Appellants' Brief — The Arc of Iowa v. Reynolds (8th Cir.)

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No. 22–3338 
 
IN THE UNITED STATES COURT OF APPEALS  
FOR THE EIGHTH CIRCUIT 
 
 
THE ARC OF IOWA et al., 
 
Plaintiffs–Appellees, 
 
vs. 
 
KIM REYNOLDS, in her official capacity  
as Governor of Iowa; ANN LEBO, in her official capacity  
as Director of the Iowa Department of Education, 
  
Defendants–Appellants, 
 
ANKENY COMMUNITY SCHOOL DISTRICT et al., 
 
Defendants. 
 
 
Appeal from the United States District Court  
for the Southern District of Iowa 
 
 
APPELLANTS’ BRIEF 
 
 
BRENNA BIRD 
Attorney General of Iowa 
 
SAMUEL P. LANGHOLZ 
Chief Deputy Attorney General 
ERIC H. WESSAN  
Solicitor General 
1305 E. Walnut Street 
Des Moines, Iowa 50319 
(515) 281-5164 
(515) 281-4209 (fax) 
sam.langholz@ag.iowa.gov 
eric.wessan@ag.iowa.gov 
ATTORNEYS FOR APPELLANTS
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— i — 
SUMMARY OF THE CASE 
Iowa Governor Kim Reynolds and Department of Education 
Director Ann Lebo appeal a declaratory judgment issued by the dis-
trict court defining the scope of Iowa Code section 280.31. That stat-
ute sets Iowa education and public health policy by allocating au-
thority over mask mandates in schools to the State rather than to 
local school districts. Despite the statute’s savings clause, which al-
lows a mask mandate if required by federal or other state law, the 
court reached the merits and declared that schools cannot solely 
rely on section 280.31 in declining to impose a mask mandate as a 
reasonable accommodation under the Americans with Disabilities 
Act and the Rehabilitation Act. It also declared that a mask man-
date is a reasonable accommodation.  
Iowa raises three issues on this appeal: first, whether Plain-
tiffs met the exhaustion requirements imposed by the Individuals 
with Disabilities Act (“IDEA”); second, whether Plaintiffs have Ar-
ticle III standing to sue, and third, whether the district court 
properly issued declaratory judgment in the case below. 
This case raises important issues regarding potential conflicts 
between state and federal law. After almost two years of litigation 
and given the complex record, Iowa believes that this Court may 
benefit from oral argument of twenty minutes per side. That will 
allow time to discuss each of the three issues raised on appeal. 
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— ii — 
TABLE OF CONTENTS 
 
SUMMARY OF THE CASE .............................................................. i 
TABLE OF AUTHORITIES ........................................................... iv 
JURISDICTIONAL STATEMENT ................................................. 1 
STATEMENT OF ISSUES .............................................................. 2 
STATEMENT OF THE CASE ......................................................... 3 
SUMMARY OF THE ARGUMENT ................................................. 9 
ARGUMENT .................................................................................. 12 
I. 
Plaintiffs’ failure to exhaust under the IDEA precludes 
bringing ADA and Rehabilitation Act claims in district 
court. ....................................................................................... 15 
II. Plaintiffs failed to establish Article III standing. .................. 24 
A. Declaratory judgment is not justified because section 
280.31 does not prevent schools from complying with 
federal law. ....................................................................... 25 
1. 
There is no conflict between federal law and 
State law sufficient to justify declaratory relief.
............................................................................. 25 
2. 
Because the savings clause precludes a conflict 
between section 280.31 and federal law, 
Plaintiffs would not be afforded any relief from 
this action, and the district court’s order should 
be vacated. .......................................................... 28 
B. Plaintiffs abandoned the declaratory judgment they 
sought in their Complaint. ............................................... 31 
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III. Federal Law Does Not Require Schools to Have the  
Discretion to Impose Universal Mask Mandates. .................. 33 
C. Section 280.21’s Prohibition on Universal Mask 
Mandates is Neutral and Non-Discriminatory. ............... 33 
D. A Universal Mask Mandate Is Not a Reasonable 
Modification. ..................................................................... 36 
E. Even if a Universal Mask Mandate Were a Reasonable 
Accommodation, Reasonable Accommodations Under 
the ADA Must Still Comply with State Law. .................. 41 
CONCLUSION............................................................................... 43 
CERTIFICATE OF COMPLIANCE .............................................. 45 
CERTIFICATE OF SERVICE ....................................................... 45 
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— iv — 
TABLE OF AUTHORITIES 
Cases 
A.L. ex rel. Limkemann v. Jake’s Fireworks, Inc., 
456 F. Supp. 3d 1074 (S.D. Iowa 2020) ...................................... 32 
Albertson’s Inc. v. Kirkingburg,  
 527 U.S. 555, 570 (1996) ............................................................. 42  
Alberty v. United States, 
54 F.4th 571 (8th Cir. 2022) ....................................................... 27 
Arc of Iowa v. Reynolds, 
566 F. Supp. 3d 921 (S.D. Iowa 2021) ..................................... 9, 13 
Arc of Iowa v. Reynolds, 
24 F.4th 1162 (8th Cir.) ............................................7, 9, 13, 15, 22 
Arc of Iowa v. Reynolds, 
2022 WL 898781 (8th Cir. Mar. 28, 2022) ................................ 7, 9 
Arc of Iowa v. Reynolds,  
 33 F.4th 1042 (8th Cir. 2022) ...................................7, 9, 13, 25, 27 
Arc of Iowa v. Reynolds, 
2022 WL 16627483 (S.D. Iowa Nov. 1, 2022) ................................. 
 .......................................................... 6, 8, 10, 11, 14, 22, 28, 31, 43 
Bey v. City of New York, 
999 F.3d 157 (2d Cir. 2021) ......................................................... 42 
Buckles v. First Data Resources, Inc., 
176 F.3d 1098 (8th Cir. 1999) .................................................... 39 
Crow v. Fabian, 
2010 WL 2464865 (D. Minn. Feb. 5, 2010) ................................ 32 
Davis v. Francis Howell Sch. Dist., 
138 F.3d 754 (8th Cir. 1998) ............................... 33, 34, 35, 36, 38 
DeBoard v. Bd. of Educ. of Ferguson-Florissant Sch. Dist., 
126 F.3d 1102 (8th Cir. 1998) .............................................. 34, 36 
Digital Recognition Network, Inc. v. Hutchinson, 
803 F.3d 952 (8th Cir. 2015) .......................................... 28, 29, 30 
E.T. v. Paxton, 
19 F.4th 760 (5th Cir. 2021) ................................ 16, 17, 20, 23, 41 
Eustance v. Springfield Pub. Schs., 
463 F. Supp. 3d  (D. Mass. 2020) ............................................... 42 
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— v — 
Fry v. Napoleon Cmty. Sch., 580 U.S. 154, 161 (2017) ..................... 
 ................................................................. 15, 16, 17, 18, 20, 22, 23 
G.S. by and through Schwaigert v. Lee, 
2022 WL 1560391 (W.D. Tenn. Mar. 28, 2022) .......................... 26 
Honig v. Doe, 
484 U.S. 305 (1988) .................................................................... 16 
Huber v. Wal-Mart Stores, Inc., 
486 F.3d 480 (8th Cir. 2007) ................................................ 37, 41 
J.D. ex rel. J.D. v. Pawlet Sch. Dist., 
224 F.3d 60 (2d Cir. 2000) .......................................................... 37 
J.M. v. Francis Howell Sch. Dist., 
850 F.3d 944 (8th Cir. 2017) ................................................ 19, 23 
Lujan v. Def. of Wildlife, 
504 U.S. 555 (1992) .............................................................. 28, 29 
McElwee v. County of Orange, 
700 F.3d 635 (2d Cir. 2012) ........................................................ 41 
McGowen, Hurst, Clark & Smith, P.C. v. Com. Bank,  
 11 F.4th 702, 708 (8th Cir. 2021) ............................................... 15 
Md. Cas. Co. v. Pac. Coal & Oil Co., 
312 U.S. 270 (1941) .................................................................... 28 
Mt. Hawley Ins. Co. v. HCS 410 Holdings, LLC, 
2021 WL 1550352 (W.D. Tex. Apr. 20, 2021) ............................ 32 
Mobley v. St. Luke's Health Sys., Inc.,  
 53 F.4th 452, 455 (8th Cir. 2022) ............................................... 15 
Nelson v. Charles City Cmty. Sch. Dist., 
900 F.3d 587 (8th Cir. 2018) ......................... 15, 16, 17, 18, 22, 23 
Off. of Sen. Sergeant at Arms v. Off. of Sen. Fair Empl. Practices, 
95 F.3d 1102 (Fed. Cir. 1996) ..................................................... 42 
One Thousand Friends of Iowa v. Mineta, 
364 F.3d 890 (8th Cir. 2004) ...................................................... 30 
Pottgen v. Mo. State High Sch. Activities Ass’n, 
40 F.3d 926 (8th Cir. 1994) .................................................. 37, 38 
R. K. by and through J. K. v. Lee, 
53 F.4th 995 (6th Cir. 2022) ........................................................ 26 
Ringo v. Lombardi, 
677 F.3d 793 (8th Cir. 2012) ...................................................... 28 
Timothy H. v. Cedar Rapids Cmty. Sch. Dist., 
178 F.3d 968 (8th Cir. 1999) ................................................ 34, 36 
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US Airways v. Barnett, 535 U.S. 391 (2002) ........................... 37, 42 
Winfrey v. City of Forrest City, Ark., 
882 F.3d 757 (8th Cir. 2018) ...................................................... 31 
Wooten v. Farmland Foods, 
58 F.3d 382 (8th Cir. 1995) ........................................................ 38 
Statutes 
20 U.S.C. § 1400(d)(1)(A) ............................................................... 16 
20 U.S.C. § 1412(a)(1)(A) ............................................................... 16 
20 U.S.C. § 1414(d) ........................................................................ 16 
20 U.S.C. § 1415(l) ........................................................ 15, 16, 17, 18 
28 U.S.C. § 1291 ............................................................................... 1 
28 U.S.C. § 1292(a)(1) ...................................................................... 6 
28 U.S.C. § 1331 ............................................................................... 1 
28 U.S.C. § 1343(a)(4) ...................................................................... 1 
29 U.S.C. § 794(a) .......................................................................... 34 
42 U.S.C. § 12132 ........................................................................... 34 
Iowa Code § 29C.6 .......................................................................... 35 
Iowa Code § 135.144(3) .................................................................. 35 
Iowa Code § 256B.2(2) ................................................................... 16 
Iowa Code § 256B.4 ........................................................................ 16 
Iowa Code § 256B.6 ........................................................................ 16 
Iowa Code § 280.31 ... i, 3, 4, 5, 6, 7, 9, 10, 12, 13, 14, 21, 22, 24, 25, 
26, 27, 28, 29, 31, 32, 33, 35, 38, 40, 43 
U.S. Const. art. III ............................................................. 10, 24, 28 
Rules 
Fed. R. Civ. P. 56(a) ....................................................................... 31 
Regulations 
Iowa Admin. Code r. 281-41.321–.328 ........................................... 16 
Iowa Admin. Code r. 281-41.506 ................................................... 16  
Iowa Admin. Code r. 281-41.507–.518 ........................................... 16 
Other Authorities 
 
H.F. 847 ...................................................................................... 3, 31 
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— 1 — 
JURISDICTIONAL STATEMENT 
The district court had subject matter jurisdiction over this 
case under 28 U.S.C. § 1331 because Plaintiffs’ claims arise under 
laws of the United States—title II of the Americans with Disabili-
ties Act, section 504 of the Rehabilitation Act, and the American 
Rescue Plan Act of 2021. The court also had jurisdiction over Plain-
tiffs’ ADA and section 504 claims under 28 U.S.C. § 1343(a)(4) be-
cause they seek equitable relief under an Act of Congress providing 
for the protection of civil rights.  
This Court has appellate jurisdiction under 28 U.S.C. § 1291. 
The district court issued its order on November 1, 2022, and Gover-
nor Reynolds and Director Lebo filed a timely notice of appeal from 
the order granting declaratory judgment on November 2, 2022. App. 
1049–1050; R. Doc. 116.  
 
 
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STATEMENT OF ISSUES 
I. 
Are parents who allege that their children are being 
deprived appropriate in-person education because of 
the lack of a universal mask mandate in their schools 
“seeking relief that is also available under the IDEA” 
and thus required to exhaust IDEA administrative 
remedies?  
Fry v. Napoleon Cmty. Sch.,  
580 U.S. 154, 161 (2017) 
J.M. v. Francis Howell Sch. Dist.,  
850 F.3d 944 (8th Cir. 2017) 
Nelson v. Charles City Cmty. Sch. Dist.  
900 F.3d 587 (8th Cir. 2018) 
20 U.S.C. § 1415(l) 
 
II. 
Do parents who want universal mask mandates in their 
children’s schools have standing to enjoin enforcement 
of a statute prohibiting schools from adopting mask 
mandates when the statute contains an exception per-
mitting compliance with federal law? 
One Thousand Friends of Iowa v. Mineta  
364 F.3d 890, 892–93 (8th Cir. 2004) 
Digital Recognition Network, Inc. v. Hutchinson 
803 F.3d 952, 958–59 (8th Cir. 2015) 
Arc of Iowa v. Reynolds 
33 F.4th 1042 (8th Cir. 2022) 
U.S. Const. art. III § 2 
 
III. Does federal disability law require schools to impose—
or to have the discretion to impose—universal mask 
mandates?   
Davis v. Francis Howell Sch. Dist.,  
138 F.3d 754 (8th Cir. 1998) 
Timothy H. v. Cedar Rapids Cmty. Sch. Dist.,  
178 F.3d 968 (8th Cir. 1999) 
Buckles v. First Data Resources, Inc.,  
176 F.3d 1098, 1100–02 (8th Cir. 1999) 
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— 3 — 
STATEMENT OF THE CASE 
On May 20, 2021, Governor Reynolds signed legislation enact-
ing Iowa Code section 280.31 into law. See Act of May 20, 2021 (H.F. 
847), ch. 139, 2021 Iowa Acts § 28 (codified at Iowa Code § 280.31), 
available at https://perma.cc/XM6Q-A3HX. The statute provides: 
The board of directors of a school district, the superin-
tendent or chief administering officer of a school or 
school district, and the authorities in charge of each ac-
credited nonpublic school shall not adopt, enforce, or im-
plement a policy that requires its employees, students, 
or members of the public to wear a facial covering for 
any purpose while on the school district’s or accredited 
nonpublic school’s property unless the facial covering is 
necessary for a specific extracurricular or instructional 
purpose, or is required by section 280.10 or 280.11 or 
any other provision of law. 
Iowa Code § 280.31. Thus, while Iowa schools are generally prohib-
ited from mandating masks, section 280.31 includes a savings 
clause authorizing  mask-mandates when “required by . . . any 
other provision of law.” Id. 
During legislative debate on the statute, the House Education 
Committee Chair explained that since the start of the pandemic he 
had heard from more Iowans on masking in schools than on any 
other issue. House Video, Consideration of H.F. 847 (May 19, 2021, 
at 6:35:32, 7:11:50 PM), available at https://perma.cc/BD9B-2FZ6. 
In response to questioning from opponents about the possibility of 
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new, more dangerous variants needing mask mandates, see, e.g., id. 
at 6:15:35 PM, he repeatedly explained that the Governor has the 
authority to impose mandates if she decides they become necessary. 
See id. at 6:18:50, 6:26:30; 7:09:50 PM. And some opponents of mask 
mandates pointedly asked—and criticized—section 280.31’s excep-
tion that could allow a mask mandate when required by other law. 
See id. at 6:15:50. 
Plaintiffs are eleven parents of children in Iowa public school 
districts and one nonprofit organization—The Arc of Iowa.1 Their 
children have intellectual or physical disabilities that increase their 
risk associated with contracting COVID-19. And they believe that 
“[i]f everyone were wearing a mask,” those harms could be avoided 
and “their children would be safe.” App. 159; R. Doc. 17, at 12. They 
all have expressed their desire to “block” section 280.31 so that their 
schools could impose a universal mask mandate. See App. 95 ¶ 16; 
R. Doc. 3-3, at 4; App. 97 ¶ 14; R. Doc. 3-4, at 2; App. 100 ¶ 15; R. 
Doc. 3-5, at 3; App. 102 ¶ 18; R. Doc. 3-6, at 2; App. 106 ¶ 22; R. Doc. 
3-7, at 3; App. 109 ¶ 14; R. Doc. 3-8, at 3; App. 111 ¶ 15; R. Doc. 3-
9, at 2; App. 116 ¶ 17; R. Doc. 3-10, at 4; App. 119 ¶ 24; R. Doc. 3-
 
1 The Arc of Iowa advocates for people with intellectual and de-
velopmental disabilities and their families. App. 15–16 ¶ 10; R. 
Doc. 1, at 4-5. Several Plaintiffs are also members of the Arc of 
Iowa. App. 36 ¶ 66(k); R. Doc. 1, at 25; App. 39 ¶¶ 68(a); 69(h); R. 
Doc. 1, at 28; App. 41 ¶ 71(i); R. Doc. 1, at 30. 
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11, at 3; App. 122 ¶ 12; R. Doc. 3-12, at 2; App. 124 ¶ 17; R. Doc. 3-
13, at 2. 
Prior to last school year, some Plaintiffs sought mask-related 
modifications from their schools. For example, one parent sought 
an accommodation that her son’s teacher wear a mask when she 
was working one-on-one with him. App. 122 ¶ 9; R. Doc. 3-12; see 
also App. 119 ¶ 18; R. Doc. 3-11, at 3 (requesting that teacher mask 
and permit student to leave class early to avoid crowded halls); App. 
99 ¶ 10; R. Doc. 3-5, at 2 (requesting small groups working with 
child to be masked); App. 114–115 ¶ 10; R. Doc. 3-10, at 2-3 (re-
questing voluntarily masking around child, a smaller classroom, 
and social distancing). Despite her request, Plaintiff’s son told her 
that his teacher did not wear a mask during their one-on-one work. 
App. 122 ¶ 10; R. Doc. 3-12, at 2. Yet there is no evidence that Plain-
tiffs took steps to try to enforce the agreed voluntary measures nor 
to otherwise seek help through available remedies. See App. 99; R. 
Doc. 3-5, at 2, App. 114; R. Doc. 3-10, at 2, App. 119; R. Doc. 3-11, 
at 3, App. 122; R. Doc. 3-12, at 2.  
Instead, Plaintiffs sued Governor Reynolds, Iowa Department 
of Education Director Ann Lebo, and ten school districts, alleging 
that section 280.31 violates title II of the Americans with Disabili-
ties Act (“ADA”), section 504 of the Rehabilitation Act, and the 
American Rescue Plan Act of 2021 (“ARPA”). See App. 42–48 ¶¶ 76–
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102; R. Doc. 1, at 31-37. They sought a temporary restraining order 
and preliminary injunction enjoining enforcement of section 280.31 
so that local schools could impose universal mask mandates. App. 
48; R. Doc. 1, at 37. 
Governor Reynolds and Director Lebo (collectively, “the 
State”) resisted the temporary restraining order and the prelimi-
nary injunction. But after conducting a hearing, the district court 
rejected the State’s arguments. The court first entered a temporary 
restraining order that lasted 14 days—from September 13 through 
September 27, 2021—enjoining all Defendants “from enforcing 
Iowa Code section 280.31,” before extending that TRO for 14 more 
days over the State’s objection. Arc of Iowa v. Reynolds, 2022 WL 
16627483, at *1 (S.D. Iowa Nov. 1, 2022). 
And then on October 8, 2021, the district court issued a pre-
liminary injunction. Id. Rejecting the State’s arguments on stand-
ing, exhaustion, and the merits, the district court imposed a broad 
preliminary injunction setting aside enforceability of section 
280.31. Id. 
The State immediately appealed the preliminary injunction 
pursuant to 28 U.S.C. § 1292(a)(1) and moved to expedite the ap-
peal. Id. at *2. This Court granted the motion, setting an expedited 
briefing schedule and scheduling oral argument. 
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On January 25, 2022, this Court issued an opinion modifying 
the scope of the district court’s overly broad injunction, limiting its 
applicability to the schools and districts that Plaintiffs’ children at-
tend, and otherwise only enjoining enforcement of the statute when 
it conflicts with other law. See Arc of Iowa v. Reynolds, 24 F.4th 
1162, 1182 (8th Cir.), reh’g granted and opinion vacated, No. 21-
3268, 2022 WL 898781 (8th Cir. Mar. 28, 2022), and vacated, 33 
F.4th 1042 (8th Cir. 2022). 
The State sought rehearing, and on March 28, 2022, the panel 
accepted vacated its prior ruling. Arc of Iowa v. Reynolds, No. 21-
3268, 2022 WL 898781, at *1 (8th Cir. Mar. 28, 2022). On May 16, 
the panel issued a new opinion vacating the district court’s injunc-
tion as moot and remanded. Arc of Iowa v. Reynolds, 33 F.4th 1042, 
1045 (8th Cir. 2022). In its ruling, the Court emphasized section 
280.31’s savings clause and explained that the clause avoided con-
flict with other State or federal law. Id. The opinion also included 
factual findings about the prevalence of the vaccine and predomi-
nance of the less-dangerous Omicron variant over the Delta variant 
both significantly lessening the risk to Plaintiffs’ children. Id. at 
1044–45. 
On remand, the district court considered cross-motions—the 
State’s motion to dismiss and Plaintiffs’ motion for summary judg-
ment. It issued an opinion granting the motion to dismiss as to the 
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Plaintiffs’ injunctive relief but granting the declaratory relief that 
Plaintiffs sought in their motion. Arc of Iowa, 2022 WL 16627483, 
at *10.  
The State timely filed a notice of appeal and asks this Court 
to reverse the district court’s judgment. 
 
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SUMMARY OF THE ARGUMENT 
During the height of the COVID-19 pandemic, parents were 
nervous and concerned about their children’s health and safety in 
schools. As the 2021 school year neared its end, and the COVID-19 
Delta wave loomed, vaccines and other prophylactic measures were 
not widely available. Against that backdrop, and balancing the 
needs of children, school employees, and parents in a pluralistic so-
ciety, the Legislature passed, and Governor Kim Reynolds signed 
into law, legislation that prohibited primary and secondary schools 
from imposing mask mandates on school employees, students, and 
visitors unless such a mandate was required by another provision 
of law. Any person was still entitled to choose to don a mask if they 
so desired. 
Then, Plaintiffs sued. As the litigation continued, the district 
court enjoined enforcement of the law in its entirety, the Eighth 
Circuit narrowed that injunction, and then it vacated both the in-
junction and its prior opinion as moot. See Arc of Iowa v. Reynolds, 
566 F. Supp. 3d 921, 940 (S.D. Iowa 2021) (“Arc I”) (enjoining sec-
tion 280.31), aff’d in part, vacated in part, remanded, 24 F.4th 1162 
(8th Cir. 2022) (“Arc II”) (modifying the scope of the injunction), 
reh’g granted and opinion vacated, No. 21-3268, 2022 WL 898781 
(8th Cir. Mar. 28, 2022) (“Arc III”) (vacating panel opinion), and 
vacated, 33 F.4th 1042 (8th Cir. 2022) (“Arc IV”) (vacating panel 
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opinion and preliminary injunction as moot). And now, without an 
injunction, this case rises on appeal again over the scope of the dis-
trict court’s declaratory judgment. Arc of Iowa v. Reynolds, 2022 
WL 16627483, at *9 (“Arc V”) (issuing declaratory relief as to the 
scope of section 280.31). Like the first injunction, the declaratory 
relief issued based on several errors of law. 
First, Plaintiffs failed to exhaust their administrative reme-
dies under the IDEA prior to filing their lawsuit. As Plaintiffs con-
tend that failure to impose a mask mandate denies them a full in-
person public education, they are seeking relief that is also availa-
ble under the IDEA, and its exhaustion requirements apply. Plain-
tiffs artfully attempt to plead around the IDEA’s administrative ex-
haustion requirements by bringing a claim under the ADA and the 
Rehabilitation Act, but such pleading cannot allow Plaintiffs to 
prematurely bootstrap themselves into federal court. 
Second, Plaintiffs lack standing to bring this challenge. Even 
if failing to impose a mask mandate violates federal law, the declar-
atory judgment at issue here does not require any party to impose 
a mask mandate—that decision remains with the local schools.  In-
deed, given the district court’s denial of injunctive relief it is not 
clear that the remaining declaratory relief alone is sufficient to 
serve as the basis for a Case or Controversy under the United States 
Constitution’s Article III. 
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And third, no federal law requires schools to impose or to have 
the discretion to impose universal mask mandates. Neutral nondis-
criminatory policies, like section 280.31, do not violate the ADA nor 
do they violate the Rehabilitation Act because any denial of benefits 
is because of the policy, not an individual’s disability. Imposing a 
mask mandate is not a reasonable modification and fundamentally 
alters the State’s education program as set forth in section 280.31. 
Moreover, partial or full mask mandates impose significant admin-
istrative burdens. Such a mandate will infringe on the rights of 
other students—and may conflict with the needs of some other dis-
abled students. Other reasonable modifications remain available.  
The declaratory relief commands schools that find a mask 
mandate to be a reasonable modification to ignore the State’s law 
prohibiting mandates. Arc V, 2022 WL 16627483, at *10. Implicit 
in the declaration is a finding that mask mandates may be reason-
able modifications. That finding raises significant constitutional 
concerns about the intrusion of the federal government into the 
public health and education domain of the States. Moreover, at the 
point at which a school determines that a mask mandate is a rea-
sonable accommodation, it requires schools to violate State law 
without first attempting to see if a different accommodation can 
satisfy both State and federal law. Id. 
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Section 280.31 has now been enjoined or otherwise prevented 
from full enforcement for more than a year. Even as alternatives, 
evidence, and remedies became available that should avert what-
ever need may have at one point existed for mask mandates, this 
case continues. Schools have been forced to wrestle with the impli-
cations of a series of Court orders that present a shifting landscape 
for complying with State and federal law. Students, parents, teach-
ers, schools, and the State need clarity and finality. 
The State respectfully requests that this Court vacate the dis-
trict court’s declaratory judgment. In the alternative, the State re-
quests that it modify that declaratory judgment to require a school 
to attempt to comply with both federal and State law when faced 
with a request for a reasonable accommodation. To the extent that 
a school finds a mask mandate is required, that judgment should 
clarify that the mandate must be as limited in time and scope as is 
necessary to accommodate learning so that school can again be con-
ducted in the manner decided by the State of Iowa’s duly elected 
Legislature and Governor. 
ARGUMENT 
Pending before the Court on this most recent appeal in this 
ongoing matter are three narrow issues: first, whether Plaintiffs 
can evade the exhaustion requirement of the IDEA through artful 
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pleading; second, whether Plaintiffs satisfy standing requirements 
to bring this suit; and third, if the answer to both preceding ques-
tions is yes, is whether the district court’s declaratory judgment 
holding that federal law may require a universal mask mandate as 
a reasonable accommodation when a disabled student presents an 
accommodation request to provide a student with safe access to in-
person learning is legally sound. The State contends that the cor-
rect answer to each question is no, and thus that this Court should 
vacate the district court’s declaratory judgment. 
When Plaintiffs first sued, there was no COVID-19 vaccine, 
the then-prominent Delta strain of COVID-19 posed a higher risk 
to children than the currently predominating Omicron strains, and 
the health community was still determining how to best ameliorate 
the ongoing pandemic. In that context, the district court granted an 
overly broad preliminary injunction that attempted to enjoin  sec-
tion 280.31 in its entirety. Arc I, 566 F. Supp. at 941. The first time 
this Court addressed the district court’s injunction it limited that 
injunction. Arc II, 24 F.4th at 1182. Next, this Court addressed the 
district court’s injunction after Defendants sought rehearing and 
vacated the preliminary injunction in its entirety. Arc IV, 33 F.4th 
at 1044.  
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— 14 — 
After almost two years and the now-announced official end of 
the national COVID-19 crisis, this case returns to the Eighth Cir-
cuit, albeit with the relief on appeal significantly narrowed. Arc V, 
2022 WL 16627483, at *10; Executive Office of the President, State-
ment of Administration Policy, https://perma.cc/BTV2-QT6E (Jan. 
30, 2023) (announcing a plan “to extend the [COVID-19 national] 
emergency declarations to May 11”). Now, the declaratory relief 
granted by the district court allows  section 280.31 to serve as “one 
reason to deny a student’s request for accommodation if the school 
district determines a request for a mask mandate is unreasonable 
. . . but it cannot be cited as the only reason to summarily deny such 
a request.” Arc V, 2022 WL 16627483, at *10.  
On the merits, that declaratory judgment incorrectly states 
the law for two reasons. First, at the point at which a reasonable 
accommodation is necessary, the relevant authority must consider 
section 280.31 and determine if there is an accommodation that 
complies with both relevant federal and State statutes.  Second, it 
must consider whether any given mask mandate imposed is a rea-
sonable accommodation. If Court decides to reach the merits de-
spite the jurisdictional roadblocks, it must vacate the district 
court’s declaratory judgment. 
Each of the issues raised in this appeal are raised de novo. 
First, this Court reviews de novo whether Plaintiffs must exhaust 
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— 15 — 
their administrative remedies under the IDEA. Nelson v. Charles 
City Cmty. Sch. Dist., 900 F.3d 587, 591 (8th Cir. 2018). Next, this 
Court also reviews de novo the issue of standing. McGowen, Hurst, 
Clark & Smith, P.C. v. Com. Bank, 11 F.4th 702, 708 (8th Cir. 
2021). And finally, a district court’s grant of summary judgment on 
Plaintiffs’ declaratory judgment is reviewed de novo as well. Mobley 
v. St. Luke's Health Sys., Inc., 53 F.4th 452, 455 (8th Cir. 2022).  
I. Plaintiffs’ failure to exhaust under the IDEA precludes 
bringing ADA and Rehabilitation Act claims in district 
court. 
Plaintiffs’ failure to exhaust the administrative process re-
quired under the IDEA renders the subsequent finding and relief 
issued by the district court premature. See Arc II, 24 F.4th at 1182 
(Erickson, J., dissenting). The IDEA imposes a requirement that 
Plaintiffs exhaust their administrative remedies prior to filing suit.  
20 U.S.C. § 1415(l). 
Plaintiffs attempt to skirt the IDEA by contending that their 
suit under title II of the ADA and section 504 of the Rehabilitation 
Act avoids the IDEA’s exhaustion requirement. See, e.g., Brief for 
Appellees 21-3268, at *28. Their argument is unavailing given the 
IDEA’s contrary text imposing an exhaustion requirement if Plain-
tiffs are “seeking relief that is also available under” the IDEA. 20 
U.S.C. § 1415(l); see Fry v. Napoleon Cmty. Sch., 580 U.S. 154, 161 
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— 16 — 
(2017) (“[A] plaintiff bringing suit under the ADA, the Rehabilita-
tion Act, or similar laws must in certain circumstances—that is, 
when ‘seeking relief that is also available under’ the IDEA—first 
exhaust the IDEA’s administrative procedures.”) (quoting 20 U.S.C. 
§ 1415(l)); E.T. v. Paxton, 19 F.4th 760, 767 (5th Cir. 2021) (same). 
The IDEA ensures that children with physical or intellectual 
disabilities receive a “free appropriate public education.” See Fry, 
580 U.S. at 166 (quoting 20 U.S.C. § 1400(d)(1)(A)); see 20 U.S.C. 
§ 1412(a)(1)(A). To ensure that qualified students receive a FAPE, 
the IDEA sets up a comprehensive procedure. See Fry, 580 U.S. at 
158–59 (describing that process and apologizing for “the acronymic 
world of federal legislation”). That process begins with the school 
developing for the student an individualized education program 
(“IEP”). Id. (quoting Honig v. Doe, 484 U.S. 305, 311 (1988) and cit-
ing 20 U.S.C. § 1414(d)). If a school and family have a dispute over 
the IEP, the first step is a hearing before a neutral administrative 
law judge, followed by judicial review in state or federal court. See 
id.; see also Iowa Code §§ 256B.2(2), 256B.4, 256B.6; Iowa Admin. 
Code r. 281-41.321–.328 (IEP process), 281-41.506 (mediations); 
281-41.507–.518 (due-process hearings).  
Those procedures are required for any dispute that could be 
seeking relief as available under the IDEA—even without invoca-
tion of the IDEA. Nelson v. Charles City Community Sch. Dist., 900 
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— 17 — 
F.3d 587, 591 (8th Cir. 2018) (“A key point for our purposes is that 
the IDEA exhaustion requirement is not limited to claims formally 
brought under the IDEA.”). Indeed, that includes lawsuits brought 
under title II of the ADA and section 504 of the Rehabilitation Act 
if Plaintiffs seek “relief that is also available” under the IDEA. See 
Fry, 580 U.S. at 169–74 (explaining how courts should determine if 
the relief a plaintiff seeks is subject to IDEA exhaustion and warn-
ing that “a ‘magic words’ approach would make § 1415(l)’s exhaus-
tion rule too easy to bypass”); E.T., 19 F.4th at 766–69 (explaining 
the plaintiffs’ likely failure to satisfy IDEA exhaustion despite 
pleading claims only under the ADA and Rehabilitation Act). 
Courts determining whether IDEA exhaustion is required look to 
“the crux—or, in legal-speak, the gravamen—of the plaintiff’s com-
plaint, setting aside any attempts at artful pleading.” Id. 
Two post-Fry cases out of the Eighth Circuit demonstrate the 
applicability of the exhaustion requirement.  
First, Nelson v. Charles City Community School District af-
firmed the district court’s grant of summary judgment to the dis-
trict because the plaintiffs failed to exhaust their administrative 
remedies. 900 F.3d at 589. There, the plaintiff parents wanted to 
transfer their high school student with disabilities to an online 
school. Id. at 590. While the plaintiffs appealed the denial to the 
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— 18 — 
relief they sought, they did not invoke “the separate set of adminis-
trative procedures that were available to them under the IDEA.” 
Id. The plaintiffs sued under section 504 of the Rehabilitation Act—
still without invoking the IDEA—but lost summary judgment at 
the district court for failing to exhaust administrative remedies. Id. 
at 591.   
The Court held that exhausting IDEA remedies is necessary 
whenever a plaintiff seeks relief that is available under the IDEA, 
even if “a plaintiff brings a claim under the Constitution, the Amer-
icans with Disabilities Act, the Rehabilitation Act, and other fed-
eral laws protecting children with disabilities.” Id. at 592 (quoting 
20 U.S.C. § 1415(l)). Nelson continued that a “suit seeks relief that 
is also available under the IDEA if it ‘seek[s] relief for the denial of 
a FAPE, because that is the only ‘relief’ the IDEA makes ‘availa-
ble.’” Id. (quoting Fry, 580 U.S. at 165). Looking at the denial of 
benefits pled in the plaintiffs’ complaint, the Court found that their 
claim “in substance advance[d] a challenge to the denial of a free 
and appropriate public education.” Id.  
The Court found two hypothetical questions posed in Fry to be 
helpful in deciding whether the claim substantially concerned the 
“denial of a FAPE, or instead addresse[d] disability-based discrim-
ination.” Id. The Court raised the following two questions: 
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— 19 — 
First, could the plaintiff have brought essentially the 
same claim if the alleged conduct had occurred at a pub-
lic facility that was not a school—say, a public theater 
or library? And second, could an adult at the school—
say, an employee or visitor—have pressed essentially 
the same grievance? . . . [W]hen the answer is no, then 
the complaint probably does concern a FAPE, even if it 
does not explicitly say so; for the FAPE requirement is 
all that explains why only a child in the school setting 
(not an adult in that setting or a child in some other) has 
a viable claim. 
Id.  
The Court answered both questions “no.” Id. The plaintiffs 
could not “have sued a public theater or library for the mishandling 
of an application to open-enroll in online educational programming” 
nor could “an adult employee of a Charles City school have brought 
essentially the same claim.” Id. The Court specifically rejected ap-
proaching the question at a “high level of generality”—such as char-
acterizing the claim as for “a ‘broken promise of non-discriminatory 
access’”— as that would “assume the answer to the very question at 
issue.” Id. 
A second case, J.M. v. Francis Howell Sch. Dist., similarly af-
firmed dismissal of several claims—including under the ADA and 
Rehabilitation Act—for failure to exhaust under the IDEA. 850 
F.3d 944, 948–49 (8th Cir. 2017). The plaintiff in J.M. alleged that 
her elementary-student son had been physically restrained while at 
the defendant’s schools. Id. The Court found that her allegations 
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— 20 — 
that his disability denied him “participation in and the benefits of 
a public education” showed “that the complaint was based on the 
‘denial of a FAPE’ under the IDEA.” Id. at 949. And it held that 
despite the lack of explicit reference to either a FAPE or to the 
IDEA in the plaintiff’s suit. 
In a slightly different procedural posture, the Fifth Circuit 
also found it likely that parents of students with disabilities chal-
lenging a prohibition on school mask mandates needed to exhaust 
under the IDEA before suing in federal court. E.T., 19 F.4th at 766. 
And that was despite those plaintiffs similarly avoiding pleading an 
IDEA claim. E.T. restated the plaintiffs’ desired relief as remedying 
“the deprivation of an in-person state-sponsored education because 
of their risk of contracting COVID-19 without a mask mandate.” Id. 
at 767. Looking at that relief through the two questions Fry posed, 
the court found that the claim could only be brought against a 
school and could only be brought by a student. Id. Given those find-
ings, the court found it very likely that Texas would succeed on the 
merits of its claim. Id.  
Here, Plaintiffs repeatedly allege that the lack of a universal 
mask mandate—or, characterized in the strongest terms for Plain-
tiffs, the lack of their schools’ authority to be able to consider such 
a mandate—excludes them from receiving their appropriate public 
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— 21 — 
education. See App. 30 ¶ 56; R. Doc. 1, at 19 (“Students with disa-
bilities who are unable to safely return to brick-and-mortar schools 
because of continued health concerns are being excluded from the 
public school system . . . .”); App. 31 ¶ 59; R. Doc. 1, at 20 (“Iowa 
state officials have effectively excluded these students from partic-
ipation in the public education system . . . .”); id. ¶ 58 (“Thus, the 
Defendants’ actions will have the perverse effect of either placing 
children with disabilities in imminent danger or unlawfully forcing 
those children out of the public school system.”); id. ¶ 57 (complain-
ing of lack of “virtual learning” and that “virtual learning, even if 
available, is not a viable or adequate substitute for in person learn-
ing”); App. 30 ¶ 54; R. Doc. 1, at 19 (complaining that “Children 
with disabilities are entitled to learn and interact with all other 
children, to receive the same education as all other children”); App. 
13 ¶ 1; R. Doc. 1, at 2 (alleging schools cannot comply with section 
280.31 and still provide “equal access to their education”); id. ¶ 2 
(alleging student risk harm to health or harm to “their education 
and development”); App. 23–24 ¶¶ 38–40; R. Doc. 1, at 12-13 (alleg-
ing various educational harms to disabled students because of the 
pandemic). 
In sum, Plaintiffs contend that their children are being denied 
a free and appropriate public education. That injury could be rem-
edied through the administrative remedies provided by the IDEA. 
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— 22 — 
And to the extent the IDEA requires a mask mandate, nothing in 
section 280.31 precludes that accommodation.  
The district court rejected the State’s contention that Plain-
tiffs must exhaust their administrative remedies under the IDEA. 
2022 WL 16627483, at *6. Referring generally to Fry, the district 
court explained that it did not believe that a free and appropriate 
public education was what Plaintiffs sought when asking for their 
“special needs” students needing to “physically access their schools 
without the risk of severe illness or death.” Id.  
Instead, the court found that Plaintiffs’ children being forced 
to “choose between their children attending school in person at risk 
to their health or attend remotely or even not at all” was not a re-
quest for a FAPE. Arc V, 2022 WL 16627483, at *6. But the district 
court did not ask either of Fry’s two questions, nor did it explain 
how the relief sought by the students differed from cases that re-
quired exhaustion like Nelson and J.M, nor did it address any of 
Judge Erickson’s concerns raised in the initial panel dissent. See 
Arc II, 24 F.4th at 1183.  
To determine whether Plaintiffs need to satisfy administra-
tive exhaustion, this Court must determine whether Plaintiffs al-
lege denial of a FAPE under the IDEA. See Fry, 580 U.S. at 166. In 
Fry, a student with cerebral palsy sought to bring a service dog to 
school rather than using the human aide the school could provide. 
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— 23 — 
Id. at 174–75. The plaintiff did not allege any potential denial of 
access to a FAPE in her complaint. Id. The human aide satisfied 
that plaintiff’s educational needs, but the plaintiff contended with-
out the dog she suffered from a lack of access. Id. at 175. The Court 
found that exhaustion was likely not required—but remanded on 
that question. Id. 
Unlike the plaintiff in Fry, the Complaint raises the denial of 
a free and appropriate education—with many giving long and rea-
soned explanations about the lack of safety of in-person school with-
out a mask mandate and the inadequacy of virtual school. See, e.g., 
App. 30–32 ¶¶ 56–59; R. Doc. 1, at 19-21. Like the plaintiffs in J.M. 
and Nelson, the substance of Plaintiffs’ complaint is that their child 
is not being provided an adequate education. See Nelson, 900 F.3d 
at 592. And the other court to rule on this specific issue asked Fry’s 
hypotheticals as to whether this claim could be brought in a non-
school or by a non-student and answered both questions “no.” E.g., 
E.T., 19 F.4th at 767. 
Plaintiffs’ claims are driven by the importance of education 
and the exclusion from accessing that education due to a lack of 
mask mandate. The precise type of additional accommodation that 
could enable their attendance at school requires highly specific and 
individualized determinations that are common under the IDEA. 
Each student has different health and educational needs that need 
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— 24 — 
to be addressed. And to the extent Plaintiffs disagree with those 
decisions, disputes could be adjudicated through the administrative 
process rather than a lawsuit. 
Indeed, the record indicates that some of the Plaintiffs sought 
individualized solutions for their children other than a universal 
mask mandate. Those less-extreme solutions included teachers 
wearing a mask when working on-on-one with the child, special ar-
rangements for avoiding crowded hallways, or masking students 
only in close contact with the Plaintiff’s child. App. 122 ¶ 9; R. Doc. 
3-12, at 2; App. 119 ¶ 18; R. Doc. 3-11, at 3; App. 99 ¶ 10; R. Doc. 3-
5, at 2. If after following the proper procedures the FAPE required 
some level of mask mandate on some teachers or students, section 
280.31 allows for that in its savings clause. 
Accordingly, administrative remedies would provide Plain-
tiffs with student- and school-specific solutions and procedures to 
ensure a safe and appropriate education. Plaintiffs have not ex-
hausted their remedies under the IDEA to obtain those solutions, = 
so their ADA and Rehabilitation Act claims must be dismissed. 
II. Plaintiffs failed to establish Article III standing. 
Beyond failing to exhaust the required administrative reme-
dies, Plaintiffs also lack Article III standing. Plaintiffs sued during 
the height of the COVID-19 pandemic seeking declaratory relief 
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— 25 — 
and a supporting injunction to set aside Iowa Code section 280.31. 
Now, they have abandoned the declaratory relief stated in their 
Complaint. Moreover, the district court granted the State’s motion 
to dismiss Plaintiffs’ injunctive claim denying a live case or contro-
versy. And even if a live case or controversy exists, the relief ac-
corded by the declaratory judgment is insufficient to grant Plain-
tiffs the relief they seek. 
With neither a live controversy, nor traceability, nor redress-
ability, this Court must reverse and instruct the district court to 
dismiss this suit for lack of standing. 
A. Declaratory judgment is not justified because 
section 280.31 does not prevent schools from 
complying with federal law. 
1. There is no conflict between federal law and State law 
sufficient to justify declaratory relief. 
Section 280.31 allows a school to impose masking where “the 
facial covering . . . is required by . . . any other provision of law.” 
Iowa Code § 280.31. Thus, the law does not prohibit masking if re-
quired by federal law. This Court agreed, holding that “[i]f another 
state or federal law requires masks, Section 280.31 does not conflict 
with that law—and thus should not be completely enjoined.” Arc IV, 
33 F.4th at 1045. It further “emphasize[d] that the parties and dis-
trict court should pay particular attention to” this exception “to the 
extent that this case continues.” Id. Had that been the declaratory 
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— 26 — 
judgment issued by the district court—whenever a federal law man-
dates masks, then section 280.31’s savings clause applies—this 
case would be over. Instead, the declaratory judgment below inverts 
the law by prohibiting schools from considering section 280.31 when 
it would prohibit a masking requirement.2 
The State agrees with the district court that federal law does 
not require that a universal mask mandate be imposed in Iowa 
schools. But local school decisionmakers are not free to choose to 
impose a mask mandate either. Each school is obligated to consider 
both State and federal law when determining whether to impose a 
universal or more limited mandate. And section 280.31 curtails that 
choice insofar as a mask mandate is not otherwise required by law. 
To the extent Plaintiffs believe a mask mandate is required 
by federal disability law, then their impediment to relief is not the 
State and it is not section 280.31. Properly channeled into the IDEA 
procedures as described above, Plaintiffs can adjudicate any dis-
putes they have about the proper procedure to ensure the students 
 
2 Indeed, two opinions Plaintiffs rely on to support standing have 
subsequently been vacated for lack of standing or other changed 
circumstances. See R. K. by and through J. K. v. Lee, 53 F.4th 995, 
1002 (6th Cir. 2022), reh’g denied, 2022 WL 18434486 (6th Cir. Dec. 
28, 2022) (vacating injunction for lack of standing); G.S. by and 
through Schwaigert v. Lee, 2022 WL 1560391, at *7 (W.D. Tenn. 
Mar. 28, 2022) (dismissing case for lack of subject matter jurisdic-
tion despite previous grant of preliminary injunction following pas-
sage of a law forbidding mask mandates). 
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— 27 — 
receive a free and appropriate public education. Even outside of the 
IDEA, to the extent Plaintiffs seek a reasonable accommodation, 
they must do so from the schools. There is no conflict between the 
State law and federal law sufficient to justify declaratory judg-
ment—the point at which a conflict could occur is the point at which 
the savings clause allows for masking.3 
 
3 Moreover, this Court’s assessment on rehearing is that no 
“court could grant effective relief as sought for the preliminary in-
junction because enjoining the Defendants’ enforcement of Section 
280.31 has no effect on Plaintiffs’ children, whose risk of contracting 
COVID-19 at school is now low even without mask requirements, 
as is their risk of serious injury or death.” Arc of Iowa, 33 F.4th at 
1045. In coming to that decision, the Court explained that changed 
circumstances and evidence contributed to mooting the district 
court’s injunction. Id. at 1044. Since that time, peer-reviewed stud-
ies on the real-world efficacy of masks in schools has found little to 
no impact. See Tom Jefferson et al, Physical Interventions to Inter-
rupt or Reduce the Spread of Respiratory Viruses, Cochrane Data-
base of Systemic Reviews 2023 (Jan. 30, 2023), Issue 1, Art. No. 
CD006207, https://perma.cc/6ANM-PUZJ.  
Mootness is jurisdictional, and a Court of appeals may look at 
materials outside the pleadings when determining subject matter 
jurisdiction. See Alberty v. United States, 54 F.4th 571, 575 (8th Cir. 
2022); Bret Stephens, The Mask Mandate Did Nothing. Will Any 
Lessons 
Be 
Learned?, 
N.Y. 
Times, 
(Feb. 
21, 
2023), 
https://perma.cc/6D9D-9DUJ. The State argued and briefed 
changed circumstances in its Brief in Support of Motion to Dismiss 
following this Court’s recognition of such in its opinion. See App. 
900–929; R. Doc. 90 (quoting Arc IV, 33 F.4th at 1044). These arti-
cles provide further recognition that circumstances have changed 
from when the Complaint was filed. 
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— 28 — 
2. Because the savings clause precludes a conflict between sec-
tion 280.31 and federal law, Plaintiffs would not be af-
forded any relief from this action, and the district court’s 
order should be vacated.  
The district court’s declaratory judgment does not redress 
Plaintiffs’ harms and is insufficient to find a live case or contro-
versy. See U.S. Const. art. III; Ringo v. Lombardi, 677 F.3d 793, 796 
(8th Cir. 2012) (“Basically, the question in each case is whether the 
facts alleged, under all the circumstances, show that there is a sub-
stantial controversy, between parties having adverse legal inter-
ests, of sufficient immediacy and reality to warrant the issuance of 
a declaratory judgment.”) (quoting Md. Cas. Co. v. Pac. Coal & Oil 
Co., 312 U.S. 270, 273 (1941)).  
The district court granted the State’s motion to dismiss Plain-
tiffs’ injunctive relief claim, granted Plaintiffs’ motion for summary 
judgment, and issued a declaratory judgment. 2022 WL 16627483, 
at *10. But that raises significant redressability concerns as neither 
Defendant can effectuate the declaratory relief now at issue in the 
case. See Digital Recognition Network, Inc. v. Hutchinson, 803 F.3d 
952, 957 (8th Cir. 2015) (“Article III requires the plaintiff to show a 
causal connection between the state officials and the alleged in-
jury.”). As a result, Plaintiffs’ “injury would” not be “redressed by a 
favorable decision.” Id. at 958 (quoting Lujan v. Def. of Wildlife, 504 
U.S. 555, 560 (1992)).  
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— 29 — 
The State agrees that to the extent federal law in some cir-
cumstance may require some masking, that the masking required 
by federal law is not prohibited by section 280.31. But that is not 
what the district court declared. Instead, it inserted a tie-breaking 
component that prohibits compliance with both State and federal 
law if State law would be the only impediment to a mask mandate. 
Given the plain text of the statute, any additional declaratory relief 
is unjustified. 
Moreover, affirming the district court’s overly broad declara-
tory judgment gives no relief to Plaintiffs. Neither the Governor nor 
the Director can order a specific mask mandate for each Plaintiff’s 
child. Plaintiffs must still seek a mask mandate from the school or 
other authority figure.  
That leads to a major case-or-controversy issue as the judg-
ment on appeal renders the available relief insufficient to satisfy 
standing as an “essential and unchanging part of the case or con-
troversy requirement.” Id. at 956 (quoting Lujan, 504 U.S. at 550). 
For declaratory judgment to keep a case live requires that “it must 
be the effect of the court’s judgment on the defendant that redresses 
the plaintiff’s injury, whether directly or indirectly.” Id. (internal 
citation omitted). Like in Digital Recognition Network, Plaintiffs 
contend that a declaration of applicability or unconstitutionality of 
the statute “would substantially diminish the risk that the Act 
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— 30 — 
would be enforced: private parties would be less likely to sue . . . 
and a declaratory judgment would ‘create precedent that binds fed-
eral and state judges[.]” Id. But Plaintiffs argument suffers from 
the same flaw as in Digital Recognition Network—that the declara-
tory judgment “would not redress [the plaintiff’s] injury by virtue of 
its effect on the defendant officials.” Id. When the declaratory relief 
is too attenuated from the actual merits relief sought, this Court 
has declined to find a justiciable case or controversy. 
On this point, One Thousand Friends of Iowa v. Mineta is in-
structive. 364 F.3d 890, 892–93 (8th Cir. 2004). There, this Court 
dismissed as moot an appeal seeking only declaratory relief regard-
ing the National Environmental Policy Act by finding that there 
was no live case or controversy. 364 F.3d 890, 892–93 (8th Cir. 
2004). One Thousand Friends sued to stop the modification of three 
highway interchanges in West Des Moines. Id. at 892. The district 
court denied an injunction and the modifications finished prior to 
resolution of the appeal. Id. On appeal, One Thousand Friends 
sought declaratory relief concerning the remainder of the project, 
but this Court found that issuing such a declaration would have “no 
import.” Id. at 894.  
So too here. When the effect of declaratory relief is insufficient 
to create a live case or controversy, the Court lacks jurisdiction to 
grant that relief. 
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— 31 — 
B. Plaintiffs abandoned the declaratory judgment they 
sought in their Complaint. 
The Complaint sought declaratory relief that “HF 847”—en-
acted as section 280.31—“violates the ADA,” “subject[s] the Plain-
tiffs to discrimination in violation of Section 504 of the Rehabilita-
tion Act,” and “is preempted by the American Rescue Plan Act.” 
App. 48; R. Doc. 1, at 37 (“Prayer for Relief”). But in their motion 
for summary judgment, Plaintiffs sought two different declarations. 
First, they sought a declaration that “The term ‘other provision[s] 
of law’ as it is used in Section 280.31 include [sic] Title II of the 
Americans with Disabilities Act (“ADA”) and Section 504 of the Re-
habilitation Act.” App. 691 ¶ 2; R. Doc. 88, at 2.  
And second, Plaintiffs sought a declaration “That Section 
280.31 cannot be cited as a basis to deny a student’s request for 
reasonable modification or accommodation that includes requiring 
others to wear masks.” Id. Plaintiffs sought, and the district court 
granted, declaratory relief that was not asked for in the Complaint. 
See Arc V, 2022 WL 16627483, at *10; cf. Fed. R. Civ. P. 56(a) (“A 
party may move for summary judgment, identifying each claim or 
defense—or the part of each claim or defense—on which summary 
judgment is sought.”).  
Seeking and receiving relief outside that sought by the Com-
plaint violates both Rule 56 and this Court’s precedent. Winfrey v. 
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— 32 — 
City of Forrest City, Ark., 882 F.3d 757, 758–59 (8th Cir. 2018). And 
district courts around the country follow this Circuit’s general ad-
monition of seeking and receiving that relief. See Crow v. Fabian, 
2010 WL 2464865, at *18 (D. Minn. Feb. 5, 2010) (“If a party cannot 
raise a new, previously unpled, claim in opposition to another 
party’s summary judgment motion, then a party certainly cannot 
seek summary judgment for himself on a new claim that has not 
been pled in his complaint.”); A.L. ex rel. Limkemann v. Jake’s Fire-
works, Inc. , 456 F. Supp. 3d 1074, 1082 (S.D. Iowa 2020) (refusing 
to consider new theories of negligence liability raised in summary 
judgment briefing and not pled in complaint); Mt. Hawley Ins. Co. 
v. HCS 410 Holdings, LLC, 2021 WL 1550352, at *3 (W.D. Tex. Apr. 
20, 2021) (denying summary judgment on declaratory relief “that is 
not requested in the Complaint”). 
Nowhere in their Complaint do Plaintiffs seek a declaration 
as to the meaning of section 280.31 and its proper implementation 
regarding its savings clause. App. 48; R. Doc. 1, at 37 (“Prayer for 
Relief”). The relief is not based on any violation of federal law—and 
that violation is the only allegation in the three claims of the com-
plaint. Id. Plaintiffs’ requested and granted declaratory relief is in-
appropriate and this Court should vacate for lack of standing. 
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— 33 — 
III. Federal Law Does Not Require Schools to Have the  
Discretion to Impose Universal Mask Mandates. 
Title II of the ADA and section 504 of the Rehabilitation Act 
require that schools not discriminate against disabled individuals. 
Courts analyze disability discrimination claims under title II and 
section 504 together. See, e.g., Davis v. Francis Howell Sch. Dist., 
138 F.3d 754, 756 (8th Cir. 1998). To avoid liability for unlawful 
discrimination, schools can make reasonable accommodations for 
disabled students. But mask mandates are not necessarily reason-
able accommodations, nor are they necessarily required by the ADA 
or Rehabilitation Act.  
If this Court declines to find that Plaintiffs failed to exhaust 
and that they have standing, the State raises three reasons as to 
why this Court should vacate the granted relief on the merits. First, 
section 280.31’s prohibition on universal mask mandates is neutral 
and non-discriminatory. Second, a universal mandate is not a rea-
sonable accommodation under the ADA. And third, even if they are 
reasonable, such accommodations must still comply with both fed-
eral and State law.  
C. Section 280.21’s Prohibition on Universal Mask 
Mandates is Neutral and Non-Discriminatory. 
Under both title II of the ADA and section 504 of the Rehabil-
itation Act, “a plaintiff must show that he was a qualified individual 
with a disability and that he was denied the benefits of a program, 
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— 34 — 
activity, or services by reason of that disability.” Id. (citing 42 
U.S.C. § 12132; 29 U.S.C. § 794(a)). And under those statutes, when 
the denial occurs because of a neutral nondiscriminatory policy ra-
ther than because of a plaintiff’s disability, no violation arises. See 
id. at 756–57. Thus, nondiscriminatory policies that apply to all stu-
dents regardless of disability status do not violate the ADA. Id. 
(quoting DeBord v. Bd. of Educ. Of Ferguson-Florissant Sch. Dist., 
126 F.3d 1102, 1105 (8th Cir. 1998)).  
Regardless of whether plaintiffs seek to challenge “the wis-
dom” of a policy, so long as that policy does not violate the federal 
statutes where it “applies to all students regardless of disability and 
rests on concerns unrelated to disabilities or misperceptions about 
them,” it does not violate the federal statutes. Id. at 756; see also 
Timothy H. v. Cedar Rapids Cmty. Sch. Dist., 178 F.3d 968, 971–72 
(8th Cir. 1999); DeBord, 126 F.3d at 1105–06. 
The Eighth Circuit has repeatedly held that neutral policies 
instituted by schools—even without the backing of a specific state 
law—are not disability discrimination. For example, in Timothy H., 
this Court held that following a policy that all students in an intra-
district transfer program must provide their own transportation is 
not disability discrimination. 178 F.3d at 972. And in Davis, this 
Court held that following a policy to administer medication in 
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— 35 — 
schools consistent with maximum dosage recommended by the Phy-
sician’s Desk Reference also failed to constitute disability discrimi-
nation. 138 F.3d at 756. The Court found both of those policies ac-
ceptable and neither had the further bolstering support of state law. 
Section 280.31 enacts a uniform and nondiscriminatory policy 
that local schools cannot require students, employees, or visitors to 
wear face coverings unless otherwise required by law or a specific 
instructional or educational purpose. Iowa Code § 280.31. The law 
was not passed to single out individuals with disabilities, and it im-
poses no restrictions on individuals—with or without disabilities. 
Every student, teacher, and visitor may choose to wear a face cov-
ering if they so choose. After passage of section 280.31, a mask man-
date as a public health precaution can only be imposed by the Gov-
ernor as a part of her emergency powers during a public health dis-
aster, rather than by a school district. See Iowa Code §§ 135.144(3), 
29C.6. 
To the extent that the issue of whether universal mask man-
dates in the Plaintiffs’ children’s schools is live, the alleged denial 
of that mask mandate and the concomitant denial of education is 
not caused by their disability. To the extent there is a denial at all 
it is due to a neutral, nondiscriminatory statute. That defeats the 
statutory element of an ADA and section 504 claim that requires 
being denied a benefit because of a disability. See Davis, 138 F.3d 
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— 36 — 
at 756. If this Court reaches the merits, it should vacate the declar-
atory judgment because it is inappropriate given that the purported 
denial is due to a neutral, nondiscriminatory statute. 
D. A Universal Mask Mandate Is Not a Reasonable 
Modification. 
The district court’s declaration implicitly finding that a “rea-
sonable modification or accommodation made under Title II of the 
ADA or section 504 of the Rehabilitation Act” may include “requir-
ing others to wear masks” goes too far.  
A universal mask mandate is not a reasonable modification. 
Indeed, the Eighth Circuit has not held whether “failure to make 
reasonable modifications in a policy is itself discrimination even 
where the policy and its rationale cannot be shown to be discrimi-
natory.” Davis, 138 F.3d at 757; see also DeBord, 126 F.3d at 1106. 
A modification that imposes an undue administrative burden or a 
fundamental alteration in the nature of the State’s education pro-
gram is not reasonable. See Davis, 138 F.3d at 757 (holding that a 
request to deviate from the school’s medication policy is not reason-
able because it would “impose undue financial and administrative 
burdens on the district by requiring it to determine the safety of the 
dosage and the likelihood of future harm and liability in each indi-
vidual case”); Timothy H, 178 F.3d at 972–73 (holding that request 
to establish a special free bus route would be “an undue financial 
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— 37 — 
burden and a fundamental alteration in the nature of the intra-dis-
trict transfer program”); Pottgen v. Mo. State High Sch. Activities 
Ass’n, 40 F.3d 926, 929–30 (8th Cir. 1994) (holding that request to 
participate in high school baseball program as a nineteen year old 
despite uniform age limit was not reasonable modification because 
it would “constitute a fundamental alteration in the nature of the 
baseball program” given its intent to protect younger athletes, have 
fair competition, and discouraging delays in education). 
Accommodations are reasonable if they “give [students with 
disabilities] the same access to the benefits of a public education as 
all other students.” J.D. ex rel. J.D. v. Pawlet Sch. Dist., 224 F.3d 
60, 71 (2d Cir. 2000) (noting that public school districts are not re-
quired to provide potential-maximizing accommodations). Provided 
accommodations are not required to be ideal from the student’s per-
spective, so long as the accommodation is effective. Huber v. Wal-
Mart Stores, Inc., 486 F.3d 480, 484 (8th Cir. 2007) (holding that 
employees are not entitled to their ideal accommodations); US Air-
ways v. Barnett, 535 U.S. 391, 399 (2002) (recognizing that a rea-
sonable accommodation does not mean the only effective accommo-
dation). 
An accommodation is not reasonable if it requires a school dis-
trict to effect substantial modifications of standards to accommo-
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— 38 — 
date a handicapped individual. Pottgen, 40 F.3d at 930. An accom-
modation is also not reasonable if it imposes undue administrative 
burdens on the school district and its employees. Davis, 138 F.3d at 
756. And an accommodation is not reasonable if it infringes upon 
the rights of third parties. Wooten v. Farmland Foods, 58 F.3d 382, 
386 (8th Cir. 1995) (holding that an “irritant-free work environ-
ment” is not a reasonable accommodation).  
Here, modifying the State’s policy as enacted in section 280.31 
to allow universal mask mandate in schools—or permitting schools 
to make those decisions in contravention of state law—is an undue 
burden and fundamentally alters the nature of the educational pro-
gram established by the State. Moreover, modifying the policy to 
give schools discretion voids the Legislature’s policy decision to take 
the highly contentious and emotional issue of masks in schools from 
the responsibility of local schools so that local leadership could de-
vote their time to other important concerns. And any universal 
mask mandate imposes administrative, financial, and legal bur-
dens that the statute intended to avoid. 
Moreover, universal mask mandates are not reasonable mod-
ifications because they infringe on the rights of third parties, in-
cluding other students, employees, and visitors. In Wooten v. Farm-
land Foods, this Court recognized that the ADA does not impose 
“obligation to terminate other employees” to comply. 58 F.3d at 386. 
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— 39 — 
And in Buckles v. First Data Resources, Inc., this Court rejected that 
the ADA provided for an “irritant-free work environment” as a rea-
sonable accommodation for an employee with a severe smell sensi-
tivity. 176 F.3d 1098, 1100–02 (8th Cir. 1999). Plaintiffs’ desired 
modification of imposing a universal mask mandate necessarily 
places a burden on every other student and employee in the school. 
That is not reasonable. 
More than merely imposing that requirement on employees, 
who are voluntarily working and are paid to comply by their em-
ployers’ directives, this also imposes a mandate on students who 
have a right to receive a free public education and are compelled to 
attend school. At the point at which a reasonable accommodation 
includes such impositions on third parties, it is not clear where the 
limitations would be. To extend Plaintiffs’ logic one step forward, 
this Court should consider if the next plaintiff could sue to mandate 
that all who come in contact with her receive a vaccination for 
COVID-19. While the State may impose certain mandates under its 
police powers, particularly during an emergency pandemic, it does 
not follow that federal disability law extends that same power to 
impose mandates to private plaintiffs in the name of reasonable ac-
commodation. 
Further complicating matters is that disability interests rise 
on both side of the mask debate, as universal masking may harm 
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— 40 — 
disabled students with social communication issues because it pre-
vents those students from advancing “social skills and understand-
ing the expressions of those around [the student] due to [the] fellow 
students and teachers wearing masks. App. 342 ¶ 6; R. Doc. 42-2, 
at 1; App. 341 ¶¶ 9–10; R. Doc. 42-1, at 2. Similarly, it hurts those 
who struggle with speech and pronunciation, asthma, deafness, and 
severe and painful sensory processing issues. See App. 340–341 
¶¶ 4–6, 7–8; R. Doc. 42-1, at 1-2; App. 344–345 ¶¶ 4–6, 12; R. Doc. 
42-3, at 1-2; App. 361–363; R. Doc. 45-1; App. 364–366; R. Doc. 45-
2. It is not unreasonable to foresee a circumstance where schools 
may be forced to consider directly conflicting “reasonable” accom-
modations or modifications. 
Section 280.31 does not preclude Plaintiffs seeking other rea-
sonable modifications consistent with State law and policy. And 
schools are welcome to engage in constructive discussion to deter-
mine what modification may be reasonable. Those could include, for 
example, greater personal protective equipment for the student 
(such as a higher quality N95 mask), greater social distancing, or, 
perhaps if justified by the particular facts, even limited masking of 
teachers or students while interacting closely with the individual. 
Those suggestions mirror the recommendations made by the Fifth 
Circuit, which found that overreliance on mask mandates rest “on 
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— 41 — 
the faulty premise that the only accommodation available to plain-
tiffs is their schools’ ability to impose mask mandates.” E.T., 19 
F.4th at 768. After all, Plaintiffs “are not entitled to their preferred 
accommodation but only a reasonable” one. Id. at 767.  
Because the district court went too far by improperly con-
cluded that a universal mask mandate is a reasonable accommoda-
tion, the Court should vacate the declaratory judgment below as it 
fails as a matter of law. 
E. Even if a Universal Mask Mandate Were a 
Reasonable 
Accommodation, 
Reasonable 
Accommodations Under the ADA Must Still Comply 
with State Law. 
A universal mask mandate is not a reasonable accommoda-
tion. But even if it were, reasonable accommodations must still com-
ply with applicable State law. The ADA does not require public 
schools to provide a students with disabilities the accommodation 
of her choice. Huber, 486 F.3d at 484 (8th Cir. 2007) (holding that 
the ADA does “not require[] . . . an accommodation that is ideal from 
the [disabled individual’s] perspective”); see also McElwee v. County 
of Orange, 700 F.3d 635, 641 (2d Cir. 2012) (“Although a public en-
tity must make ‘reasonable accommodations,’ it does not have to 
provide a disabled individual with every accommodation he re-
quests or the accommodation of his choice.”). That is especially true 
when the requested accommodation is not available under state 
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— 42 — 
law. See Eustance v. Springfield Pub. Schs., 463 F. Supp. 3d 187, 
108, 112, 114, 117 (D. Mass. 2020) (finding that requests for accom-
modations were properly denied when the requested accommoda-
tions were not available under Massachusetts law).  
The Supreme Court’s decision in US Airways, Inc. v. Barnett, 
which held that internal policies, including seniority policies, were 
sufficient to overcome requests for accommodation that would oth-
erwise be reasonable, is instructive. 535 U.S. 391, 406 (2002); see 
also Off. of Sen. Sergeant at Arms v. Off. of Sen. Fair Empl. Prac-
tices, 95 F.3d 1102, 1107 (Fed. Cir. 1996) (“A qualified individual 
with a disability is thus entitled to a reasonable accommodation, 
absent any statutory qualification that may limit the employer's 
duty to provide such an accommodation.”).  
So too in Albertson’s Inc. v. Kirkingburg, which declined to im-
pose liability on an employer for firing an employee that could not 
meet the nationally proscribed vision standards to drive a truck. 
527 U.S. 555, 570 (1996); see Bey v. City of New York, 999 F.3d 157, 
168 (2d Cir. 2021) (finding Albertson instructive to determining the 
limits of a reasonable accommodation). If reasonable accommoda-
tions must adhere to internal company policies, it follows that they 
must also comply with State law—at least when, as here, State law 
explicitly fails to conflict with federal law. 
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— 43 — 
The district court’s declaration that “Iowa Code section 280.31 
cannot be cited as the only basis to deny a student’s request for rea-
sonable modification or accommodation” is an unwarranted and 
atextual read of the law. 2022 WL 16627483, at *10. Section 
280.31’s savings clause already ensures that there cannot be a con-
flict between federal disability law and the State prohibition on 
mask mandates in schools. Iowa Code § 280.31. Without that de-
claratory relief, a given school may follow the procedures laid out in 
the IDEA and other disability law as appropriate to determine 
whether a reasonable accommodation is necessary for a given stu-
dent, and whether that accommodation requires masking.  
Section 280.31 is carefully constructed to avoid any conflicts 
between federal and State law. Declaratory relief allowing an entity 
to ignore State law when it does not conflict with federal law is in-
appropriate. This Court should vacate the declaratory relief forcing 
that interpretation. 
CONCLUSION 
Plaintiffs failed to exhaust their claims under the IDEA, they 
lack standing, and the declaratory relief they seek is itself a mis-
statement of law. For those reasons this Court should vacate the 
decision below. 
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— 44 — 
Respectfully submitted, 
 
BRENNA BIRD 
Attorney General of Iowa 
 
SAMUEL P. LANGHOLZ 
Chief Deputy Attorney General 
 
/s/ Eric H. Wessan  
 
ERIC H. WESSAN 
Solicitor General 
1305 E. Walnut Street 
Des Moines, Iowa 50319 
(515) 281-5164 
(515) 281-4209 (fax) 
sam.langholz@ag.iowa.gov 
eric.wessan@ag.iowa.gov 
 
ATTORNEYS FOR  
APPELLANTS 
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— 45 — 
CERTIFICATE OF COMPLIANCE 
This brief complies with the type-volume limitation of Fed. R. 
App. P. 32(a)(7)(B) because, excluding the parts of the brief ex-
empted by Fed. R. App. P. 32(f), this document contains 9,268 
words. It also complies with the typeface requirements of Fed. R. 
App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 
32(a)(6) because this brief has been prepared in a proportionally 
spaced typeface using Microsoft Word in 14-point Century School-
book font. And as required by 8th Cir. R. 28A(h), the brief and ad-
dendum have been scanned for viruses and are virus-free. 
/s/ Eric H. Wessan           
Solicitor General 
 
CERTIFICATE OF SERVICE 
The undersigned certifies that on the 2nd day of March, 2023, 
this brief was electronically filed with the Clerk of Court using the 
CM/ECF system, which will serve all counsel of record.  
/s/ Eric H. Wessan           
Solicitor General 
 
Appellate Case: 22-3338     Page: 52      Date Filed: 03/03/2023 Entry ID: 5251411

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