DPI letter suggests Wausau, other school districts without mask mandates could face lawsuits

By Shereen Siewert

State education officials warned school districts this week including Wausau that they could violate federal law by not requiring masks, leaving them vulnerable to lawsuits.

The issue centers around the Americans with Disabilities Act and Individuals with Disabilities Education Act, which guarantees students with individualized education programs a free, appropriate public education in the least restrictive environment. In a State Department of Instruction memo issued Wednesday, Deputy State Superintendent John Johnson cautioned that “districts must consider the needs of all students, including those with medical conditions that make them susceptible to COVID-19.”

Certain students that are immunocompromised or that have other disabilities may be particularly vulnerable to COVID-19, Johnson’s memo reads.

“A universal mask policy may be necessary if that policy allows students with certain disabilities full participation in the educational programming and environment that they would otherwise be denied,” he wrote.

The U.S. Department of Education has already opened civil rights investigations in Iowa, Oklahoma, South Carolina, Tennessee and Utah to determine whether their bans on mask mandates are a form of discrimination against vulnerable students. Children younger than 12 are also not eligible for the vaccine.

The warning comes as school districts grapple with safety protocols while the Delta variant of COVID-19 spreads through the state and nation. The Centers for Disease Control and Prevention, the state Department of Health Services, and other health officials recommend that students and staff wear masks in schools.

Districts in larger communities throughout the state have largely opted for universal masks, regardless of vaccination status. In Appleton and Green Bay, school boards unanimously reversed prior protocols and will require masks for all students and staff, even if they’re vaccinated. Kimberly, Neenah, Manitowoc and Oshkosh schools have done the same, according to the Green Bay Press-Gazette.

But in Tomahawk, the opposite happened. In August the Tomahawk School Board voted to return to its policy of recommending, but not requiring, the wearing of masks in the school building. Masks are optional in Wausau, Mosinee and D.C. Everest, among others in central Wisconsin

Wausau School Superintendent Keith Hilts said school officials are monitoring the situation closely.

“We are considering all of the information including guidance from DPI and the community petition as we monitor our situation and consider next steps,” Hilts said.

DPI officials say Wisconsin school districts should consult with their attorneys to determine whether their mask policy is in compliance with state and federal law.