Virginia parents, Youngkin administration settle lawsuit over masks and students with disabilities

The Commonwealth of Virginia acknowledged in a settlement with parents of 12 students with disabilities that peer masking in K-12 schools is a reasonable modification under the Americans with Disabilities Act and Rehabilitation Act of 1973.

The settlement followed an appeal by Republican Gov. Glenn Youngkin’s administration of a March decision by U.S. District Court Judge Norman Moon. That ruling found the parents could still request that their schools mandate some level of masking despite an executive order and legislation known as Senate Bill 739 that made mask-wearing optional in public schools during the COVID-19 pandemic.

“We are pleased to assist the governor in settling this case in a way that protects the federal rights of students with disabilities while ensuring that parents retain the state-law right to decide whether their children should wear a mask,” said Victoria LaCivita, a spokesperson for Attorney General Jason Miyares.

As part of the settlement, Virginia’s Superintendent of Public Instruction must send a “Dear Colleague” letter interpreting the decision to the superintendent of each school division where the 12 students attend school and publish the letter on the Virginia Department of Education’s website.

“Neither SB 739 nor [Executive Order] 2 pose any obstacle to a parent requesting some amount of required masking as a reasonable modification under the ADA or Rehabilitation Act,” the letter reads. “And if some amount of required masking is a reasonable modification necessary to satisfy the ADA and Rehabilitation Act rights of a student with disabilities, SB 739 and EO 2 do not prohibit this modification.”

The letter also notes schools must work with the students and their parents to determine whether some masking is necessary to satisfy federal regulations. Schools must not segregate students with disabilities because of their need for peer masking.

The parents of the students are represented by the American Civil Liberties Union of Virginia; the Washington Lawyers’ Committee; the firm of Brown, Goldstein & Levy; the disAbility Law Center of Virginia; and Arnold & Porter.

“We’re hopeful that every school in Virginia will view this settlement as a sign that they should make similar accommodations for their students, even if they are not part of the case,” said Eden Heilman, legal director for ACLU of Virginia, in a statement.

The court must still approve the settlement.