting the overall health and well-being of all children, adolescents, their families, and their communities and should also look to create safe working environments for educators and school staff," the AAP states.

"When it comes to kids, they're not as aware as [adults] are about washing our hands and what kind of contact they're making with other people. Their mind is on bigger and better things and they get distracted easily." Andrew Paul Ordon, MD, FACS, host of The Doctors, tells Verywell. "You don't know what is happening in the school setting, you don't know where the other kids have come from, who's been vaccinated, who's been tested, who's been sick."

Disabled children are at an even higher risk of experiencing severe COVID-19. Without masking and the ability to get vaccinated, they remain unprotected. Some conditions that may make disabled children particularly vulnerable include:

• Asthma or other lung diseases
• Cystic fibrosis
• Kidney disease
• Down Syndrome
• Autoimmune disorders
• Cancer

More Children Are Being Admitted to the Hospital

This summer, the U.S. has seen a rise in COVID-19 cases among adolescents. A recent study found that out of 43, 465 patients aged 18 years or younger diagnosed with COVID-19, more than one-quarter had one or more underlying conditions.

Ryan Moran, MD, MPH, a pediatric intensivist at Pediatric Critical Care of South Florida, tells Verywell that the intensive care unit has seen an uptick in COVID-19 admissions and deaths among disabled children.

"The pediatric deaths we have encountered have involved children with a chronic condition or disability," Moran says. "Of those children we admit to the pediatric intensive care unit, we see a noticeably higher proportion of children with a chronic condition. It is therefore very clear that children with disabilities are at much higher risk of acquiring severe disease."

Last week, as schools reopened across the country, the Centers for Disease Control and Prevention (CDC) reported a sharp rise in COVID-19 hospital admissions for people under 17 years old.

 "I think we have observed enough school districts where mask mandates were and were not implemented to see a clear difference in how schools have handled COVID outbreaks, and how the available children's hospitals have been stressed by these policy decisions," Moran says.

Moran fears that if schools don't take precautions, it is "very likely" that children's hospitals will be overwhelmed to the point that they won't be able to look after all their patients.

"With universal mask-wearing, the rate of spread is significantly blunted and will allow our hospitals to keep pace with the number of new infections needing care," he says.

In fact, he's noticed an impact locally where school districts are enforcing mask mandates.

"As of right now, Broward and Miami School districts have chosen to continue mask mandates, and with quarantine policies also in place, we have seen minimal concerns for outbreaks," Moran says. He believes the policies have "made a big difference" in preventing the surrounding children's hospitals from becoming overwhelmed.

Can the ACLU Win?

Experts say the ACLU does have a strong case against South Carolina.

“The ACLU’s lawsuit is well-reasoned and has considerable merit,” Christa Ramey, JD, students’ civil rights lawyer and attorney at Ramey Law PC, tells Verywell. “All student's lives must be treated equally and fairly, but students with disabilities are placed at a significant risk without mask mandates.”

Still, their success depends on multiple factors.

“By not requiring all students to wear masks, which is the bare minimum that a school could do, the lives of students with disabilities are in danger, and frankly their civil rights are being violated,” Ramey adds. "I think they have a strong case. A lot depends upon the strength of their clients and the judge."

The information in this article is current as of the date listed, which means newer information may be available when you read this. For the most recent updates on COVID-19, visit our coronavirus news page.