Sounds to us like Youngkin won, again.
Full transparency, when I first saw the story break here in Virginia that the ACLU had somehow beaten Youngkin and Miyares when it comes to forced masking for children with disabilities and their offices just said they felt the settlement was acceptable I was HOT. Ticked off. Angry. Seething.
Yes, I coped and seethed. Both, at the same time.
But then this lovely thread from Scott Davison came across my timeline … and yeah, turns out the media (shocker) and the professor pushing the so-called win were full of crap. OR weren’t telling the whole story.
Davison has the whole shebang:
Recommended
The @ACLUVA has been bragging that due to their Virginia lawsuit settlement, parents demanding peers mask around their at-risk child is a reasonable accommodation.
But that's not what their settlement says…at all. In fact, it's almost the opposite. 🤔
Let's discuss!
🧵1/13 https://t.co/py6lYNQON9
— Scott Davison (@scottyd121) December 16, 2022
Yes, let’s!
.@ACLUVA says the settlement "affirms that masking is a reasonable modification for students with disabilities."
But the settlement language only states that VA law allows a parent to REQUEST peer masking as a reasonable modification under the ADA.
See the distinction?
2/13 pic.twitter.com/wSPl3siWqs
— Scott Davison (@scottyd121) December 16, 2022
Wait, what now?
The law only says a parent can request the accommodation.
Well, yeah … they could already.
What now?
It doesn't conclude that peer masking IS reasonable, just that a parent is allowed to request it and claim it is.
Legally, it is up to a school district to make the determination as to whether it's reasonable or not.
Would they? Unlikely…
3/13 pic.twitter.com/BXBkiy2kIN
— Scott Davison (@scottyd121) December 16, 2022
Unless they’re in NoVA but keep going.
The settlement provides examples of how that process works and even suggests SEVERAL ALTERNATIVES to peer masking:
One-way masking
Staff masking
Ventilation improvements
Social distancingAre these reasonable? (Hint: none of these require OTHER healthy kids to mask.)
4/13 pic.twitter.com/bNYwav182i
— Scott Davison (@scottyd121) December 16, 2022
Gosh, they provided lots of accommodations versus just forcing children to mask.
Again, which was already being done in Virginia.
Sounds like the ACLU didn’t really win anything here.
But wait! It gets better.
What the ACLU definitely DOESN'T want you to see is that the settlement affirms the Virginia laws that schools STILL have to protect the right of parents who don't want their kids to mask.
i.e., you can't force anyone to mask who doesn't want to.
5/13 pic.twitter.com/Is44BZF07j
— Scott Davison (@scottyd121) December 16, 2022
No WONDER Youngkin and Miyares were good with the settlement. It reinforces one of the key pieces of their platform.
Parental rights.
HEY, THANKS ACLU!
To drive home that point, the settlement makes it doubly clear that you can't violate the ADA right of one student who cannot wear a mask in order to protect the ADA right of a student who wants others to wear a mask.
6/13 pic.twitter.com/LCes24syEl
— Scott Davison (@scottyd121) December 16, 2022
Womp womp.
The totality of the settlement makes it highly unlikely that peer masking would be deemed a "reasonable modification," given all the other options and the need to also protect the rights of other students to NOT be masked.
So headlines like this from @WTOP are…😬
7/13 pic.twitter.com/AlZpQ6DRUu
— Scott Davison (@scottyd121) December 16, 2022
Yeah, see what I mean?
Reading that headline it sounds like schools can start forcing masking again … but in reality, nothing has really changed. Parents could ALWAYS request the accommodation, that wasn’t taken away from them EVER.
Way to waste a bunch of time and money, ACLU.
In fact, other courts have gone even further to explain this.
In August, the 5th Circuit specifically held that the plaintiffs don't get to choose whether peer masking is reasonable – school districts do.
E.T. v Paxton (Aug 16 2022)
8/13 pic.twitter.com/SlXBtoCx7w
— Scott Davison (@scottyd121) December 16, 2022
Whaddya know?
The 5th Circuit opinion sounds suspiciously familiar to the language in the Virginia settlement, with the court including a laundry list of alternatives to peer masking that the district could employ.
(for fun, try picking the LEAST effective one. It's tough!)😂
9/13 pic.twitter.com/Bfo4w5QVL9
— Scott Davison (@scottyd121) December 16, 2022
HA HA HA HA HA HA
They.
Won.
NOTHING.
There are some great gems in this 5th Cir. decision, including the rare instance of a court pointing out the ineffectiveness of mask mandates when that issue wasn't even before the court.
Highly worth a read: https://t.co/GxVWL8Ap3a
10/13 pic.twitter.com/ko8lTHrHiq
— Scott Davison (@scottyd121) December 16, 2022
Ineffectiveness of masking.
Yeah, we knew all along but seeing it like this? Awesome-sauce.
So why are the @ACLUVA and the plaintiff, law professor Chris Seaman, so blatantly misrepresenting the case?
Seems pretty obvious – they want to convince parents that they can demand peer masking and convince school districts that they must comply.
11/13 pic.twitter.com/qYbsFYvuXQ
— Scott Davison (@scottyd121) December 16, 2022
Sneaky a-holes.
That, and they desperately want (need) a win in VERY RED Virginia where Virginians are very happy with their Republican governor.
I would ask the plaintiff, @wlulaw professor @cbseaman, why he is misrepresenting the settlement agreement, but he restricted replies to his tweet and then blocked me.
Remind me what "ACLU" stands for again?
The "C" is for "censorship," right?
12/13 pic.twitter.com/0EHP5AvJkE
— Scott Davison (@scottyd121) December 16, 2022
He has me blocked as well.
Delicate little thing, ain’t he?
So to recap:
1. The challenged VA laws are still valid, and
2. There's no requirement that plaintiff's peers be forced to mask, given the other reasonable accommodations that don't force masks on healthy kids.
I'd call that a win for @GovernorVA & @JasonMiyaresVA!
13/13
— Scott Davison (@scottyd121) December 16, 2022
I would too!
Too bad so sad, ACLU.
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