Masks and the Rights of Students with Disabilities

Masks and the Rights of Students with Disabilities

As COVID-19 continues to affect education, school district decisions about mask policies and exemptions have resulted in lawsuits about the rights of students with disabilities.

The claims arise under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. The students have conditions that make it particularly dangerous for them to be exposed to and contract COVID-19, alleging that their rights were violated by state laws, executive orders by Governors banning mandatory masking, and/or individual school board decisions.

The ADA affords that persons with disabilities have the right to reasonable accommodations that provide them with meaningful access to public programs, services, and activities. When a board of education fails to make reasonable modifications to enable access to its facilities, programs, and services, a person with disabilities may bring a “failure to accommodate” claim. A failure-to-accommodate claim asserts that the defendant “…could have reasonably accommodated a person with a disability, but refused to do so.” (S.B. v. Lee, Dist. Ct., E.D. TN)  2021 WL4755619)

Four cases with similar ADA and 504 claims have been decided in three federal circuits, including the 6th Circuit, with varying results. On October 12, in a case originating out of Tennessee, the Court of Appeals outlined the ADA’s “failure to accommodate” claim, stating “This case requires the Court to consider the ADA’s mandate of social integration in an unprecedented context by addressing how a board of education must reasonably accommodate medically-compromised students when COVID-19 is now part of daily life inside their schools’ walls.”

The court granted a temporary injunction to the students with disabilities against the Tennessee Governor’s order that all parents may opt-out of a mask requirement and the school board’s decision to allow optional masking. The school district was ordered to adopt the universal masking policy it had in 2020-21 as a reasonable accommodation for the students. It also required the school district to report any mask exemptions granted, including the specific reasons for those exemptions. 

The 6th Circuit also determined that the plaintiffs did not need to exhaust their remedies under IDEA. Recently, the court issued an additional ruling on the school district’s motion to amend that judgment, because it alleged students and staff were refusing to wear masks. The court denied that motion, noting the district had not offered sufficient evidence or supporting legal arguments. 

The 8th and 11th Circuits also considered similar claims by students with disabilities. In the 11th Circuit, which includes Florida, two different federal courts declined to issue injunctions on claims under the ADA and Section 504. In one decision issued on September 13, the court held that the student’s individual health claims and accommodations required exhaustion of their administrative remedies under IDEA. (Hayes v. DeSantis [Dist. Ct., S.D. FL] Case 1:21-cv-22863-KMM, Spt. 15, 2021)

In a separate 11th Circuit case, an ADA and Section 504 challenge to a school board’s decision to end most COVID-19 mitigation measures, the court refused to issue an injunction, finding that virtual school was a reasonable accommodation available to all students and that the preferred accommodation need not be provided.  

In the 8th Circuit, a challenge to the Iowa Governor’s order banning school districts from universal masking decisions alleged that the ADA and Section 504 preempted the Governor’s order. The federal district court did issue an injunction preventing the order from taking effect, ruling that universal masking is a reasonable accommodation. The court also held that the state ban does violate ADA and 504 by excluding disabled students and denying them the benefits of public schools’ programs, services, and activities to which they are entitled.

What this means for your District:

Case law on masking guidelines is still developing. The 6th Circuit decision, while arising in Tennessee, should inform decision-making in our federal circuit. These cases are all temporary restraining orders, meaning there will be further proceedings with evidentiary hearings which may alter the outcomes, settle or otherwise affect the rulings. Stay tuned and contact one of our attorneys if you have questions.

It’s Official! New Financial Literacy Requirements, Temporary Rule for Substitutes

After several delays, Governor DeWine signed the highly anticipated Senate Bill 1 into law on October 28, 2021. Section 4 of the bill was signed as an emergency measure and is effective immediately. The remaining sections of the bill become effective January 27, 2022.

A key provision of SB 1 is the requirement that high school students complete ½ unit of financial literacy. The course may be taken as an elective, or in lieu of ½ credit of mathematics. If the student elects to take financial literacy as part of their math requirements, the credit cannot take the place of Algebra II or any course that the state board requires an end-of-course examination in. The new requirement will apply to students who enter ninth grade on or after July 1, 2022. Students enrolled in non-public schools are not required to take financial literacy unless they are participating in a state scholarship program.

A related provision of the bill establishes new licensure requirements for teachers who instruct in financial literacy. Beginning in 2024-25, teachers must have an educator license validation to teach financial literacy. The state board is tasked with adopting additional requirements for the license validation in consultation with a new council that they are required to establish. Teachers who hold valid licenses in social studies, family and consumer sciences, or business education are not required to obtain the license validation.

School districts are required to pay for any costs incurred to meet the new requirement but may seek reimbursement through the Ohio Department of Education. A new fund called the Ohio Financial Literacy Fund was established through SB 1 to help districts cover the costs. As we mentioned in our October 2021 issue of School Law Review, ESCs have been added to the list of entities eligible for reimbursement.

Perhaps the most anticipated provision of Senate Bill 1 is included in Section 4 of the bill. This section temporarily authorizes school districts to establish local education qualifications for individuals to serve as substitute teachers during the 2021-22 school year that is less burdensome than the current state requirements, including that they are not required to have a post-secondary degree. Individuals must be deemed of good moral character and complete criminal background checks. This provision is intended to ease the burden on schools that are having a difficult time finding substitute teachers amid the ongoing pandemic. The Ohio Department of Education has begun issuing temporary one-year, nonrenewable substitute licenses for individuals in accordance with this provision.  

Employee Vaccinated Religion Exemption Requests

Employee Vaccinated Religion Exemption Requests

As vaccine mandates for employees become more common, employers are seeing a spike in religious exemption requests. While some employees may have a legitimate medical reason for refusing the COVID-19 vaccine, under Title VII employers must accommodate an employee’s “sincerely held” religious beliefs.

What is a “sincerely held” religious belief?

An employee does not have to show they attend a place of worship, are a member of an organized religion, or believe in a deity. Furthermore, they don’t have to provide a note from their priest or spiritual advisor verifying their particular belief. The EEOC notes that employers should focus on the sincerity of the belief as opposed to the motives or reasons for holding that belief in the first place.

With that being said, an employer may question the sincerity of a religious belief if there is an objective basis for doing so. For example, employers should consider:

  • Whether the employee has behaved in a manner markedly inconsistent with the professed belief;
  • Whether the employee is seeking a particularly desirable benefit that is likely being sought for nonspiritual reasons;
  • Whether the timing of the request is questionable; and
  • Whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

Because the EEOC and courts have interpreted the concept of “religious belief” so broadly, employers should exercise caution before concluding a claimed belief is not “sincerely held.”

Can you deny a request based on undue hardship?

Under Title VII, an employer does not have to accommodate an employee’s religious beliefs and practices if doing so would impose an undue hardship on the employer’s legitimate business interests. As schools have mostly returned back to in-person instruction, that creates a challenge for educators to carry out their job duties if they refuse the vaccine.

Title VII does not require an employer to prioritize an employee’s religious belief over other employees’ safety in the workplace. As an employer, you may consider denying religious exemptions based on undue hardship if it would:

  • Diminish efficiency in other jobs;
  • Infringe on other employees’ job rights or benefits
  • Impair workplace safety;
  • Cause coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work; or
  • Conflict with another law.

What does this mean for your district?

Educating children should be the top priority for school districts, not navigating a polarizing and controversial topic such as vaccine mandates. Unfortunately federal, state, and local laws have thrust districts into making decisions on the best ways to keep staff and students safe without infringing on the rights of employees.

As case law on the topic continues to evolve, it is important for your district to establish a centralized procedure to manage religious accommodation requests and the criteria used when granting them. Document the steps you take, including the metrics relied upon in deciding whether a proposed accommodation would create an undue hardship. Contact a member of the Ennis Britton team if you need assistance in making decisions that best fit your District.

The New Payment in Lieu of Transportation Process

The New Payment in Lieu of Transportation Process

The Cost of PIL Set to Increase Significantly

School districts can expect the cost of PIL to at least double starting this school year. Under prior law, districts paid a flat cost of $250 per student. Now, districts must pay at least 50% of the average cost of pupil transportation as established by ODE, and may pay up to 100%. The per pupil cost of transportation over the past few years has been around $1,000, which means parents will receive at least $500 this year alone.

Although grants are being made available to help offset the costs, districts will foot the bill since ODE is no longer reimbursing districts for PIL. Under the revised law, ODE is now authorized to determine if a district is out of compliance, and force a district to pay at least 50% of the cost of transportation.

Let’s Talk Timing and Substance

Districts are now required to make a determination about PIL no later than 30 days before the start of the school year, or 14 calendar days if the student is enrolled later. To help schools make decisions more quickly, the bill now authorizes a board of education to delegate PIL decision-making to superintendents, although the board is still required to approve the decision(s) at the next scheduled meeting. Once a decision is made, districts must now issue a letter not only to parents, but also to the community/non-public schools and the state board. The letter must include a detailed explanation of why a PIL determination was made.

Keep in mind that to be eligible for PIL, a student must be eligible to receive transportation from the district to begin with. The school where the student attends must be a chartered school, and also must be less than thirty minutes away from the building where the student normally would attend. Districts will consider the same six factors that existed under the prior version of the law when making a determination.

Finally, districts should be aware that the revised law now allows parents to authorize a community/non-public school to act on their behalf once they have submitted a request for transportation. The authorized schools may represent the parents in all proceedings moving forward, including mediation. School districts should verify that a parent has granted this authorization.  

What can you do to prepare?

As you prepare to implement the changes, here are some helpful hints to keep in mind:

  1. Timely planning and execution are really critical under this new process.
  2. Ensure careful documentation of evidence and reasoning behind PIL decisions.
  3. Work with counsel to prepare letters to be sent to parents, community/non-public schools, and ODE.
  4. Create an effective presentation for the Board that includes rationale, details and discussion for each student.
  5. Consider and plan for increased costs for PIL that are in line with new minimum amounts.
  6. Update your forms throughout and train your staff.

Tools to Help You on Your Way

Ennis Britton recently hosted a webinar to help districts implement the new PIL process and adjust to other transportation changes enacted through the budget bill. Attorneys Pam Leist and Hollie Reedy were joined by special guest and transportation expert Pete Japikse to discuss the new laws and provide practical pointers. Participants received template forms and sample resolutions to help facilitate the transition to the new process. If you missed the webinar, an archive is available for purchase by emailing hreichle@ennisbritton.com. Templates are included at no additional cost to all registered participants.