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Court Concludes, for TRO, that Federal Disability Law Does Require School Districts to Mandate Masks

"It is the combination of these measures [vaccination, masking, quarantining, contract tracing, social distancing, and increased building ventilation] that make them effective and, without any one of them, individuals with disabilities ... are at increased risk of contracting the virus and severe illness or death."

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From Judge Marilyn Horan's opinion Monday in Doe 1 v. N. Allegheny School Dist. (which takes the opposite view from today's decision I note below):

The timing of this TRO motion has left this Court with limited options. School was set to resume tomorrow [Jan. 18] with a masking optional policy. The Court's ability to conduct a full TRO analysis has been limited to the briefing and argument of the parties. This case and claims are better addressed following a period where the parties have conducted discovery and/or potentially undertaken the proper administrative routes. The prudent and practical approach, given the potential negative impacts on the putative Plaintiffs' health and education, is that a reasonable period of maintaining the status quo is necessary.

At this stage, the School District has offered the accommodation of cyber school to students who are immunocompromised. The School Board's proffer of the cyber school accommodation fails to account for the impact to the immunocompromised students' educational needs and potential family needs to assist their homebound children. In addition to providing mask guidance and information on community spread, the CDC has also advised that "[s]tudents benefit from in-person learning, and safely returning to in-person instruction continues to be a priority."

In weighing this accommodation, the Court finds, for purposes of this TRO only, that effecting a cyber school only option upon immunocompromised students when faced with optional masks versus burdening the District with students conducting universal masking is not a reasonable accommodation and such violates the spirit of the ADA as enacted by Congress. The School Board's proffer of the cyber school accommodation fails to account for the impact to the immunocompromised students' educational needs and potential family needs to assist their homebound children. The Court cannot say, at this stage, that such accommodation meets the protections provided for under the ADA and Section 504….

Both the ADA and Section 504 of the Rehabilitation Act require Plaintiffs to establish that: "(1) they are qualified individuals with a disability within the meaning of Section 504 of the Rehabilitation Act or ADA; (2) they will be excluded from participation in or denied benefits of such services, programs, or activities of the public entity; and (3) their exclusion, denial of benefits, or discrimination occurred by reason of their disability." The ADA prohibits discrimination that includes "a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities."

When a state entity, like a school board, fails to make reasonable modifications to its facilities and practices, a party may sue the school board by bringing a claim known as a failure to accommodate claim. A failure-to-accommodate claim differs from other ADA claims in that the plaintiff is not required to show that his injury was the result of purposeful discrimination….

For the purposes of their ADA and Section 504 claims, Plaintiffs and Defendants both agree that Plaintiffs are qualified individuals with disabilities. At the September 22, 2021 Board meeting, the Board reimplemented a mask mandate, based upon express criteria, one of which was a benchmark provision for universal masking based upon when the community transmission rate was at a rate of "substantial" or "high." As of September 22, 2021, the Delta variant was circulating amongst the community with a community transmission rate of 513 cases per day and a 6.0% positivity rate. As a consequence, for the majority of the 2020-2021 and 2021-2022 school years to date, masks have been mandated within the District. Although wearing masks in the District has been inconvenient and controversial, this mask mandate status has been attained and maintained within the District without unreasonable expenditure or difficulty.

On December 8, 2021, despite the fact that the community transmission rate was measured at a positivity rate of 10.2% of a total of 3,277 infections for the week beginning December 5, 2021 and still within the "high" category, the Board voted to make masks optional within the District beginning January 18, 2022, conditioned upon whether the Pennsylvania Department of Health's mask mandate was lifted and the Pennsylvania Supreme Court's stay order was no longer in effect. As of December 10, 2021, the Pennsylvania Supreme Court vacated the Department of Health's mask mandate. Thus, the mask optional policy would become effective in the District on January 18, 2022.

The December 8, 2021 Board action also removed the provision that masks were to be required to be worn within the District whenever the community transmission rate was within the "substantial" or "high" categories. The Board provided no explanation for why it decided to lift the mask mandate when the transmission rate was in a category of "high" or for why it removed the community transmission rate categories of "substantial" and "high" as benchmarks for when to require masking within the District.

Presently, since September 22, 2021, the Omicron variant has emerged. The Omicron variant is even more highly transmissible than the Delta variant. As such, the community transmission rate is currently at 3,500 infections per day and a 37.1% positive rate, which is six times higher than the positivity rate on September 22, 2021, when the Board reinstated the mask mandate and established criteria for when masks should be worn in the District based upon rates of community spread. The transmission classification remains at its highest category of "high."

At this early stage in the litigation and with the little record yet developed, it is curious that, while the Board determined in September 2021 that mandating masks, based upon the transmission rate categories of "substantial" and "high," was manageable, appropriate, and reasonable, but that in December 2021, when the transmission rates were increased and the category was still at a status of "high," that the Board voted to eliminate the benchmark and make masks optional. Beyond December and in light of the proliferation of the Omicron variant, which has resulted in significantly increased numbers of infections within the population, with particular increases in infection rates for children, it is concerning that the District has not acted to reinstate the masking mandate and transmission rate categories to avoid the optional masking policy's January 18, 2022 effective date.

Turning to the Plaintiffs in this case, Child Doe 1 is alleged to have medical conditions that can be classified as immunocompromised, which presents legitimate concerns and risks to health and life from COVID-19 exposure and infection. The Plaintiff has alleged that significant expert opinions exist within the medical and infectious disease fields to support that a layered approach, which includes vaccination, masking, quarantining, contract tracing, social distancing, and increased building ventilation are all required to effectively reduce the spread of COVID-19. It is the combination of these measures that make them effective and, without any one of them, individuals with disabilities, like Plaintiffs and those similarly situated, are at increased risk of contracting the virus and severe illness or death.

Plaintiffs allege that the increased risk of infection due to optional masking within the District creates a barrier to attending in-person classes with their non-immunocompromised peers. The Plaintiffs also allege that the District has failed to make reasonable accommodations for them to access educational services and has placed them at increased risk of physical harm. The Board has provided no explanation for whether it took into consideration any needed accommodations for disabled students in the District when it made the decision to lift the school mask mandate.

Plaintiffs, John and Jane Doe 1, make claims on behalf of Child Doe 1, as an immunocompromised student, plus claims for a class of similarly situated students. The record has not yet been developed to ascertain whether the asserted class will be qualified or have standing. However, at this stage the court will consider that Child Doe 1 is immunocompromised and that John and Jane Doe 1 on behalf of Child Doe 1 have sufficiently established a likelihood of success on their claim that the District's optional masking policy has the effect of excluding Child Doe 1 from in-person attendance at public school or has otherwise denied Child Doe 1 the opportunity to participate in the in-person services of the District and that any such exclusion is based upon Child Doe 1's disabilities.

In December, the District removed the benchmark that it had established and implemented for mask mandates when the community transmission category was "substantial" or "high." Said benchmark and its implementation provided an effective and manageable accommodation to enable immunocompromised students to attend in-person classes with their non-disabled peers. In such circumstance, Plaintiffs have demonstrated a likelihood of success on the merits of their ADA and Section 504 claims based upon the failure of the District to provide a reasonable accommodation for immunocompromised students within the District….

The Court finds that Child Doe 1 is likely to suffer irreparable harm if such access to the District is denied on account of the District's optional mask policy. The ADA and Section 504 of the Rehabilitation Act mandate that disabled plaintiffs must have equal access to opportunities using the least restrictive means possible. Denying immunocompromised Plaintiffs the opportunity to access educational opportunities in the District will cause the immunocompromised Plaintiffs to suffer irreparable harm.

Additionally, Plaintiffs' Complaint and Brief in Support of the Temporary Restraining Order suggest that masking is part of the layered approach used to help slow the rate of transmission of COVID-19. The rate of transmission in the community has increased in recent weeks due to the spread of the Omicron variant. The optional masking policy increases risks to the health and wellbeing of the Plaintiffs and all students in the District. Further, immunocompromised students at higher risk are less able to safely attend classes in-person with an optional masking environment. In such circumstances, Plaintiffs have demonstrated a likelihood of establishing that they will suffer irreparable harm….

Students have been wearing masks in the District for the majority of the 2020, 2021, and 2022 school years to date. The mask mandate status has been attained and maintained within the District without unreasonable expenditure or difficulty. The Defendants cite no evidence in their Brief of how masks place an undue burden upon the District. As such, the District not will experience significant hardship if the District again requires the wearing of masks in school….

Additionally, and as Plaintiffs suggest in their Brief, wearing masks slows the transmission of COVID-19. As such, requiring masks in the District weighs in favor of the public interest because it will help to slow the spread of COVID-19 ….

NEXT: Will the En Banc 9th Circuit Extend the Second Amendment's Losing Streak to 51 Cases?

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  1. This judge was nominated by Obama . . .

    1. So, a moron ... agreed!

      1. She was installed as a Trump nominee and is a lifelong Republican from a backwater county.

        1. She was initially nominated by Obama, then renominates by Trump, presumably as a courtesy. But cope harder lol

          1. She was initially made a judge by Tom Ridge, you bigoted wingnut.

            Presumably, even a giggling dope like you might now understand what has happened here,

            1. Thanks for playing, XD.

              Prof. Volokh lathers his rubes as he sees fit.

              I lather his rubes as I wish.

              Either way, the clingers get lathered.

    2. Masks have had a small benefit or none, in dozens of studies. I am willing to wait for a study of masks in the Omicron variant era. This judge has not probably reviewed the studies.

      Pre-law requirements should include courses in critical thinking, and in the scientific method and its problems.

      1. I'd suggest we start by requiring doctors to learn how to read and interpret a scientific research paper. Maybe then we wouldn't have to subsidize MD-PhD programs.

      2. The judge wasn't basing his ruling on facts, only feelings.

        It's bizarre to think everyone else has to wear a mask instead of one kid staying home. Especially given the well known harm these masks are causing children.

        Democrats are evil monsters. This shows why I repeatedly state so.

    3. Mainstreaming ADA kids as and is a mistake.

      1. Um, are you confusing the ADA and the IDEA? "Mainstreaming" is a term of art in the latter context, not the former.

  2. Judge Marilyn Horan is a fucking moron

    1. I'm surprised she didn't enter a nationwide injunction, against all school districts.

  3. Someone should find a kid with a disability that affects breathing such that wearing a mask is a risk and sue on the grounds that mask mandates violate the ADA.

    1. I have no doubt at all that (1) there are such disabilities, and (2) parents who have documented said disability have received exemptions from school districts. Given the law of numbers, I expect that this means that, while 13,000 such students have received exemptions, nationwide, 1% (or 100-150 approx) were not given them. School districts are not perfect, after all. In fact, I'm surprised that we have not heard a lot of Fox News blowback on these few cases...so many the numbers of rejected mask exemptions is even smaller than 1%.

      On the other hand; I wonder how schools are dealing with deaf students. While some such students are using ASL and nothing but; many many are using a combination of sign language and lip reading. Lip reading, obviously, is impossible with masks, so I wonder how that is being accommodated. (Here in Children's Court in LA County, I used a clear face guard instead of a mask [with my judge's prior okay], as did the courtroom sign language interpreters. But these were, of course, less effective than N95 masks, and there was significant pushback from the interpreters union. Fortunately, we're back to remote trials/hearings during Omicron, so that issue has been kicked down the road again.)

      1. Wouldn't the ADA mask exemption for the kid with asthma directly violate the ADA rights of the immunocompromised kid? And vice versa?

        In general I haven't previously seen the ADA interpreted in a way that required all the other kids (rather than the school) to make a significant accommodation. For example, a deaf kid would be entitled to an interpreter. S/he would not be entitled to require all the other students to learn sign language. And if s/he was a lip reader, she would not be entitled to have all students remove their masks so she could see them.

        1. duck
          Unsurprisingly, the most interesting cases are ones where everyone agrees, "Side A, you have a perfectly legit ADA claim. And Side B, you also have an ADA claim that is just as legit." With those cases, it is (1) Not surprising that any ruling may be seen as controversial, and (b) Not surprising that different trial judges may rule in many different ways, as the case/issue shakes itself out.

          There are parents of a small segment of deaf kids who (unwisely, IMO) are forcing those children to not learn sign language at all (certainly not in any classroom setting) and, instead, are having their children taught solely by lip-reading (and related skills). In my day, this was called the oral method. 100% depends on lip-reading and therefore, depends on a deaf child being able to see the mouths (and eyes, and facial expressions) of everyone he or she interacts with. Oral method is relatively rare here in California. But it's around...no idea what is being done to address this, although I'm sure that scores of Ph.D students in Education, Social Work, Medicine, Public Policy, etc etc are doing their dissertations on just these sorts of things.

        2. A similar situation would be an autistic student who is very sensitive to noise. Could the ADA be interpreted to require the school to enforce a maximum decibel level? I doubt it.

        3. Senator 1: Could the ADA be seen as requiring vaccinations of the general student population because some kids are fragile to the disease being vaccinated?

          Senator 2: Haha, good one. Nobody would vote for it if it did.

  4. There might be some middle ground, in which the immuno-compromised students are offered distance-learning, and that is a sufficient response to the ADA considerations. And if the particular school district in this case didn't make that argument, then 'for TRO purposes' -- and this is Friday so we can have until Monday to clean it up -- I can understand it. And it tees up nicely for a quick decision by the circuit.

    1. Read the second paragraph of the quotation.

      1. Yeah, compromise isn't something the marxists allow, just their exertion of power over the populace.

  5. And they are required to wear an N95 or better. The rest are just face decorations according to the latest guidelines.

    Why didn't this apply in during flu season? That harmed far more children.

    1. "N95 or better"
      Are you referring to a fullbody suit with oxygen tank?

      1. Hermetically sealed giant hipster ball.

        Bubble Boy

  6. "The Plaintiff has alleged that significant expert opinions exist within the medical and infectious disease fields to support that a layered approach, which includes vaccination, masking, quarantining, contract tracing, social distancing, and increased building ventilation are all required to effectively reduce the spread of COVID-19."

    Did the defence quote the NIH saying we have no evidence that the largest group of immunocompromised children are not at elevated risk?

    https://www.covid19treatmentguidelines.nih.gov/special-populations/children/

    " Based on data for adults with COVID-19 and extrapolations from data for non-COVID-19 pediatric respiratory viral infections, severely immunocompromised children and those with underlying cardiopulmonary disease may be at higher risk for severe COVID-19. Initial reports of SARS-CoV-2 infection among pediatric patients with cancer and pediatric solid organ transplant recipients have demonstrated a low frequency of infection and associated morbidity;16-20 however, similar reports for other immunocompromised pediatric populations are limited."

    The plantifs calling themselves immunocompromised instead of the specific reason is odd. An immunosupressed organ transplant patient is likely on a cocktail of steroids to suppress the immune system, antivirals, antibiotics, and antifungals. That has some overlap with treatment for severe COVID-19. In contrast, a diabetic child will treat the symptoms with insulin but still be classified as immunocompromised.

  7. Yeah I'm skeptical that the ADA was ever designed to force others to wear masks because of someone's disability and/or that forcing others to do so is a reasonable accommodation. Plus if you want to get into disabilities there are those who should not be wearing masks. What about them?

    1. Clearly, the mask mandaters don't want them to catch Covid. Do you? Won't you think, not just of the children, but of the children's poor grandparents with four-plus comorbidities?

      1. If the concern here was really for the student not to catch Covid, the best sure fire way to do that is to not be around anyone who is potentially infected. If that is your objective then cyberschooling is by far the most responsible decision and accommodation that can be made.

        Masks, of the right type, properly worn, and WITH social distancing probably reduce the risk of contracting of Covid, but it does not cut it nearly as much as just simply NOT being people who are infected. And last time I checked you couldn't get Covid over Zoom....

  8. Turning to the Plaintiffs in this case, Child Doe 1 is alleged to have medical conditions that can be classified as immunocompromised, which presents legitimate concerns and risks to health and life from COVID-19 exposure and infection.

    Then you shouldn't be in school right now, because there's a substantial risk of catching COVID-19 even if everyone is masked.

    Beyond that, I'm not sure what gives the federal government the power to tell a state that they must enforce a mask mandate. This isn't interstate commerce. If it's because the district gets federal funds, then the federal government is free to stop giving the district those funds, but it doesn't mean they can issue a restraining order.

    I don't see how you can say it's a "reasonable accommodation" to force the district to force everyone to wear a mask just so Child Doe 1 can be marginally safer. Forcing every student and staff member in the district to perform an action isn't reasonable. The court even calls the mandate "inconvenient and controversial".

    I also don't see what stops the logic of the ruling from potentially affecting every business and every political body in the nation. After all, an immunocompromised person could want to enter any government building, or enter any store. If it's "reasonable" to require a district to require masks, then it's just as "reasonable" to require this of the library, and the pet food store.

    And why limit it to COVID-19? An immunocompromised person is at risk from all manner of illnesses; we don't have to be in a pandemic for this to be true. So we're left with a permanent mask mandate for everyone. No?

    1. Child Doe 1 will probably get Covid within the next few weeks and moot any further action. Almost everyone will get it.

    2. Influenza killed twice as many children in the US in 2020 than COVID-19. So, yes, the logic would apply to "normal times" too.

      Depression is a real problem in high school kids. With these principles, it would be possible to justify any restriction that could reduce suicides in depressed children. Dress codes, no competition, no grades, no tests, no class rankings, no extracurricular activities, no PE, and so on.

      Grass allergies are fairly common. Can schools be forced to remove lawns?

    3. The mask mandaters have an irrational belief that masks actually reduce the spread of covid. Numerous studies show there is virtually no difference in case rates between schools with mask mandates and schools without mask usage (see numerous studies cited by healthy - skeptic - kevin roche). The only studys showing a benefit by wearing masks in schools is the deeply flawed study from arizona. The arizona study is the one that the CDC cites in support of mask mandates in schools in spite of the deep flaws.
      It should also be noted that the CDC finally reversed course and noted this week that natural immunity is better than vaxed immunity, which has been extensively documented in the medical community since August.

  9. A "reasonable accommodation" under the ADA is to force EVERYONE ELSE to wear a mask? How preposterous. A "reasonable accommodation" would be to ALLOW YOU to wear a mask, not to force everyone else to wear one. Can you imagine this in an employment context?

    1. Not so clear.
      A reasonable accommodate might be to have all windows fully open to allow adequate ventilation.
      A kid wanting to wear an N95 mask does not need permission from the school.

      1. Not in this case, but if a school (or employer) had a "no masks" policy (say, for security reasons), the ADA would likely require an exception as a "reasonable accommodation" to permit someone to wear one for medical reasons.

        That's a far cry from imposing a personal requirement on everyone else to wear a mask as an "accommodation" to one individual. For example, an employer might be required, under the ADA, to permit an employee ultra-sensitive to smells to work in an isolated area, but not to force every other employee to refrain from wearing perfume or cologne. (Of course, an employer would be free to voluntarily institute such a prohibition).

  10. Another step toward any parents with any options at all abandoning the government schools. And red states are giving more parents more options all the time.

    1. The ADA us not limited to public schools. Under this judge's reasoning, mask mandates would be mandatory pretty much everywhere as a "reasonable accommodation" to any immunocompromised person who might be around.

  11. Why does bubble boy get to put everyone else in a bubble too? How the hell did we reach this point?

    1. The people that Rev. Artie call our betters are interested in equality of outcome, not of opportunity. They never understood Harrison Bergeron.

      1. "They never understood Harrison Bergeron."

        They understood it as an instruction manual, rather than a cautionary tale.

    2. Why are bubble brains allowed to spread false public health "information"?

      1. Who decides what is false public health "information"?

        The CDC at one time or another has held almost every possible position on every possible issue related to COVID except for the issue of origin.

      2. I don't know, why are you allowed to speak.

  12. The howls of the pro-disease lobby are noted. Typically, they cast this case as an imposition on everyone, for the benefit of just one other. To anyone familiar with the politics of the similar anti-special-education faction that is a familiar posture. But it is also a nonsensical description of the overall situation.

    What is happening instead is that one member of a minority class has interests which stand for those of the entire class. The question whether interests of non-class members can be subordinated to enable equal treatment for all class members becomes the proper focus.

    The formerly customary answer to that question was to cast disabled public school children into outer darkness, denying them public education altogether. At some point it dawned on everyone involved that the reasoning—that it was too expensive to accommodate the disabled—was 100% discriminatory. That became evident because it was easy to turn the premise around, and point out that by making universal the educational means which would adequately serve the disabled, it would be possible to accommodate the entire population—which would thus be needlessly over-served at enormous wasted expense.

    Thus, a policy of targeted accommodation which had customarily been cited as unreasonably expensive, could be recast in an equality-premised light as an economy measure. That put a harsh focus on the equality/no-equality crux of the matter.

    Change the context back to pandemic management, and the issue is clarified. The pro-disease lobby wants to force America back to a former situation, where a despised and unlucky minority class are forced to bear by sacrifice the entire burden of inequality.

    1. Wow. What a bunch of crap. The 'pro-disease" lobby? Seriously?
      If masks work there is nothing to prevent Child Doe 1 from wearing a mask and thus reducing the risk of catching Covid. If Child Doe 1 is not protected by wearing a mask then the masks must not work.

      1. Mosley, some unfortunate circumstance forces you to share time in a sealed room with a patient ill with a deadly contagion. The question is, should both of you be masked. The masks available transmit 0.05 of the contagious agent to or from each masked person. Can you do the math and answer the question?

        1. Sorry. Child Doe 1 is not being forced "...to share time in a sealed room with a patient ill with a deadly contagion." The child (through his/her/their parents) is demanding "...to share time in a sealed room with a patient ill with a deadly contagion." Would you send your child to school if you knew that some of his/her/their classmates had smallpox even with a mask mandate?

          Also I doubt the accuracy of each mask transmitting "0.05" of the contagion but I am willing to be convinced if you have proof.

          1. Also, why do classrooms have to be sealed? Why can't windows and doors be open or air filtration be used? Or both?

            1. Because school boards don't want to spend money for better ventilation and because climate change says that keeping windows open adds to greenhouse gases.

          2. I guess the answer is no, you can't do the math and answer the question.

            (The point of S.L.'s word problem is the rather obvious one that I thought everyone already knew: when the contagious person is wearing a mask, it helps as much as or maybe even more than the victim's mask.)

            1. And I guess you agree with Lathrop that the child was being forced "...to share time in a sealed room with a patient ill with a deadly contagion." This is a stupid take because the only people forcing the child to be sealed in a room with a deadly contagion are the parents of that child. Maybe they should be arrested for child endangerment? As far as the masks, I guess you agree with me (and the CDC and Fauci, at least at some point in time). They don't work.
              A question, though. Why is the one who is infected the "contagious person" and the person who isn't infected the "victim"?

              1. Ladies and gentlemen, pure tin foil, maximally refined:

                Why is the one who is infected the "contagious person"

    2. Why is forcing everyone else to wear masks a “reasonable accommodation”, but all of the other actions that the district offered isn’t? Since when does the ADA require accommodations by third parties (the other students) in order to be met? Can you name another, already established, accommodation that places a burden on to a third party?

      1. Can you name another, already established, accommodation that places a burden on to a third party?

        Gwarrior, that is what my comment was about. Special education accommodations under IDEA are usual examples of that. Third parties endure taxation which funds educational activity reserved exclusively for others. Schoolmates must practice obedience to rules they dislike. Other-than-disabled students suffer pedagogical practices which may be less than optimal for them.

        Those are reasons why special education programs continue to be broadly unpopular among the non-disabled. Such programs could not be maintained politically, except for legal requirements demanding more equality of outcomes than most school districts would willingly deliver to the disabled.

    3. You're a broken record.

      Whether mask mandates are a good idea is a separate question is whether the ADA requires them. Do you understand that courts exist to decide questions of law, not as free-standing super-legislatures to impose their ideas on people?

      1. Whether disabled students got their educational needs met was a question separate from what the laws required, until courts said otherwise.

        My last sentence said this:

        The pro-disease lobby wants to force America back to a former situation, where a despised and unlucky minority class are forced to bear by sacrifice the entire burden of inequality.

        F.D. Wolf, do you pretend you are unaware that the usual demand of many anti-maskers and anti-vaxxers is that people more-vulnerable to death and injury from Covid be left to fend for themselves, so that others less vulnerable can live their lives unhindered?

        1. If this child is so vulnerable, then it's abusive for his parents to let him go to school. Would you trust your child's life to the self-discipline of hundreds of schoolchildren keeping their masks on?

          If the ADA mandates mask mandates, why hasn't anyone in the Biden administration suggested it yet? Of course, the legal argument is frivolous, and everyone knows this decision won't hold up. All it accomplishes is bringing further discredit to the judiciary as being politicized.

          1. You (and most of this thread) are taking EV's bait to bash... wait what are you even bashing exactly, this is a Trump-appointed judge. The ADA?

            It's especially dumb since this ruling doesn't even suggest that "the ADA mandates mask mandates." If you read the post even a little, you'd see that it's a TRO in a situation where a school already had a mask mandate, it seemed to be working fine, and then they wanted to drop it with no explanation offered. So the (temporary) ruling is just: how about you keep the mandate you already had while we sort this out. It's a typical status quo TRO, that's it.

            > Said benchmark and its implementation provided an effective and manageable accommodation to enable immunocompromised students to attend in-person classes with their non-disabled peers.

        2. Lathrop,
          Are you aware that a proper N95 mask will protect a vulnerable individual far more that poorly fitting, frequently moved masks on people in the same room?
          Get a grip on what things actually make a difference to what one is trying to accomplish.
          And let the kids keep their coats on and open all the windows for proper ventilation.

          1. Nico, that is why I wear an N95 mask. I am also aware that the 3M masks I favor do not come in a sufficient variety of sizes, especially with regard to children's faces. I do not know to what extent, if any, the market has made up that deficiency. I am appalled that a full range of effective masking is not already available nationwide. I see no indication that anyone is trying to make it so.

            Your suggestion for open windows is good one, but not reasonable in some climates. But by all means, combine whatever anti-Covid tactics can reasonably be mustered, and insofar as possible make them simultaneous and maximally applied geographically.

            When it is finally written, the history of public health response to this pandemic will make for appalling reading.

            1. "the history of public health response to this pandemic will make for appalling reading."
              I agree, because the CDC has become a world follower in acknowledging publicly available facts. For example Israel has been far ahead of the US, in policy, in vaxxination program and in booster program.
              The problem with N95s is that their uses can be dangerous when used for long periods. That is Why 3M prints a black box warning on each mask.
              Fortunately for kids, if the is no mask mandate, they can where an N95 with an exhaust value. That should make it much better for thos with respiratory difficulties.

    4. I love your constitutional jurisprudence, Stephen, never change.

    5. "pro-disease lobby "
      The typical crap that is driving the nation apart

      1. The typical crap that is driving the nation apart

        Nico, tell that to the pro-disease party; it's doing the driving.

        You have millions of folks who got vaccinated for this and for that, but then all together they suddenly refuse to get vaccinated for Covid? That isn't chance. It is fair to look for an explanation.

        Turns out that county-by-county Covid death rates correlate with Trump voting percentages. Explain how that happens without political impetus—which I ask about because it is so easy to see it happening. Trump state governors publicly minimize Covid, and try to ban localities from using anti-Covid public health policies. Like so much of the, "driving apart," from the Trump crowd, it is happening in plain sight.

        I may reconsider if you can account in some other way for that correlation, or explain why Republican politicians keep unloading dump trucks of crap misinformation about Covid. Whether I do reconsider will depend on how convincing your evidence is. The stuff I have seen for myself looks strongly explanatory. If you think you can explain better, have at it.

        1. I don't bother with looking at US county by county records because they are not easily and uniformly available, and because states suddenly stop providing such information to neutral third parties such as Johns Hopkins.
          However, I have looked at a collection of 99 countries with a total of 5.5 billion people and the correlations are far less clear than you assert.
          Unfortunately people on both sides of the argument in the US quickly devolve into partisan political arguments and name calling. You and grb do it and the right-wing crazies like Bob from Ohio and the Armchair do it. S_O usually sidesteps the substance of arguments and his post devolve into politics. Yes, the history of public health in the SARS-CoV-2 era will be a sorry one.

          1. NYT coverage of the Johns Hopkins statistics note the deficiencies, and exclude from calculations the counties (and sometimes states) which provide irregular or suspect data.

            Of course you cannot find abroad any basis for evaluating political partisanship effects on Covid outcomes in the U.S. Trumpism is not a thing abroad.

            1. "Trumpism is not a thing abroad."
              Praise the Lord!

  13. The legal principal Judge Horan seems to be applying is that when the judge does not know what a pandemic is doing, rule against public health restrictions and go back to the status quo. That way, no one is harmed by the restrictions--only by the pandemic.

    1. Of course, that should be "principle."

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