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Parents of a 6-year-old child with Down syndrome are invoking federal law to ask a northwest Wisconsin school district to reinstate and maintain COVID-19 prevention measures in the child’s school.
An attorney for the parents filed a formal request Friday for the Menomonie area school district in Dunn County to institute strong pandemic mitigation policies in order to meet state and federal requirements for children who need special education.
“We just want the school district to follow the public health recommendations of experts and their own medical advisors and people who know what they’re talking about so that our child can go to school and be safe,” said Thomas Pearson, the child’s father, in an interview Friday.
Pearson’s daughter entered first grade this fall at an elementary school in the Menomonie district. Because she has Down syndrome, she is at higher risk for severe COVID disease. At the same time, however, “it’s important for her to be in school in person,” Pearson said.
Pearson, his partner and their three children have watched the Menomonie district grapple over the last month and a half with how to manage the COVID-19 pandemic as coronavirus infections rebounded over the summer. Public health officials have attributed the resurgence of the virus, statewide and nationally, to a new, more contagious mutation, the delta variant, as well as to an insufficient number of people getting vaccinations against the virus.
‘A great year’ in kindergarten
Through most of the 2020-2021 school year, the school district had maintained a masking requirement. Pearson’s daughter attended kindergarten in person all year, he said.
“We were worried and scared,” Pearson acknowledged. But the school was careful, he added, with universal masking, attention to physical distancing requirements and keeping children in the same small groups, or cohorts.
“She attended all year and it worked,” he said. “She had a great year.”
In June, after an election in April that saw two incumbents unseated by newcomers, the school board voted 5-4 to make masks optional for the remainder of the school year. “At that juncture, the pandemic was taking a very different trajectory,” Pearson says. Cases had fallen through the first half of 2021 while vaccinations were increasing.
Over the summer, however, as the spread of COVID-19 resumed, so did mask recommendations from the federal Centers for Disease Control and Prevention (CDC) along with the state health and education agencies and local county health departments. The Menomonie school district administration had drafted a COVID-19 policy for the 2021-2022 school year that included a mask requirement.
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Nevertheless, the school board voted 5-4 on Aug. 9 to delete the requirement, making masks optional from kindergarten through 12th grade instead. Two weeks later, on Aug. 25, board members who had opposed the change attempted unsuccessfully to reinstate a requirement.
At a “meet and greet” session just before school started, Pearson saw some children and teachers with masks and others without. “It was clear that in general the COVID mitigation plans this year were not nearly as rigorous as last year,” he said.
He and his partner, the mother of his daughter, decided to keep the child home from school. “We just didn’t feel like they were doing enough” to keep kids safe, he said.
Masks return — but for how long?
On Sept. 13, after more than 1,000 students were out of school and under quarantine, the board voted 5-3 to relax quarantine requirements. Under the looser rules, for students who have been in close contact with someone diagnosed with COVID-19 who is not in their household, the decision to quarantine is now up to parents. Students who live with someone diagnosed with COVID-19 can now come back to school if they have no symptoms 11 days after they were first exposed, and seven days if they test negative for the virus.
“That made us feel they were making it even less safe for children,” Pearson says. The couple also withdrew their 8-year-old son from school. “We didn’t feel comfortable with him being there.”
Then, on Sept. 27, board members who had favored requiring masks instead of making them optional raised the masking issue again, pointing to the renewed increase in cases. This time the board approved on a 5-4 vote a narrower mask requirement for grades 4K through 6.
Late this week, however, the board scheduled a special meeting for Sunday afternoon, Oct. 3, to consider still another change for those elementary school grades. Update: On Saturday, the board posted a notice on the school district website that the meeting had been canceled.
In place of a blanket requirement, masking would be required in a particular school building only if a student or staff member attended school within 48 hours of being diagnosed with COVID-19. At that point, all students in that person’s grade level would be required to wear masks for 14 days after they were last exposed to the individual, according to the proposed policy draft.
The policy also allows for requiring masks at a school if at least 10% of the students are out isolating due to COVID-19.
Seeking a legal remedy
For Pearson and his partner, those potential changes are worrisome. “It kind of defeats the purpose of universal masking as a mitigation strategy when you’re waiting to see if people are exposed,” he said. “We were really hopeful” that they would be able to send their daughter back to school in person. “Now that is all kind of in limbo again.”
On Friday, Jeff Spitzer-Resnick, a Madison disability rights lawyer, sent a letter to the Menomonie school district administrator, Joseph Zydowsky, seeking a “due process hearing” on behalf of Pearson’s daughter. The letter cites the federal Individuals with Disabilities Education Act of 2004.
In the letter, Spitzer-Resnick notes that the girl is “in the highest risk category for contracting COVID-19 as well as the highest risk category of becoming severely ill and possibly dying” if the virus infects her. It charges that, by not providing better mitigation in the pandemic, the school district is failing to fulfill two legal obligations that it has to her as a special education student: providing “a free appropriate public education” and doing so “in the least restrictive environment” — education “with her same age peers in school.”
Spitzer-Resnick writes that the school board’s action “removing essential COVID-19 mitigation protocols” before the school year started went against the recommendations of the Dunn County Public Health Agency. His letter also points to the upcoming meeting to reconsider the reinstatement of the mask requirement for elementary school.
Even that requirement “continues to fail to have other necessary COVID-19 mitigation strategies in place,” the letter states, listing masking and vaccination requirements for school district employees as well as stronger quarantining and physical distancing rules — all of which, the letter adds, have been recommended by both the Dunn County health department and the girl’s doctor.
A copy of the letter was shared with news organizations with the name of the girl redacted. “Your school board’s decision has forced my clients to keep Student out of school in order to quite literally save her life,” it states. “While saving her life is her parents’ utmost goal, that should not come at the cost of a denial of her right” to a free, appropriate public education in the least restrictive environment.
Wanted: Stronger public health measures
To resolve the dispute, the letter asks the school district to “institute all appropriate COVID-19 mitigation protocols” in the school building that Pearson’s daughter would attend.
Those include, it says, a universal mask requirement for students and staff; a vaccination mandate for all employees, with medically approved exceptions; quarantine for all students and staff with positive COVID-19 tests “and those in close contact with them, including notification of all students and staff of positive COVID-19 test results within Student’s school building”; and a physical distancing rule of at least 3 feet “whenever possible.”
It also seeks reimbursement of legal fees and “compensatory education” to make up for the loss of the education and environment to which the girl has a right. That would include making up for lost education time during the period in which the issue is adjudicated.
Contacted Friday about the letter, Zydowsky, the Menomonie school district administrator, told the Wisconsin Examiner in email message that he was busy with homecoming activities and that “I have no comment on the matter.”
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Pearson believes the administration and the school district appear to be “doing everything they can do” for the safety of children like his daughter. “It’s frustrating” to see a majority of school board members vote to weaken COVID-19 prevention policies, he said. “They’re defying the recommendations of everyone from health officials down to their own medical advisors, and even the district administrators.”
Pearson said his daughter is eager to return to the classroom. “Every day she asks if she’s going to school,” he said. “She has a right to go to school in person like everyone else under these circumstances. A mask is inconvenient, but given how unanimous public health experts are, it’s hard to see how it’s unreasonable to require it for children’s health issues.”
On the first day of school, Pearson said, the school sent out emails to parents informing them that one of the pupils had a potentially toxic peanut allergy, and alerting them not to send peanuts or foods containing them to school with their children to avoid exposing the allergic child to potentially airborne peanut particles. The message was “pleading with everyone to come together and keep that child safe,” he said. “I get it.”
Yet even as parents cooperate with that message, “here there’s an airborne virus, and some children are more vulnerable than others,” Pearson said. “And masking has become such a toxic issue, other parents, in order to protest them, they’re willing to put my child and other children at increased risk.”
This story was updated 10/2/2021 at 3:25 PM with the information that the school board canceled its scheduled Oct. 3 meeting.
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