On one of the local National Public Radio stations here in Atlanta metropolitan area, there is a show called Political Rewind. On that show, distinguished panelists (political consultants, former officeholders, political science professors, etc.), talk about what is going on in Georgia politics and nationally as well. Today, they were talking about Republicans in Georgia being very interested in emulating what the Governor of Florida has done with respect to parental rights laws so that people do not have to wear masks and not be subject to mask mandates. The question arises whether the ADA or the Rehabilitation Act can be used as a sword to stop such efforts. Matthew Dietz, some of whose cases I have blogged on in the past, is trying to do precisely that with a complaint filed on August 6, 2021, in the Southern District of Florida. So, what this blog entry is going to do is discuss the complaint and present some of my own thoughts. Of course for purposes of this blog entry, the allegations in the complaint are being taken as true. It remains for litigation to sort all of that out. As usual, the blog entry is divided into categories and they are: the parties; historical background for complaint;  key  allegations; ADA specific laws/regulation violated; Rehabilitation Act specific laws/regulation violated; and my thoughts/other points. It is hard to believe that the reader is not going to read the whole thing because it would be hard to make sense of it otherwise.

 

I

The Parties

 

  1. The complaint can be found here.
  2. The complaint is for injunctive relief pursuant to the Rehabilitation Act and the ADA as well as Florida law.
  3. Plaintiffs are various students with disabilities with a variety of different conditions, including: Down syndrome; asthma; autism spectrum disorder; hyperkplexia; chronic kidney disease; ADHD; learning disabilities; speech impairments; Edwards syndrome; intellectual disability; a student with a tracheostomy; and anxiety.
  4. The defendants are: Governor of Florida; Florida Department of Education; and various County School Boards.
  5. The defendants all receive federal funds.

 

II

Historical Background for Complaint

 

  1. On July 30, 2021, the Florida governor issued an executive order in response to several Florida school board considering or implementing mask mandates in their school districts. In that order, the Florida governor contended that wearing a mask is a limitation on a parent’s fundamental right to make health and educational decisions for their children.
  2. As part of that executive order, the Florida governor ordered that all rules of the Department of Health must at a minimum be in accordance with the Florida’s Parent Bill of Rights and protect parental rights to make decisions regarding masking of their children in relation to Covid-19.
  3. As a penalty for noncompliance, the Florida governor directed its Commissioner of Education to withhold state funds from school boards that failed to comply, including: state funds, discretionary grant funds, discretionary lottery fund, or any other funds specified for that purpose by the legislature.
  4. The Florida Department of Education has not extended funding for distance learning into the 2021-2022 school year.
  5. On June 29, 2021, the Governor of Florida signed into law the Parents Bill of Rights. That law prevents Florida from infringing on the fundamental rights of a parent to direct the upbringing, education, healthcare or mental health of the minor child.
  6. Districts who have asked if they could offer live synchronous or asynchronous instruction with the same curriculum as in-person instruction and the ability to interact with the student’s teacher and peers have been refused the ability to do so by the Florida Department of Education.
  7. Coronavirus cases are sky high in FL (not the words used in the complaint of course, but accurate).
  8. The US Department of Education has issued a roadmap for returning student to school safely, with the first priority being the health and safety of students, staff and educators.
  9. The CDC now recommends that masks should be worn indoors no matter what is the person’s vaccination status. The CDC and the American Academy of Pediatrics recommend universal masking in schools for anyone over the age of two.

 

III

Key Allegations

 

  1. IDEA, the ADA, and §504 impose an obligation on public schools to ensure that all children with disabilities have a free and appropriate public education in the most integrated and least restrictive environment.
  2. The Governor of Florida does not have the authority to threaten school districts with loss of funding when they protect their students with disabilities health and rights to be in an integrated learning environment.
  3. The order means that many IEP and 504 plans simply will not be able to be carried out.
  4. The order violates 28 C.F.R. §35.130(b)(3) by imposing criteria or methods of administration that defeat the purpose of laws upholding the rights of children with disabilities.
  5. The order violates the supremacy clause under the U.S. Constitution.
  6. By refusing to allow school districts to implement mask mandates, the Governor of Florida has placed a legal barrier for students with disabilities that prevents students with disability from returning to public schools.
  7. Virtual programs do not provide students with disabilities a free appropriate public education and there are no virtual programs available to those students who are on a modified curriculum.
  8. The Florida virtual school does not provide any classes for students who are on the Access Point curriculum (a curriculum often used for students with disabilities).
  9. Vouchers are not a viable alternative because when a parent except a voucher, they waive their right to a free appropriate public education. Also, parents must have the financial means to transport their child to a private school and pay the extra expenses not covered by the voucher. They also must find a private school willing to accept their disabled child.
  10. While all kids are at increased risk of Covid-19 due to the fact that anyone under 12 is not yet eligible to be vaccinated, children with disabilities are at an even more increased risk. For example, studies have shown that children with Down syndrome are 10 times more likely to be hospitalized and four times more likely to die if they get Covid-19 and that was before the Delta variant.

 

IV

ADA Specific Laws/Regulations Violated

 

  1. Failure to make reasonable modifications under the circumstances when required. (28 C.F.R. §35.130(b)(7); 34 C.F.R. §104.34(a).
  2. Excluding plaintiffs from participation in public education. (42 U.S.C. §12132; 28 C.F.R. §35.130; 34 C.F.R. §104.34(a)).
  3. Administering a policy that has the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability that also has the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity’s program with respect to individuals with disabilities. (28 C.F.R. §35.130(b)(3)).
  4. Failing to permit a public entity to administer services, program, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. (28 C.F.R. §35.130(d); 34 C.F.R. §104.34(a).
  5. Utilizing criteria or methods of administration that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability and/or perpetuating the discrimination of another public entity if both public entities are subject to common administrative control or agencies of the same State. (28 C.F.R. §35.130(b)(3)(i), (iii)).
  6. Failing to administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities (28 C.F.R. §35.130(d)).
  7. Preventing the district from providing a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, to read the same level of achievement that provided others. (28 C.F.R. §35.130(b)(1)(iii)

 

V

Rehabilitation Act Specific Laws/Regulations Violated

 

  1. 504 of the Rehabilitation Act.
  2. Failing to make reasonable modifications. (34 C.F.R. §104.34(a)).
  3. Excluding plaintiffs from participation in public education. (34 C.F.R. §104.34(a)).
  4. Failing to make its services, program, and activities readily accessible individuals with disabilities. (34 C.F.R. §104.34(a)).
  5. Failure to provide a free appropriate public education. (34 C.F.R. §104.33).

 

VI

 

My Thoughts/Other Points

 

  1. Florida Educational Equity Act claims also alleged.
  2. Causation under the Rehabilitation Act is, “solely by reason of.” This is an important distinction from the ADA’s “on the basis of,” especially after Bostock as we discussed here.
  3. The complaint is strictly for injunctive relief. That is probably due to the need to get around sovereign immunity.
  4. The ADA actually has nothing to do with a free appropriate public education. That said, the IDEA and the Rehabilitation Act by way of regulations, certainly do. Also, the ADA does have an integration in the least restrictive environment mandate per Olmstead.
  5. Plaintiffs have filed a motion for preliminary injunction, which has been hung up on procedural issues. Nevertheless, expect such a motion to be heard at some point.
  6. The lack of a distance-learning option may well be a very critical factor. In other places, distance-learning might be available. Whether such distance-learning would be sufficient to satisfy a free appropriate public education is another question.
  7. One wonders why employees of the various defendants are not filing with OSHA for unsafe workplaces especially since OSHA has said they will echo the CDC guidelines, which are certainly not being followed in Florida. One also wonders whether a similar approach to this case might not work for employees with disabilities utilizing the title I construct and the title I laws/regulations/guidances
  8. One also wonders why a constitutional law action is not part of the case. For example, there is no equal protection claim filed. I am sure there were strategic reasons for not doing that, but I don’t know what they were offhand.
  9. The Department of Education’s Rehabilitation Act regulations for preschool-12 can be found at 34 C.F.R. part 104.31-39.
  10. There is a reference to 29 U.S.C. §706 in the complaint. I’m wondering if that is not a typo because I cannot figure out what it refers to. 29 U.S.C. §706 refers to allotment percentages. I wonder if §705 was not meant instead with respect to how the Rehabilitation Act defines a person with a disability. Also, §504 the Rehabilitation Act is 29 U.S.C. §794 with the remedies provisions being 29 U.S.C. §794a.
  11. There is some case law out there that the auxiliary aids section of the ADA only applies to those with communication disabilities and not to disabilities in general.
  12. Anti-masks laws and rules are an issue throughout the South/Southwest. For example, Texas has such rules. Arkansas has a statute that the Governor of Arkansas has expressed regret about that law’s wide ranging impact and has suggested rolling it back with respect to schools being able to make their own calls to manage the Covid-19 pandemic. Both Arkansas and Texas are seeing huge surges in Covid-19. For that matter, the same is true for Georgia.
  13. Some technical concerns aside, what is happening here is a very creative approach that I believe stands a very good chance of success in light of the numerous data out there about how persons with disabilities in general have been suffering tremendously with respect to their education during the pandemic. Then, you throw in the Covid-19 pandemic, how it is spreading, and the CDC guidelines. The combination of both may well be very persuasive.
Photo of William Goren William Goren

William Goren is one of the country’s foremost authorities on the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973. Since 1990, he has been advising on ADA compliance as both an attorney and professor—of which during his time as a…

William Goren is one of the country’s foremost authorities on the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973. Since 1990, he has been advising on ADA compliance as both an attorney and professor—of which during his time as a full-time academic at various institutions in Chicago, he won numerous teaching awards and achieved tenure.