Virginia schools can require masking for peers and teachers of 12 students with disabilities, settlement states

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By Kristina Sgueglia, CNN

Virginia schools can require masking for peers and teachers of 12 students with disabilities to protect from virus exposure as part of reasonable accommodations under federal disability law, according to a settlement reached this week.

The settlement concludes a legal battle between the parents of the students with disabilities that put them at high risk of severe illness from Covid-19 and state officials, including Republican Gov. Glenn Youngkin, who issued an executive order forbidding schools from requiring mask-wearing as one of his first acts in office.

The Virginia Department of Education affirms that a court previously held that “parents of the children in the case have the right to request, and if necessary receive, some amount of required masking of their child’s peers as a reasonable modification under the (Americans with Disabilities Act) and Rehabilitation Act,” according to the settlement agreement filed in the case

A letter explaining the joint understanding of the law will be sent to 10 districts where the 12 students attend, and must also be maintained on the Virginia Department of Education’s website, the settlement states.

The school districts will first be required to determine whether masking is necessary to satisfy the ADA and Rehabilitation Act or whether alternative modifications, including one-way masking, ventilation improvements, and social distancing could satisfy the rights of the students with disabilities..

If the school determines that masking is needed, “any required masking should be limited to the places and times necessary to satisfy the requirements” of the law, it the letter continues.

The letter also states that schools must also take “every reasonable step” within the law “to ensure that any student whose parents do not want him or her to wear a mask is not required to wear one,” including if possible offering the student an alternative seat or classroom assignment.

The school cannot require a student with disabilities to be segregated or excluded solely because of their need for peer masking, it says.

“This was a fair settlement for all,” said Macaulay Porter, a spokesperson for Youngkin.

The Virginia Department of Education is taking the steps outlined in the settlement agreement, according to Charles Pyle, a spokesperson.

As part of the settlement, the plaintiffs will be additionally awarded a sum of $295,000 for attorney fees, costs, disbursements and expenses by the state. The settlement did not include an admission of fault or liability.

Youngkin campaigned heavily and signed an executive order on his first day of office that allowed parents and guardians to “elect for their children not to be subject to any mask mandate in effect at the child’s school or educational program.”

The order faced a number of legal challenges from Virginia school districts and parents, and led a judge to rule that mask mandates in seven Virginia school districts remain in place.

The parties in this case jointly moved to dismiss this initial suit filed in February as a result of the settlement, and a judge has yet to approve the motion.

“This pandemic has been hard on everyone. It’s been especially hard for medically complex children, children with disabilities, and those at high risk for Covid-19,” said Tasha Nelson, a plaintiff parent, reacting to the settlement. She called the settlement a step toward righting a wrong.”

The American Civil Liberties Union, which represented the plaintiffs, hopes that this case offers modifications to policies, practices and procedures to give students with disabilities and others an equal opportunity to benefit from public education.

“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 of the ACLU of Virginia.

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