In E.T. v. Abbott, Disability Rights Texas argues that Texas Governor Greg Abbott’s ban on public schools enforcing masking requirements violates the Americans with Disabilities Act (ADA). The plaintiffs are Texas public school children under the age of twelve (and thus too young to be vaccinated) with disabilities that make them particularly vulnerable to COVID-19 and the families of those children. The Texas Education Agency (TEA) and Texas Attorney General Ken Paxton are also named as defendants, though both have argued that they do not enforce the mandate and are thus not proper defendants. Judge Yeakel, who is hearing the challenge in the U.S. District Court for the Western District of Texas, seems likely to keep them on as defendants, given that TEA alerts Paxton’s office when districts violate the order and given Paxton’s numerous tweets claiming credit when school districts that have violated the order have lost in court.

At issue is Executive Order GA-38, which prohibits governmental entities within the state of Texas—except for hospitals and certain state-run congregate facilities such as jails—from mandating masks. Plaintiffs, in their complaint, argue that the order violates Title of II of the ADA and that it prevents school districts from fulfilling their Title II obligations to students. Simply, Texas is forcing children with disabilities and their families to choose between the in-person education and attendant services that other Texas children have access to and their safety. (They also argue that it is a barrier to fulfilling obligations under Section 504 of the Rehabilitation Act, which applies to entities that receive federal funding and is, in meaningful part, analogous to Title II.)

As the Department of Justice explained in a statement of interest filed in support of the plaintiffs’ ADA arguments last month, this case “go[es] to the heart of the protections afforded by the ADA to individuals with disabilities.” Under Title II of the ADA, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”

In its statement of interest elaborating on the application of the ADA framework to this context, DOJ highlighted four legal theories. First, the order’s prohibition denies students with disabilities the opportunity to equally participate in or benefit from public school services, because they cannot do so safely in-person if school districts are prohibited from implementing even limited mask requirements and that leaves them with the inferior option of online-only education. Second, Title II’s implementing regulations explain that it is impermissible to deny people with disabilities “the opportunity to participate in services, programs, or activities that are not separate or different” from those provided to non-disabled people, and forcing families to choose online-only education because in-person school has been made unsafe is precisely that type of denial. Third, and relatedly, people with disabilities are entitled to receive services “in the most integrated setting appropriate to [their] needs,” which is not satisfied if students with disabilities can only learn safely in their homes. Finally, public schools must make “reasonable modifications” to their practices to avoid discrimination on the basis of disability, unless they can show that doing so would “fundamentally alter” the nature of school services. Here, that means that public schools must implement the reasonable modification of requiring masking where doing so is necessary to enable students with disabilities to access programs and services, because doing so does not fundamentally alter programs or services (indeed, many school districts outside of Texas require masking). The statement of interest underscored that, because the order prevents a government entity from requiring “any person to wear a face covering,” no reasonable modification—regardless of its scope, such as only requiring masking in classrooms with children with disabilities that make them more vulnerable to COVID—would be allowed.

Throughout its explanation of plaintiffs’ ADA theory, DOJ was careful to underscore that, while a virtual learning program may be an available accommodation under the ADA that students and their families could request, “a school may not mandate that an individual with disabilities accept such an accommodation,” for the reasons outlined above. The distinction is an important one: people with disabilities have long-requested access to remote services as a reasonable modification and the ability to work remotely as a reasonable accommodation (under Title I of the ADA). That the pandemic has shown how many things can be done remotely may strengthen the ability of individuals to seek these modifications and accommodations in the future. But, in order to effectuate the purpose of the ADA, they must be choices.

As Professors Doron Dorfman and Mical Raz argued in a Washington Post op-ed this summer, additional ADA theories are implicated by bans on school mask requirements. School employees with disabilities that make them vulnerable to COVID could argue that some form of masking requirement—such as teachers requiring masking in their classrooms—is a reasonable accommodation that their employer must provide under Title I. And, employees who are caretakers of people with disabilities who are vulnerable to COVID may, in some circuits, be able to make a similar argument.

Students, families, and advocates in Texas and across the country will continue to watch the case closely.