Appellants' Reply Brief — The Arc of Iowa v. Reynolds

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No. 22–3338 
 
IN THE UNITED STATES COURT OF APPEALS  
FOR THE EIGHTH CIRCUIT 
 
 
THE ARC OF IOWA et al., 
 
Plaintiffs–Appellees, 
 
vs. 
 
KIM REYNOLDS, in her official capacity  
as Governor of Iowa; ANN LEBO, in her official capacity  
as Director of the Iowa Department of Education, 
  
Defendants–Appellants, 
 
ANKENY COMMUNITY SCHOOL DISTRICT et al., 
 
Defendants. 
 
 
Appeal from the United States District Court  
for the Southern District of Iowa 
 
 
APPELLANTS’ REPLY BRIEF 
 
 
BRENNA BIRD 
Attorney General of Iowa 
 
SAMUEL P. LANGHOLZ 
Chief Deputy Attorney General 
ERIC H. WESSAN  
Solicitor General 
1305 E. Walnut Street 
Des Moines, Iowa 50319 
(515) 281-5164 
(515) 281-4209 (fax) 
sam.langholz@ag.iowa.gov 
eric.wessan@ag.iowa.gov 
ATTORNEYS FOR APPELLANTS
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TABLE OF CONTENTS 
 
TABLE OF AUTHORITIES ............................................................. 4 
INTRODUCTION  ............................................................................ 6 
ARGUMENT .................................................................................... 7 
I. 
The gravamen of Plaintiffs’ claims is failure to provide a free and 
appropriate education, so Plaintiffs must exhaust their 
administrative remedies. .......................................................... 7 
A. The gravamen of Arc’s claim is the failure to provide free and 
appropriate education.. ....................................................... 9 
B. Plaintiffs failed to exhaust their administrative remedies 
under IDEA.. ..................................................................... 17 
II. Plaintiffs lack standing as their suit is neither traceable to the 
State defendants nor redressable by federal courts.. ............. 23 
A. Plaintiffs’ alleged injury is not traceable to Defendants.. 24 
B. No federal court could redress Arc’s alleged injury.. ....... 27 
C. There is no live controversy because section 280.31 does not 
preclude Plaintiffs’ sought relief.. .................................... 31 
III. Section 280.31 does not have a discriminatory effect nor are 
Plaintiffs’ proposed modifications reasonable... ..................... 33 
A. Plaintiffs do not allege that section 280.31 has any 
discriminatory effects... .................................................... 33 
B. A mask mandate is not a reasonable modification... ....... 34 
 
CONCLUSION ............................................................................... 36 
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CERTIFICATE OF COMPLIANCE ............................................... 37 
CERTIFICATE OF SERVICE ........................................................ 38 
CERTIFICATE OF MAILING ....................................................... 39 
 
 
 
 
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TABLE OF AUTHORITIES 
 
Cases 
E.T. v. Paxton (“E.T. I”), 
19 F.4th 760 (5th Cir. 2021) ......................................... 11, 13, 14, 15, 36 
Arc of Iowa v. Reynolds, 
24 F.4th 1162 (8th Cir. 2022) ............................................................... 16 
California v. Texas, 
141 S. Ct. 2104 (2021) .................................................................... 27, 28 
Carroll v. Lawton Ind. Sch. Dist. No. 8, 
805 F.3d 1222 (10th Cir. 2015) ............................................................ 17 
Chavez ex rel. J.C. v Brownsville Ind. Sch. Dist., 
2023 WL 3918987 (5th Cir. June 9, 2023) ........................................... 22 
Clapper v. Amnesty Int’l USA, 
568 U.S. 398 ......................................................................................... 27 
Davis v. Francis Howell Sch. Dist., 
138 F.3d 754 (8th Cir. 1998) ................................................................ 35 
DeBord v. Bd. of Educ., 
126 F.3d 1102 (8th Cir. 1997) .............................................................. 34 
Doe 1 v. Perkiomen Valley Sch. Dist., 
585 F. Supp. 3d 668 (E.D. Penn. 2022) ................................................ 15 
Doe ex rel. K.M. v. Knox Cnty. Bd. of Educ., 
56 F.4th 1076 (6th Cir. 2023) ............................................................... 16 
E.T. v. Paxton (“E.T. II”), 
41 F.4th 709 (5th Cir. 2022) ......................................... 26, 27, 28, 29, 30 
Farley v. Fairfax Cnty. Sch. Bd., 
2023 WL 3092979 (4th Cir. Apr. 26, 2023) .......................................... 23 
Fry v. Napoleon Cmty., 
Schs., 580 U.S. 154 (2017) ....................... 9, 10 ,12, 13, 14, 15, 16, 17, 21 
Huber v. Wal-Mart Stores, Inc., 
486 F.3d 480 (8th Cir. 2007) ................................................................ 35 
I.K. ex rel. Christopher K. v. Manheim Twp. Sch. Dist., 
2023 WL 3477830 n.10 (3rd Cir. May 15, 2023) .................................. 22 
J.M. v. Francis Howell Sch. Dist., 
850 F.3d 944 (8th Cir. 2017) ................................................................ 20 
Li v. Revere Loc. Sch. Dist., 
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2023 WL 3302062 (6th Cir. May 8, 2023) ............................................ 22 
Liddell v. Special Admin. Bd. of the Transitional Sch. Dist., 
894 F.3d 959 (8th Cir. 2018) .......................................................... 11, 12 
Lujan v. Defs. of Wildlife, 
504 U.S. 555 (1992) ................................................ 24, 25, 27, 28, 29, 30 
Nelson v. Charles City Community School District., 
900 F.3d 587 (8th Cir. 2018) .......................................................... 10, 20 
Perez, 
143 S. Ct. ........................................................................ 8, 17, 21, 22, 23 
Ringo v. Lombardi, 
677 F.3d 793 (8th Cir. 2012) .......................................................... 31, 33 
Seamen v. Virginia, 
593 F. Supp. 3d 293 (W.D. Va. 2022) ............................................. 15, 16 
US Airways v. Barnett, 
535 U.S. 391 (2002) .............................................................................. 35 
Wooten v. Farmland Food, 
58 F.3d 382 (8th Cir. 1995) .................................................................. 35 
Statutes 
20 U.S.C. § 1414(d) .................................................................................. 19 
20 U.S.C. § 1415(l) ..................................................................................... 9 
Iowa Code § 280.31 .. 6, 7, 17, 18, 19, 23, 24, 25, 26, 28, 30, 31, 32, 33, 34, 
36 
Regulations 
Iowa Admin. Code. R. 281-41-503(1)(a) .................................................. 19 
Iowa Admin. Code R. 281-41.22 .............................................................. 19 
Iowa Admin. Code R. 281-41-507(1)(a) ............................................. 18, 19 
Iowa Admin. Code R. 508(2)(f) .......................................................... 18, 19 
Iowa Admin. Code Rs. 281-41.324 .......................................................... 19 
 
 
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INTRODUCTION 
The Iowa Legislature struck a delicate balance between competing 
interests when it prohibited mask mandates in schools unless those 
mandates are required by other law. Iowa Code § 280.31. Concerned 
parents first requested that teachers and students voluntarily mask 
around their children. Dissatisfied with the results, the parents should 
have sought relief through the framework established by the Individuals 
with Disabilities in Education Act (“IDEA”) to get individualized 
accommodation plans for their children. Under federal law and under 
Iowa Code section 280.31, those accommodations could include necessary 
masking.   
But unhappy with voluntary measures and unwilling to exhaust 
administrative remedies, Plaintiffs sued and sought blanket state-wide 
relief, alleging section 280.31 endangers children with disabilities’ 
educational interests and opportunities. So rather than directing 
parental concerns through the administrative system created by 
Congress and the Iowa Legislature to help children with disabilities 
receive an adequate education, Plaintiffs try to evade that system by 
prematurely running to the courthouse.  
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This Court should reject that attempt. First, the gravamen of 
Plaintiffs’ claims is the denial of a free and adequate public education. 
Thus, Plaintiffs had to exhaust their administrative remedies before 
suing. They did not. Second, Plaintiffs lack standing because their 
alleged injuries are not traceable to the State nor redressable by a 
favorable decision. And finally, section 280.31 conflicts with neither the 
Americans with Disabilities Act (“ADA”) nor the Rehabilitation Act and 
generalized 
universal 
mask 
mandates 
are 
not 
a 
reasonable 
accommodation.  
ARGUMENT 
I. 
The gravamen of Plaintiffs’ claims is failure to provide a 
free and appropriate education, so Plaintiffs must exhaust 
their administrative remedies.  
Plaintiffs argue that despite their goal being a free and appropriate 
public education (“FAPE”) for children they believe are denied that FAPE 
due to unsafe conditions caused by COVID-19, they need not exhaust 
their administrative remedies under IDEA before suing. Appellees’ 
Br. 15. Plaintiffs first argue that the remedy they seek––reducing the 
risk that children with disabilities will get COVID-19 at school––is 
unavailable under the IDEA. Appellees’ Br. 17. Second, Plaintiffs argue 
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that they are not seeking redress for failure to provide a FAPE. Appellees’ 
Br. 22. Finally, Plaintiffs argue that the Supreme Court’s decision in 
Perez forecloses the State’s arguments. Appellees’ Br. 26–27.  
Plaintiffs meet their burden on none of their arguments. The 
gravamen of Plaintiffs’ complaint is the denial of a FAPE. Although 
Plaintiffs frame their injury as denial of equal access, the substance of 
their complaint is that without accommodation, the danger associated 
with COVID-19 denies children with disabilities a FAPE. And denying a 
FAPE falls within the core of the IDEA—which requires exhaustion of 
administrative remedies. Moreover, Plaintiffs cannot revive their flawed 
theory with Perez, as that case’s narrow holding found no exhaustion 
requirement under the IDEA for its plaintiffs to seek compensatory 
damages. Perez, 143 S. Ct. at 864. Perez reasoned that as compensatory 
damages are unavailable under the IDEA, exhaustion would be futile. Id. 
Plaintiffs did not pursue compensatory damages here. Indeed, the only 
live relief they seek is declaratory judgment—with the goal of that 
declaration resulting in children’s access to their schools.  
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A. The gravamen of Arc’s claim is the failure to provide free 
and appropriate education.  
When plaintiffs claim denial of a FAPE, they must exhaust any 
available remedies within the state administrative system before suing 
in federal court. 20 U.S.C. § 1415(l). Plaintiffs cannot evade the IDEA’s 
exhaustion 
requirement 
by 
suing 
under 
a 
different 
statute. 
Fry v. Napoleon Cmty. Schs., 580 U.S. 154, 168 (2017). That is because 
Congress intended IDEA-type claims to be handled by state 
administrative experts with relevant experience. Id. To determine 
whether a complaint alleges FAPE denial, courts look to the “substance” 
of the complaint, “setting aside any attempts at artful pleading.” 
Id. at 169.   
Courts use two hypotheticals to determine whether plaintiffs are 
trying to artfully plead around IDEA exhaustion. First, courts look at 
whether plaintiffs could bring essentially the same claim if the conduct 
occurred at a public facility other than a school. Id. at 171. Second, courts 
look at whether an adult have brought the claim. Id. If a court finds that 
the answer to either hypothetical is yes, then the complaint does not 
allege a FAPE denial. Id. If the answer to both questions is no, then it 
does. Id.  
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Plaintiffs argue that they satisfy both hypotheticals. First, 
Plaintiffs contend that it could bring similar claims as easily against a 
library as against a school if the Legislature passed a law preventing 
libraries from mandating masking. Appellees’ Br. 23. Second, Plaintiffs 
contend that an adult, for example a teacher, could bring a similar claim 
because the ban on mask mandates places the teacher at a higher risk of 
contracting COVID-19. Appellees’ Br. 24.  
Despite contentions to the contrary, Plaintiffs satisfy neither Fry 
hypothetical. In their attempt, they frame their contentions at a high 
level of generality. But this Court rejected that approach in Nelson v. 
Charles City Community School District. 900 F.3d 587, 592 (8th Cir. 
2018). There, the plaintiffs tried to avoid the IDEA’s exhaustion 
requirement by asserting that they had sued “for the ‘broken promise of 
non-discriminatory access’” to services, not a FAPE denial. Nelson, 900 
F.3d at 592. This Court rejected that argument because “Fry did not 
contemplate such a high level of generality.” Id. Instead, the Court held 
that Nelsons’ claims alleged a FAPE denial because the allegations 
specifically focused on the mishandling of a school application, not a 
general denial of “non-discriminatory access.” Id.  
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Similarly, the Fifth Circuit held in E.T. v. Paxton that claims must 
be framed with specificity. 19 F.4th 760, 767 (5th Cir. 2021) (“E.T. I”). 
There, plaintiffs also claimed denial of equal access. Id. But the court 
rejected that framing, for “at base [plaintiffs] allege[d] something very 
particular: the deprivation of an in-person state-sponsored education of 
their risk of contracting COVID-19 without a mask mandate.” Id. Put 
that way, the claim related to a FAPE denial. Id. And there is no reason 
to distinguish from E.T. I here. 
Indeed, like in E.T. I, Plaintiffs deny that their injury is educational 
and instead contend that the gravamen of their claim is the denial of 
equal access. Appellees’ Br. 22, 24. Yet a peek at Plaintiffs’ standing 
argument tells a different story. Plaintiffs assert they have standing 
because of the “injury to [the] children’s educational interests and 
opportunities.” Br. 27–28 (quoting Liddell v. Special Admin. Bd. of the 
Transitional Sch. Dist., 894 F.3d 959, 965 (8th Cir. 2018)). That is 
buttressed by Plaintiffs’ Complaint, which alleges that the harm the 
children face is the loss of educational opportunities. See, e.g., App. 31 
¶ 59; R. Doc. 1, at 20 (“Iowa state officials have effectively excluded these 
students from participating in the public education system”); id. ¶ 57 
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(explaining that “virtual learning, even if available, is not a viable or 
adequate substitute for in person learning); App. 30 ¶ 54; R. Doc. 1, at 19 
(“Children with disabilities are entitled to learn and interact with all 
other children, to receive the same education as all other children.”); App. 
13 ¶ 1; R. Doc. 1, at 2 (alleging that schools cannot refuse masking and 
still provide “equal access to their education”); id. ¶ 2 (stating that 
students risk harm to their health or “their education and development”); 
App. 23–24 ¶¶ 38–40; R. Doc. 1, at 12–13 (alleging various educational 
harms to disabled students because of the pandemic). Thus, Plaintiffs’ 
Complaint and alleged injury point to harm to children’s “educational 
interests and opportunities.” Appellees’ Br. 27–28 (quoting Liddell, 894 
F.3d at 965). 
The Fry hypotheticals confirm that result—Plaintiffs claims could 
not be brought against another public facility nor by an adult. 
First, Plaintiffs could not bring this claim against another public 
facility. They argue that the ban on mask mandates, whether it be for 
schools or other public facilities, endangers children’s health and denies 
them safe access. Appellees’ Br. 23. But that is not the test. In Fry, the 
Supreme Court did not frame the test as whether a plaintiff could have 
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“safe” access to a public facility, but “equal” access. Fry, 580 U.S. at 171–
72. Plaintiffs’ version of the hypothetical works only by conflating 
impediments to physical access (which in the Fry hypothetical was a 
missing ramp) with the speculative risk of getting sick. But speculative 
risk of illness is not what the ADA and the Rehabilitation Act are 
designed to address; they are designed to allow every person “to 
participate equally” in public facilities. Id. at 170.   
Moreover, the “essential aspect” of Plaintiffs’ claim––loss of 
educational opportunity due to risk of getting COVID-19––could not be 
brought against another public facility, such as a library or theater. E.T. 
I, 19 F.4th at 767 (“The essential aspect of plaintiffs’ claims, access to in-
person learning [because of a ban on mask mandates], could not be levied 
against a ‘public facility that was not a school.’” (quoting Fry, 580 U.S. at 
171)).1   
 
1 Plaintiffs contend that E.T. I contradicts Fry. Appellees’ Br. 26. That is 
incorrect. In Fry, the plaintiff stipulated that her education was 
adequate. Fry, 580 U.S. at 175. In E.T. I, the gravamen of the claim was 
that the children were denied an adequate education because they could 
not access in-person schooling. E.T. I, 19 F.4th at 767. As to the 
contention that E.T. I is nonbinding, it is a published decision that 
remains equal in persuasive authority regardless here. 
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As to the second Fry hypothetical, no adult could bring a similar 
claim. Plaintiffs argue that a teacher vulnerable to COVID-19 and who 
needed those around them to mask could bring the same claim for denial 
of “safe and equal access.” Appellees’ Br. 24. To make their argument, 
Plaintiffs subtly change the standard from denial of “equal access” to 
denial of “safe and equal access.” Id. It cites no authority for that 
modification and Fry itself only speaks of “equal access.” See Fry, 580 
U.S. at 172.  
Nor does a teacher face the same injury alleged here: loss of 
educational opportunities due to a possible increased risk of COVID-19. 
See E.T. I, 19 F.4th at 767 (“[A] non-student adult at the school could 
obviously not press the same grievance because he or she would not be at 
the school to access in-person learning.”). Id. Even if a teacher brought a 
claim for failure to impose a mask mandate, that claim would not be 
seeking the teacher’s equal access to education. Plaintiffs’ contention that 
a similar claim would be “based on the denial of safe and equal access to 
the public school” is unavailing. Appellees’ Br. 24.  
Finally, Plaintiffs rely on inapposite cases to distinguish Fry, 
particularly with a misplaced focus on physical exclusion from school. 
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First, both Seaman v. Virginia and Doe 1 v. Perkiomen Valley School 
District conflated risk of getting COVID-19 with denial of equal access. 
Seamen v. Virginia, 593 F. Supp. 3d 293, 318–19 (W.D. Va. 2022); Doe 1 
v. Perkiomen Valley Sch. Dist., 585 F. Supp. 3d 668, 683 (E.D. Penn. 
2022). Both district courts explained that plaintiffs could have brought 
essentially the same claims against other public facilities or as adults 
because the lack of masking increased the risk of getting COVID-19. 
Seamen, 593 F. Supp. 3d at 319; Doe 1, 585 F. Supp. 3d at 683.  
But the increased risk of getting COVID-19—without any analysis 
about the potential injury—is more attenuated than Fry’s contemplated 
direct exclusion. Fry’s service dog or missing wheelchair ramps directly 
deny disabled children equal access because they would struggle to 
physically enter the building. See Fry, 580 U.S. at 171–72. Doe 1 and 
Seamen, by contrast, hypothesized that if an individual might get 
COVID-19, then that denies a child equal access as much as a missing 
ramp. Seamen, 593 F. Supp. 3d at 319; Doe 1, 585 F. Supp. 3d at 683. Yet 
that risk too attenuated. E.T. I, 19 F.4th at 767. Not every child attending 
school without a mask mandate will get COVID-19, and it is unclear the 
degree to which masking in schools will lower that risk. 
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Doe ex rel. K.M. illustrates this. There, a child was forced to leave 
her classes because her hearing disability made it impossible for her to 
stay in the same room when other people were eating. Doe ex rel. K.M. v. 
Knox Cnty. Bd. of Educ., 56 F.4th 1076, 1078 (6th Cir. 2023) (describing 
how common noises “force Doe to escape from areas in which she hears 
them”). That case dealt solely with noninstructional changes that would 
prohibit classmates from eating in class. Id. at 1085–86. It did not affect 
teachers or their “‘content methodology or delivery of’ the teaching.” By 
contrast, neither Seamen nor Doe 1 explained how the possibility that 
someone might get COVID-19 rises to the level of forcing a child to 
physically leave the classroom because of her disability. See Arc of Iowa 
v. Reynolds, 24 F.4th 1162, 1183 (8th Cir. 2022) (Erickson, J., dissenting) 
(explaining that “face masks are [not] the equivalent of wheelchair 
ramps”), reh’g granted and opinion vacated, 21-3268, 2022 WL 898781 
(8th Cir. Mar. 28, 2022), and vacated, 33 F.4th 1042 (8th Cir. 2022) 
In sum, Plaintiffs fail to satisfy either Fry hypothetical and must 
satisfy both to succeed. The gravamen of their alleged harm is loss of 
educational opportunity. A student could not bring this claim against 
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another public facility, nor could an adult bring this claim against a 
school. Thus, Plaintiffs’ claims are subject to the IDEA.  
B. Plaintiffs failed to exhaust their administrative remedies 
under IDEA.  
Plaintiffs next contend that even if it alleged a FAPE denial, that 
they did not have to exhaust administrative remedies because the IDEA 
cannot provide the relief they seek. Appellees’ Br. 17. First, Plaintiffs 
contend that the IDEA cannot provide the substance of the relief sought 
because it cannot provide a favorable interpretation and implementation 
of section 280.31. Appellees’ Br. 18. Second, Arc argues that IDEA cannot 
provide the scope of relief because it is individualized, not state-wide. 
Appellees’ Br. 19–20. Finally, it argues that the Supreme Court’s decision 
in Perez v. Sturgis School District precludes our exhaustion argument. 
Appellees’ Br. 26–27. Each argument fails.  
First, the IDEA provides substantive relief. Plaintiffs seeking a 
FAPE under the IDEA are not necessarily entitled to the precise relief 
they seek so long as the available relief allows a student access to a 
FAPE. Indeed, available relief, under Section 1415, is “not necessarily 
relief of the kind the person prefers or specifically seeks.” Carroll v. 
Lawton Ind. Sch. Dist. No. 8, 805 F.3d 1222 (10th Cir. 2015); see also Fry, 
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580 U.S. at 166 (“[R]elief is [a] redress or benefit . . . . And such relief is 
available . . . when it is accessible or may be obtained.” (internal 
quotation marks omitted)).  
Here, the relief Plaintiffs seek is for children to access schools when 
a mask mandate would be needed to provide the students a FAPE. 
Appellees’ Br. 19, 43–44. Although Plaintiffs on this third appeal insist 
that they seek only declaratory judgment, that conflates means (the 
declaratory judgment) with ends (schools imposing mask mandates if 
they so choose). Nothing in section 280.31 precludes imposition of a mask 
mandate if that is the only way for a school to comply with federal law. 
The ultimate relief sought—a mask mandate—is available under 
the IDEA. Section 280.31 allows schools to require masks if it “is required 
by . . .  any other provision of law.” Iowa Code § 280.31 (emphasis added). 
And Iowa’s IDEA system is designed to provide individualized 
accommodations to children with disabilities, including masking, if 
needed. See Iowa Admin. Code R. 281-41-507(1)(a) (parents may file a 
complaint about the provision of FAPE to a child); id. 281-41-508(2)(f) 
(parents must provide a proposed solution to the problem involving the 
disabled child, which could include masking); id. 281-41.506(2)(g) (the 
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results of IDEA mediation proceedings are binding on both state and 
federal courts); id. 281-41-510 (results of resolution are legally binding).  
Thus, contrary to Plaintiffs’ argument that section 280.31 needs to 
be “clarified” to permit masking, Appellees’ Br. 18–19, masking is already 
permitted. Iowa Code § 280.31. So if a parent believes that their child 
needs others to mask because of risks associated with the child’s 
disabilities, they can file a complaint proposing to change or may seek a 
FAPE for their child. See Iowa Admin. Code. Rs. 281-41-503(1)(a), 
507(1)(a), 508(2)(f). The administrative process can then either create or 
modify the child’s Individualized Education Plan (“IEP”) to require 
masking so that the child can receive a FAPE. See 20 U.S.C. § 1414(d); 
Iowa Admin. Code Rs. 281-41.22, .324. If a mask mandate is required by 
federal or other State law, then section 280.31 allows it. Iowa 
Code § 280.31. So the substance of the relief Plaintiffs seeks is available 
through administrative remedies and they must exhaust those first.2  
 
2 Plaintiffs argue that we contradict ourselves in arguing that section 
280.31 can accommodate masking while arguing that masking is not a 
reasonable accommodation under the ADA or Rehabilitation Act. 
Appellees’ Br. 20–21. But those are two different things. Masks are not 
appropriate under the ADA or Rehabilitation Act because they are not a 
reasonable accommodation. Yet that has no bearing on what IEPs schools 
 
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Second, the IDEA provides the necessary scope of relief. Plaintiffs 
insist that the IDEA cannot provide the blanket declaratory relief 
covering the entire state––rather than individualized accommodations–
that it wants. Appellees’ Br. 19–20. But Plaintiffs cite no authority 
suggesting that expanding the scope of desired relief from an individual 
child to every child with disabilities in the state allows it to evade Section 
section 1415(l)’s exhaustion requirement.  
By that reasoning, the plaintiffs in Nelson and J.M. could have 
avoided the IDEA’s exhaustion requirement by asking for state-wide 
relief rather than individualized relief. Nelson, 900 F.3d at 592 (holding 
that plaintiff’s claim for individualized relief was subject to IDEA 
exhaustion); J.M. v. Francis Howell Sch. Dist., 850 F.3d 944, 948–49 (8th 
Cir. 2017) (similar).  
Plaintiffs assert that Nelson and J.M. are distinguishable because 
they involved individual, rather than multiple, plaintiffs. Appellees’ Br. 
20 n.4. But they does not explain why that is a meaningful distinction. 
Nor does it cite any authority that says having multiple plaintiffs 
 
may choose to craft. And that is the point: the IDEA provides far more 
flexibility for addressing Plaintiffs’ alleged harm in schools than the ADA 
because it provides individualized relief for each child. 
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matters. Plaintiffs simply assert such a distinction exists. Nor do 
Plaintiffs address how lumping multiple claims together defeats the 
IDEA’s system of providing individualized relief for children with 
disabilities. Fry, 580 U.S. at 158.  
Thus, rather than the Legislature’s carefully created system that 
tailors relief to the child, Plaintiffs want a one-size-fits-all solution for 
the entire state. Appellees’ Br. 19–21. But nothing in section 1415’s text 
or this Court’s precedent supports creating a loophole for artful plaintiffs 
to evade section 1415(l)’s exhaustion requirement by bundling their 
claims and requesting sweeping, state-wide relief. And they lack 
consideration for students that 
Finally, Perez v. Sturgis Public Schools does not preclude the 
State’s exhaustion argument. Plaintiffs contend that Perez eliminates 
their exhaustion requirement because the relief it seeks is unavailable 
under the IDEA. Appellees’ Br. 27. That misreads Perez.  
Perez hinged on the narrow question of whether a plaintiff 
exclusively seeking compensatory damages had to exhaust his 
administrative remedies despite the unavailability of damages under the 
IDEA. Perez v. Sturgis Pub. Schs., 143 S. Ct. 859, 863 (2023). Perez 
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explained that because the plaintiff had received “all the forward-looking 
equitable relief he sought,” he did not have to exhaust his claims for 
backward-looking compensatory damages. Id. at 862–63. Forward-
looking claims for equitable relief, however, must still be exhausted. Id. 
at 865 (“[A] plaintiff who files an ADA action seeking both damages and 
the sort of equitable relief IDEA provides may find his request for 
equitable relief barred or deferred if he has yet to exhaust [Section] 
1415(f) and (g).”).  
And every Circuit to consider the issue since Perez agree that claims 
for equitable relief still face the IDEA’s exhaustion requirement. See 
Chavez ex rel. J.C. v Brownsville Ind. Sch. Dist., 2023 WL 3918987, at *2 
(5th Cir. June 9, 2023) (per curiam) (claims for equitable relief under the 
ADA were subject to IDEA exhaustion in light of Perez); I.K. ex rel. 
Christopher K. v. Manheim Twp. Sch. Dist., 2023 WL 3477830, at *4 n.10 
(3rd Cir. May 15, 2023) (plaintiffs had to exhaust equitable relief claim 
for compensatory education); Li v. Revere Loc. Sch. Dist., 2023 WL 
3302062, at *13 (6th Cir. May 8, 2023) (“It is unclear from the . . . 
complaint whether [plaintiffs] seek compensatory damages, a form of 
relief not available under IDEA . . . or some other form of relief like . . . 
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equitable relief . . . available under the IDEA, and therefore subject to its 
exhaustion requirement.”); Farley v. Fairfax Cnty. Sch. Bd., 2023 WL 
3092979, at *1–2 (4th Cir. Apr. 26, 2023) (plaintiffs who brought ADA 
claims for equitable relief and compensatory damages claim did not have 
to exhaust the compensatory damages claim).  
Because 
Plaintiffs 
ultimate 
relief 
is 
equitable—whether 
characterized as a mask mandate in the form of an injunction or even 
declaratory relief—they had to exhaust. The State does not contest Perez 
as binding law but believes that its narrow holding is inapplicable to the 
relief Plaintiffs seek. And the State asks this Court to follow its sister 
circuits in deciding that Perez’s applicability is bound to whether a 
plaintiff seeks compensatory damages. The district court incorrectly held 
exhaustion is not required and should be reversed.  
II. 
Plaintiffs lack standing as their suit is neither traceable to 
the State defendants nor redressable by federal courts.  
Plaintiffs argue that they have standing to bring this suit. They 
first argue that the children’s harm is traceable to Defendants Governor 
Reynolds and Director Lebo because they enforce section 280.31. 
Appellees’ Br. 29. Second, Plaintiffs contend that their alleged injury in 
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fact is redressable because the Defendants influence what schools can do. 
Appellees’ Br. 30–32. Finally, Plaintiffs contend that there is a live 
controversy. Appellees’ Br. 34–35. Each of Plaintiffs’ contentions fails and 
so this Court should find that they lack standing to file this lawsuit. 
A. Plaintiffs’ alleged injury is not traceable to Defendants. 
Plaintiffs argue that its alleged injury is traceable to section 280.31, 
and 
by 
extension, 
Defendants’ 
enforcement 
of 
the 
statute. 
Appellees’ Br. 28. Plaintiffs argue that without section 280.31, schools 
could impose mask mandates and students would be protected from 
COVID-19. Id. Because schools cannot impose a mask mandate unless 
required by law, Plaintiffs argue that the children’s risk of getting 
COVID-19 are traceable to section 280.31, and its enforcers, Defendants. 
Appellees’ Br. 28. That is incorrect.  
To begin, Plaintiffs ignore the high standard it must meet when 
asserting that its injuries stem from a regulated third party, here, the 
schools. Article III requires that there be a “causal connection between 
the injury and the conduct complained of––the injury has to be fairly 
traceable to the challenged action of the defendant, and not the result of 
the independent action of some third party not before the court.” Lujan 
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v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). When plaintiffs challenge a 
government regulating someone other than themselves, it is “ordinarily 
substantially more difficult” to establish causality. Id. at 562. That is 
because causation hinges on the third party’s response rather than the 
suit’s defendants. Id. And it is Plaintiffs’ burden to show that the 
regulated third party’s choices “have been or will be made in such a 
manner as to produce causation.” Id. at 561–62.  
Here, Plaintiffs fail to meet that high threshold because their 
allegations cannot show traceability. First, Plaintiffs fails to trace the 
requisite link between the alleged harm, the risk of getting COVID-19, 
and section 280.31.3 See Lujan, 504 U.S. at 560. Plaintiffs assert that but 
for section 280.31 (1) schools could require masks and (2) students would 
be protected from COVID-19. Appellees’ Br. 28. Neither causal chain is 
correct. Section 280.31 allows schools to require mask mandates if 
required by another law. Iowa Code § 280.31. Along similar lines, 
Plaintiffs insinuate that students cannot be protected without mask 
 
3 The analysis here squarely takes on the strongest form of Plaintiffs’ 
argument—that section 280.31 impedes imposition of a mask mandate. 
As interpreted by the declaratory judgment issued by the District Court, 
and defended by Plaintiffs on appeal, it is even less clear what harm 
Plaintiffs allege. 
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mandates. See Appellees’ Br. 28. That is also wrong. Students and 
teachers can voluntarily wear masks, social distance, use hand sanitizer, 
and get vaccinated to mitigate risks of COVID-19. E.T. v. Paxton (“E.T. 
II”), 41 F.4th 709, 717–18 (5th Cir. 2022) (“[S]chools . . . have numerous 
alternatives for mitigating the risks of COVID-19 . . . . [And] [p]laintiffs 
have not even attempted to show that one or any combination of these 
accommodations is insufficient to mitigate the risks of COVID-19.”). 
More importantly, even if section 280.31 is why a school declines to 
impose a mask mandates, Plaintiffs fail to show that section 280.31 
caused a sufficient increased risk of COVID-19 to constitute an injury. 
Cf. E.T. II, 41 F.4th at 719–21 (holding that plaintiffs failed to show that 
risk of getting COVID-19 resulted from a prohibition on mask mandates). 
Indeed, it is not clear that such an increased risk is cognizable as an 
injury. Id.  
Plaintiffs thus fail to “identify any increased risk of contracting 
[COVID-19] from the prohibition on mask mandates, and any increased 
risk of suffering complications from a hypothetical [Covid] infection is 
even more attenuated.” Id. at 719–20. That is because the risks “could be 
attributed to any number of variables that have nothing to do with mask 
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mandates,” such as the number of vaccinated children, class sizes, or 
even actual compliance with mask mandates. Id. at 720; see also Clapper 
v. Amnesty Int’l USA, 568 U.S. 398, 414, 417 nn.5 & 7 (2013) (holding 
that plaintiffs bear the burden of pleading concrete facts and cannot rely 
on speculation or conjecture about choices made by independent actors 
based on subjective fears).  
Absent concrete evidence, Plaintiffs’ conjectures about what risks 
may arise because of Defendants’ actions “warrant[] no weight.” E.T. II, 
41 F.4th at 720. Thus, Plaintiffs failed to establish traceability, a 
necessary component of standing, and their case should be dismissed.  
B. No federal court could redress Arc’s alleged injury.  
First, and like with traceability, plaintiffs have a higher burden of 
showing redressability when it hinges on a third party’s conduct. Lujan, 
504 U.S. at 562. Plaintiffs must show that a regulated party “will likely 
react in predicable ways.” California v. Texas, 141 S. Ct. 2104, 2117 
(2021). And plaintiffs cannot rely on speculation or conjecture about third 
party choices. Clapper, 568 U.S. at 414 n.5.  
Plaintiffs argue they establish redressability but each of their 
arguments fail. First, Plaintiffs contend that “several” schools may 
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implement mask mandates if section 280.31 is reinterpreted. Appellees’ 
Br. 30–32. Second, Plaintiffs contend that the declaratory judgment will 
likely lead to schools reimposing mask mandates. Appellees’ Br. 30. And 
finally, Plaintiffs contend that even if the declaratory judgment is only a 
partial remedy, that a partial remedy redresses their harms. Appellees’ 
Br. 33. All three contentions fail.  
First, Lujan imposes a higher standard than accepting speculation 
that “several” specified schools may implement mask mandates in 
response to the declaratory judgment. See Lujan, 504 U.S. at 562 
(“When . . . a plaintiff’s asserted injury arises from the government’s 
allegedly unlawful regulation . . . of someone else, much more is 
needed.”). Arc does not meet the “substantially more difficult” standard 
in Lujan. Id.  
Like the plaintiffs in E.T. II, it is speculative that “some” schools 
will return to masking policies if the Court redefines section 280.31 via 
declaratory judgment. See E.T. II, 41 F.4th at 721. Stating that schools 
“may” reimpose mask mandates is not enough; it must be likely and 
predictable that schools will react by imposing mask mandates. 
California, 141 S. Ct. at 2117. Plaintiffs contend that because schools 
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once had mask mandates that they will have them again, but that does 
not surmount the “substantially more difficult” standard for alleging 
injury from a third-party. See Lujan, 504 U.S. at 562; E.T. II, 41 F.4th at 
721 (“[E]ven if we affirmed the district court’s permanent injunction 
against the Attorney General, the school districts could drop (and as 
noted above, have dropped) their mask mandates anyway. That would 
expose plaintiffs to the exact same risks they otherwise impute to [the 
mask ban], and no amount of equitable relief against the Attorney 
General will redress anything.”). The Court may also take judicial notice 
of the very different circumstances of mask mandates in 2023, after both 
the federal and State governments ended their COVID-19 emergencies 
from when this suit was first filed. 
Plaintiffs, attempt to cast their redressability in terms of “clear[ing] 
the way” for their desired relief. Appellees’ Br. 32–33; see E.T. II, 41 F.4th 
at 721. And like in E.T. II, Plaintiffs contend that even if the declaratory 
judgment does not directly redress their alleged injury, it provides a 
partial remedy. Appellees’ Br. 32–33. “But that is not how redressability 
works.” E.T. II, 41 F.4th at 721. Even if an order may “clear the way” for 
another party to vindicate Plaintiffs’ rights, that does not make these 
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Defendants proper. See id. Nor is it sufficient to argue that this is 
justified as a partial remedy, given that “[e]ven with . . . [a] robust 
injunction against the Attorney General, all seven . . . schools could––and 
in fact did––eliminate their mask mandates. Thus the injunction is not a 
partial remedy of their alleged injuries; it’s no remedy at all.” Id.  
And Plaintiffs gloss over how “narrowing” section 280.31’s scope 
decreases the risk of getting COVID-19. Again, section 280.31 does not 
prevent all masking. Students may voluntarily mask, may seek an IEP, 
or may seek a modification to their IEP if they believe there is an 
individualized justification for some amount of masking. Indeed, section 
280.31 does not prevent “other particular remed[ies]” Plaintiffs tacitly 
concede could be adopted “to address the disabilities of Plaintiffs’ 
children.” Appellees’ Br. 33. This Court should let schools and the experts 
determine what each student needs, as provided for by State and federal 
law. 
As the Fifth Circuit warned in E.T. II, Plaintiffs’ theory of standing 
“is equal parts sweeping and unprecedented.” E.T. II, 41 F.4th at 722. 
Plaintiffs’ theory of standing encompasses any public facility subject to 
the ADA: “[r]estaurants, movie theaters, libraries, hotels, grocery stores, 
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you name it.” Id. at 721–22. And if masking is a reasonable 
accommodation required by the ADA, Appellees’ Br. 43–44, then future 
plaintiffs could sue all those institutions demanding that they require 
masks. In effect, future plaintiffs could use “federal courts to enforce 
mobile mask mandates that go where plaintiffs go and require everyone 
around them to wear masks.” Id. at 722.  
This Court should reject such a sweeping theory of standing and 
hold that Plaintiffs lack standing as their claims are neither traceable 
nor redressable.  
C. There is no live controversy because section 280.31 does 
not preclude Plaintiffs’ sought relief. 
Plaintiffs argue that there is a live controversy because (1) the 
declaratory judgment is still being litigated and (2) because physicians 
“opined that [students and teachers] should still mask.” Appellees’ Br. 
34–35. Neither is a basis for a live controversy.  
To warrant declaratory judgment, there must be a “substantial 
controversy” between parties with “adverse legal interests” that is of 
“sufficient immediacy and reality.” Ringo v. Lombardi, 677 F.3d 793, 796 
(8th Cir. 2012). No such controversy is present. To manufacture one, 
Plaintiffs misread section 280.31. They point to testimony that students 
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and teachers should still mask and that schools were uncertain if they 
could require them to do so as evidence that there is a “substantial 
controversy” between Parties. Appellees’ Br. 34–35.  
On closer inspection, however, there is no controversy between 
Parties. First, if students and teachers wish to mask, section 280.31 does 
not prevent them from doing so. Iowa Code § 280.31. Students and 
teachers may mask voluntarily, and concerned parents are also free to 
ask them to do so. See, e.g., App. 122 ¶ 9; R. Doc. 3-12; App. 119 ¶ 18; R. 
Doc. 3-11, at 3; App. 99 ¶ 10; R. Doc. 3-5, at 2; App. 114–15 ¶ 10; R. Doc. 
3-10, at 2–3. Second, the alleged uncertainty is not justified given the 
statute’s plain text. Section 280.31 forbids mask mandates unless 
masking is required by other law. Iowa Code § 280.31. And if there is a 
dispute over whether another law requires a given mask mandate, that 
could, eventually, present a ripe lawsuit.  
The reliance on opinions that some students and teachers should 
still mask is similarly unavailing. See Appellee’s Br. 34–35. As explained 
above, any student or teacher may choose to mask. And to the extent they 
want an individualized remedy seeking some subset of other students to 
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mask—whether that be other students in a classroom or even a school-
wide mandate—the proper mechanism to seek that relief is via IEP. 
Thus, there is no “substantial controversy” as section 280.31 does 
not prevent masking in schools nor does it prevent schools from requiring 
masking if required by other law. And without a substantial controversy, 
the district court did not have jurisdiction to issue declaratory relief. See 
Ringo, 677 F.3d at 796.  
III. Section 280.31 does not have a discriminatory effect nor are 
Plaintiffs’ proposed modifications reasonable. 
Plaintiffs argue that declaratory judgment was appropriate under 
the ADA and Section 504. Appellees’ Br. 38. Their first contention is that 
because the ADA and Section 504 reach policies with discriminatory 
effects even if those policies do not discriminate on their face that they 
apply. Appellees’ Br. 38–42. And second, that masking is a reasonable 
modification under federal law. Appellees’ Br. 43–47. Neither is correct.  
A. Plaintiffs do not allege that section 280.31 has any 
discriminatory effects. 
Plaintiffs cannot contend that section 280.31’s text shows 
discriminatory intent, so they are left to argue that courts look beyond 
the face of a statute to whether it has discriminatory effects in violation 
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of the ADA. Appellees’ Br. 38. True enough. DeBord v. Bd. of Educ., 126 
F.3d 1102, 1105 (8th Cir. 1997). Plaintiffs’ problem is they fail to identify 
section 280.31’s discriminatory effect—regardless of whether that 
discriminatory effect is implicit. Instead, Plaintiffs incorrectly assert that 
Defendants contend that courts are blind to discriminatory effects. 
Appellees’ Br. 33–36, 39–40.  
At no point do Plaintiffs explain how section 280.31 has a 
discriminatory effect on children with disabilities. Nor could they. 
Section 280.31 enacts a neutral and nondiscriminatory policy that 
schools cannot require masks unless otherwise required by law. Iowa 
Code § 280.31. It applies to children, teachers, and adults alike, 
regardless of disability status. And any student can request an IEP that 
to ensure their access to a FAPE. If that requires masking, then section 
280.31 is not an impediment. Thus, section 280.31 is valid because it does 
not have a discriminatory effect.    
B. A mask mandate is not a reasonable modification. 
Plaintiffs next contend that a mask mandate could be a reasonable 
modification under the ADA. Appellees’ Br. 43. Their declaratory 
judgment, they assert, enables schools to consider whether a masking 
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requirement would be a reasonable modification and to adjust 
accordingly. Appellees’ Br. 44.  
Yet Plaintiffs never says that masking is a reasonable modification, 
only that it might be and that it is up to the schools to decide. Id. In doing 
so, Plaintiffs create for themselves a logic problem. This Court has held 
that “failure to make a reasonable modification . . . is itself 
discrimination even where the policy and its rationale cannot be shown 
to be discriminatory.” Davis v. Francis Howell Sch. Dist., 138 F.3d 754, 
757 (8th Cir. 1998). So if a mask mandate is a needed reasonable 
accommodation, 
denial 
of 
that 
mandate 
necessarily 
entails 
discrimination. Under that logic, schools should have to impose mask 
mandates. But Plaintiffs have not even established that failure to impose 
a mask mandate is discriminatory, much less that schools must use 
Plaintiffs’ preferred accommodation rather than any effective one. See, 
e.g., Huber v. Wal-Mart Stores, Inc., 486 F.3d 480, 484 (8th Cir. 2007) 
(holding that employees are not entitled to ideal accommodations, only 
effective ones); US Airways v. Barnett, 535 U.S. 391, 399 (2002) (similar); 
Wooten v. Farmland Food, 58 F.3d 382, 386 (8th Cir. 1995) (holding that 
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an accommodation that infringes on third parties’ rights is not 
reasonable).  
Finally, Plaintiffs do not explain why masking is the only 
reasonable modification when the Legislature allows schools to take any 
number of equally effective steps to ensure that children with disabilities 
are safe. E.T. I, 19 F.4th at 767–68 (holding that plaintiffs demanding a 
mask mandate “are not entitled to their preferred accommodation but 
only a reasonable one”). 
Plaintiffs has failed to establish that section 280.31 is 
discriminatory in effect. It has also failed to establish that allowing 
schools to require mask mandates is the only reasonable and effective 
accommodation the State can provide. 
CONCLUSION 
 
For the above reasons, this Court should reject that attempt and 
reverse the district court.  
 
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CERTIFICATE OF COMPLIANCE 
This brief complies with the type-volume requirements limitation 
of Federal Rule of Appellate Procedure 32(a)(7)(B) because this brief 
contains 6273 words, excluding the parts of the brief exempted by Federal 
Rule of Appellate Procedure 32(f). 
This brief complies with the type-face requirements of Federal Rule 
of Appellate Procedure 32(a)(5) and the type style requirements of 
Federal Rule of Appellate Procedure 32(a)(6) because this brief has been 
prepared in a proportionally spaced typeface using Microsoft Word in 14-
point, Century Schoolbook font. 
 
This brief has been scanned for viruses and is virus free. 
 
 
 
 
 
 
/s/ Eric H. Wessan 
 
 
 
Eric H. Wessan 
Solicitor General 
 
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CERTIFICATE OF SERVICE 
 
The undersigned hereby certifies that on this date, I electronically 
filed the foregoing paper with the Clerk of Court for the United States 
Court of Appeals for the Eighth Circuit by using the CM/ECF system. All 
participants in this case are registered CM/ECF users and will be served 
by the CM/ECF system. 
 
DATE:  June 26, 2023 
  /s/ Eric H. Wessan 
 
 
Eric H. Wessan 
Solicitor General 
 
Appellate Case: 22-3338     Page: 38      Date Filed: 06/26/2023 Entry ID: 5289931

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