Seaman v. Virginia
| Decision Date | 23 March 2022 |
| Docket Number | Case No.: 3:22-cv-00006 |
| Parties | Christopher SEAMAN, et al., Plaintiffs, v. Commonwealth of VIRGINIA., et al., Defendants. |
| Court | U.S. District Court — Western District of Virginia |
Eden Brooke Heilman, Kerry Maureen Chilton, Steven Michael Traubert, Matthew Callahan, Pro Hac Vice, Monique Gillum, American Civil Liberties Union of Virginia Foundation, Richmond, VA, Eve Lynne Hill, Jessica Paulie Weber, Sharon M. Krevor-Weisbaum, Brown Goldstein & Levy, Baltimore, MD, Ian S. Hoffman, Arnold & Porter Kaye Scholer LLP, Kaitlin Banner, Washington Lawyers' Committee for Civil Rights & Urban, Washington, DC, for Plaintiffs.
Andrew Nathan Ferguson, Annie Chiang, Erika Lauren Maley, Lucas Wayne Eugene Croslow, Steven George Popps, Office of Attorney General Office of the Solicitor General, Richmond, VA, for Defendants.
On January 15, 2022, the newly elected Governor of Virginia signed Executive Order 2, which provides that parents can opt their children out of masking requirements in Virginia's schools, even if the school or district has otherwise determined mandatory masking to be an appropriate COVID-19 prevention measure. On February 26, the Virginia legislature enacted Senate Bill 739, essentially codifying the same requirement in a Virginia statute, which went into effect on March 1.
Plaintiffs are the parents of twelve children who suffer from disabilities that put them at significant health risk should they contract COVID-19. They ask the Court to enjoin Virginia, its Governor and Attorney General and other Defendants, from enforcing E.O. 2 and S.B. 739, on the basis that those state laws violate their rights under federal law, specifically, the Americans with Disabilities Act (or ADA) and the Rehabilitation Act.
E.O. 2 and S.B. 739 are the law in Virginia. This is not a class action, and the twelve plaintiffs in this case have no legal right to ask the Court to deviate from that state law in any schools in Virginia (much less school districts) their children do not attend, or indeed even those areas of their schools in which Plaintiffs' children do not frequent. In other words, only those schools Plaintiffs attend or would attend are directly impacted by this Court's decision.1
That said, federal law, namely the ADA and the Rehabilitation Act, affords Plaintiffs a right to request a reasonable modification from state or local laws. The challenged state laws (E.O. 2 and S.B. 739) are preempted inasmuch as they pose an obstacle to Plaintiffs' right. Defendants are therefore enjoined from enforcing E.O. 2 and S.B. 739 to the extent that such actions would seek to prevent or limit Plaintiffs' schools or school districts from considering in the first instance whether Plaintiffs' individualized requests for masking constitute a reasonable modification under federal law. Plaintiffs' motions for preliminary injunction are therefore granted in part to that extent. See Dkts. 4, 29.
As the CDC explains, COVID-19 "is a respiratory illness caused by SARS-CoV-2, a coronavirus discovered in 2019," which "spreads mainly from person to person through respiratory droplets produced when an infected person coughs
, sneezes, or talks."2 While some people may be asymptomatic, for those who do have symptoms "illness can range from mild to severe," and "people of any age with underlying medical conditions are at higher risk for severe illness." Id. Since the onset of the COVID-19 pandemic in 2020, nearly 80,000,000 in the United States have contracted the virus, resulting in over 968,000 deaths.3 In Virginia, over 1,661,000 have contracted COVID-19, and 19,520 have died from the virus.4 The CDC and the Virginia Department of Health have identified numerous measures that can be taken to reduce the risk of spread of COVID-19, including vaccination
, social distancing, testing, avoiding poorly ventilated spaces and crowds, and, as relevant here, wearing masks.5
The CDC cautions that people with certain medical conditions and disabilities are more likely to get very sick from COVID-19, meaning they are more likely to be hospitalized, need intensive care, require a ventilator, or die.6 These include, but are not limited to: people with cancer
, chronic kidney disease, chronic liver disease, chronic lung diseases (including asthma if moderate to severe, COPD, or damaged or scarred lung tissue), cystic fibrosis, type 1 or type 2 diabetes, people with various disabilities (including cerebral palsy, birth defects, intellectual or developmental disorders, or Down syndrome ), heart conditions, and immunocompromised persons. Id. Risk of severe illness from COVID-19 increases as the number of underlying medical conditions increases. Id.
The CDC has advised everyone ages 5 and older to get vaccinated for COVID-19.7 The CDC wrote that "COVID-19 can make children very sick and cause children to be hospitalized" and even in "some situations, the complications from infection can lead to death." Id. The CDC further advised that "[c]hildren are as likely to be infected with COVID-19 as adults and can get very sick from COVID-19; have short and long-term health complications from COVID-19, and spread COVID-19 to others, including at home and school." Id. The parties have submitted other evidence concerning COVID-19 health risks presented to children; and communicability of the virus in the school setting, addressed below.
Since the onset of the COVID-19 pandemic in early 2020, parents, students, school administrators, school boards, localities, states, and the country have grappled with how to balance the interests of children's education and public health in preventing or minimizing risk of spread of the virus.
In March 2020, following an initial short-term closure of schools for two weeks after the outbreak of COVID-19, the former Governor of Virginia issued Executive Order 53, which directed a "[c]essation of all in-person instruction at K-12 schools, public and private, for the remainder of the 2019-2020 school year," as a measure to reduce risk of spread of the virus. See Dkt. 44-3. Following a phased reopening approach to reopening first laid out by the then-Governor in March 2021, the Virginia legislature enacted Senate Bill 1303. This legislation provided that "[e]ach school board shall offer in-person instruction to each student enrolled in the local school division in a public elementary and secondary school." Va. Acts. Ch. 456 (Spec. Sess. I) (S.B. 1303), § 2, available at 2020 VA S.B. 1303 (West.) (emphasis added).
But the in-person education provision in the legislation was not without limits. The legislation further stated that a school board shall "provide such in-person instruction in a manner in which it adheres, to the maximum extent practicable, to any currently applicable mitigation strategies for ... elementary and secondary schools to reduce the transmission of COVID-19 that have been provided by the federal [CDC]." Id. And, in any event, "[i]f a local school board determines ... that the transmission of COVID-19 within a school building is at a high level," the school board could temporarily shift to "fully remote virtual instruction" or a "combination of in-person and remote virtual instruction" for "the at-risk group of students indicated ... or, if needed, the whole student population in the school building ...." Id. , § 3(1). However, those measures could last "only for as long as it is necessary to address and ameliorate the level of transmission of COVID-19 in the school building." Id. The legislation further provided that school boards may also "provide fully remote virtual instruction to any enrolled student" upon parent or guardian request. Id. , § 3(2).
In May 2021, the former Governor issued Executive Order 79, which provided, in relevant part, that "[a]ll students, teachers, staff, and visitors must wear a mask over their nose and mouth while on school property," subject to certain exceptions. Dkt. 45-7 at 3. Exceptions included "[w]hile eating or drinking," "exercising or using exercise equipment," "playing a musical instrument," "[a]ny person who has trouble breathing" or who cannot "remove the mask without assistance," those who are "seeking to communicate with people who are deaf or hard of hearing and for which the mouth needs to be visible," or "[p]ersons with health conditions or disabilities that prohibit wearing a mask," and "[n]othing in this Order shall require the use of a mask by any person for whom doing so would be contrary to his or her health or safety because of a medical condition." Id. at 2–3.
In August 2021, the Virginia Department of Health issued an order concluding that "[a] public health emergency due to COVID-19 continues to exist," and "requir[ing] all individuals aged two and older to wear masks when indoors at public and private K-12 schools to inhibit spread of the virus, as recommended and described by the CDC."8 Exceptions to the requirement largely tracked those in E.O. 79, including when individuals are eating, drinking, sleeping, exercising, playing a musical instrument, "[a]ny person who has trouble breathing," "[p]ersons with health conditions or disabilities that prohibit wearing a mask," or "[a]ny person who has a disability or meets at-risk criteria or those assisting such persons, including those individuals with an Individualized Education Plan (IEP) or 504 plan under the Rehabilitation Act, where wearing a mask would inhibit communication or the receiving of services." Id.
On January 15, 2022, the newly elected Governor of Virginia signed Executive Order 2 (E.O. 2), which provided, in relevant part: "The parents of any child enrolled in a[n] elementary or secondary school or a school based early childcare and educational program may elect for their children not to be subject to...
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