Patrick G. Radel, Esq.
Is Mask-Wearing "Covered" by Special Education Law?
Updated: Nov 4, 2020
For students across the country, wearing a mask has become part of the everyday school routine. In one sense, this is "good" news - as it appears masks are playing an important role in slowing the spread of COVID-19. But, it's certainly not pleasant and many students are struggling to adjust to learning in a masked environment.
This is especially true for students with disabilities, who may have sensory, cognitive, and social-emotional challenges that make masking difficult. What does the law say? How can we help support such students? A short summary of the law and some suggestions.
Reasonableness is the Rule.
None of the main federal laws that protect students with disabilities (IDEA, Section 504 of the Rehabilitation Act, or the Americans with Disabilities Act) specifically address students' rights (or schools' responsibilities) during a pandemic.
However, Congress has not (yet) changed the law to reduce students' rights in response to the COVID crisis.
As such, students with disabilities are still supposed to receive a Free Appropriate Public Education ("FAPE") and are allowed "reasonable accommodations" - meaning modifications to rules and policies to allow the student to participate in programs offered to their "typical" peers.
The federal Department of Education's Office of Civil Rights has said that modifications to masking policies may be necessary if enforcing masking will deprive the student of a FAPE or otherwise prevent her from accessing her education.
Thus, if a masking mandate is preventing a student with a disability from attending school and if the student's needs can be accommodated consistent with the health & safety of students and staff, the school is likely required to modify its masking rules.
However, the law does not require a school to provide accommodations to students with disabilities if doing so creates a "direct threat to the health or safety of others." 28 CFR § 35.139 (a). Determining whether an accommodation poses a direct threat requires an "individualized assessment," based on "reasonable judgment" and "current medical knowledge." 28 CFR § 35.139 (b).
No Absolute Masking Mandates. A school that refuses to consider a student's specific circumstances and makes full-time masking a requirement for school attendance has very likely violated federal law. In other words, "Mask or Go Home" is against the law.
Start With Why. Consider why the student is struggling to wear a mask. Engage the support of an occupational therapist to address sensory challenges. Consult a social worker or school psychologist to help with social-emotional concerns. Discuss respiratory and other medical issues with a knowledgeable health care professional. Consider the student's cognitive and communication modes when trying to explain the importance of masking and when encouraging masking wearing.**
Rigid Rules vs. Constructive Cooperation. As important as masking is, the CDC recognizes that there are instances when wearing a mask is not feasible and offers several strategies for such situations. These include increased social distancing, mask breaks, and cohorting of students. We can better balance individual needs with health & safety through informed conversations and an open, creative mindset.
Be Creative. Many students find social stories helpful in understanding the importance of masking. Also, consider getting a mask that's more comfortable and/or that displays a favorite color, character, or sports team.
Be an Advocate. There are few easy answers when it comes to balancing health & safety with the needs of students with disabilities. Schools and families need to consider carefully the student's individual challenges, including the reasons for mask resistance, consult experts knowledgeable about the student's needs and intervention options, and be creative in finding "both/and" - as opposed to "either/or"- solutions.
**ADDITION (11/4/20) -After I published this post, I received a comment on Facebook regarding the challenges faced by students who struggle with receiving support from a teacher/therapist wearing a mask. This is an important perspective that also deserves careful consideration. The CDC recommends the use of clear masks for "teachers and staff who regularly interact with students who are deaf or hard of hearing, students learning to read, students with disabilities, and those who rely on lip reading as a part of learning, such as students who are English Language Learners."