During a surge in the COVID pandemic, the Perkiomen Valley School District moved from mandatory masking to optional masking. This prevented some medically vulnerable children with conditions like asthma from safely attending school due to their increased risk of serious infection, prompting the children’s parents to bring suit on their behalf. The court found that while the optional policy was neutral on its face, it should nevertheless be enjoined because it prevented the students from having meaningful access to their education. This disproportionate impact on students with disabilities was a violation of the Americans with Disabilities Act.

To reach this result, the Perkiomen court applied the disparate impact theory of discrimination. All but one circuit have held that disparate impact claims are cognizable under Section 504 of the Rehabilitation Act and Title II of the ADA; the Sixth Circuit, however, set itself apart in 2019, creating a split by holding that only intentional discrimination is prohibited. The intentional discrimination framework would not have reached the school’s facially neutral masking policy.

While just one circuit has denied Section 504 or Title II disparate impact claims, the implications of that decision extend beyond the Sixth Circuit as more district courts rely on its ruling, joining the broader attack on disparate-impact-based civil rights discrimination claims. This Note argues that the Sixth Circuit’s narrow interpretation of these important disability laws is wrong. By applying several tenets of Critical Disability Theory, it highlights the ways that, by failing to consider the lived experiences of people with common impairments, society can unintentionally contribute to exclusion. Further, it examines the burdens that some courts claim make cases of disparate impact too costly to remedy, weighing the alleged burdens against the fundamental human rights, such as access to public schools, that these remedies protect. In this way, it provides future litigants with a new argument to protect the right to a remedy for disability discrimination using the disparate impact framework.

While the case and argument in this Note are set in the context of a school during the COVID pandemic, their relevance extends beyond that to the many public programs and services covered under Title II and Section 504.