Masks, Mayhem & the Future of Disability Rights in Schools

Authors

Claire Raj
Crystal Grant, Duke Law SchoolFollow

Document Type

Article

Publication Date

2023

Keywords

Section 504, ADA, masks, K-12 schools, disability, accomodations

Abstract

Disability rights took center stage in the recent battles over universal mask mandates in public schools. Pro-mask advocates argued that universal mask policies were necessary to ensure equal access to education under two different federal disability statutes, Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act. Opponents argued universal masking was an infringement on personal liberty and uncalled for by either law. Courts responded with a great deal of confusion that resulted in disparate legal outcomes for cases with essentially the same facts. This confusion, however, is not new—it is rooted in decades of doctrinally flawed reasoning interpreting whether K–12 students’ requested accommodations are reasonable. Courts imported this reasonableness framework from federal regulations for post-secondary and vocational schools. But those regulations do not apply to the K–12 space. In fact, the regulations governing K–12 schools say nothing about accommodations and do not limit schools’ obligations to ensure equal access for students with disabilities. To confuse matters further, the U.S. Department of Education (DOE), tasked with enforcing disability rights in public schools, applies an entirely different analysis when resolving allegations of disability discrimination in administrative claims. This Article is the first to identify and resolve courts’ and agencies’ confusion regarding K–12 disability discrimination claims. It argues that lower courts have misapplied the Supreme Court’s higher education precedent to limit K–12 disability rights claims while the DOE has ignored legitimate limits on such claims to the confusion of individuals, schools, and courts. Further, it offers an amendment to Section 504 regulations that will clarify the law’s reach for both lower courts and administrative claims.

Citation

Claire Raj & Crystal Grant, Masks, Mayhem & the Future of Disability Rights in Schools, 25 New York University Journal of Legislation and Public Policy 247-305 (2023)