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As lawsuit continues, Buffalo Public Schools to accommodate student with disabilities who can't mask

A socially-distanced Buffalo Public Schools classroom
Buffalo Public Schools
Face masks and socially-distanced desks are among the COVID-19 health and safety protocols in place at Buffalo Public Schools.

Buffalo Public Schools will allow reasonable accommodations for a student with disabilities who cannot wear masks, as a lawsuit continues in federal court. The district was expected to respond in federal court Tuesday regarding the lawsuit, filed against it last week.

The district is being sued by the family of a 10-year-old with disabilities, who has not been allowed to return to in-person learning, for alleged violations of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. The 10-year-old, identified as "J.S." in the suit, has autism, ADHD, migraines, hypotonia and PICA. Because of this, the parents say their son is not able to wear a mask.

Rebecca Izzo, the attorney for the family, told WBFO that the district and the family were able to come to an agreement to allow their child back in school while the lawsuit proceeds.

"Rather than respond, they have agreed to allow him back in school with a face shield rather than a face mask, while the parties work out the remaining issues in the litigation. We're very pleased that the district has agreed to let him and other students like him return to their classrooms for in-person learning so that they will not be denied the same access that non-disabled students enjoy," Izzo said.

Izzo said J.S. will be able to return on Feb. 7 and will follow other safety protocols, including weekly testing and wearing the face shield in lieu of masking, as a reasonable accommodation. Izzo, of Conners LLP, stressed that this is not an "anti-mask" case and that J.S.'s parents have been willing to follow other precautions their son can do, in order to attend school and protect himself and others.

According to Izzo, the district has also agreed to reach out to other families who previously requested reasonable accommodations to evaluate their accommodations on a case-by-case basis. The district will evaluate accommodations consistent with itsJuly 2021 Mask and/or Face Shield Exemption During In-Person Instruction guidance document, per the agreement.

Izzo said they are unsure how many students this will impact, but it is her understanding that it will likely impact dozens of students.

This resolves one aspect of the lawsuit and allows J.S. and others to return to school while the lawsuit continues to proceed.

The district is not commenting, citing the ongoing court case.

"The matter is still an active litigation file and, therefore, the District is refraining from comment on the matter at this time" said Nathaniel Kuzma, general counsel for BPS, in a statement.

Emyle Watkins is an investigative journalist covering disability for WBFO.