Mask Policies in Arizona Schools: Information and Tools to Support Students with Disabilities

ACDL News, Disability Law, Education

By: Jessica Jansepar Ross, Esq.*

Disponible en español aquí

Available in ASL here

The Arizona Center for Disability Law (ACDL) has received many calls from parents because their children’s school districts refuse to require that other students and direct care or teaching staff wear masks. For students with disabilities who are at increased risk of serious illness from COVID-19, mask requirements for students and staff are an important tool to allow them to return to in-person instruction safely. However, many districts are refusing to provide this reasonable accommodation.

One major reason some school districts will not provide reasonable accommodations is that in June 2021, Arizona passed a state law prohibiting school districts from requiring masking. School districts risked losing COVID-19 relief funding if they failed to comply with state law, i.e. if they required masks. On September 22, 2021, a judge ruled that the law prohibiting masking was unconstitutional because it was illegally passed as part of the state’s budget. The Arizona Attorney General, who represents the state, appealed the judge’s ruling and the case is under review by the Arizona Supreme Court. At this time, the anti-mask state law has not gone into effect. Nevertheless, many school districts will not require masking while they await the Arizona Supreme Court’s decision about whether the law is unconstitutional.

The refusal to require masks as a reasonable accommodation has caused some parents to withdraw their children from their school districts or place them in online schooling, even though remaining in in-person schooling would allow them to learn alongside their peers. Other parents continue to send their children to school even though masking is not required, because they are faced with the difficult choice of ineffective distance-learning or increased serious health risks, with both options having negative consequences.  If your child needs their classmates, aides, or teachers to wear a mask due to their disability so that they can attend school safely, we recommend asking their IEP/504 team for a reasonable modification to the district or charter policy of not requiring masks. If the district or charter refuses, this could be a violation of Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA). Courts interpreting the ADA have found in other cases that exceptions may need to be made to state laws and rules when necessary to provide reasonable modifications that allow people with disabilities to access public goods and services.

If you believe your child’s school has violated Section 504 and the ADA, you have the option of filing a complaint with the U.S. Department of Education, Office of Civil Rights.

ACDL has developed an easy-to-fill-out complaint form, available HERE, to assist you in filing an OCR complaint regarding this masking issue. There are certain deadlines and other requirements that apply for filing a complaint, which is spelled out in the template INSTRUCTIONS—so please be sure to review those before you begin. We hope that this resource will help more students with disabilities safely return to the appropriate educational environment.

If you use this form or find the resource helpful, please email us at center@azdisabilitylaw.org.

If you have questions about your child’s educational rights or need legal assistance, please complete an intake with our office.  Click here for more information about ACDL’s intake process.

 

*Jessica Jansepar Ross is a consulting attorney with the Arizona Center for Disability Law. Her work focuses on special education, employment law, fair housing, and access for people with disabilities.

 

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