Masks, Mayhem & the Future of Disability Rights in Schools

59 Pages Posted: 16 Aug 2023

See all articles by Claire Raj

Claire Raj

University of South Carolina School of Law

Crystal Grant

Duke University School of Law

Date Written: August 14, 2023

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.

Keywords: Section 504, ADA, Masks, K-12 schools, disability, accomodations

Suggested Citation

Raj, Claire and Grant, Crystal, Masks, Mayhem & the Future of Disability Rights in Schools (August 14, 2023). New York University Journal of Legislation and Public Policy, Vol. 25, No. 2, 2023, Duke Law School Public Law & Legal Theory Series No. 2023-46, Available at SSRN: https://ssrn.com/abstract=4540389

Claire Raj

University of South Carolina School of Law ( email )

701 Main Street
Columbia, SC 29208
United States
8037771391 (Phone)
8037771391 (Fax)

Crystal Grant (Contact Author)

Duke University School of Law ( email )

9196137104 (Phone)
27708-0360 (Fax)

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