Families sue over bans on mask mandates
They claim provisions violate rights of students
Samantha Boevers’s 4-year-old son, Porter, has made so much progress since being diagnosed with autism that he was assigned to a general preschool classroom this fall. So when Boevers dropped him off for his first day of school earlier last week, she wanted to feel all the emotions a parent should in that moment: excitement, pride, relief.
“The only thing I felt was heart-rending fear,” said Boevers, an instructional aide with a background in special education. “Because I didn’t know if he’d be safe.”
Porter’s disability puts him at heightened risk of getting sick from COVID-19. Mitigation strategies such as universal masking indoors, Boevers said, are crucial to limiting that risk.
Yet Boevers and her family live in South Carolina – one of more than a half-dozen states where schools are prohibited from requiring everyone on campus to mask up. Mask-wearing has been the exception rather than the rule in many of South Carolina’s school districts, and evidence suggested the trend has taken a toll. South Carolina has the third-highest rate of pediatric COVID-19 infections in the U.S., according to data collected by the American Academy of Pediatrics, with children accounting for roughly a fifth of the state’s positive cases.
With the help of the American Civil Liberties Union, Boevers and other parents and advocates recently filed suit in federal court challenging South Carolina’s ban on school mask mandates. The lawsuit, which names several state officials and local school boards as defendants, alleged South Carolina’s policy violates federal law by effectively excluding students with disabilities from participation in the public education system.
It’s one of at least seven lawsuits filed in recent weeks in states with similar restrictions – including Arizona, Florida and Texas – many saying the rules violate the rights of students with disabilities. In one of the Florida suits, a circuit court judge has issued a ruling, concluding the state’s order banning school mask mandates is unlawful and districts have the right to set their own policies.
‘A slap in the face’
Remote learning was tough for all kinds of students last year, but for Porter it wasn’t just challenging – it was “physically painful,” Boevers said. Porter, who struggles with communication, would get so frustrated with virtual speech and occupational therapy sessions that he would screech and scream, sometimes hitting his parents.
Still, he worked hard and got better at using sentences, to the point that he can now learn alongside his neurotypical peers. He can continue making progress by being in that classroom, Boevers said. If he were to stick with virtual learning, he would “revert back to a child who doesn’t have a future.”
She and her husband consulted with Porter’s pediatrician when deliberating whether to send him to in-person school this year. In 2019, Porter ended up being hospitalized for the flu because he wasn’t able to communicate that he was in pain. Confused and scared by what was happening to him, he stopped eating and drinking. Boevers held back tears as she reflected on the experience, on the memory of witnessing three grown men holding Porter down so they could get the IV tube in.
The doctor said the same thing could recur if Porter contracted the coronavirus, especially because he also struggles to comply with hygiene practices. Porter should attend school, the pediatrician concluded, only if anyone on campus who can wear a mask does so.
“I’ve seen people say the parents of children under 12 are living a different pandemic than everyone else because these children cannot be vaccinated,” Boevers said. “And I like to say, ‘The parents of special-needs children under 12 are living in hell during this pandemic,’ because every day we worry about the safety of our children when doing the basic things that every child has a right to do.”
South Carolina’s anti-mask law is excluding and segregating them, the plaintiffs alleged, by forcing many of them to withdraw from public school. And in prohibiting schools from dictating their own mask rules, the complaint continued, the law also denies those children an equal education.
“It’s really a slap in the face to students with disabilities,” said Susan Mizner, director of the ACLU’S Disability Rights Program. “Because while there is a risk to everyone, ... we know that the people who will get severely ill are almost always the students who have these underlying conditions or disabilities.”
Families have little recourse
In some parts of the country, distance learning isn’t an option this school year. According to an analysis by the Center on Reinventing Public Education, a University of Washington research group, three of the states with restrictions on mask requirements have passed legislation or policies limiting access to virtual schooling.
Those states include Tennessee, whose policy, enacted in April, prohibits districts from offering system-wide remote or hybrid instruction unless there is a declared state of emergency.
Tennessee’s limitation – combined with the state’s executive order requiring schools to allow mask opt-outs – forces parents to choose between jeopardizing their children’s health or withdrawing them from public education altogether, several parents of students with disabilities told USA TODAY.
One of those parents is Suzanne Talleur, whose 16-year-old son, Max, has Down syndrome. Research shows that, compared with the general population, people with the condition are four times more likely to be hospitalized – and 10 times more likely to die – after contracting COVID-19. That’s in part because they tend to have smaller airways and weaker muscle tone than average, which makes them more vulnerable to respiratory complications.
Talleur kept Max, who also has asthma and a heart condition, in remoteonly instruction all last school year; he barely left the house. When she was asked in February whether he would continue with online learning this school year, though, she decided it was time for him to return to the classroom.
“It was terrifying sending him back,” Talleur said, but she was optimistic about the power of COVID-19 vaccines, which her son received as soon as he was eligible. She was confident his school district would do what it could to mitigate the spread of COVID-19 by following CDC guidance.
But Tennessee’s recent executive order prevents the state’s schools from practicing a crucial piece of that guidance: universal mask-wearing indoors. And unlike the other states with restrictions on school mask mandates, Tennessee’s policy stipulates schools must allow parents to opt-out of any such requirements, which could make it hard to challenge on legal grounds.