By: Jessica Jansepar Ross, Esq.*
The Disability Rights Arizona (DRAZ) 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.
Masks have been a contested issue in Arizona. In June 2021, the Arizona legislature 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. This ruling was unanimously upheld by the Arizona Supreme Court on November 2, 2021. Though the Arizona law prohibiting requiring masking was found illegal and never actually took effect, the dispute and confusion has led many school districts and charter schools to avoid requiring masks.
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, 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@disabilityrightsaz.org.
If you have questions about your child’s educational rights or need legal assistance, please complete an intake with our office.
*Jessica Jansepar Ross is a consulting attorney with the Disability Rights Arizona (DRAZ). Her work focuses on special education, employment law, fair housing, and access for people with disabilities.
