Assistant principals often have the (un)enviable duty to enforce the student dress code. This year, your school’s dress code should include a new addition: face coverings.
With limited exceptions, schools in Phase 4 must require face coverings for all students kindergarten through 12th grade when in classrooms, hallways, and indoor common areas and when on a school bus. In Phase 5, student face covering requirements shift from “required” to “strongly recommended.”
Student Refusal to Wear Face Coverings
To help implement face covering requirements, schools should amend their student codes of conduct and dress codes to include the state-mandated face covering requirement. By including the face-covering requirement in the dress code, assistant principals could consider disciplining a student for noncompliance in the same way they would for other violations of the student code of conduct and dress code.
If a student with a disability is able to medically tolerate a face covering and there are no disability-related exceptions to the face covering requirement for that student, the student with a disability may be treated the same as his or her nondisabled peers if he or she refuses to comply with the face covering requirement. Remember, however, that students with disabilities are subject to additional disciplinary safeguards and protections, including, as applicable, manifestation determination reviews. If a student with a disability chronically refuses to wear a face covering and no disability-related exemptions apply to that student, schools should consider whether to convene an IEP or Section 504 Team meeting to address the student’s noncompliance including whether the noncompliance should be addressed through positive behavior interventions and supports.
Administrators should exercise caution before disciplining a student for failing to wear a face covering if the student has claimed a medical exemption.
Medical Exemption
If a student cannot medically tolerate a face covering or is unable to independently remove the face covering, then the student is not required to wear a face covering. While neither the Roadmap nor Executive Order 2020-142 or Executive Order 2020-185 expressly require documentation before granting a medical exemption, schools should use a medical exemption form, particularly because a medical exemption request may trigger obligations under Section 504 of the Rehabilitation Act of 1973 or the Individuals with Disabilities Education Act.
Schools also must consider whether students with disabilities require modifications to school rules and requirements, including face covering requirements. For students who already have IEPs or Section 504 plans, those teams may need to decide whether an exemption or modification of the face covering requirement is necessary due to the student’s disability. If you receive an exemption request for a student with an IEP or 504 plan, be sure to promptly inform the necessary special education administrators so that any necessary accommodation or exemption may be discussed and documented through the appropriate process.
A medical exemption request from a nondisabled student may trigger the school’s “child find” obligations. If the information accompanying a mask exemption request causes school officials to suspect that the student may be a student with a disability, school officials must seek consent to evaluate the student under either Section 504 or the IDEA.
If your school grants a student’s medical exemption request or modifies a student’s face covering requirement due to that student’s disability or medical needs, that student may not be disciplined for failing to wear a face covering. A medical exemption does not automatically mean that the student can attend school “bare-faced.” Appropriate accommodations may be determined by a Section 504 or IEP Team, and may include wearing a face shield or participating in virtual learning.
Religious Exemption
If a parent requests that a student not wear a face covering for religious reasons, school officials must carefully analyze the request under the First Amendment’s Free Exercise Clause.
This analysis requires that the parent or student establish a sincerely held religious belief that would be violated by wearing a face covering. In this situation, school officials can request that a parent or student articulate what religious belief wearing a face covering violates. School officials may be aware of information that refutes the “sincerity” of that belief (e.g., whether the student has been seen wearing a scarf or gaiter covering the student’s nose and mouth). If the school imposes a face covering requirement despite a student’s sincerely held religious belief, the school must be able to show that the requirement is the least restrictive means of serving a compelling governmental interest (e.g., safeguarding the health and welfare of students and staff during a pandemic).
First Amendment cases are extremely fact-specific and can create legal exposure for a school if not handled properly. Accordingly, if you receive a religious exemption request, you should contact legal counsel. Moreover, assistant principals should proceed with extreme caution before disciplining students who claim a religious exemption, unless and until that student’s exemption request is denied following a First Amendment analysis.
Closing Thoughts
Any potential exemption request and subsequent analysis will be fact-specific. As your school develops and implements student face covering requirements, make sure to consider applicable municipal regulations, local health department orders, and CDC Guidance. Notify parents and students of applicable requirements and new code of conduct and dress code requirements. Informing students and parents about specific federal, state, or local guidance may help with compliance.
Written by Thrun Law Firm, P.C.