COVID-19 in the air remains elusive disability rights issue, experts say

Federal guarantee for appropriate education could be threatened by lack of indoor air quality

By: - May 2, 2022 5:00 am

A portable filtration system reduces the amount of COVID-19 aerosols in the air inside a classroom at Escuela del Sol Montessori School in Albuquerque. (Photo by Austin Fisher / Source NM)

The coronavirus that hangs in the air inside New Mexico’s schools isn’t tracked at any level by state officials, and hasn’t gotten the same attention in New Mexico courts as school mask mandates.

But interviews with health and legal experts show that it could still be a disability rights issue because without clean air in school buildings, anyone who gets infected can develop debilitating symptoms of Long COVID, and higher risk students are more likely to have severe symptoms or die from contracting COVID-19 — especially after state officials lifted universal masking requirements.

The Americans with Disabilities Act applies to public schools and says someone with a disability cannot be excluded from participation or be denied the benefits, services or programs. Jason Gordon, litigation manager at Disability Rights New Mexico, said an argument could hypothetically be made about equal access to education, indoor air quality and COVID-19.

“If you can’t go to school because you’re immunocompromised and no one has to wear a mask, and there’s no air quality, then that could be seen as exclusion,” Gordon said.

The same goes for another landmark piece of disability rights legislation known as Section 504. This section of the Rehabilitation Act prohibits discrimination against students with disabilities by entities that receive federal funds. That includes public schools.

“If you have someone who has a disability and is being excluded from activities because of air quality or lack of a mask mandate that’s being enforced, then you could make that argument,” Gordon said.

In Texas, parents and their children — students with disabilities who are immune compromised or otherwise medically vulnerable — alleged that an executive order by Gov. Greg Abbott to ban mask mandates violated federal anti-discrimination law. They said it excluded them from public educational programs and activities. A federal judge struck down the order as a violation of the ADA.

They argued that Texas’ executive order unlawfully prevented school districts from complying with the ADA and Section 504’s requirement to provide students with disabilities access to a public school education.

Federal law specifically authorizes school districts to implement safety measures under the American Rescue Plan Act of 2021. The law allows funding to be used for putting public health measures in place that are in line with guidelines from the Centers for Disease Control and Prevention.

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While that case was about universal indoor masking in schools — and New Mexico does not prohibit schools from requiring masks — the same principles could still apply to indoor air quality and COVID-19 in schools.

Katie Gordon is a senior advocate at Disability Rights New Mexico. She said since New Mexico schools returned to in-person classes in 2021, the organization has not handled a case related to air quality.

“We haven’t really seen the air quality issue come to light,” Katie Gordon said.

Only in the last few months has air quality become a question for them, said Jesse Clifton, a staff attorney at Disability Rights New Mexico. But he believes air quality feasibly does impact another part of federal law that entitles every special education student to a free and appropriate public education, he said.

During remote learning, Clifton said, a lot of New Mexico children were receiving ancillary services like physical, occupational and speech therapy through a computer at home, which was not an adequate model for a lot of students.

“I think it would have an impact because students who would get the education benefit they need in person aren’t necessarily getting that benefit in a remote learning model,” he said. “Without air quality assurances, those kids would never go back to school.”

If they can’t keep a mask on, and the virus continues to be a threat, he added, they’ll have to receive that education at home or not at all.

Elizabeth Jacobs agrees. She’s a professor of epidemiology at the Mel & Enid Zuckerman College of Public Health at the University of Arizona. Schools that have children who are immunosuppressed and who do not clean the indoor air of the virus could be violating federal anti-discrimination law, she said.

“What is that child supposed to do to access the education?” Jacobs asked. “Do they stay there and gamble? Or are the parents then forced to find an alternative educational opportunity for them? How does that work?”

That doesn’t even account for spread at home, she pointed out, where instead of the student having an immunosuppressed condition, a parent or other relatives do.

“The kid’s just gonna go and get COVID and then come home and give it to the vulnerable family member,” Jacobs said. “It’s particularly nefarious in families with multiple generations living in the same household.”

Lack of follow-through unsurprising

Source New Mexico’s reporting shows that the state’s Public Education Department does not collect any information about COVID-safe ventilation and filtration practices in New Mexico schools.

PED says school districts promised to follow COVID rules. So where’s the proof?

It doesn’t come as a shock to the staff at Disability Rights New Mexico that PED has not been keeping great records, or doing any kind of investigation about how its rules on air quality are being implemented by local districts, Katie Gordon said.

Data tracking is just not PED’s strongest suit, she said, and so over the years, Disability Rights New Mexico has done a lot of records requests themselves.

“I really don’t find it shocking at all that they’re not sending folks out to do inspections,” she said.

No one at Disability Rights New Mexico was aware that PED has an anonymous tip line to report COVID violations at schools, Katie Gordon said.

The Gordons are parents of children with disabilities whom they send to school every day with their masks on. Clifton’s late daughter was immune compromised before the pandemic and took courses in a self-contained special education classroom.

Within the disability community, parents, students and teachers do a good job of looking out for each other, Katie Gordon said.

“I don’t think that — at the general population level — you’re gonna see that kind of concern or thinking about these issues, unfortunately,” she said.

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Austin Fisher
Austin Fisher

Austin Fisher is a journalist based in Santa Fe. He has worked for newspapers in New Mexico and his home state of Kansas, including the Topeka Capital-Journal, the Garden City Telegram, the Rio Grande SUN and the Santa Fe Reporter. Since starting a full-time career in reporting in 2015, he’s aimed to use journalism to lift up voices that typically go unheard in public debates around economic inequality, policing and environmental racism.