Buffalo district to allow accommodation to masks after family sues to get son with disabilities back in school
Editor's Note: Because J.S. is a minor, at the request of his family's attorney, we refer to him as J.S., but his parents may use his first name as part of the audio interview. This article also uses person-first and identity-first language interchangeably, which is the preference of the family. WBFO follows the National Center on Disability and Journalism's style guide, which can be found here.
Earlier this week, Buffalo Public Schools quietly agreed in federal court to begin reaching out to families who have requested reasonable alternatives to masking for kids with qualified disabilities, after previously having a policy in place that did not allow for any exemptions to masking during "red zone" periods.The South Buffalo family that filed the lawsuit that led to this agreement says this has been a long road, and suing the district for allegedly violating their son’s disability rights was the last resort.
"Amy Szafranski: What are you going to get to do?
J.S.: Go to school!
Amy: Now you're happy?
Emyle Watkins: What did you miss most about school?
J.S.: Oh.. I just missed my friends and my teacher.
J.S., 10, has been out of the classroom longer than most of his classmates: 22 months. But unlike many kids his age, it’s taken a huge effort from his parents to get him back to class. An effort last week, that ended in his parents filing a federal lawsuit against Buffalo Public Schools, argued the district violated the Americans with Disabilities Act and Section 504 (Rehabilitation Act) rights of J.S., who has several disabilities.
“[J.S.] lights up a room. He… [J.S.], in the middle of all this [J.S.] came to us and said, ‘What did I do wrong, I'll be good. I just want to go to school.’ And we're like, ‘you didn't do anything wrong. We’ll get you in school somehow.’ Every time I tell people that I cry," said Edward "Ed" Speidel, J.S.'s father.
Ed and his partner Amy Szafranski are no strangers to requesting accommodations for their four kids. All of their children have had accommodations for medical conditions and disabilities, and J.S.’s oldest brother also attended the same program for students with autism that J.S. is in.
So during the pandemic, they submitted a reasonable accommodation request from J.S.’s doctor, saying it is imperative that he wear a face shield, rather than a mask, due to his PICA diagnosis.
PICA is a condition that is believed to be more common in kids with autism and causes kids to crave and try to eat non-food items. This includes J.S.' mask. And, as his parents explain, the mask also makes it difficult to know if he put something else in his mouth that he could choke on or get sick from. According to the CDC, PICA can cause "serious medical and surgical problems" and those who care for children with PICA need to know that risk so they can "carefully monitor children, put safety measures in place, and intervene early if a child eats something they shouldn’t."
His parents say that his pre-K having to call poison control several times was when they first started to notice his symptoms of PICA.
“We don't feel it's fair to [J.S.], us, the teacher. Like how could the teacher live with herself, if she didn't see him swallow a marble and he chokes and you know, something horrible happens? It's just not feasible for him to wear it. I wear it, everybody wears it, where, he just can't," Ed said.
And the Speidels make it clear, they were not asking for J.S. to be exempted from masking, just to have reasonable accommodation. They’re not against masking or COVID precautions, and take precautions in their own lives. They explain they just want J.S. to be in school, in any way possible.
“We're not asking for anything special, and we're willing to be considerate of all the students. We understand that other parents are scared to death of COVID. And they're worried that… we understand, we're not trying to harm any other family,” Ed said.
According to the lawsuit, the district said in January 2021 that students with disabilities who cannot wear a mask could apply for an accommodation to wear a face shield. If they aren’t able to wear a face shield, then they would stay remote. That was in place when the district reopened in person in February 2021. Ed and Amy decided to have J.S. finish out fourth grade at home, intending for him to start fifth grade in person.
The lawsuit says aJuly 2021 policy also reiterated the face shield accommodation, but then a new policy in August 2021 said no “exemptions” to masking during in person learning would be made during “red zones.” The Speidels then got a letter saying J.S. would have to stay remote. But Amy said J.S. being taught by a teacher who is also teaching an in-person class at the same time, has been difficult, so she often has to teach him the lessons herself.
“We started virtually, you know, but it just, it's too hard. You know, it's hard for, you know, because he can't see, he could see what she's teaching, but not like the class and he can't really interact with them. And so we've basically been doing it the other way, since then, like, she gives the work, we do it," Amy said, going on to explain that he then submits all the work through the school's online portal system.
J.S. is also not able to receive the same in-person therapy services he would typically get. Socially, J.S has not, according to his family, been able to meet the other children who attend the fifth through 12th-grade program for BPS students with autism, that he is enrolled in, because he has been not allowed to return to class. They stressed that this is an important time for him to build friendships with the kids he will graduate with. The family also says they feel he is missing out on the experiences his other siblings had at his age.
"I think it's really important for his psychosocial development, that he isn't missing out on these things, or he should he shouldn't be hanging out with a 20-year-old every day of his life, he should be able to hang out with kids that are his own age, and be on their level," said his eldest sibling, Katelyn.
And the Speidels said this situation has had a financial and career impact on them.
“Once they went remote, I couldn't, I was home. I couldn't go back to the workforce because I had to be a teacher," Amy said.
Katelyn, who is a nursing student, said she’s also had to step up to help.
“I know as a big sister, that's my responsibility. But it's not my responsibility to teach him the things that he should be learning in the school. And it's come to a point where there are times where I have to drop my important responsibilities to help him out because I can catch myself up, he needs the instruction, and he needs someone sitting there with him because of his autism," Katelyn said.
Ed said he has spent months attending every meeting, calling every person, doing everything as a parent, and talking with other families. The lawsuit was a last resort, and targets the August policy, alleging that it violates the ADA and 504 because the policy did not allow for in-person reasonable accommodations for students with disabilities, which they are supposed to have access to in order to have the same educational opportunities as non-disabled students.
"This battle, of course, this battles is for [J.S.]. But this battle is for every kid that's being robbed of their rights. They're all being robbed. I can't speak on their behalf. I hope they hear this interview. And I hope they run and get help. Because the district is doing such a disservice to our community," Ed said.
Since the lawsuit was filed, an agreement was reached between Rebecca Izzo, the lawyer for the Speidels, and the district, allowing reasonable accommodations on a case-by-case basis, consistent with the July policy, and making the August policy obsolete, according to Izzo.
“Why did we have to force them to do what was legally their obligation, not even about what's right, it was legally their obligation to, to care for these children, and they abandon them. This is the tip of the iceberg, it's every day I hear a new story,” Ed said.
Izzo shared they believe the agreement will impact dozens of students, and she says the district intends to contact those families who also requested accommodations. The district also agreed to let J.S. return to school, on February 7, with a face shield and weekly testing, among other precautions, while the lawsuit plays out in court. The school district has declined to comment on the case since it is still in litigation.
“[J.S.] did get emotional, he was very happy that he gets to go back to school. And I think it's a big win. It's a big win for not only [J.S.], but for all the other children that are not able to go to school," Amy said.
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