FCPS ‘assessing’ impact after Virginia settles lawsuit over end of universal masking

When Fairfax County Public Schools resumes classes in January, students and staff may once again be required to wear face masks — but only around students with disabilities who request the accommodation.

Virginia settled a lawsuit last week with parents of 12 immunocompromised students who argued that the end of Covid-related face mask requirements in schools violated their right to a free, appropriate public education.

As part of the settlement, the state agreed that, if requested by a parent, schools must allow “some amount of required masking as a reasonable modification” under the Americans with Disabilities Act. The Virginia Department of Education was directed to send guidance on “peer masking” to the schools attended by students in the lawsuit, including Stenwood Elementary School in Dunn Loring.

“The health and well-being of our students and staff remain a top priority. FCPS is aware of this settlement and is currently assessing how it impacts operations,” FCPS said in a statement.

The settlement only directly applies to the specific schools attended by the plaintiffs’ kids, who have asthma, cystic fibrosis and other conditions that put them at high risk of getting severely sick if they contract COVID-19.

However, when announcing the settlement on Dec. 12, the ACLU of Virginia — one of several organizations representing the parents — expressed hope that it will signal to other schools that they should consider requiring masks when needed for students with disabilities as well.

“We’re hopeful that every school in Virginia will view this settlement as a sign that they should make similar accommodations for their students, even if they are not part of the case,” ACLU of Virginia Legal Director Eden Heilman said.

The complaint was filed in federal court in Charlottesville on Feb. 1, shortly after Gov. Glenn Youngkin’s executive order making masks optional in schools took effect.

FCPS and six other school districts sued Youngkin in an effort to block the order, arguing that universal masking was still necessary as the country was just starting to exit the biggest surge in COVID-19 cases of the pandemic.

That lawsuit was rendered moot once a bill requiring schools to allow parents to opt their kids out of wearing a mask became law on Feb. 16. FCPS made masks optional on March 1, though the school board filed a brief supporting the families who sued.

Acknowledging an initial court ruling from March, the settlement says the state law and executive order don’t prohibit schools from considering and fulfilling mask requirement requests to accommodate students with disabilities.

Under the agreement, schools are expected to look at alternatives, such as ventilation improvements or social distancing, before requiring masks. They must also “take every reasonable step” to ensure a student whose parents don’t want them to wear a mask doesn’t have to.

The settlement also required the state to pay $295,000 to cover the suing parents’ legal fees.

“This settlement is a step toward righting a wrong,” Tasha Nelson, one of the parents, said. “Children like mine should not be told they cannot participate safely in school or that they have to be segregated. They have a right to the same education as every other child. As adults, it’s our responsibility to make sure that we include everyone in our decisions and come up with solutions that provide equity in school.”

While Covid cases haven’t gotten close to last winter’s levels, they have been climbing over the past few weeks, with the Fairfax Health District averaging 260.3 cases per day for the preceding week, as of yesterday (Monday).

FCPS has reported a total of 5,969 cases among students and staff since this school year began on Aug. 22 — exceeding the 3,669 cases seen over the same time frame in 2021. Students are now on winter break until Jan. 3.

Photo via Mika Baumeister/Unsplash