Virginia Attorney General Jason Miyares has asked a federal judge to dismiss a lawsuit filed by the ACLU on behalf of immunocompromised children, which argued the commonwealth’s recent mask-optional law violates the students’ civil rights, since it keeps schools from complying with the Americans with Disabilities Act.
In a motion filed in federal court in Charlottesville, Solicitor General Andrew Ferguson asked the court to deny the ACLU’s request for a preliminary inunction — a ruling before trial — in which the advocacy group claimed immunocompromised children would be irreparably harmed without a mask mandate in schools. And the motion requested Judge Norman Moon, of the U.S. District Court for the Western District of Virginia, to dismiss the lawsuit.
“Under federal law, students with disabilities who need accommodations to participate in public education should notify their schools and work together with their teachers and school officials to develop an individualized plan to meet their needs,” Ferguson wrote. “Instead of requesting accommodations from their schools, Plaintiffs sued the Commonwealth and state officials.”
The ACLU suit on behalf of immunocompromised children was originally filed on Feb. 1, and includes students who live in Loudoun and Fairfax counties, among others. The plaintiffs are “students with disabilities that place them at an increased risk of serious illness or death if they contract COVID 19.”
The advocacy group has also asked the judge, twice, to grant an injunction before trial.
The motion filed by the Office of the Attorney General suggests recent developments weaken the plaintiff’s argument, and that a ruling in the families’ favor would not result in a universal mask mandate: “The Centers for Disease Control no longer recommends universal student mask mandates in the vast majority of Virginia’s schools.”
While mask mandates were imposed in Virginia by former Gov. Ralph Northam, Glenn Youngkin issued Executive Order 2 on the day he was sworn in, on Jan. 15. In the following days, Dr. Colin Greene, Virginia’s acting state health commissioner, told WTOP that the evolving nature of the coronavirus and its variants meant guidance would continue to evolve.
The argument from the attorney general’s office touches on the debate over the effectiveness of cloth masks. “Even if universal mask mandates were an effective mitigation measure, the ADA and Rehabilitation Act require only that some reasonable accommodation be made, not the particular accommodation that a plaintiff prefers.”
Ferguson writes that schools could provide immunocompromised students “with high-quality N95 or KN95 masks, which protect the wearer regardless of whether others are masked.” Other measures could be improving ventilation in affected children’s classrooms, requiring masks for teacher and staff, or providing remote learning options.
The motion seeking dismissal of the suit says plaintiffs haven’t demonstrated they’ve been harmed by the elimination of the mask mandate: “A plaintiff must demonstrate more than just a ‘possibility’ of irreparable harm,” according to Ferguson.
Online court records show the court will consider the motions during a hearing on March 7.
