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Virginia court: It's reasonable for students to be asked to mask if a child with disabilities is present

The state affirmed that peer masking in public schools is a 'reasonable modification' for students with disabilities that put them at risk if they contract COVID.

VIRGINIA, USA — The state of Virginia has made a decision that could affect the school days of students with disabilities, their classmates and teachers.

The Commonwealth has affirmed that students wearing masks across the state's public schools is a reasonable accommodation to protect a child with disabilities, as part of a settlement in the Seaman et al. vs. Commonwealth of Virginia et al. lawsuit. 

Parents of 12 students with disabilities — represented by the ACLU of Virginia, the Washington Lawyers’ Committee, Brown Goldstein & Levy, the disAbility Law Center of Virginia [sic] and Arnold & Porter — filed a federal lawsuit in February. The lawsuit challenged Gov. Youngkin’s Executive Order 2 and Senate Bill 739, which stripped school districts of the ability to require community masking as a COVID-19 prevention measure. In March, the plaintiffs won a preliminary injunction allowing them to request and receive community masking accommodations under federal law, according to the ACLU.

The settlement, which will immediately go into effect, clarifies that schools will have to accommodate students under federal disability law if the child with a disability requires peer and teacher masking, regardless of the requirements of Executive Order 2 and Senate Bill 739. The agreement also requires the Virginia Department of Education and the Superintendent of Public Instruction to send guidance to school districts and post their recommendations online on the COVID-19 Special Education Resources page.

“This pandemic has been hard on everyone," said plaintiff parent Tasha Nelson in reaction to the settlement. "It’s been especially hard for medically complex children, children with disabilities, and those at high risk for COVID-19 . . . Children like mine should not be told they cannot participate safely in school or that they have to be segregated. They have a right to the same education as every other child." 

The settlement will remain in effect as long as any of the dozen plaintiff students attend a Virginia public school.

“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.

WUSA9 has reached out to the governor's office for comment on the settlement, but as of publication has not heard back. 

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