Over the last month, I’ve been tracking a collection of lawsuits applying disability civil rights laws to mask mandates, specifically to overturn BANS on mask mandates as violating IDEA, ADA, and Section 504 in various ways. The differences matter for many reasons, but in part because IDEA has an “exhaustion” rule intended to preclude disabled kids and their guardians from going to court without exhausting all internal processes.
But the Florida and Texas cases failed, in part because judges decided that the exhaustion process is relevant. From EdWeek on Florida:
U.S. District Judge K. Michael Moore sided with DeSantis, whose lawyer, Rocco Testani, countered that the parents’ dissatisfaction stemmed from remote learning options at their schools, and they had to address those issues with their schools.
“Thus, the Court finds that under the circumstance presented in this case, Plaintiffs’ failure to exhaust their administrative remedies renders their requested relief to be out of line with the public interest,” Moore wrote in his order, denying the parents’ suit to stop DeSantis’ July 30 executive order. “Only after Plaintiffs have availed themselves of their administrative remedies would their requested relief be, potentially in line with the public interest.”
In other words, the Florida parents argued that their kids deserved FAPE in LRE (a free and public education in the least restrictive environment) that’s safe for them, despite their heightened risk factors, which would not engage the IDEA process. The Florida state attorney argued that the parents just weren’t happy with online education, and so it was about the education itself, which would engage the IDEA process.
What’s more, in the decision itself, the judge wrote, “Where claims arising under the ADA and Rehabilitation Act are asserted in the context of public education, the question of whether administrative exhaustion requirement under the IDEA is implicated” (p. 13). This concerns me because it seems to push ALL claims involved public education into the exhaustion process, rather than just the ones about the education content itself.
Matthew Dietz, the lead attorney in Florida, told me that he is planning to ask the court to reconsider in the light of the Tennessee and Iowa injunctions, but calls the initial decision “Devastating. More children will die and more School staff will die.”
It’s pretty much a mess, although not an atypical one, that judges around the country are applying the laws in different ways to these different cases, We might get a higher court ruling, I suppose, but Ruth Colker (one of the nation’s best experts in disability education law) says that the Department of Education could step in. The department could issue a guidance that a “safe” school under disability civil rights law includes mask mandates, they could withhold federal funds for schools that don’t comply, and otherwise pressure schools. Or President Biden could, Colker wrote me, “issue an Executive Order declaring that federal disability law requires all K-12 schools to require the wearing of masks by all teachers, students, and staff irrespective of whether state or local government officials have banned the mandatory wearing of masks. He could instruct Secretary Cardona to enforce this Executive Order.”
So there are options, but so far no nationwide solutions, and kids remain at risk.
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