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Disabled students can request that their peers be required to wear masks in class in 12 Virginia schools after a group of parents filed and won a lawsuit challenging Virginia Governor Glenn Youngkin’s executive order that ended the statewide school mask mandate in favor of parents choosing to mask or not to mask their children.
Parents at 12 schools filed a lawsuit in February to challenge an executive order from Gov. Glenn Youngkin as well as a new state law giving parents the right to exempt their children from mask mandates that were in place at schools at the time.
The parents who sued said that under the federal Americans with Disabilities Act, requiring masks is a "reasonable accommodation" for students at high risk of complications from COVID-19.
Masked students wait to go to their classroom. (Photo by Paul Bersebach/MediaNews Group/Orange County Register via Getty Images)
In a ruling on Wednesday, the Commonwealth affirmed that students wearing masks 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.
The settlement clarifies that parents of disabled children can request that the students' peers be required to wear masks.
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The school district then is required to engage in an "interactive process" to determine whether peer masking is necessary. The settlement says schools can also consider alternatives solutions like social distancing, ventilation improvements, and teachers wearing masks.
"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. This settlement is a step toward righting a wrong. 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. As adults, it’s our responsibility to make sure that we include everyone in our decisions and come up with solutions that provide equity in school," Tasha Nelson, a plaintiff parent, said in a statement.
Students play outside at recess wearing a rainbow mask. (Reuters/Hannah Beier)
The complaint argues that Younkin's executive order violates disabled students’ right to access public education under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.
"While Executive Order 2 makes it more difficult for schools and parents to protect the health and safety of all of Virginia’s children, it also leaves parents of many Virginia children with disabilities with an unconscionable choice: to choose between putting them at risk of severe illness if they contract COVID-19 and keeping them home with little or no education. For many of these children, Governor Youngkin has effectively barred the schoolhouse door," the complaint argues.
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The settlement goes into effect immediately and remains in effect as long as any of the 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, the legal director of the ACLU of Virginia said in a statement.
The agreement will also require the Virginia Department of Education and the Superintendent of Public Instruction to send guidance to school districts and post their recommendations online on the state's COVID-19 Special Education Resources page.
If parents don't want their child to wear a mask, the settlement instructs schools to take reasonable steps to accommodate those parents as well, giving examples of rearranging classroom seating or changing class assignments.
The students whose families sued have health conditions including cancer, cystic fibrosis, asthma, Down syndrome, lung conditions and weakened immune systems.
Teachers line up their students before entering the elementary school in the neighborhood. (AP Photo/Mark Lennihan, File)
In a written statement, Victoria LaCivita, a spokeswoman for Attorney General Jason Miyares, said, "We were pleased to assist the governor in settling this case in a way that protects the federal rights of students with disabilities while ensuring that parents retain the state-law right to decide whether their children should wear a mask."
The schools attended by the students when the suit was filed in February are Brownsville Elementary School in Albemarle County; Stanton River Middle in Bedford County; Grassfield Elementary and Southeastern Elementary in Chesapeake; Enon Elementary in Chesterfield County; Cumberland Elementary in Cumberland County; Stenwood Elementary in Fairfax County; Quioccasin Middle in Henrico County; Trailside Middle and Loudoun County High in Loudoun County; Jennie Dean Elementary in Manassas City; and Tabb Middle in York County.
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Governor Younkin's press office did not immediately respond to Fox News Digital's request for comment.
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