DPI Hints That Schools Might Face Lawsuits If They Don’t Require Masks

Letter offers thinly veiled warning about running amok of federal investigations into school mask bans and the Americans With Disabilities Act’s equal education policy.

The state Department of Public Instruction (DPI) sent a letter to Wisconsin’s public school districts Wednesday alerting them that schools that are not requiring face masks this year could face possible lawsuits. 

The lack of a mask requirement, DPI warned, could be a violation of the Americans with Disabilities Act and Individuals with Disabilities Education Act for failing to provide equal education access to students who are immunocompromised or have disabilities that make them especially vulnerable to COVID-19.

The letter, dated Wednesday and signed by Deputy State Superintendent John Johnson, states that decisions by school districts “must consider the needs of all students, including those with medical conditions that make them susceptible to COVID-19.”

The letter comes as school districts across Wisconsin are starting a new school year and are deciding whether to require face masks of students and staff in classrooms. Many of the state’s largest school districts, such as Milwaukee, Madison, Racine, Appleton, and Eau Claire, are requiring masks, but the majority of smaller districts are not. 

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School districts might need to require masks in school to allow students with various disabilities making them susceptible to COVID-19 to receive equal educational opportunities as their peers, according to the letter. 

“A universal mask policy may be necessary if that policy allows students with certain disabilities full participation in the educational programming and environment that they would otherwise be denied,” the letter states.

The Individuals with Disabilities Education Act is designed to ensure that students with individualized education programs are educated with as few impediments as possible. Students with disabilities also are entitled to receive accommodations to provide that they receive equal access to an education, according to ADA standards.

The letter notes that the US Department of Education has opened civil rights investigations in five states—Iowa, Oklahoma, South Carolina, Tennessee, and Utah—to determine whether their bans on mask mandates  discriminate against students with disabilities who are more at risk of contracting COVID-19. 

Wisconsin school districts should consult with their attorneys to determine whether their mask policy is in compliance with state and federal law, according to the letter. 

In addition to masks in schools, the letter notes that drivers and passengers on school buses are required to wear masks through an order by the Centers for Disease Control and Prevention issued on Jan. 29. The order applies to both public and private schools. 

A DPI spokesman said the agency had no further comment on the letter at this time. 

The Centers for Disease Control and Prevention, the state Department of Health Services, and other health officials recommend that students and staff wear masks in schools. 

The surge in cases is driven in part by the especially contagious Delta variant. Children under age 12 have not yet had the ability to be vaccinated against COVID-19, and many health officials worry about a surge in cases in that age group as school resumes if masks are not required. More children are being hospitalized with the spread of the Delta variant.