Brief for Appellees — The Arc of Iowa v. Reynolds (8th Cir.)

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No. 22-3338 
 
 
UNITED STATES COURT OF APPEALS 
FOR THE EIGHTH CIRCUIT 
 
THE ARC OF IOWA, et al.,  
Plaintiffs-Appellees, 
v. 
KIMBERLY 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. 
 
On Appeal from the United States District Court 
for the Southern District of Iowa (Case No. 4:21-cv-00264-RP) 
 
BRIEF FOR PLAINTIFFS-APPELLEES 
 
  
Shefali Aurora 
Rita Bettis Austen 
AMERICAN CIVIL LIBERTIES 
  UNION OF IOWA FOUNDATION 
505 Fifth Avenue, Suite 808 
Des Moines, IA 50309-2316 
(515) 243-3988 
shefali.aurora@aclu-ia.org 
rita.bettis@aclu-ia.org 
John A. Freedman 
Anthony J. Franze 
Tara L. Williamson 
ARNOLD & PORTER  
  KAYE SCHOLER LLP  
601 Massachusetts Avenue, NW 
Washington, DC 20001-3743 
(202) 942-5000 
john.freedman@arnoldporter.com 
anthony.franze@arnoldporter.com 
tara.williamson@arnoldporter.com 
(additional counsel listed on next page) 
 
 
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Catherine Johnson 
Cynthia A. Miller 
DISABILITY RIGHTS IOWA 
666 Walnut Street, Suite 1440 
Des Moines, IA 50309 
(515) 278-2502 
cjohnson@driowa.org 
cmiller@driowa.org 
Shira Wakschlag 
ARC OF THE UNITED STATES 
1825 K Street, NW, Suite 1200 
Washington, DC 20006 
(202) 534-3708 
wakschlag@thearc.org 
Jim T. Duff 
Thomas J. Duff 
DUFF LAW FIRM, P.L.C. 
4090 Westown Parkway, Suite 102 
West Des Moines, IA 50266 
(515) 224-4999 
jim@tdufflaw.com 
tom@tdufflaw.com 
Steven L. Mayer 
ARNOLD & PORTER  
  KAYE SCHOLER LLP  
10th Floor, Three Embarcadero Center 
San Francisco, CA 94111-4024 
(415) 471-3100 
steve.mayer@arnoldporter.com 
Louise Melling 
Arijeet Sensharma 
AMERICAN CIVIL LIBERTIES 
  UNION FOUNDATION 
125 Broad Street 
New York, NY 10004 
(212) 549-2637 
lmelling@aclu.org 
asensharma@aclu.org 
Susan Mizner 
AMERICAN CIVIL LIBERTIES 
  UNION FOUNDATION 
39 Drumm Street 
San Francisco, CA 94111 
(646) 421-9387  
smizner@aclu.org 
 
 
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CORPORATE DISCLOSURE STATEMENT 
Pursuant to Federal Rule of Appellate Procedure 26.1 and 8th Circuit Rule 
26.1A, Plaintiff-Appellee The Arc of Iowa states that it has no parent corporation 
and that no publicly held corporation owns more than ten percent of its stock. 
 
 
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TABLE OF CONTENTS 
CORPORATE DISCLOSURE STATEMENT ......................................................... i 
TABLE OF CONTENTS .......................................................................................... ii 
TABLE OF AUTHORITIES ................................................................................... iv 
INTRODUCTION ..................................................................................................... 1 
STATEMENT OF THE CASE .................................................................................. 5 
A. The Pandemic and Anti-Masking Debate .................................................. 5 
B. 
Plaintiffs Sue to Enjoin Enforcement of Section 280.3’s Masking 
Ban .............................................................................................................. 7 
C. 
The First Appeal .......................................................................................10 
D. The Proceedings on Remand ....................................................................12 
SUMMARY OF ARGUMENT ...............................................................................14 
STANDARD OF REVIEW .....................................................................................16 
ARGUMENT ...........................................................................................................17 
I. 
THE DISTRICT COURT CORRECTLY HELD THE IDEA EXHAUSTION 
REQUIREMENT DOES NOT APPLY ...........................................................17 
A. Plaintiffs Need Not Exhaust Because They Sought and Obtained 
Relief That Is Not Available Under the IDEA .........................................17 
B. 
The Essence of Plaintiffs’ Claims Pertains to Equal Access to 
Public Schools, Not Students’ Right to a Free and Appropriate 
Public Education .......................................................................................22 
1. The Gravamen of Plaintiffs’ Claims Falls Outside the IDEA ..............22 
2. The Decisions State Defendants Cite Are Inapposite ..........................25 
II. 
THE DISTRICT COURT CORRECTLY HELD THAT PLAINTIFFS HAVE 
STANDING......................................................................................................27 
A. Defendants Do Not Dispute that Plaintiffs Have Suffered an 
Injury-In-Fact............................................................................................27 
B. 
Plaintiffs Have Established Traceability ..................................................28 
C. 
Plaintiffs Have Established Redressability ..............................................30 
D. There Is a Live Case or Controversy ........................................................34 
E. 
Defendants Were on Notice of Plaintiffs’ Requested and Awarded 
Declaratory Relief ....................................................................................35 
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III. THE DISTRICT COURT CORRECTLY GRANTED DECLARATORY 
RELIEF ............................................................................................................38 
A. The ADA and the Rehabilitation Act Reach Policies with 
Discriminatory Effects ..............................................................................38 
B. 
Masking Can Be a Reasonable Modification Under Federal Law ...........43 
C. 
Reasonable Modifications Under Federal Law Need Not Comply 
with Section 280.31 ..................................................................................47 
CONCLUSION ........................................................................................................51 
CERTIFICATE OF COMPLIANCE .......................................................................52 
CERTIFICATE OF SERVICE ................................................................................53 
 
 
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TABLE OF AUTHORITIES 
Page(s) 
Cases 
Albertson’s, Inc. v. Kirkingburg, 
527 U.S. 555 (1999) ...................................................................................... 49, 50 
Alberty v. U.S., 
54 F.4th 571 (8th Cir. 2022) ............................................................................... 32 
Alexander v. Choate, 
469 U.S. 287 (1985) ................................................................................ 40, 41, 42 
Am. Council of the Blind v. Paulson, 
525 F.3d 1256 (D.C. Cir. 2008) .......................................................................... 40 
Arc of Iowa v. Reynolds, 
24 F.4th 1162 (8th Cir. 2022) ....................................................................... 11, 21 
Arc of Iowa v. Reynolds, 
33 F.4th 1042 (8th Cir. 2022) .................................................1, 11, 14, 34, 47, 48 
Baker v. John Morrell & Co., 
382 F.3d 816 (8th Cir. 2004) .............................................................................. 36 
Barron v. S.D. Bd. of Regents, 
655 F.3d 787 (8th Cir. 2011) .............................................................................. 18 
Boone v. Boozman, 
217 F. Supp. 2d 938 (E.D. Ark. 2002) ................................................................ 46 
Bowles v. Osmose Utilities Services, Inc., 
443 F.3d 671 (8th Cir. 2006) .............................................................................. 36 
Brennan v. Stewart, 
834 F.2d 1248 (5th Cir. 1988) ............................................................................ 40 
CEI v. NHTSA, 
901 F.2d 107 (D.C. Cir. 1990) ............................................................................ 32 
Continental Insurance Company v. Daikin Applied Americas Inc., 
998 F.3d 356 (8th Cir. 2021) .............................................................................. 16 
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v 
Cooper v. Aaron, 
358 U.S. 1 (1958) ................................................................................................ 48 
Davis v. Francis Howell School District, 
138 F.3d 754 (8th Cir. 1998) ........................................................................ 39, 40 
Dean v. Univ. at Buffalo Sch. of Med. & Biomedical Sciences, 
804 F.3d 178 (2d Cir. 2015) ......................................................................... 48, 49 
DeBord v. Board of Education, 
126 F.3d 1102 (8th Cir. 1997) ................................................................ 38, 39, 40 
Dep’t of Comm. v. New York, 
139 S. Ct. 2551 (2019) ...................................................................... 28, 32, 33, 34 
Digital Recognition Network, Inc. v. Hutchinson, 
803 F.3d 952 (8th Cir. 2015) .............................................................................. 33 
Disabled in Action v. Bd. of Elections in the City of N.Y., 
752 F.3d 189 (2d Cir. 2014) ............................................................................... 40 
Doe ex rel. K.M. v. Knox Cnty. Bd. of Educ., 
56 F.4th 1076 (6th Cir. 2023) ............................................................................. 24 
Doe v. CVS Pharmacy, Inc., 
141 S. Ct. 2882 (2021) ........................................................................................ 40 
Doe v. CVS Pharmacy, Inc., 
142 S. Ct. 480 (2021) .......................................................................................... 40 
Doe v. CVS Pharmacy, Inc., 
982 F3d 1204 (9th Cir. 2020) ............................................................................. 40 
Doe v. Perkiomen Valley Sch. Dist., 
585 F. Supp. 3d 668 (E.D. Pa. 2022) .................................................................. 24 
Durand v. Fairview Health Services, 
902 F.3d 836 (8th Cir. 2018) .............................................................................. 39 
E.T. v. Paxton, 
19 F.4th 760 (5th Cir. 2021) ............................................................................... 25 
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Fry v. Napoleon Community Schools, 
137 S. Ct. 743 (2017) ....................................................... 4, 18, 19, 22, 23, 24, 26 
Gorman v. Bartch, 
152 F.3d 907 (8th Cir. 1988) .............................................................................. 45 
Gustafson v. Cornelius Co., 
724 F.2d 75 (8th Cir. 1983) ................................................................................ 32 
Herden v. U.S., 
726 F.3d 1042 (8th Cir. 2013) ............................................................................ 32 
In re Rodriquez, 
258 F.3d 757 (8th Cir. 2001) .............................................................................. 26 
J.M. v. Francis Howell Sch. Dist., 
850 F.3d 944 (8th Cir. 2017) ........................................................................ 20, 25 
Jacobson v. Massachusetts, 
197 U.S. 11 (1905) .............................................................................................. 46 
Liddell v. Special Admin. Bd. of the Transitional Sch. Dist., 
894 F.3d 959 (8th Cir. 2018) ........................................................................ 28, 31 
Lujan v. Defs. of Wildlife, 
504 U.S. 555 (1992) ...................................................................................... 30, 31 
Mark H. v. Lemahieu, 
513 F.3d 922 (9th Cir. 2008) .............................................................................. 40 
Mary Jo C. v. New York State & Local Ret. Sys., 
707 F.3d 144 (2d Cir. 2013) ............................................................................... 47 
McWright v. Alexander, 
982 F.2d 222 (7th Cir. 1992) .............................................................................. 40 
Metzger v. Village of Cedar Creek, Nebraska, 
370 F.3d 822 (8th Cir. 2004) .............................................................................. 16 
Moore v. Kansas City Pub. Sch., 
828 F.3d 687 (8th Cir. 2016) .............................................................................. 25 
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Nat’l Fed’n of the Blind v. Lamone, 
813 F.3d 494 (4th Cir. 2016) .................................................................. 40, 47, 48 
Nathanson v. Medical Coll. of Pa., 
926 F.2d 1368 (3d Cir. 1991) ............................................................................. 40 
Nelson v. Charles City Cmty. Sch. Dist., 
900 F.3d 587 (8th Cir. 2018) ........................................................................ 20, 25 
Northshore Dev., Inc. v. Lee, 
835 F.2d 580 (5th Cir. 1988) .............................................................................. 26 
Office of Senate Sergeant at Arms v. Office of Senate Fair 
Employment Practices, 
95 F.3d 1102 (Fed. Cir. 1996) ............................................................................ 50 
Olmstead v. L.C., 
527 U.S. 581 (1999) ............................................................................................ 45 
One Thousand Friends of Iowa v. Mineta, 
364 F.3d 890 (8th Cir. 2004) .............................................................................. 34 
Perez v. Sturgis Public Schools., 
143 S. Ct. 859 (2023) ..............................................................4, 15, 17, 18, 26, 27 
Robinson v. Kansas, 
295 F.3d 1183 (10th Cir. 2002) .......................................................................... 40 
Rodal v. Anesthesia Grp. of Onondaga, P.C., 
369 F.3d 113 (2d Cir. 2004) ............................................................................... 46 
Ruskai v. Pistole, 
775 F.3d 61 (1st Cir. 2014) ................................................................................. 40 
Sarasota Wine Mkt. LLC v. Schmitt, 
987 F.3d 1171 (8th Cir. 2021) ............................................................................ 27 
Seaman v. Virginia, 
No. 3:22-cv-00006, 2022 WL 872023 
(W.D. Va. Mar. 23, 2022) ............................................................................. 23, 24 
Simon v. E. Kentucky Welfare Rts. Org., 
426 U.S. 26 (1976) .............................................................................................. 31 
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Tennessee v. Lane, 
541 U.S. 509 (2004) ...................................................................................... 41, 48 
Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. 
Project, Inc., 
576 U.S. 519 (2015) ............................................................................................ 41 
U.S. Airways, Inc. v. Barnett, 
535 U.S. 391 (2002) ................................................................................ 48, 49, 50 
U.S. v. Georgia, 
546 U.S. 151 (2006) ............................................................................................ 48 
Uzuegbunam v. Preczewski, 
141 S. Ct. 792 (2021) .......................................................................................... 33 
Winfrey v. City of Forrest City, Ark., 
882 F.3d 757 (8th Cir. 2018) .............................................................................. 36 
Statutes and Regulations 
29 U.S.C. 
§ 794 .................................................................................................................... 41 
§ 794(a) ............................................................................................................... 41 
§ 794(b)(1) .......................................................................................................... 48 
§ 794(b)(2) .......................................................................................................... 48 
42 U.S.C. 
§ 12101(a) ........................................................................................................... 42 
§ 12101(b) ........................................................................................................... 42 
§ 12131(1)(A) ..................................................................................................... 48 
§ 12131(2) ........................................................................................................... 43 
§ 12132 .......................................................................................................... 41, 43 
Iowa Admin. Code r. 
281-41.503(1)...................................................................................................... 19 
281-41.507(1)(a) ................................................................................................. 19 
281-41.513(1)...................................................................................................... 19 
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Iowa Code 
§ 139A.8(2)(b) .................................................................................................... 46 
§ 139A.8(2)(c)..................................................................................................... 46 
§ 139A.8(2)(d) .................................................................................................... 46 
§ 139A.8(2)(e)..................................................................................................... 46 
§ 280.31 ................................................................................................................. 1 
28 C.F.R. § 35.130(b)(7) .......................................................................................... 45 
Other Authorities 
Karla Soares-Weiser, Editor-in-Chief, Cochrane Library, Statement on 
‘Physical Interventions to Interrupt or Reduce the Spread of 
Respiratory Viruses’ Review, Cochrane (Mar. 10, 2023) ................................... 44 
Operational Guidance for K-12 Schools and Early Care and 
Education Programs to Support Safe In-Person Learning, Ctrs. for 
Disease Control & Prevention ...................................................................... 44, 45 
Zeynep Tifekci, Opinion, Here’s Why the Science Is Clear That 
Masks Work, N.Y. Times (Mar. 10, 2023) ......................................................... 44 
 
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INTRODUCTION 
Section 280.31 of the Iowa Code prohibits Iowa schools from imposing 
masking requirements unless masking is required by “any other provision of law.”  
Accordingly, this Court held in the prior appeal that if “federal law requires masks, 
Section 280.31 does not conflict with that law….”  Arc of Iowa v. Reynolds, 33 F.4th 
1042, 1045 (8th Cir. 2022). 
On remand, the district court issued a narrow declaratory judgment stating 
that (1) Section 280.31’s reference to “‘other provision[s] of law’… includes Title 
II of the Americans with Disabilities Act (ADA) and section 504 of the 
Rehabilitation Act”; and (2) Section 280.31 “cannot be cited as the only basis to 
deny a student’s request for reasonable modification or accommodation made under 
Title II of the ADA or section 504 of the Rehabilitation Act that includes requiring 
others to wear masks.”  Add.23-24, App.1046-47, R.Doc.114 at 23-24.1  These 
holdings do nothing more than restate and implement this Court’s ruling that Section 
280.31 does not prohibit masking required by the ADA and the Rehabilitation Act. 
Plaintiffs did not request, and the district court did not grant, an order 
requiring the school districts that Plaintiffs’ children attend to accommodate their 
disabilities.  Instead, the court merely interpreted Section 280.31 to free Iowa 
 
1  “Add.##” refers to Appellants’ Addendum.  “App.##” refers to the Joint Appendix. 
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districts to evaluate requests for reasonable modifications as required by these 
federal statutes, without coercion or threats from the State. 
Defendant School Districts did not appeal the district court’s order.  But 
Governor Reynolds and Director Lebo (“State Defendants”) did.  On the one hand, 
State Defendants acknowledge—as they must, in light of this Court’s prior ruling—
that the statute’s “other provision of law” safe harbor includes federal 
antidiscrimination statutes.  Br. 32, 36.  On the other hand, State Defendants 
simultaneously assert that reasonable modifications under these federal statutes 
“must still comply with applicable state law.”  Br. 48.  Likewise, they assert that, 
under Section 280.31, “a mask mandate as a public health precaution can only be 
imposed by the Governor as a part of her emergency powers during a public health 
disaster, rather than by a school district” evaluating a reasonable modification 
request.  Br. 18, 42-43, 47. 
The latter argument contravenes both the text of Section 280.31 and this 
Court’s prior ruling: if, under particular circumstances, a masking requirement is a 
reasonable modification under the ADA or the Rehabilitation Act, Section 280.31’s 
savings clause ensures that the state law does not preclude schools from imposing 
that requirement. 
State Defendants’ appeal is based on two fundamental mischaracterizations.  
First, they mischaracterize what the district court did.  State Defendants claim that 
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the district court’s ruling “commands schools that find a mask mandate to be a 
reasonable modification to ignore the State’s law prohibiting mandates.”  Br. 18.  To 
the contrary, the district court expressly agreed with State Defendants “that section 
280.31’s general prohibition against mask mandates in schools should be considered 
when determining whether a particular student’s request for a mask mandate as an 
accommodation is a reasonable one.”  Add.22, App.1045, R.Doc.114 at 22.  To be 
sure, such consideration cannot override the demands of federal law.  See Add.22-
23, App.1045-46, R.Doc.114 at 22-23 (“[I]f, after considering section 280.31’s 
general ban on mask mandates, the school district concludes that requiring masks is 
a reasonable modification to protect the safety of the student, then Defendants 
Reynolds and Lebo must permit the imposition of a mask mandate.”).  Thus, the 
declaratory judgment provides a limited role for Section 280.31: while the statute 
can be one factor in the mix of determining whether masking is a reasonable 
modification, it cannot be dispositive.  State Defendants never acknowledge the 
portion of the trial court’s ruling permitting limited consideration of Section 280.31, 
much less explain why it is erroneous. 
Second, State Defendants repeatedly mischaracterize the relief Plaintiffs seek 
as requiring “universal masking.”  See, e.g., Br. 9, 13, 27, 42, 43, 48.  But, as State 
Defendants acknowledged below, Plaintiffs do not contend that “universal masking” 
is necessary to accommodate Plaintiffs’ children with disabilities.  App.1159, 
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R.Doc.123 at 7-9 (“We’re not suggesting that the Plaintiffs, in their declaratory 
judgment, it certainly doesn’t say there must be universal mask mandates….”).  
Likewise, the declaratory relief granted by the district court does not address 
whether—or to what extent—masking is required under federal law to address the 
disabilities of Plaintiffs’ children. 
State Defendants’ procedural arguments similarly have no merit.  Their 
argument concerning administrative exhaustion, Br. 22-31, is foreclosed by the 
Supreme Court’s recent decision in Perez v. Sturgis Public Schools., 143 S. Ct. 859, 
865 (2023), and also has no merit under Fry v. Napoleon Community Schools, 137 
S. Ct. 743, 752-54 (2017).  Likewise, State Defendants’ standing argument fails 
because the injuries to Plaintiffs’ children are traceable to Section 280.31, and the 
declaratory relief granted by the district court redresses those injuries by freeing the 
School District Defendants to provide reasonable accommodations to Plaintiffs if 
appropriate without fear of violating the state statute. 
While State Defendants’ grievances with the declaratory relief entered below 
are chimerical, the stakes for Plaintiffs are real.  Before the district court granted 
relief, State Defendants threatened school districts that adopted mask requirements 
with loss of funding or accreditation—threats State Defendants have never 
repudiated.  With the declaratory relief, school districts throughout Iowa can follow 
the requirements of federal disability antidiscrimination law without fear of 
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retribution, and parents of children at risk of serious health consequences should 
they contract COVID-19 no longer face a Hobson’s choice between their children’s 
health and their education.  The decision below should be affirmed. 
STATEMENT OF THE CASE2 
A. 
The Pandemic and Anti-Masking Debate 
This litigation began during the turbulent period at the beginning of the 
pandemic.  At that time, many school districts in Iowa had policies that required 
masking.  App.14, R.Doc.1 at ¶ 4.  This was consistent with the Iowa’s Department 
of Education’s policies, which had “adopt[ed]… CDC [Centers for Disease Control 
and Prevention] guidelines in all of [its] training manuals,” “encourage[d] the use of 
cloth face coverings when feasible,” and “deferred to local districts… to determine 
how and when” school activities could be conducted. App.153, R.Doc 17 at 6 & 
n.16. 
At some point, the issue of mask requirements became politicized.  Against 
this backdrop, on May 20, 2021, Governor Reynolds signed Section 280.31 into law.  
The statute provides:  
The board of directors of a school district, the superintendent or chief 
administering officer of a school or school district, and the authorities 
 
2  Because the case below was decided on summary judgment, most of this statement 
of the case is taken from Plaintiffs’ Rule 56(c) Statement of Undisputed Material 
Facts (App.715-720, R.Doc.88-2) and Governor Reynolds and Director Lebo’s 
response thereto (App.1004-1008, R.Doc.99-1), as well as admissions and other 
statements against interest made by Defendants. 
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in charge of each accredited nonpublic school shall not adopt, enforce, 
or implement 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. 
 
App.716, R.Doc.88-2 ¶ 2.  Section 280.31 does not delineate what “any other 
provision[s] of law” are encompassed in its savings clause.  Id. ¶ 3. 
By August 2021, a new Delta variant emerged, COVID-19 cases soared, 
hospitalizations reached the highest point for the year to date, and COVID-19 related 
deaths increased rapidly in Iowa and nationally.  Children, many of whom were not 
yet eligible for vaccinations, constituted nearly a quarter of new cases. App.716, 
R.Doc.88-2 ¶ 4; App.1005, R.Doc.99-1.  Public health and education officials—
including the American Medical Association, the Infectious Disease Society of 
America, the Iowa Medical Society, the Iowa Chapter of the American Academy of 
Pediatrics, and the health departments of Iowa’s three most populous counties—
reiterated their calls for masking in schools.  App.716-17, R.Doc.88-2 ¶ 5; 
App.1005, R.Doc.99-1 (admitted). 
Nevertheless, Director Lebo issued guidance that Section 280.31 “prohibits a 
school district from adopting or enforcing a policy that requires employees, students, 
or the public to wear a mask while on school property.”  App.253, R.Doc 28-4 at 1.  
This blanket guidance did not reference the “any other provision of law” language 
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in the statute, nor did it suggest that any reasonable modifications would be made 
for students with disabilities under the ADA or the Rehabilitation Act.  Id. 
To the contrary, Director Lebo indicated that the Department of Education 
would enforce Section 280.31 against school districts that implemented mask 
requirements, warning that “school districts that choose not to follow the ban could 
receive citations” and “be referred to the State Board of Education,” thereby risking 
their accreditation.  App.717, R.Doc.88-2 ¶ 6; App.1005, R.Doc.99-1 (admitting 
quoted statement made by “a spokesperson for Director Lebo”). 
Similarly, on August 30, 2021, after the U.S. Department of Education 
announced an investigation into whether Iowa’s mask ban required schools to violate 
federal disability law, Governor Reynolds defiantly proclaimed, “In Iowa, we will 
continue to support individual liberty over government mandates.” App.717, 
R.Doc.88-2 ¶ 7; App.1005, R.Doc.99-1 (admitted). 
B. 
Plaintiffs Sue to Enjoin Enforcement of Section 280.3’s Masking 
Ban 
In September 2021, Plaintiffs (eleven parents on behalf of thirteen children 
with disabilities, as well as The Arc of Iowa on behalf of its members) brought this 
action against Governor Reynolds, Director Lebo, and ten school districts, seeking 
to enjoin enforcement of Section 280.31.  App.12, R.Doc.1.  Plaintiffs’ children, all 
of whom have disabilities, have a range of medical conditions that put them at 
heightened risk of severe illness should they contract COVID-19.  App.718, 
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R.Doc.88-2 ¶ 10; App.1006, R.Doc.99-1 (admitted); App.770, R.Doc.88-3 Ex. E ¶ 
27.3 
At the time, and still today, the CDC was clear about the risks to these 
children:  “[C]urrent evidence suggests [that] children with medical complexity, 
with genetic, neurologic, metabolic conditions, or with congenital heart disease,” as 
well as “children with obesity, diabetes, asthma or chronic lung disease, sickle cell 
disease, or immunosuppression,” can “be at increased risk for severe illness from 
COVID-19.”  App.748, R.Doc.88-3 Ex. D ¶ 17 & n.21; App.770, R.Doc.88-3 Ex. E 
¶ 27 & n.29 (citing People with Certain Medical Conditions, Ctrs. for Disease 
Control & Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-
precautions/people-with-medical-conditions.html (Aug. 20, 2021 update)). 
While certain school districts publicly indicated their desire to reimplement 
masking requirements for the 2021-22 school year, they did not do so because of 
 
3  Plaintiff children’s conditions include Down syndrome (App.846, R.Doc.88-3 Ex. 
N; App.958, R.Doc.95-1 at 2), sickle cell anemia (App.846., R.Doc.88-3 Ex. N), 
functional asplenia (App.846, R.Doc.88-3 Ex. N), autism (App.850, R.Doc.88-3 Ex. 
N), cerebral palsy (App.850, R.Doc.88-3 Ex. N), asthma (App.858, 874, R.Doc.88-
3 Ex. N), Williams Syndrome (App.861, R.Doc.88-3 Ex. N), heterotaxy (App.117, 
R.Doc.3-11 at 1; 963, R.Doc.95-1 at 7), congenital central hypoventilation syndrome 
(App.852, R.Doc.88-3 Ex. N), chronic respiratory problems (App.846, R.Doc.88-3 
Ex. N), hypertension (App.870, R.Doc.88-3 Ex. N), heart disease (App.850, 
R.Doc.88-3 Ex. N), brain injury with history of strokes and epilepsy (App.855, 
R.Doc.88-3 Ex. N), symptomatic congenital cytomegalovirus (App.866, R.Doc.88-
3 Ex. N), and compromised immune system (App.846, R.Doc.88-3 Ex. N). 
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Governor Reynolds and Director Lebo’s public threats to schools that implemented 
masking.  App.29-30, R.Doc.1 ¶53 & nn.49-52; App.194, R.Doc.28-1. 
In the absence of masking, “some Plaintiffs pulled their medically vulnerable 
children out of school”; others had no choice but to send their children to school at 
significant risk to their health.  App.718, R.Doc. 88-2 ¶ 11; App.1006, R.Doc.99-2. 
Plaintiffs accordingly moved to enjoin enforcement of Section 280.31, 
contending that the statute’s ban on masking requirements denied their children 
equal access to education as required by the ADA and the Rehabilitation Act. 
On September 13, 2021, the district court entered a temporary restraining 
order (TRO) enjoining enforcement of Section 280.31.  R.Doc.32.  Following entry 
of the TRO, more than twenty-four Iowa school districts reintroduced masking, 
including eight of the ten district Defendants where Plaintiffs attended school.  
App.718-719, R.Doc.88-2 ¶ 14; App.1006, R.Doc.99-1 (admitted).  Plaintiffs 
reported that the TRO made their children safer returning to school. App.493-94, 
R.Doc.48-5 ¶¶ 4, 6; App.495-96, R.Doc.48-6 ¶¶ 4,5,7; App.497, R.Doc.48-7 ¶¶ 
4,6,8; App.505-06 R.Doc.48-11 ¶¶ 6,10; App.503-04, R.Doc.48-10 ¶¶ 4-6; App.510, 
R.Doc.48-13 ¶¶ 4-5; App.511, R.Doc.48-14 ¶¶ 3-5.  On October 8, 2021, the district 
court granted a preliminary injunction.  R.Doc.60. 
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Governor Reynolds and Director Lebo appealed.  The School District 
Defendants—those dealing directly with students—did not appeal.  App.685, 
R.Doc.61. 
C. 
The First Appeal 
In their first appeal, Governor Reynolds and Director Lebo seemed to want it 
both ways.  On the one hand, they told this Court that “Section 280.31 permits 
schools to impose to mandate the wearing of masks if it ‘is required by… any other 
provision of law.’  The statute thus doesn’t prevent schools from complying with the 
ADA and Section 504.”  App.719, R.Doc.88-2 ¶ 15; App.1006, R.Doc.99-1 
(admitted).  On the other hand, they asserted that the ADA and the Rehabilitation 
Act do not “provide a basis to override this statutory product of Iowa’s democratic 
process,” App.719, R.Doc.88-2 ¶ 1; App.1006, R.Doc.99-1 (admitted), and that it 
would not violate these statutes to deny any request for masking as a reasonable 
modification, because the denial would be “because of the [State’s] policy, not the 
individual’s disability.”  First.App.Br. 19. 
On January 25, 2022, a panel of this Court held that Plaintiffs were entitled to 
a preliminary injunction, but ordered the district court upon remand to narrow the 
injunction to apply only to the school districts where Plaintiffs’ children attended 
school.  The panel held:  “A proper injunction therefore would: (1) establish that 
federal disability law requires mask wearing as a reasonable accommodation and 
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11 
that Section 280.31 allows this; (2) prohibit Defendants from imposing a contrary 
reading of Section 280.31, or otherwise preventing, delaying, or failing to provide 
such reasonable accommodations; and (3) thereby ensure that Plaintiffs’ schools 
may impose mask requirements as reasonable accommodations.”  Arc of Iowa v. 
Reynolds, 24 F.4th 1162, 1181, vacated as moot and remanded, 33 F.4th 1042 (8th 
Cir. 2022).  The panel reasoned that “the plain meaning of Section 280.31 is that 
where federal law requires masks in school, Section 280.31 allows them….  Because 
Section 280.31 allows mask requirements to comply with the ADA or RA, it does 
not conflict with and is not preempted by these laws.”  Id. at 1179-80. 
On May 16, 2022, the panel vacated its January 25, 2022 opinion as well as 
the preliminary injunction as moot, noting the availability of vaccines and lower 
transmission rates and stating that “the current conditions differ vastly from those 
prevailing when the district court addressed” the injunction.  33 F.4th at 1044.  The 
panel noted that it took “no position on the merits of Plaintiffs’ claims, which are 
left for future decision.”  Id. at 1045.  The panel further directed “the parties and 
district court” to “pay particular attention to Section 280.31’s exception for ‘any 
other provision of law.’”  Id.  This direction was based on the Court’s holding that, 
“[t]his exception unambiguously states that Section 280.31 does not apply where 
‘any other provision of law’ requires masks. ‘Any’ makes ‘provision of law’ a broad 
category that does not distinguish between state or federal law.”  Id.   
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12 
D. 
The Proceedings on Remand 
On remand, Plaintiffs sought to ensure that Governor and Director Lebo 
would enforce Section 280.31 consistent with federal disability antidiscrimination 
laws.  At the time, confusion existed in schools in the absence of an injunction 
because Governor Reynolds and Director Lebo had never repudiated their prior 
threats to schools that imposed masking requirements.  App.717, R.Doc.88-2 ¶ 8; 
App.1006, R.Doc.99-1 (admitted). 
Plaintiffs thus asked all Defendants if they would stipulate that “the term 
‘other provision[s] of law’ as it is used in Section 280.31 includes Title II of the 
Americans with Disabilities Act (‘ADA’) and Section 504 of the Rehabilitation 
Act,” and “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.”  App.691, R.Doc.88 ¶ 2.  Governor Reynolds and Director Lebo refused to 
agree to this proposed stipulation. Id. at ¶ 3.  One Defendant School District agreed 
to this stipulation, and the others did not oppose, but did not take a position.  Id. at 
¶¶ 4-5. 
Unable to reach an agreement that would provide clarity to schools, Plaintiffs 
sought a declaratory judgment.  While many of Plaintiffs’ children were now able to 
safely attend school with no modifications, due to vaccination, reduced COVID-19 
rates, and the development of antiviral treatments, three of the Plaintiff children 
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13 
(E.C., M.P., and H.J.F.R) remained at high risk if they contracted COVID-19.  Their 
doctors testified that, given the risk to these children, including the need for 
ventilatory support in one case, individuals around these children should wear masks 
to ensure equal access to public schools.  App.958-71, R.Doc.95-1,95-2,95-3.  The 
Governor and Director Lebo did not dispute these facts.  App.720, R.Doc.88-2 ¶ 20; 
App.1007, R.Doc.99-1.  Ultimately, Plaintiffs moved for summary judgment and 
Defendants moved to dismiss the action.  App.687-89, R.Doc.86. 
On November 1, 2022, the district court granted Plaintiffs’ motion for 
summary judgment and denied Defendants’ motions to dismiss.  Add.1-24, 
App.1024-47, R.Doc.114.  Based on the fulsome record and undisputed material 
facts, the district court held that “under Iowa Code section 280.31, a disabled student 
may request a reasonable accommodation that requires masks to be worn by 
teachers, aides, other students, and anyone else near or interacting with the disabled 
student to allow the disabled student making the request to safely and readily access 
their school and in-person learning.  Any school district receiving such a 
modification request must consider it just as they would any other request for a 
reasonable modification made under the ADA or the Rehabilitation Act.”  Add.22-
23, App.1046-47, R.Doc.114 at 22-23.  The opinion further states: 
The Court agrees with Defendants Reynolds and Lebo that 
section 280.31’s general prohibition against mask 
mandates in schools should be considered when 
determining whether a particular student’s request for a 
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14 
mask mandate as an accommodation is a reasonable one.  
But if, after considering section 280.31’s general ban on 
mask mandates, the school district concludes that 
requiring masks is a reasonable modification to protect the 
safety of the student making the accommodation request 
under federal disability law, then Defendants Reynolds 
and Lebo must permit the imposition of a mask mandate.  
To be clear, a school district need not determine a mask 
mandate is the only accommodation available, only that it 
is a reasonable one, which is what federal law requires and 
therefore section 280.31 permits. 
 
Id.  The court issued declaratory relief stating that Section 280.31’s “other provisions 
of law” term “includes the ADA and Rehabilitation Act,” and that Section 280.31 
“cannot be cited as the only basis to deny a student’s request for reasonable 
modification” under the ADA or the Rehabilitation Act “that includes requiring 
others to wear masks.”  Add.23-24, App.1046-47, R.Doc.114 at 23-24. 
Since the November 1, 2022 order was entered, Plaintiff children M.P. and 
E.C. were granted modifications within their schools by Defendants Des Moines and 
Waterloo, respectively, requiring teachers and others around them to mask. 
Governor Reynolds and Director Lebo appealed.  Again, Defendant School 
Districts did not appeal. 
SUMMARY OF ARGUMENT 
The district court properly entered declaratory relief confirming the scope and 
meaning of Section 280.31 in a manner consistent with this Court’s previous 
holding.  33 F.4th at 1045.  This relief was necessary in light of State Defendants’ 
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15 
continued and internally contradictory insistence that masking can never be required 
in schools notwithstanding Section 280.31’s “savings clause.”  This Court should 
affirm. 
I. 
State Defendants’ procedural arguments that Plaintiffs failed to exhaust 
administrative remedies under the IDEA and that they lack Article III standing have 
no merit.  Their exhaustion requirement is foreclosed by Perez v. Sturgis Public 
Schools, 143 S. Ct. 859, 865 (2023), because the relief Plaintiffs sought is not 
available under the IDEA, and because Plaintiffs’ claims pertain to equal access to 
schools rather than adequacy of special education, and thus fall outside the IDEA.  
II. 
State Defendants’ standing arguments fail because each element of 
Article III standing is readily satisfied as this Court held in the first appeal.  
Specifically, State Defendants do not dispute there is an injury-in-fact.  Plaintiffs’ 
injuries are traceable to Section 280.31, and the declaratory relief Plaintiffs sought 
and obtained redresses those injuries by freeing school districts to provide 
reasonable accommodations to children with disabilities where appropriate without 
fear of violating Section 280.31 and incurring the draconian penalties threatened by 
State Defendants. 
III. 
State Defendants’ arguments on the merits are equally wrong.  Their 
contention that the ADA and the Rehabilitation Act do not proscribe facially neutral 
policies that have a discriminatory effect on persons with disabilities runs contrary 
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16 
to decisions from the Supreme Court and every appellate court to consider the 
question—including this Court—as well as the text and purpose of the statutes. State 
Defendants’ argument that “universal masking” can never constitute a reasonable 
accommodation is one for another case, as Plaintiffs in this case ask only that schools 
be able to fully consider requests for reasonable modification that involve masking.  
In any event, State Defendants failed to present an evidentiary record below to 
establish that masking constitutes a fundamental alteration or an undue burden, 
which would be almost impossible to do given that Iowa schools widely required 
masking prior to the passage of Section 280.31.  And State Defendants’ suggestion 
that reasonable accommodations required under federal law must comply with state 
law is squarely foreclosed by basic Supremacy Clause principles and this Court’s 
directive interpreting the statute. 
This Court should affirm. 
STANDARD OF REVIEW 
This Court “review[s] de novo the district court’s … grant of declaratory 
judgment,” Continental Insurance Company v. Daikin Applied Americas Inc., 998 
F.3d 356, 359 (8th Cir. 2021), as well as decisions addressing motions to dismiss for 
failure to state a claim and lack of subject matter jurisdiction, Metzger v. Village of 
Cedar Creek, Nebraska, 370 F.3d 822, 823 (8th Cir. 2004). 
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17 
ARGUMENT 
I. 
THE 
DISTRICT 
COURT 
CORRECTLY 
HELD 
THE 
IDEA 
EXHAUSTION REQUIREMENT DOES NOT APPLY 
Governor Reynolds and Director Lebo attempt to evade review of the merits 
by arguing that “Plaintiffs’ failure to exhaust the administrative process required 
under the IDEA renders the subsequent finding and relief issued by the district court 
premature.”  Br. 22.  This contravenes clear Supreme Court precedent in two 
independent respects.  First, the relief that Plaintiffs sought—and that the district 
court granted—is not available under the IDEA.  As the Supreme Court recently 
held, this alone defeats State Defendants’ exhaustion argument.  See Perez v. Sturgis 
Pub. Schs., 143 S. Ct. 859, 865 (2023).  Second, the district court correctly concluded 
that “the ‘gravamen’ of Plaintiffs’ Complaint does not seek redress for Defendant 
School Districts’ failures to provide Plaintiffs’ children with a free and appropriate 
public education [FAPE]”; exhaustion is therefore not required.  Add.13-14, 
App.1036-37, R.Doc.114 at 13-14 (citing Fry v. Napoleon Cmty. Schs., 137 S. Ct. 
743, 752-54 (2017)). 
A. 
Plaintiffs Need Not Exhaust Because They Sought and Obtained 
Relief That Is Not Available Under the IDEA 
Governor Reynolds and Director Lebo acknowledge—as they must—that 
Plaintiffs need only exhaust if they are “seeking relief that is also available under” 
the IDEA.  Br. 22 (quoting 20 U.S.C. § 1415(l)).  This statutory requirement was 
recently emphasized by the Supreme Court in Perez v. Sturgis Public Schools.  
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18 
There, the Court explained, in a case involving a student pursuing ADA claims, 
exhaustion is not required where the relief sought by the plaintiff is not available 
under the IDEA: “the question is whether a plaintiff must exhaust administrative 
processes under IDEA that cannot supply [the remedy] he seeks.  And here, as in 
Fry, we answer in the negative.”  143 S. Ct. at 865; see Fry, 137 S. Ct. at 754 (when 
an ADA or Rehabilitation Act claim’s “remedy sought is not for the denial of a 
FAPE, then exhaustion of the IDEA’s procedures is not required”); Barron v. S.D. 
Bd. of Regents, 655 F.3d 787, 792 (8th Cir. 2011) (rejecting an exhaustion 
requirement because “adequate relief likely could not have been obtained through 
the administrative process”). 
In this case, too, the answer is in the negative, for two independent reasons.  
First, the substance of the declaratory relief Plaintiffs sought and obtained could not 
be obtained through an IDEA hearing.  Plaintiffs secured a declaratory judgment on 
two counts: (1) that Section 280.31’s reference to “‘other provision[s] of law’… 
includes Title II of the Americans with Disabilities Act (ADA) and section 504 of 
the Rehabilitation Act”; and (2) that Section 280.31 “cannot be cited as the only 
basis to deny a student’s request for reasonable modification or accommodation 
made under Title II of the ADA or section 504 of the Rehabilitation Act that includes 
requiring others to wear masks.”  Add.23-24, App.1046-47, R.Doc.114 at 23-24.  
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19 
Thus, the declaratory relief granted by the district court concerned only the 
interpretation and implementation of Section 280.31. 
Such relief is not available under the IDEA’s administrative procedures.  
Rather, IDEA hearings can only address a proposal or refusal to “initiate or change 
the identification, evaluation, or educational placement of the child or the provision 
of FAPE to the child….”  Iowa Admin. Code r. 281-41.507(1)(a) (incorporating by 
reference Iowa Admin. Code r. 281-41.503(1)); see also Fry, 137 S. Ct. at 754 
(finding that if an “accommodation is needed to fulfill the IDEA’s FAPE 
requirement, the hearing officer must order relief.  But if it is not, he cannot—even 
though the dispute is between a child with a disability and the school she attends”).  
The declaratory relief granted by the district court did not address any of these issues, 
which is unsurprising given that—as discussed below—Plaintiffs’ claims do not 
pertain to special education and thus do not fall under the IDEA.  Instead, the district 
court properly decided how Section 280.31 should be interpreted and applied—
issues beyond the ken of an IDEA administrative hearing. 
Second, the scope of relief sought by Plaintiffs and granted by the district 
court exceeds that available under the IDEA through the administrative hearing 
process.  The IDEA’s administrative procedures provide for relief addressing the 
educational needs of an individual child.  See Iowa Admin. Code r. 281-41.513(1) 
(outlining proper bases for hearing decisions, all pertaining to whether “a child” 
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20 
received or did not receive FAPE).  Indeed, Governor Reynolds and Director Lebo 
acknowledge that the purpose of an administrative hearing is to resolve disputes 
between schools and families over Individualized Education Plans (IEPs).  See Br. 
23 (emphasis added) (“If a school and family have a dispute over the IEP, the first 
step is a hearing before a neutral administrative law judge….”).4  Thus, 
administrative judges cannot grant statewide declaratory relief like that granted by 
the district court—that is, relief that could be utilized by all Iowa students with 
disabilities or The Arc of Iowa’s members. 
In short, an IDEA administrative judge can neither interpret Section 280.31 
nor grant declaratory relief on a statewide basis—the sole relief that Plaintiffs 
obtained under the ADA and the Rehabilitation Act.  Exhaustion under the IDEA—
under which Plaintiffs do not seek relief—was therefore not required. 
Defendants Reynolds and Lebo nevertheless contend that exhaustion was 
required because, they argue, the IDEA administrative procedures could provide 
adequate relief.  See Br. 31 (“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.”).  But that is contradicted by State Defendants 
 
4  Likewise, both of the Eighth Circuit exhaustion cases State Defendants rely on 
involve claims brought on behalf of individual students.  See Br. 24-27 (citing 
Nelson v. Charles City Cmty. Sch. Dist., 900 F.3d 587 (8th Cir. 2018); J.M. v. 
Francis Howell Sch. Dist., 850 F.3d 944 (8th Cir. 2017)). 
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21 
themselves.  They argue that any mask mandate, even a “partial” one, “imposes 
significant administrative burdens” and “is not a reasonable accommodation.”  Br. 
18, 48.  A declaratory judgment is therefore necessary to relieve schools from 
uncertainty as to their ability to require masking notwithstanding Section 280.31.5 
The record likewise underscores why a declaratory judgment was needed to 
afford Plaintiffs’ adequate relief.  As the record shows, the State’s enforcement of 
Section 280.31 included express threats of loss of accreditation and funding.  
App.717-18, R.Doc.88-2 ¶¶ 8, 16; App.1006, R.Doc.99-1 (admitted).  Faced with 
this enforcement environment, schools were left in doubt as to whether they could 
engage in a reasonable modification process with Plaintiffs who sought masking 
requirements to accommodate their serious health needs.  See, e.g., App.856, 
R.Doc.88-3 Ex. N ¶¶ 13-14 (stating that school administrators were unwilling after 
Section 280.31 to grant S.V. the same modifications—involving masking of staff—
that were in place during the prior school year). 
The declaratory order provided something Governor Reynolds and Director 
Lebo were unwilling to provide:  clarity on the rights of schools to employ masking 
 
5  In the first appeal, this Court rejected a similar conflicting position by Defendants.  
There, the Court observed that “[Defendants’] unsupported assertion that [an 
administrative law] judge could impose … mask mandates … contradicts their own 
interpretation of Section 280.31 and federal disability law.”  Arc of Iowa v. Reynolds, 
24 F.4th at 1177 n.2. 
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22 
where necessary to protect vulnerable students.  The declaratory relief sought by 
Plaintiffs was thus necessary—not to dictate any particular outcome regarding an 
individual accommodation request—but merely to allow schools to again engage in 
the reasonable modification process required under federal disability law. 
B. 
The Essence of Plaintiffs’ Claims Pertains to Equal Access to Public 
Schools, Not Students’ Right to a Free and Appropriate Public 
Education 
Governor Reynolds and Director Lebo contend that exhaustion is required 
under Fry v. Napoleon Community Schools, 137 S. Ct. 743 (2017), because the 
purported gravamen of Plaintiffs’ claim is that “their children are being denied a free 
and appropriate public education.”  Br. 28.  This is wrong. 
1. 
The Gravamen of Plaintiffs’ Claims Falls Outside the IDEA 
Exhaustion is not required here because, contrary to Defendants’ 
mischaracterization, Plaintiffs’ claims are not based on the denial of a FAPE.  Under 
Fry, to determine whether exhaustion applies, “a court should look to the substance, 
or gravamen, of the plaintiff’s complaint,” not whether a plaintiff’s claim may have 
“educational consequences.”  137 S. Ct. at 752, 756.  In considering whether 
exhaustion is required under the IDEA, “a court should attend to the diverse means 
and ends of … the IDEA on the one hand, and the ADA and Rehabilitation Act (most 
notably) on the other.”  Id. at 755.  The IDEA concerns children and special 
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23 
education, while the ADA and Rehabilitation Act concern equal access to public 
institutions, including schools.  See id. at 748-49, 755-56. 
To determine whether the gravamen of a case falls within the IDEA, Fry 
directed courts to answer two questions:  “First, could the plaintiff have brought 
essentially the same claim if the alleged conduct had occurred at a public 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?”  Id. at 756.  If the answer to both questions is yes, the IDEA is 
inapplicable and exhaustion is not required.  Id. 
Here, the district court properly found both Fry questions are readily answered 
in the affirmative.  R.Doc.32 at 18.  First, if Iowa enacted a statute identical to 
Section 280.31 that concerned public libraries rather than schools, Plaintiffs would 
experience the same risks to their health as they do here when they wanted to enter 
a library.  Accordingly, they could bring the same claim for lack of equal access to 
a public facility under the ADA.  Cf. Seaman v. Virginia, Case No. 3:22-cv-00006, 
2022 WL 872023, at *318-19 (W.D. Va. Mar. 23, 2022) (“The crux of Plaintiffs’ 
allegations is safe access to public, brick-and-mortar government buildings and not 
the denial of a FAPE”).6 
 
6  State Defendants make much of the fact that the Complaint includes multiple 
references to the denial of access to education.  Br. 27-28.  But the same would be 
true of a lawsuit challenging a school’s failure to provide ramps for disabled access, 
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24 
Second, the same claim that Plaintiffs make here could be brought by adults 
with disabilities.  A teacher or staff member who had a medical condition making 
them vulnerable to severe complications from COVID-19, and who therefore needed 
those around them to mask, could bring the same claims as Plaintiffs in this case, 
based on the denial of safe and equal access to the public school.  Cf. Seaman, 2022 
WL 872023, at *319 (“[A]n adult teacher at the school, for instance, could have 
posed the same grievance if the lack of masking put the adult at significantly greater 
risk of injury or death.”).  In short, the type of claims that Plaintiffs make here against 
Section 280.31’s ban on masking are not limited to children or to education. 
Where a complaint is focused on access to facilities—as here—and not to the 
delivery of instruction, the claim does not centrally allege the denial of a FAPE.  See, 
e.g., Doe ex rel. K.M. v. Knox Cnty. Bd. of Educ., 56 F.4th 1076, 1077, 1083 (6th 
Cir. 2023) (student with hypersensitive hearing and misophonia requested 
accommodation barring students from eating food in classrooms, which Sixth 
Circuit held was not “instruction,” and not subject to IDEA exhaustion requirement) 
(collecting cases); Doe v. Perkiomen Valley Sch. Dist., 585 F. Supp. 3d 668, 683 
(E.D. Pa. 2022) (“Because this case concerns Plaintiffs’ alleged inability to access 
on-site school learning, due to the optional masking policy, at its core, it involves 
 
a hypothetical that Fry held would not be subject to exhaustion if “its essence is 
equality of access to public facilities, not adequacy of special education.”  137 S. Ct. 
at 756. 
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25 
accessing the facility rather than accessing the curriculum.  The case is therefore not 
a FAPE-based claim and no administrative exhaustion requirement applies.”).  The 
same is true here. 
2. 
The Decisions State Defendants Cite Are Inapposite 
The decisions Defendants cite do not support requiring exhaustion here.  In 
Nelson v. Charles City Community School District, 900 F.3d 587 (8th Cir. 2018), the 
central issue was the “mishandling of [Plaintiff’s] open enrollment application by 
the Charles City District when its own educational programming could not meet her 
needs.”  Id. at 592.  In contrast, Plaintiffs’ claims do not center on special educational 
programming or how to meet the students’ educational needs.  Likewise, in J.M. v. 
Francis Howell School District, 850 F.3d 944 (8th Cir. 2017), the claims were 
“based on the failure to implement J.M.’s IEP” and “fail[ure to] provide proper 
sufficient supportive services to permit J.M. to benefit from instruction.”  Id. at 949-
50 (internal punctuation omitted).  This case involves no comparable claims; indeed, 
a number of Plaintiffs do not even have an IEP.  App.948, R.Doc.95 at 13; see Moore 
v. Kansas City Pub. Sch., 828 F.3d 687, 692 (8th Cir. 2016) (concluding under Fry 
that the gravamen of complaint was not denial of a FAPE where plaintiff “did not 
request any change or amendment to [student’s] IEP or educational placement”). 
E.T. v. Paxton, 19 F.4th 760, 767 (5th Cir. 2021), which Defendants cite, is 
also wanting.  There, staying a preliminary injunction, the Fifth Circuit found the 
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26 
“essential aspect of plaintiffs’ claims” for masking to be “access to in-person 
learning,” which could not be applied to facilities other than schools and could only 
be brought by a student.  But if E.T. were correct, the plaintiff in Fry would have 
had to exhaust, because the disability discrimination alleged in that case also 
involved equal access to in-person schooling.  See Fry, 137 S. Ct. at 758. 
Moreover, E.T. is not even binding precedent in the Fifth Circuit because it 
was the decision of a motions panel on a motion for a stay pending appeal.  E.g., 
Northshore Dev., Inc. v. Lee, 835 F.2d 580, 583 (5th Cir. 1988).  The rule is the same 
in this circuit.  See In re Rodriquez, 258 F.3d 757, 759 (8th Cir. 2001) (“Decisions 
by motions panels are summary in character, made often on a scanty record, and not 
entitled to the weight of a decision made after plenary submission.” (citation 
omitted)). 
Finally, as Perez makes clear, even if Plaintiffs’ Complaint in this case were 
aimed at the denial of a FAPE (which it is not), exhaustion would not be required to 
the extent the relief sought and obtained by Plaintiffs was unavailable under the 
IDEA.  Suppose a plaintiff “files an ADA action seeking both damages” for the 
denial of a FAPE “and the sort of equitable relief IDEA provides.”  Perez, 143 S. 
Ct. at 865.  Because both the damages claim and the claim for equitable relief were 
based on the denial of a FAPE, the gravamen of this hypothetical complaint would 
be a claim under the IDEA.  But that does not mean that the entire claim would be 
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27 
subject to exhaustion.  While a plaintiff’s “request for equitable relief” may be 
“barred or deferred if he has yet to exhaust,” id., the plaintiff’s claim for damages 
would not be subject to exhaustion under Perez, even though the damages are sought 
(as in Perez) for the denial of a FAPE under the IDEA.7 
II. 
THE DISTRICT COURT CORRECTLY HELD THAT PLAINTIFFS 
HAVE STANDING 
“To establish standing, plaintiffs must show that they: (1) suffered an injury 
in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) 
that is likely to be redressed by a favorable judicial decision.”  Sarasota Wine Mkt. 
LLC v. Schmitt, 987 F.3d 1171, 1177-78 (8th Cir. 2021) (internal punctation 
omitted).  This Court in the initial appeal found that standing exists, and the same is 
true now. 
A. 
Defendants Do Not Dispute that Plaintiffs Have Suffered an Injury-
In-Fact 
Governor Reynolds and Director Lebo do not contest that Plaintiffs have 
shown an injury-in-fact.  With good reason.  It is settled law that parents, like 
Plaintiffs here, who assert “an injury to their children’s educational interests and 
 
7  The defendant in Perez argued that this result would “frustrate Congress’s wish to 
route claims about educational services to administrative agencies with ‘special 
expertise’ in such matters.”  143 S. Ct. at 865.  But the Court rejected the argument, 
holding that “a rational Congress might have sought to temper a demand for 
administrative exhaustion when a plaintiff seeks a remedy IDEA can supply with a 
rule excusing exhaustion when a plaintiff seeks a remedy IDEA cannot provide.”  Id. 
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28 
opportunities,” satisfy Article III’s injury-in-fact requirement.  Liddell v. Special 
Admin. Bd. of the Transitional Sch. Dist., 894 F.3d 959, 965 (8th Cir. 2018).  Put 
simply, “[p]arents have standing to sue when practices and policies of a school 
threaten their rights and interests and those of their children.”  Id. at 965-66. 
B. 
Plaintiffs Have Established Traceability 
The district court held that “it is undisputed that Plaintiffs’ alleged injuries are 
fairly traceable to the enactment and enforcement of Iowa Code section 280.31.”  
Indeed, without Section 280.31, there would be no question that schools could 
require masks to be worn and these students be protected.  As the district court noted, 
Defendants had conceded that “Plaintiffs’ … alleged denial of education … [i]f it’s 
caused at all, [is caused by section 280.31].”  Add.10, App.1033, R.Doc.114 at 10, 
n.10 (quoting App. 918, R.Doc.90 at 19).  Plaintiffs have therefore shown 
traceability because their children’s injuries are caused by “the predictable effect of 
Government action on the decisions of third parties.”  Add.10, App.1033, R.Doc.114 
at 10 (quoting Dep’t of Commerce v. New York, 139 S. Ct. 2552, 2566 (2019)). 
Governor Reynolds and Director Lebo do not meaningfully challenge the 
district court’s traceability analysis or contend that any of the facts supporting its 
holding are clearly erroneous.  Instead, they assert that “[t]o 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.”  Br. 33.  But that contention 
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29 
ignores that the Governor and Director have done everything they can to muddy the 
waters on whether federal disability law can overcome Section 280.31’s masking 
ban.  Br. 18, 40-50.  State Defendants assert that “reasonable accommodations” 
required by federal law “must still comply with applicable state law,” i.e., Section 
280.31, Br. 48, and that Section 280.31 prohibits school districts from imposing 
mask mandates.  See Br. 18 (asserting that  “imposing a partial or full mask mandate” 
“is not a reasonable modification … and fundamentally alters the State’s education 
program as set forth in Section 280.31”).  Elsewhere they claim that declaratory 
relief is inappropriate because Section 280.31’s savings clause permits masking 
requirements if required by federal disability law.  See, e.g., Br. 32-34. 
Moreover, as State Defendants admitted below (Add.18, 20, App.1041, 1043, 
R.Doc.114 at 18, 20), Governor Reynolds and Director Lebo have never repudiated 
their threats, made pursuant to Section 280.31, that schools implementing mask 
mandates may lose funding and accreditation.  See, e.g., App.717, R.Doc.88-2 ¶¶ 6-
8; App.1006, R.Doc.99-1; App.154-55, R.Doc.17 at 7-8 & n.25.  They do not deny 
that these threats—which their brief does not mention—led Iowa schools to refuse 
to implement masking requirements sought by Plaintiffs.  And, unlike Defendant 
School Districts, State Defendants have appealed the narrow declaratory relief 
issued by the district court, which simply restates this Court’s earlier construction of 
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30 
Section 280.31.  Plaintiffs have shown that their injuries are traceable to Section 
280.31. 
C. 
Plaintiffs Have Established Redressability 
The district court found that Plaintiffs’ injuries are likely redressable by their 
requested declaratory relief.  Add.10-11, App.1033-34, R.Doc.114 at 10-11.  It relied 
on the undisputed facts that (1) “many schools across Iowa had mask requirements 
prior to the enactment of section 280.31 but dropped them once the statute became 
effective”; and (2) “after the Court ordered the preliminary injunction, several 
schools once again imposed some form of mask requirements.”  Add.10-11, 
App.1033-34, R.Doc.114 at 10-11.  The court found that “[t]hese facts demonstrate 
that redressability is not too ‘speculative,’ but rather ‘likely.’”  Add.11, App.1034, 
R.Doc.114 at 11 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)).  The 
court therefore held that “it is likely that granting the relief requested by Plaintiffs 
will lead their schools to require masks of those working with or nearby Plaintiffs’ 
children to comply with federal disability law and accommodate the children’s 
disabilities.”  Id.  
As with traceability, State Defendants cannot contend that any of the 
undisputed material facts on which the district court relied in finding redressability 
are clearly erroneous.  Instead, they suggest that redressability is absent because 
“[n]either the Governor nor the Director can order a specific mask mandate for each 
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31 
Plaintiff’s child.”  Br. 36.  But that is the wrong standard.  To satisfy the 
redressability requirement, a plaintiff need only show that it will “be ‘likely,’ as 
opposed to merely ‘speculative,’” that a favorable decision would redress the harm.  
Lujan, 504 U.S. at 561 (quoting Simon v. E. Kentucky Welfare Rts. Org., 426 U.S. 
26, 38 (1976)); accord Liddell v. Special Admin. Bd. of the Transitional Sch. Dist., 
894 F.3d 959, 966 (8th Cir. 2018) (similar).  Accordingly, when a plaintiff’s “injury 
arises from the government’s allegedly unlawful regulation (or lack of regulation) 
of someone else,” “causation and redressability ordinarily hinge on the response of 
the… third party,” and the plaintiff need only show that the third party is likely to 
act “in such manner as to produce causation and permit redressability of injury.” 
Lujan, 504 U.S. at 562.  In other words, redressability exists even if the action 
necessary to provide redress comes from a third party, as long as such action is likely 
to result from the requested relief.  The facts found by the district court—which the 
Governor and Director do not challenge on appeal—demonstrate that this standard 
has been met here.  As the court held, it is “likely that granting the relief requested 
by Plaintiffs will lead their schools to require masks of those working with or nearby 
Plaintiffs’ children.”  Add.11, App.1034, R.Doc.114 at 11.  For similar reasons, State 
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32 
Defendants err in asserting that declaratory relief was unnecessary to resolve a live 
case or controversy.  Br. 35.8 
Similar theories and showings of likely effect readily satisfy the requirements 
of standing even when, unlike here, the third party is not party to the action.  See, 
e.g., Dep’t of Comm. v. New York, 139 S. Ct. 2551, 2566 (2019) (“Respondents’ 
theory of standing thus does not rest on mere speculation about the decisions of third 
parties; it relies instead on the predictable effect of Government action on the 
decisions of third parties.”); CEI v. NHTSA, 901 F.2d 107, 117 (D.C. Cir. 1990) 
(consumer organization had standing to challenge fuel-efficiency regulations based 
on evidence that non-party manufacturers, if given the choice, would be 
“substantially likely to respond to market forces” by producing larger vehicles 
desired by its members). 
The district court’s declaratory judgment clarifies the limited scope and 
enforceability of Section 280.31, and thereby provides Plaintiffs’ schools—which 
have not appealed—with the ability to adopt mask requirements when they are 
 
8  Since the district court declaratory judgment order, two Plaintiffs received masking 
modifications in Defendant School Districts.  A court of appeals evaluating subject-
matter jurisdiction “may look at materials outside the pleadings.”  Alberty v. U.S., 
54 F.4th 571, 575 (8th Cir. 2022); see also Herden v. U.S., 726 F.3d 1042, 1046 (8th 
Cir. 2013) (“We may look outside the pleadings to determine the threshold question 
of jurisdiction.”).  And an “appellate court may take judicial notice of a fact for the 
first time on appeal.”  Gustafson v. Cornelius Co., 724 F.2d 75, 79 (8th Cir. 1983). 
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reasonable modifications under the ADA and Rehabilitation Act.  In so doing, it 
redresses the harms caused to Plaintiffs by State Defendants telling schools and 
school administrators that they might suffer a loss of funding and accreditation if 
they adopt even very limited mask mandates as reasonable modifications.9 
The fact that the declaratory relief does not require Plaintiffs’ schools to adopt 
masking requirements, or any other particular remedy, to address the disabilities of 
Plaintiffs’ children does not mean such relief is “inappropriate,” or that Plaintiffs’ 
injuries are not redressable, as State Defendants contend.  Br. 34, 36, 43.  The 
Supreme Court has made clear that a remedy need not completely redress an injury 
to meet the redressability requirement.  See Uzuegbunam v. Preczewski, 141 S. Ct. 
792, 797-801 (2021) (“[T]he ability to effectuate a partial remedy satisfies the 
redressability requirement.”) (internal quotations and citation omitted).  Thus, relief 
likely to provide at least partial redress to abate the harm of even one Plaintiff is 
sufficient to establish that the district court had jurisdiction to resolve the dispute.  
Dep’t of Comm. v. New York, 139 S. Ct. 2551, 2565 (2019) (only one plaintiff needs 
 
9  Contrary to State Defendants’ contentions (Br. 36-37), the relief afforded by the 
district court’s declaratory judgment does not “suffer from the same flaw” as in 
Digital Recognition Network, Inc. v. Hutchinson, 803 F.3d 952, 958 (8th Cir. 2015), 
because here the declaratory judgment redressed Plaintiffs’ injury “by virtue of its 
effect on the defendant officials.”  Specifically, the declaratory judgment nullifies 
State Defendants’ threats that schools would suffer penalties for violating Section 
280.31 if they implemented mask mandates as reasonable accommodations under 
the ADA and Rehabilitation Act. 
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34 
standing).  That is true here, where the district court’s declaratory relief has cleared 
the way for Plaintiffs’ school districts to provide the reasonable modifications 
otherwise required by federal law.  See supra n.8.10 
D. 
There Is a Live Case or Controversy 
State Defendants argue that there is no live case or controversy at this stage 
of the proceedings.  Br. 12, 32, 35-37.  That is both incorrect and inconsistent with 
Defendants’ acknowledgment below that the declaratory judgment action was still 
live following this Court’s May 16, 2022 order.  Add.12, App.1035, R.Doc.114 at 
12 (quoting Arc of Iowa, 33 F.4th at 1045); see also App.943-45, R.Doc.95 at 8-10.  
Indeed, during the hearing on Plaintiffs’ motion for summary judgment, defense 
counsel admitted: “[Y]es, I agree that the declaratory judgment as made here was 
never litigated before.  It would be difficult to say that it is moot.”  App.1133; 
R.Doc.123 at 28:6-8 (emphasis added); see also App.1129, R.Doc.123 at 24:14-17 
(admitting “the Eighth Circuit did not hold the entire case was moot”). 
Moreover, there is a present controversy because it is undisputed that the 
physicians of several of Plaintiffs’ children have opined that others around them 
 
10  State Defendants’ citation to One Thousand Friends of Iowa v. Mineta, 364 F.3d 
890 (8th Cir. 2004), is similarly inapposite. The declaratory relief sought in that case 
was moot because the project it was targeting had already been completed and thus 
a declaration that the review process was arbitrary and capricious could not have 
afforded relief.  See id. at 893-94.  In contrast, this case is not moot, as there 
continues to be a live controversy between Plaintiffs and State Defendants over the 
interpretation and implementation of Section 280.31. 
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35 
should still mask, App.720, R.Doc.88-2 ¶ 20; App.725-741, R.Doc.88-3 Exs. A-C, 
but school districts felt they could not require this because of the Governor and 
Director’s position that a masking requirement “is not a reasonable modification,” 
Br. at 18, and “is not a reasonable accommodation under the ADA.”  Id. at 40; see 
also, e.g., App.290, R.Doc.37 at 32:1-5.  The district court reasonably concluded 
that the Defendant School Districts were confused, and this confusion was 
preventing them from granting requested modifications.  Add.18, 22, 
App.1041,1045, R.Doc.114 at 18, 22. 
E. 
Defendants Were on Notice of Plaintiffs’ Requested and Awarded 
Declaratory Relief 
Although it has nothing to do with standing, State Defendants argue in the 
standing portion of their brief that the declaratory relief granted by the district court 
was not sought in Plaintiffs’ Complaint.  Br. 38-39.  This claim is wrong, both 
factually and legally. 
The declaratory relief awarded by the district court is encompassed within and 
consistent with the relief sought in Plaintiffs’ Complaint.  Add.19-20, App.1042-43, 
R.Doc.114 at 19-20.  Plaintiffs’ Complaint sought a declaration that Section 280.31 
“and the Defendants’ implementation thereof, violates the ADA” and “subject[s] the 
Plaintiffs to discrimination in violation of Section 504 of the Rehabilitation Act.”  
App.48, R.Doc.1 ¶¶ 1-2.  As the district court found, “it is [Defendants’] methods of 
implementation [of section 280.31] that Plaintiffs [sought] to have declared 
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36 
wrongful in their [motion for summary judgment].”  Add.20, App.1043, R.Doc.114 
at 20. Declaratory relief that conforms the interpretation and implementation of 
Section 280.31 to the requirements of federal law fits well within the relief sought 
in the Complaint. 
But even if that weren’t true, it wouldn’t matter.  As the district court noted, 
“under Rule 54(c), the ‘final judgment should grant the relief to which each party is 
entitled, even if the party has not demanded that relief in its pleadings.’”  Add.19, 
App.1042, R.Doc.114 at 19 (quoting Fed. R. Civ. P. 54(c)).  State Defendants’ 
citation to Rule 56(a), Br. 38, does not change the fact that Rule 54 clearly permits 
a court to tailor relief as appropriate under the circumstances.  See generally Baker 
v. John Morrell & Co., 382 F.3d 816, 831-32 (8th Cir. 2004) (noting that Rule 54(c) 
reflects a “liberal policy in favor” of equitable judgments and is reviewed for “abuse 
of discretion”); Bowles v. Osmose Utilities Services, Inc., 443 F.3d 671, 675 (8th 
Cir. 2006) (affirming award of punitive damages even if not demanded in 
complaint).  The four cases cited by State Defendants—Winfrey, Crow, A.L., and 
Mt. Hawley, Br. 38-39—all concern a plaintiff requesting summary judgment on a 
legal theory not advanced in the complaint.  See, e.g., Winfrey v. City of Forrest City, 
Ark., 882 F.3d 757, 759 (8th Cir. 2018) (affirming trial court determination that 
plaintiff who asserted a retaliation theory in complaint could not assert a race 
discrimination claim for first time in opposing summary judgment).  These cases are 
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37 
inapposite because Plaintiffs have contended since the outset of this litigation that 
State Defendants’ enforcement of Section 280.31 to bar consideration of any 
masking accommodation violates the ADA (Count I), App.42-44, R.Doc.1 ¶¶ 76-85, 
and the Rehabilitation Act (Count II), App.44-46, R.Doc.1 ¶¶ 86-94.  The 
declaratory relief is wholly consistent with this theory of liability.  The district court 
properly held that Defendants had adequate notice of Plaintiffs’ claims, they were 
not prejudiced in their defense, and awarding declaratory relief was proper.  Add.19-
20, App.1042-43, R.Doc.114 at 19-20. 
Finally, the district court’s declaratory judgment is the type of relief routinely 
afforded by courts pursuant to the Declaratory Judgment Act.  As the court 
explained, “[i]n this case, it is proper to grant a declaratory judgment because it ‘will 
serve a useful purpose in clarifying and settling the legal relations in issue’ and ‘will 
terminate and afford relief from the uncertainty, insecurity, and controversy giving 
rise to the proceedings.’”  Add.22, App.1045, R.Doc.114 at 22 (citations omitted).  
Indeed, State Defendants concede that “[s]chools have been forced to wrestle with 
the implications of a series of Court orders that present a shifting landscape for 
complying with state and federal law” and that “[s]tudents, parents, teachers, and the 
State need clarity and finality.”  Br. 19.  That is precisely what the district court’s 
declaratory judgment order does—it provides clarity and finality to Defendants (the 
State and School Districts) and Plaintiffs (disabled students and their parents) on the 
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38 
proper scope, interpretation, and implementation of Section 280.31.  It should be 
affirmed. 
III. 
THE DISTRICT COURT CORRECTLY GRANTED DECLARATORY 
RELIEF 
The Governor and Director offer three reasons why the declaratory relief 
granted by the district court violates federal and/or state law on the merits.  Br. 40.  
First, they contend that the ADA and the Rehabilitation Act do not invalidate facially 
neutral policies that have a discriminatory effect on persons with disabilities.  Br. 
40-43.  Second, they argue that “universal masking” can never be a reasonable 
modification under these statutes.  Br. 43-48.  Third, they assert that any reasonable 
modification required by federal law must also comply with Section 280.31.  Br. 48-
50. These arguments are all meritless. 
A. 
The ADA and the Rehabilitation Act Reach Policies with 
Discriminatory Effects 
The Governor and Director contend that no violation of the ADA or 
Rehabilitation Act occurs when a “neutral nondiscriminatory policy” leads to the 
denial of rights.  Br. 40-43.  This contention contravenes this Court’s precedents, 
would upend decades of settled law, and contradicts the text and purpose of both 
statutes. 
In DeBord v. Board of Education, this Court stated that “[d]isparate treatment 
is not the only way to prove unlawful discrimination” under Title II of the ADA and 
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39 
the Rehabilitation Act. 126 F.3d 1102, 1105 (8th Cir. 1997).  Rather, a plaintiff can 
alternatively show that a facially neutral “policy has the effect of discriminating 
against the disabled or the severely disabled,” such as by showing that the “facially 
neutral policy” draws distinctions “on the basis of any trait that the disabled or 
severely disabled are less or more likely to possess.”  Id.  That is because Congress 
was concerned in the ADA not just about intent, but “discriminatory effects.”  Id. at 
1106.  Although DeBord affirmed summary judgment for the defendants, it did so 
because the policy at issue—a ban on administering drug dosages at school that 
exceeded the recommended maximum in the Physicians’ Desk Reference—did not 
have “the purpose or effect of discriminating against disabled students.”  Id. at 1106 
(emphasis added). 
This Court’s decision in Durand v. Fairview Health Services, 902 F.3d 836 
(8th Cir. 2018), confirms the point. Durand held that Title II and the Rehabilitation 
Act require public institutions and recipients of federal funding to provide an 
otherwise qualified disabled individual with “meaningful access to the benefit” at 
issue, because a principal goal of the ADA was “to remedy … discriminatory 
effects” from facially neutral barriers facing disabled people.  Id. at 842 (cleaned 
up). 
Defendants suggest that Davis v. Francis Howell School District, 138 F.3d 
754 (8th Cir. 1998), is to the contrary, Br. 41-42, but it is not.  That decision merely 
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relied on DeBord to reject a challenge to the same drug dosage policy at issue in 
DeBord.  Id. at 756.  To be sure, Davis quotes DeBord’s language about how the 
policy “applies to all students regardless of disability.”  126 F.3d at 1105.  But Davis 
doesn’t question DeBord’s express conclusion that if such a generally applicable 
policy had a discriminatory effect on disabled students, the policy would violate the 
law.  Id. at 1105-06. 
This court’s rulings in DeBord and Durand align with holdings from nine 
other circuits over the last 35 years recognizing that the plain language and purpose 
of federal anti-discrimination laws require no discriminatory intent and are 
concerned with discriminatory effects.11  And as to Plaintiffs’ Rehabilitation Act 
claim, State Defendants’ contention is directly contrary to Supreme Court precedent.  
See Alexander v. Choate, 469 U.S. 287,  296-97 (1985) (“[M]uch of the conduct that 
Congress sought to alter in passing the Rehabilitation Act would be difficult if not 
impossible to reach were the Act construed to proscribe only conduct fueled by a 
 
11  Ruskai v. Pistole, 775 F.3d 61, 78-79 (1st Cir. 2014); Disabled in Action v. Bd. of 
Elections in the City of N.Y., 752 F.3d 189, 196-97 (2d Cir. 2014); Nathanson v. 
Medical Coll. of Pa., 926 F.2d 1368, 1384 (3d Cir. 1991); Nat’l Fed’n of the Blind 
v. Lamone, 813 F.3d 494, 502-04, 510 (4th Cir. 2016); Brennan v. Stewart, 834 F.2d 
1248, 1261-62 (5th Cir. 1988); McWright v. Alexander, 982 F.2d 222, 228-29 (7th 
Cir. 1992); Doe v. CVS Pharmacy, Inc., 982 F3d 1204, 1211 (9th Cir. 2020), cert. 
granted, 141 S. Ct. 2882 (2021), and subsequently dismissed, 142 S. Ct. 480 (2021); 
Mark H. v. Lemahieu, 513 F.3d 922, 936-37 (9th Cir. 2008); Robinson v. Kansas, 
295 F.3d 1183, 1187 (10th Cir. 2002); Am. Council of the Blind v. Paulson, 525 F.3d 
1256, 1268-69 (D.C. Cir. 2008). 
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discriminatory intent.”).  State Defendants’ failure to acknowledge—much less 
address—any of these cases speaks volumes. 
Finally, the text of the ADA and the Rehabilitation Act also forecloses 
Defendants’ interpretation. The ADA states that “[n]o qualified individual with a 
disability shall, by reason of such disability, be excluded from participation in or be 
denied the benefits of the services, programs, or activities of a public entity, or be 
subjected to discrimination by any such entity.”  42 U.S.C. § 12132.  The 
Rehabilitation Act is materially identical.  29 U.S.C. § 794(a).12 
Both texts focus on the impact on the disabled individual, not the intent of 
those behind the law or policy—which the text does not mention.  That omission is 
telling, because “antidiscrimination laws must be construed to encompass disparate-
impact claims when their text refers to the consequences of actions and not just to 
the mindset of actors, and where that interpretation is consistent with statutory 
purpose.”  Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 
576 U.S. 519, 533 (2015); see also Tennessee v. Lane, 541 U.S. 509, 527 (2004) 
(holding that “by reason of” encompasses impacts of facially neutral policies like 
the absence of interpreters). 
 
12  “No otherwise qualified individual with a disability … shall, solely by reason of 
her or his disability, be excluded from the participation in, be denied the benefits of, 
or be subjected to discrimination under any program or activity receiving Federal 
financial assistance….”  29 U.S.C. § 794. 
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Both statutes also include other provisions confirming that they reach policies 
with discriminatory effect. The ADA’s findings and purpose section explains that: 
[I]ndividuals with disabilities continually encounter various forms of 
discrimination, 
including 
outright 
intentional 
exclusion, 
the 
discriminatory 
effects 
of 
architectural, 
transportation, 
and 
communication barriers, overprotective rules and policies, failure to 
make modifications to existing facilities and practices, exclusionary 
qualification standards and criteria, segregation, and relegation to lesser 
services, programs, activities, benefits, jobs, or other opportunities. 
 
42 U.S.C. § 12101(a).  Every item but the first involves meaningful access, 
discriminatory effect, or a reasonable modification.  And Congress’s stated goal was 
to “address” the entire array of identified discrimination.  42 U.S.C. § 12101(b). 
As for the Rehabilitation Act, Section 794(a) requires “significant structural 
alterations to … existing facilities” to avoid discrimination, except in the limited 
circumstances exempted by Section 794(c).  As the Supreme Court has found, given 
that “elimination of architectural barriers was one of the central aims of the Act … 
yet such barriers were clearly not erected with the aim or intent of excluding [persons 
with disabilities],” the Rehabilitation Act clearly “rectif[ies] the harm resulting from 
action that discriminated by effect as well as by design.”  Alexander, 469 U.S. at 
297. 
In short, both the ADA and the Rehabilitation Act address facially neutral 
policies that have a discriminatory effect on persons with disabilities in denying 
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43 
them equal access to public programs.  State Defendants’ contrary arguments should 
be rejected. 
B. 
Masking Can Be a Reasonable Modification Under Federal Law 
Even if the ADA and the Rehabilitation Act did not reach discriminatory 
effect, both statutes separately require covered institutions to make “reasonable 
modifications,” also known as “reasonable accommodations,” to enable equal access 
by people with disabilities.  42 U.S.C. §§ 12131(2)-12132.  Nevertheless, State 
Defendants argue that “[a] universal mask mandate is not a reasonable 
modification.”  Br. 43.  This contention is meritless, for multiple reasons. 
To begin with, State Defendants attack a straw man.  Plaintiffs do not contend, 
and the district court order does not hold, that “universal masking” is required by 
federal law in all circumstances, that such a requirement is always necessary to 
accommodate Plaintiffs’ children with disabilities, or that the ADA and 
Rehabilitation Act require “every other employee and student in the school” to mask.  
Br. 46.  Indeed, the district court called State Defendants out for this precise 
mischaracterization, and their counsel conceded that the court was correct.  App.288, 
R.Doc.37 at 30:13-14 (“[Y]ou are correct that they don’t state what I just said”); 
App.1159, R.Doc. 123 at 54:7-9 (“We’re not suggesting that Plaintiffs, in their 
declaratory judgment, it certainly doesn’t say there must be universal mask 
mandates”). 
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The district court’s order does not require any school to impose a mask 
mandate, universal or otherwise, but instead merely enables schools to consider 
whether a masking requirement would be a reasonable modification and to calibrate 
any masking requirements to account for individual fact-specific circumstances.   For 
that reason, the issue State Defendants raise—whether universal masking could ever 
be required under federal law—is not presented by this appeal.  The degree to which 
mask requirements are reasonable modifications under federal law should be 
resolved in a case that squarely presents the issue in a specific, factual context, as 
opposed to review of an order that (as State Defendants concede) only “implicitly” 
raises the issue.  Br. 43.13 
 
13  State Defendants cite to materials not in the record, Br. 34 n.3, in an effort to 
suggest that a masking requirement could never be a reasonable accommodation.  
But, while State Defendants point to the Cochrane Review for the proposition that 
masks don’t work, Cochrane’s editor-in-chief has stated: “Many commentators have 
claimed that a recently-updated Cochrane Review shows that ‘masks don't work,’ 
which is an inaccurate and misleading interpretation.”  Karla Soares-Weiser, Editor-
in-Chief, Cochrane Library, Statement on ‘Physical Interventions to Interrupt or 
Reduce the Spread of Respiratory Viruses’ Review, Cochrane (Mar. 10, 2023), 
https://www.cochrane.org/news/statement-physical-interventions-interrupt-or-
reduce-spread-respiratory-viruses-review.  Other commentators have reported on 
the efficacy of masking. Zeynep Tifekci, Opinion, Here’s Why the Science Is Clear 
That Masks Work, N.Y. Times (Mar. 10, 2023), https://www.nytimes.com/2023/ 
03/10/opinion/masks-work-cochrane-study.html.  And the guidance from the CDC 
cited by Plaintiffs’ unrebutted experts below, App.750, R.Doc.88-2 ¶ 22, App.772, 
R.Doc.88-2 ¶ 32, continues to provide that “[s]chools with students at risk for getting 
very sick with COVID-19 must make reasonable modification or accommodations 
when necessary to ensure that all students, including those with disabilities, are able 
to access in-person learning.  Schools might need to require masking in settings such 
as classrooms or during activities to protect students with immunocompromising 
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45 
State Defendants also present the meritless claim that permitting school 
districts to make reasonable modifications under federal law involving mask 
mandates “fundamentally alters the nature of the educational program established 
by the State.”  Br. 45.  The burden to show fundamental alteration lies with the public 
entity in question.  Olmstead v. L.C., 527 U.S. 581, 592 (1999) (discussing 28 C.F.R. 
§ 35.130(b)(7)); Gorman v. Bartch, 152 F.3d 907, 912 (8th Cir. 1988) (noting that 
establishing a fundamental alteration or undue burden is an affirmative defense).  
State Defendants offered no evidence below, nor have they supplied any explanation 
here (beyond conclusory assertion) as to how the provision of public education 
would be fundamentally altered by masking policies deemed to be reasonable 
modifications.  Nor have they made any showing that masking requirements adopted 
by Iowa schools prior to the enactment of Section 280.31 or during the pendency of 
the injunction in this case fundamentally altered education.  Indeed, even State 
Defendants concede (contradicting their simultaneous argument that masking is 
never permissible) that “limited masking of teachers or students while interacting 
closely with” Plaintiffs’ children may sometimes be required by federal law.  Br. 47.  
It is therefore no surprise that the district court found that “[p]ermitting schools to 
 
conditions or other conditions that increase their risk for getting very sick with 
COVID-19….”  Operational Guidance for K-12 Schools and Early Care and 
Education Programs to Support Safe In-Person Learning, Ctrs. for Disease Control 
& Prevention, https://www.cdc.gov/coronavirus/2019-ncov/community/schools-
childcare/k-12-childcare-guidance.html (last updated Oct. 5, 2022). 
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46 
impose mask mandates … would not fundamentally alter the nature of the services 
that a school provides.”  Add.15, App.1038, R.Doc.114 at 15.14  Tellingly, School 
District Defendants, charged with administering education, have not appealed this 
ruling.  
Finally, there is no merit to Defendants’ argument that permitting schools to 
impose masking as a reasonable modification impermissibly “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 devote 
their time to other important concerns.”  Br. 45.  As this Court’s prior decision held, 
 
14  The Governor and Director’s argument that masking mandates impose undue 
administrative and legal costs or impinge on the rights of third parties are similarly 
meritless.  Br. 45-46.  Again, they introduced no evidence of such costs below. And, 
in all events, courts have regularly permitted schools to implement health 
requirements that intrude on individuals’ rights, see, e.g., Jacobson v. 
Massachusetts, 197 U.S. 11, 16 (1905); Boone v. Boozman, 217 F. Supp. 2d 938, 
954 (E.D. Ark. 2002), and Iowa schools routinely impose requirements on students, 
teachers, and visitors to facilitate functioning and equitable learning environments.  
Iowa Code § 139A.8(2)(b)-(e) (immunizations); Iowa Admin. Code r. 641-7.6 
(same).  Reasonable accommodations can at times impose burdens on third parties, 
including burdens far more significant than wearing a mask—for example, 
permitting an employee whose health requires it to not work night or weekend shifts 
may be a reasonable accommodation, even though such an accommodation would 
impose a burden on other employees who had to cover those shifts.  See, e.g., Rodal 
v. Anesthesia Grp. of Onondaga, P.C., 369 F.3d 113, 122 (2d Cir. 2004). 
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47 
Section 280.31’s savings clause subordinates—as it must—the state’s anti-masking 
policy to the demands of federal law.  See 33 F.4th at 1045.15 
C. 
Reasonable Modifications Under Federal Law Need Not Comply 
with Section 280.31 
The Governor and Director argue that assuming masking requirements may 
constitute reasonable modifications, “reasonable accommodations must still comply 
with applicable State law.”  Br. 48.  They seem to suggest that state law defines the 
boundaries of what the ADA and Rehabilitation Act require, which is tantamount to 
arguing that the federal disability law is subject to restriction by the Iowa legislature. 
This is foreclosed by the Supremacy Clause.  See Mary Jo C. v. New York 
State & Local Ret. Sys., 707 F.3d 144, 163 (2d Cir. 2013) (“We conclude that the 
ADA’s reasonable modification requirement contemplates modification to state 
laws, thereby permitting preemption of inconsistent state laws, when necessary to 
effectuate Title II’s reasonable modification provision.”); Nat’l Fed. of the Blind v. 
Lamone, 813 F.3d 494, 508-09 (4th Cir. 2016) (“The Supreme Court has held that 
the ADA’s Title II … trumps state regulations that conflict with its requirements.  
As the Sixth Circuit has put it, ‘[r]equiring public entities to make changes to rules, 
 
15  The fact that “disability interests rise on both side[s] of the mask debate,” Br. 46-
47, merely bolsters Plaintiffs’ case: where some students cannot wear masks for 
medical reasons, they must rely on others’ behavior to stay safe.  And one of the 
Plaintiffs, unable to tolerate a mask, made precisely such a request.  App.727, 
R.Doc.88-3 Ex. A. 
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48 
policies, practices, or services is exactly what the ADA does.’” (internal citations 
omitted)).  Moreover, this Court has made clear that the statutory language 
“unambiguously states that Section 280.31 does not apply where ‘any other 
provision of law’ requires masks” and that “any other provision of law” includes 
federal disability law.  See Arc of Iowa v. Reynolds, 33 F.4th at 1045.16 
State Defendants also assert that “[t]he ADA does not require public schools 
to provide [] students with disabilities the accommodation of her choice.”  Br. 48.  
This has nothing to do with State Defendants’ state-law claim, but in any event does 
not conflict with Plaintiffs’ position.  A modification is a viable alternative under 
federal disability law only if it is nonetheless effective.  See U.S. Airways, Inc. v. 
Barnett, 535 U.S. 391, 400 (2002) (“An ineffective ‘modification’ or ‘adjustment’ 
will not accommodate a disabled individual’s limitations.”); Dean v. Univ. at Buffalo 
Sch. of Med. & Biomedical Sciences, 804 F.3d 178, 189 (2d Cir. 2015) (“The 
 
16  In the same vein, the Court should reject Defendants’ passing argument that 
interpreting the ADA and the Rehabilitation Act as the district court did “raises 
significant constitutional concerns about the intrusion of the federal government into 
the public health and education domain of the States.”  Br. 18.  The text of the ADA 
and Rehabilitation Act expressly covers activities of “State and local 
government[s],” including specifically a “local educational agency” or “school 
system.”  See, e.g., 42 U.S.C. § 12131(1)(A); 29 U.S.C. § 794(b)(1)-(2).  The 
Supreme Court has held that Title II was intended to and does apply directly to states 
and local governments to address “unequal treatment of persons with disabilities by 
States and their political subdivisions.”  Tennessee, 541 U.S. at 526; U.S. v. Georgia, 
546 U.S. 151 (2006).  And, needless to say, the nation’s schools are subject to the 
requirements of federal law.  See, e.g., Cooper v. Aaron, 358 U.S. 1, 17 (1958). 
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49 
accommodation need not be ‘perfect’ or the one ‘most strongly preferred’ by the 
student-plaintiff, but it still must be ‘effective[.]’” (citation omitted)).  Thus, in 
circumstances where a student seeks a modification involving masking, and an 
alternative accommodation would also be effective in facilitating equal access for 
that student, their school may grant the non-masking modification.  But, as this Court 
previously held, because of Section 280.31’s savings clause, the statute does not 
prevent schools from imposing reasonable modifications that include masking under 
the ADA and Rehabilitation Act. 
State Defendants’ argument that “[i]f reasonable accommodations must 
adhere to internal company policies, it follows that they must also comply with State 
law,” Br. 49, gets them nowhere because that is simply not the law.  The cases they 
rely on, U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002), and Albertson’s, Inc. v. 
Kirkingburg, 527 U.S. 555 (1999), do not hold that reasonable accommodations can 
be trumped by internal company policies—rather, each held that the requested 
accommodation in question was not a reasonable one under the circumstances 
because it would impose unreasonable hardship on the employer.  See Barnett, 535 
U.S. at 403-06 (finding that seniority systems are integral to “employee-management 
relations” and “provide[] important employee benefits by creating, and fulfilling, 
employee expectations of fair, uniform treatment,” but that a plaintiff may still show 
“special circumstances that make an exception from the seniority system reasonable 
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50 
in the particular case”); Kirkingburg, 527 U.S. at 570-78 (finding that employer was 
not required to deviate from “general acuity standards” structured to ensure safe 
operation of commercial motor vehicles and thereby protect public safety).17  These 
cases cast no doubt on the simple Supremacy Clause principle that where state law 
conflicts with federal law, federal law must prevail. 
As applied here, State Defendants’ argument would suggest that if under 
particular circumstances federal disability law required masking as a reasonable 
modification, Section 280.31 would preempt. This cannot be the law, and 
Defendants know it, as made clear by their repeated efforts to use the savings clause 
as an escape hatch.  The fundamental argument Plaintiffs raise is that Section 280.31 
cannot prevent a school district from abiding by federal disability law and granting 
a reasonable modification that involves some form of a masking requirement, and 
Defendants’ unsupported arguments to the contrary merely underscore the necessity 
of declaratory relief on this point. 
 
17  State Defendants also quote Office of Senate Sergeant at Arms v. Office of Senate 
Fair Employment Practices as follows: “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.”  See Br. 49 
(quoting 95 F.3d 1102, 1107 (Fed. Cir. 1996)).  The context for this quote reveals 
just how off the mark Defendants’ argument is; the court was assessing what was 
required under the Government Employee Rights Act, and the language “absent any 
statutory qualification that may limit the employer’s duty to provide such an 
accommodation” was not referring to state or local statutory law—it was referring 
to the ADA itself.  See Off. of Sen. Sergeant at Arms, 95 F.3d at 1107. 
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51 
CONCLUSION 
This Court should affirm the decision below. 
Dated: June 5, 2023 
 
 
    Respectfully submitted, 
  
 
s/ Rita Bettis Austen                              
Shefali Aurora 
Rita Bettis Austen 
AMERICAN CIVIL LIBERTIES 
   UNION OF IOWA FOUNDATION 
505 Fifth Avenue, Suite 808 
Des Moines, IA 50309-2316 
(515) 243-3988 
shefali.aurora@aclu-ia.org 
rita.bettis@aclu-ia.org 
 
Catherine Johnson 
Cynthia A. Miller 
DISABILITY RIGHTS IOWA 
666 Walnut Street, Suite 1440 
Des Moines, IA 50309 
(515) 278-2502 
cmiller@driowa.org 
cjohnson@driowa.org 
 
Shira Wakschlag 
ARC OF THE UNITED STATES 
1825 K Street, NW, Suite 1200 
Washington, DC 20006 
(202) 534-3708 
wakschlag@thearc.org 
 
Jim T. Duff 
Thomas J. Duff 
DUFF LAW FIRM, P.L.C. 
4090 Westown Parkway, Suite 102 
West Des Moines, IA 50266 
(515) 224-4999 
jim@tdufflaw.com 
tom@tdufflaw.com 
s/ John A. Freedman                             
John A. Freedman 
Anthony J. Franze 
Tara L. Williamson 
ARNOLD & PORTER  
   KAYE SCHOLER LLP  
601 Massachusetts Avenue, NW 
Washington, DC 20001-3743 
(202) 942-5000 
john.freedman@arnoldporter.com 
anthony.franze@arnoldporter.com 
tara.williamson@arnoldporter.com 
 
Steven L. Mayer 
ARNOLD & PORTER  
   KAYE SCHOLER LLP  
10th Floor, Three Embarcadero Ctr. 
San Francisco, CA 94111-4024 
(415) 471-3100 
steve.mayer@arnoldporter.com 
 
Louise Melling 
Arijeet Sensharma 
AMERICAN CIVIL LIBERTIES 
   UNION FOUNDATION 
125 Broad Street 
New York, NY 10004 
(212) 549-2637 
lmelling@aclu.org 
asensharma@aclu.org 
 
Susan Mizner 
AMERICAN CIVIL LIBERTIES 
   UNION FOUNDATION 
39 Drumm Street 
San Francisco, CA 94111 
(646) 421-9387 
smizner@aclu.org 
 
Counsel for Plaintiffs-Appellees 
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52 
CERTIFICATE OF COMPLIANCE 
Pursuant to Federal Rule of Appellate Procedure 32(g)(1), the undersigned 
hereby certifies that this brief complies with the type-volume limitation of Federal 
Rule of Appellate Procedure 32(a)(7)(B)(i). 
1. 
Exclusive of the exempted portions of the brief, as provided in Federal 
Rule of Appellate Procedure 32(f), the brief contains 12,176 words. 
2. 
This brief has been prepared in proportionally spaced typeface using 
Microsoft Word for Office 365 in 14-point Times New Roman font. As permitted 
by Federal Rule of Appellate Procedure 32(g)(1), the undersigned has relied upon 
the word count feature of this word processing system in preparing this certificate. 
3. 
Pursuant to Eighth Circuit Local Rule 28A(h), undersigned counsel 
hereby certifies that the brief has been scanned for viruses and that the brief is virus-
free.  
s/ Rita Bettis Austen                   
Rita Bettis Austen 
 
 
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53 
CERTIFICATE OF SERVICE 
I hereby certify that on June 5, 2023, I electronically filed the foregoing with 
the Clerk of the Court for the United States Court of Appeals for the Eighth Circuit 
by using the CM/ECF system.  Participants in the case who are registered CM/ECF 
users will be served by the CM/ECF system. 
 
s/ Rita Bettis Austen                   
Rita Bettis Austen 
 
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