The father of a rising senior at Palo Alto High School is suing the Palo Alto Unified School District after his son was prohibited from attending an in-person summer class without a mask.
The father, whose name is being withheld to protect the identity of the underage student and who also is the attorney in the case, claims that his son cannot wear a mask because he is "unable to wear a face mask safely" and a "speech/communication disability … makes it difficult for him to pronounce certain letters and sounds," according to the lawsuit that was filed on July 7 in Santa Clara County Superior Court.
The suit claims that the student will suffer damages from being barred from class because he will not be able to graduate on time if he is absent for more than three days. According to court documents, the student was enrolled in the district's summer school credit recovery course that is two and half weeks long and prohibits students from missing more than three days to receive credit.
According to court documents, the student attempted to attend class without a mask on the first day of summer school at Gunn High on July 6 but was promptly told to go to the office. The father, who was waiting at the school parking lot, received a text message about the incident and met with Courtney Carlomagno, principal of Gunn's summer program. Carlomagno informed the father that this son would not be allowed in class without a mask, and he subsequently missed the first day of summer school.
The father also spoke with Mike Jacobs, the district safety manager who is listed as another defendant in the case, over the phone. Jacobs later told the father in an email that without "proof of a medical condition or disability," the student cannot not be exempt from wearing a mask.
In an interview, the father argued that the state and Centers for Disease Control and Prevention guidelines don't stipulate that written or documented proof of a disability is required to receive an exemption. He also said that the school's policy on written documentation was never made explicitly clear beforehand.
"I don't know where this is coming from, and I never received the policy," the father said. "The first thing I asked was, 'Please send me your written policies on this,' and they didn't have any of their own. They said it was fluid, it's changing."
The district and school officials refused to provide alternatives to work through the issue, according to the lawsuit.
According to the father, his son continued to submit homework assignments for the course in the hopes that the situation would be ironed out and the student would be able to receive credit for the course. So far, the teacher has not graded the student's assignments and no longer responds to his emails, he said.
In email exchanges between the student's father and school officials that began on June 28, which are documented in the suit, the father sought a face-mask exemption for his son, citing guidelines from the state Department of Public Health and CDC, since he was told that online courses were not offered for the summer.
The father told Jacobs that his son cannot wear a face mask safely because he has a speech and communication disability that is made more acute when wearing a face mask. Evidence of his disability was "noted in recent high school report card comments from his teachers."
On July 3, Jacobs followed up with the father in an email, stating that the student "did not have a medically related reason on file that would indicate a need for a face covering exemption."
In addition, Jacobs cited the district's special education department, which acknowledged that the student did receive special education services through the Individualized Education Program (IEP), but was removed from the program after an assessment report from February 2018 that stated he had made "tremendous progress." Based on teacher feedback and standardized testing, the special education department said he was no longer eligible to be considered a student with a speech-language impairment and no longer needed speech-language therapy.
"It was reported that (the student's) overall speech remained mostly accurate and 95-100% intelligible across all school contexts," the email from Jacobs stated. "His teachers agreed that neither they nor his classmates had difficulty understanding him."
Although the assessment report noted that the student's voice could be "low at times and/or he may occasionally speak too quickly," that did not interfere significantly with communication. Because of this, a mask exemption was not offered to the student, Jacobs wrote.
The father argues in the suit that Jacobs did not address his son's inability to wear a mask safely or recent comments teachers made after he was removed from the speech program.
The father told this news organization that his son was in the IEP from second to eighth grades for "speech-language impairments." During his freshman and sophomore years in fall 2018 to spring 2020, the student still received comments on his report cards that said it was difficult to understand him when he talks, according to his father.
The father said that if his son wears a mask, "he'll never speak again in class."
"It's hard enough, when he speaks, for others to understand him, and he's aware of that," he said.
"I'm not challenging the mask mandate. I'm just invoking (my son's) rights under the exemptions," the father said.
As part of the lawsuit, the father requested a temporary restraining order to stop the school district from barring the student from attending class without a mask while the case is being heard. Judge Socrates Manoukian denied the request in a document filed July 12, stating the "plaintiff has not demonstrated a likelihood of success on the merits." The judge also stated that the "matter may now be moot" since more than three days had already passed since summer school started and the suit was filed.
The father, who is a patent attorney, told this news organization that he will continue to pursue the lawsuit, and will add more "legal causes of action" and potentially more defendants. He added that he is not seeking any monetary legal damages.
"This is not about money," he said. "This is my son's future, his ability to go to school, get an education and go off to college and not to settle on some kind of harmful accommodation. ... I don't want any money."
The father hopes that the district will let his son take an online course or an extra class, perhaps outside the district, that will satisfy his graduation requirements.
In an email, Superintendent Don Austin wrote that the father's suggestion that he does not have an issue with masking in general is "completely false." In emails shared with this news organization, the father had previously reached out to the district to see if his family could be exempt from wearing masks during his daughter's eighth grade promotion ceremony last month.
"This is not a disabilities issue," Austin wrote.
In addition to noting that the student had no Individualized Education Program or a 504 plan, which ensures that a child with a disability receives proper accommodations, Austin said in an email that the parent was told on multiple occasions that the student would not be able to participate in summer school without a mask and that he would be compliant if he wore a "face shield with a drape combined with social distancing" instead.
"He was offered meetings and asked to share his new concerns with either documentation or an evaluation by our district nurse," Austin wrote. "He declined at every step and was personally confrontational with the staff. The assigned judge dismissed his request on merit.
"We do not expect everyone to agree with the rules set by the CDC or our (Santa Clara County Public Health Department), but we will follow their protocols as we have done since March of 2020."