From Judge Marilyn Horan's opinion Monday in Doe 1 v. N. Allegheny School Dist. (which takes the opposite view from today's decision I note below):
The timing of this TRO motion has left this Court with limited options. School was set to resume tomorrow [Jan. 18] with a masking optional policy. The Court's ability to conduct a full TRO analysis has been limited to the briefing and argument of the parties. This case and claims are better addressed following a period where the parties have conducted discovery and/or potentially undertaken the proper administrative routes. The prudent and practical approach, given the potential negative impacts on the putative Plaintiffs' health and education, is that a reasonable period of maintaining the status quo is necessary.
At this stage, the School District has offered the accommodation of cyber school to students who are immunocompromised. The School Board's proffer of the cyber school accommodation fails to account for the impact to the immunocompromised students' educational needs and potential family needs to assist their homebound children. In addition to providing mask guidance and information on community spread, the CDC has also advised that "[s]tudents benefit from in-person learning, and safely returning to in-person instruction continues to be a priority."
In weighing this accommodation, the Court finds, for purposes of this TRO only, that effecting a cyber school only option upon immunocompromised students when faced with optional masks versus burdening the District with students conducting universal masking is not a reasonable accommodation and such violates the spirit of the ADA as enacted by Congress. The School Board's proffer of the cyber school accommodation fails to account for the impact to the immunocompromised students' educational needs and potential family needs to assist their homebound children. The Court cannot say, at this stage, that such accommodation meets the protections provided for under the ADA and Section 504….
Both the ADA and Section 504 of the Rehabilitation Act require Plaintiffs to establish that: "(1) they are qualified individuals with a disability within the meaning of Section 504 of the Rehabilitation Act or ADA; (2) they will be excluded from participation in or denied benefits of such services, programs, or activities of the public entity; and (3) their exclusion, denial of benefits, or discrimination occurred by reason of their disability." The ADA prohibits discrimination that includes "a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities."
When a state entity, like a school board, fails to make reasonable modifications to its facilities and practices, a party may sue the school board by bringing a claim known as a failure to accommodate claim. A failure-to-accommodate claim differs from other ADA claims in that the plaintiff is not required to show that his injury was the result of purposeful discrimination….
For the purposes of their ADA and Section 504 claims, Plaintiffs and Defendants both agree that Plaintiffs are qualified individuals with disabilities. At the September 22, 2021 Board meeting, the Board reimplemented a mask mandate, based upon express criteria, one of which was a benchmark provision for universal masking based upon when the community transmission rate was at a rate of "substantial" or "high." As of September 22, 2021, the Delta variant was circulating amongst the community with a community transmission rate of 513 cases per day and a 6.0% positivity rate. As a consequence, for the majority of the 2020-2021 and 2021-2022 school years to date, masks have been mandated within the District. Although wearing masks in the District has been inconvenient and controversial, this mask mandate status has been attained and maintained within the District without unreasonable expenditure or difficulty.
