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Parents who filed lawsuit against Virginia optional mask law get partial victory

The group of 12 parents said their children wouldn't get the same opportunities as other kids if schools didn't require face masks during the COVID-19 pandemic.

NORFOLK, Va. — A federal court just decided that Virginia's new law that made school masks optional will stand, but, a group of parents who asked for additional precautions has the right to request them.

“It basically says: federal law trumps state law in this issue," said Eden Heilman, the legal director of the American Civil Liberties Union (ACLU) of Virginia.

The case goes back to February when a group of parents filed a suit claiming the new maskless environments would either cause their children, who have various disabilities, irreparable harm or lead to them being excluded from public education.

Heilman, part of the legal counsel on the case, said it's a legal win for not only the plaintiffs but families across Virginia who may have children with disabilities.

The Americans with Disabilities Act (ADA) and Rehabilitation Act make sure people can't be discriminated against because of their disabilities, and make sure the government provides reasonable accommodations to make sure they get the same opportunities as everyone else.

Schools receive federal funding, which means the ADA and Rehabilitation Act apply there.

According to Heilman, parents beyond the plaintiffs in the case can use this ruling as a basis to ask their child's individual schools to do the same, on the basis that they have children with disabilities. However, the case wasn't a class-action suit, so the results won't be applied generally.

“Our hope is that they can go to their school district. With a copy of this order and say 'In this situation, these were students with disabilities who required a certain level of masking in order to be in accommodation. My doctor is recommending that same accommodation and we’re asking the schools to make those accommodations," Heilman said.

The group of Virginia parents referenced both acts in the suit. They said their children wouldn't get the same opportunities as other kids if schools didn't require face masks during the COVID-19 pandemic.

Specifically, they supported their claim that "exposure to COVID-19 places [their children] at heightened risk of severe illness or death."

The federal court agreed but laid out some limits.

For starters, the acts only allow these parents to ask their school divisions for some required masking. It doesn't necessarily mean the school divisions have to agree.

The schools have to decide that change would be reasonable, which would be a case-by-case decision.

"Plaintiffs are not harmed by the absence of mask requirements at schools their children do not attend," the opinion reads.

The ACLU represented the 12 parents in the case. 

In a Wednesday night statement, the organization said, "We will have more to say tomorrow. For now, we are glad the court agreed: No student should have to risk their lives to go to school."

Attorney General Jason Miyares issued the following statement:

“Today’s ruling affirms that Governor Youngkin’s Executive Order 2 and Senate Bill 739 is the law of Virginia and parents have the right to make choices for their children.”

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