Information for Children in Schools Without Mask Mandates in Illinois

Please Note: We are not lawyers and none of the information below should be construed as legal advice.

Background: An individual judge, Sangamon County Circuit Judge Raylene Grischow, granted a temporary restraining order that immediately suspends both mask mandates in schools and quarantine periods for exposed students. The decision ONLY applies to school districts named in the lawsuit. The state is in the process of appealing this decision.

The order may be viewed here.

Unfortunately, this judge, among other grievous errors, has failed to consider the irreparable harm the temporary restraining order will cause to children with disabilities or medical conditions who may not be able to attend school without a mask mandate in place. This judge has also failed to determine how this restraining order may intersect with federal disability laws, including Section 504 of the Rehabilitation Act, the Individuals with Disabilities Education Act (IDEA), and the Americans with Disabilities Education Act (ADA).

Note that in some cases children with medical conditions or other disabilities are unable to mask, and that your individual’s child masking status is irrelevant to whether they require others to mask to protect their health. In fact, children who are unable to mask or whose masking is not ideal, such as children with oxygen cannulas or children with tracheostomies, often are the children who most need those around them to mask for their protection.

Suggestions for Affected Families

Step 1:

If your child has an IEP, 504 Plan, or Health Plan, submit a formal written request for an immediate emergency meeting with your school or district. The legal requirements for when this meeting must occur vary depending on the type of plan. However, we suggest stating your child is unable to receive a Free and Appropriate Public Education without a mask mandate, and that an emergency meeting is required.

Step 2:

If you do not feel your child can safely attend school without a mask mandate in place, do not send your child to school. Submit a formal written request for temporary remote or homebound instruction, following your school or district guidelines.

Step 3:

Gather supporting materials. Have your child’s physician write a letter outlining your child’s medical condition, specifically emphasizing the child’s overall medical fragility, immune compromise or other immune issues, the ability to safely mask, medical procedures that require close contact or unmasking, and any other characteristics that affect your child’s ability to safely attend school without a mask mandate.

Step 4:

When you have your meeting, specifically request that the following be added to your child’s IEP, 504 plan, or Health Plan.

  • All students and staff who are in the same room at any time, or within 6 feet in passing, must wear a mask in the presence of your child, unless an individual has a documented medical exemption from masking.
  • Masks must be at minimum a surgical mask.

Step 5:

If your school or district will not allow masking to be added to your child’s IEP or 504 plan, notify the school/district that you will be filing a complaint with the Office of Civil Rights. You may file your complaint here. You may also want to file a complaint with the Illinois State Board of Education.

Relevant Laws

Individuals with Disabilities Education Act (IDEA) and Regulations

Students who already have an IEP in place are covered by the regulations in IDEA. Specifically, local education agencies are required to provide all children with disabilities a Free and Appropriate Education (FAPE), and must create a plan for these children to attend school safely. IEPs routinely contain accommodations to keep children safe at school, from behavioral modifications to nursing assistance. IEP accommodations can include statements such as requiring all students and staff to mask around a child with a disability, who is at higher risk for COVID due to their disability.

Section 504 of the Rehabilitation Act

Section 504 bans discrimination against people with disabilities by an organization or program that receives federal financial support, including schools. Note that your child is covered under this provision if they meet the definition of a person with a disability and are experiencing discrimination, whether a 504 plan is in place or not. If your child cannot safely attend school because other children are unmasked, they could be experiencing disability discrimination. If your child already has a 504 plan, language can be added to the accommodations to require all students and staff to mask around a child with a disability, who is at higher risk for COVID due to their disability. Accommodations must be “reasonable.”

Americans with Disabilities Act (ADA)

The ADA similarly bans discrimination of individuals with disabilities. Students, staff, and teachers with an ADA-defined disability or medical condition could experience discrimination if they cannot access schools safely due to their disability. Students and staff can use the ADA to request that masks be worn by other students and staff to allow them to safely attend school. Again, accommodations must be reasonable and not cause a fundamental alteration in a program or activity.

Masks As a Reasonable Accommodation

Section 504 and ADA regulations require that accommodations must be reasonable. Considering masks are required on transportation, and many students have been wearing them to school for months or years, it is difficult to argue that masks are not reasonable.

Here are some legal citations and official documents that have shown masks are a reasonable accommodation:

Here are some similar situations that can be used to demonstrate masking is not an unreasonable accommodation:

  1. Children with anaphylactic peanut allergies may have a peanut-free classroom, peanut-free school, or peanut-free area listed in their IEP or 504 plan in order to keep them safe. Such an order means other children cannot bring or consume peanuts at school. This type of accommodation requires a reasonable change in behavior from other students in order to protect a classmate.
  2. Children may be required to wipe down desks and wash or sanitize their hands before entering a classroom in order to protect a classmate who is medically fragile. Again, this type of accommodation requires other children to make small changes in their activities in order to protect a classmate.
  3. Children with immune disorders or cancer often have accommodations that include parental notification of sick students or exposures and strict return-to-school policies.
  4. Schools routinely require uniforms, which require a change in behavior for all students. Schools also have other requirements for entry, such as vaccine requirements.

Note that most legal cases regarding mask mandates and disability law are still pending. Thus far, results have been mixed, with some judges not allowing injunctions reinstating mask mandates, while other judges have reinstated mandates. Cases vary in that some only cover one district while others cover entire states, with some only calling for masking around a specific child and others asking for universal masking.

Guidance Supporting Masking

Centers for Disease Control (CDC): “CDC recommends universal indoor masking by all students (ages 2 years and older), staff, teachers, and visitors to K-12 schools, regardless of vaccination status.”

Illinois Department of Public Health (IDPH): “Require all teachers, staff, students, and visitors to P-12 schools to wear a mask while indoors, regardless of vaccination status.”

American Academy of Pediatrics (AAP): “Wear well-fitting masks, especially during times of high community prevalence. In-school transmission has been observed more often in school districts that did not enact mask requirements. All students older than 2 years and all school staff should wear well-fitting face masks at school (unless medical or developmental conditions prohibit use), regardless of vaccination status. The AAP currently recommends universal masking in school, with an emphasis on indoor masking. An added benefit of universal masking is protection of students and staff against other respiratory illnesses that would take time away from school.”

Overview of Mask Effectiveness Studies

Current Other Legal Cases

This is an incomplete list of other related legal cases in other states. Note that some are local and some are statewide.

Other Ways to Potentially Get Around Bans on Mask Mandates

  1. Agreements made through collective bargaining, typically between teachers/staff and a school district, can include both staff and student mask mandates and can continue to be enforced despite the temporary order.
  2. City or county public health departments may be able to issue quarantine orders, including mask mandates, if they are deemed necessary.
  3. Some schools have creatively added masks to their dress codes.
Author: Susan Agrawal • Date: 2/7/2022
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