Parents of disabled students file federal lawsuit challenging Virginia's mask policy

ALEXANDRIA, Va. - Parents of students with disabilities in Virginia are standing up for their kids as the battle over masks in the Commonwealth continues.

FOX 5 spoke with a family who is part of a federal lawsuit challenging Governor Glenn Youngkin’s recent mask policy.

The Nelson family is one of dozens in Virginia who say the governor's executive action goes against disabled students’ right to public education.

"My son works every single day harder for every breath than anyone you’ve likely ever met, and I don’t understand why his governor doesn’t want him to be able to receive his education," said Tasha Nelson.

The mother of four says the governor's decision to let parents choose if their child wears a mask – puts her son Jack, who has cystic fibrosis, in danger.

"Executive Order 2 segregates high-risk children from the classroom. It removes them," Nelson said.

The complaint states the order goes against the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.

"What we’re saying is each individual school, each individual classroom has to be able to adjust to the needs of their high risk and disabled children," Nelson added.

Nelson’s attorney says the order interferes directly with federal law by providing no exceptions. 

"There’s nothing that allows the school district to implement any kind of change, any kind of masking requirement to protect a particular child," said Eve Hill, a disability rights attorney with Brown, Goldstein, and Levy.

This is the only lawsuit against the governor's action that has been filed in federal court.

You’re talking about a conflict between a governor’s executive order and a federal statute," said Professor Peter Meyers from George Washington University Law School.

FOX 5 asked him his thoughts on this case, compared to the others playing out across the state of Virginia.

"I think the students have the better case," Myers said. "This is something we recognize in America that accommodations have to be made for people with disabilities."

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A response to the lawsuit from Attorney General Jason Miyares’ office was issued while FOX 5 was speaking with Nelson and Hill.

"He’s continuing to insist that this is the only way to go, and he will insist on schools complying with it, it’s disappointing," Hill said. 

"He doesn’t want all parents to have a choice he wants some parents to have a choice and the parents he wants to have a choice are not the parents of high-risk disabled children," Nelson said. 

This case will likely be heard within the coming weeks. A federal trial court judge will have to make a decision one way or the other. 

Meyers, though, says it is very possible this could end up in front of the U.S. Supreme Court.