Reynolds and Ann Lebo’s Brief

Summary

Defendants Governor Kim Reynolds and Ann Lebo's brief in support of a motion to dismiss in The Arc of Iowa et al. v. Kim Reynolds, Case No. 4:21-CV-00264-RP-SBJ, in the United States District Court for the Southern District of Iowa, Central Division. The brief discusses Iowa Code section 280.31, which it quotes as barring school boards and officials from adopting policies that require facial coverings, and says plaintiffs sued under title II of the Americans with Disabilities Act, section 504 of the Rehabilitation Act and the American Rescue Plan Act of 2021. It argues that plaintiffs lack standing, that their claims are moot, that they failed to exhaust administrative remedies under the IDEA, and that neither federal disability law nor ARPA requires universal mask mandates.

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Date: 2021-05-20

Cite this document

“Reynolds and Ann Lebo’s Brief.” Original at archive.org, dated 2021-05-20. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2021-05-20-plaintiffs-v-kim-reynolds-in-her-official/, SHA-256 d0e3644e584ce0972cd3d355b7229bf269c4347dc6c5171ef9feb791e26d6911.

Full text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
CENTRAL DIVISION

THE ARC OF IOWA et al., Case No. 4:21-CV-00264-RP-SBJ

Plaintiffs,

v. Defendants Governor Kim
Reynolds and Ann Lebo’s Brief
KIM REYNOLDS, in her official in Support of Motion to Dismiss
capacity as Governor of Iowa, et al.

Defendants.

TABLE OF CONTENTS
INTRODUCTION .......................................................................................................... 2
STANDARD FOR MOTION TO DISMISS ................................................................... 4
ARGUMENT .................................................................................................................. 5
I. Plaintiffs lack standing to challenge Iowa Code section 280.31 because the
statute doesn’t injure them and their requested relief wouldn’t redress
their alleged harms. ........................................................................................... 5
A. Plaintiffs are not injured by section 280.31 because it permits
schools to mandate facial coverings when required by federal law. .... 6
B. Enjoining enforcement of section 280.31 does not redress Plaintiff’s
alleged harms because it doesn’t require their children’s schools to
impose universal mask mandates. ........................................................ 8
II. Plaintiffs’ claims are moot because of changed circumstances since
September 2021 resulting in a lower risk of contracting COVID-19 at
school and a lower risk of serious injury or death from the disease. ............. 11
III. Plaintiffs failed to exhaust their administrative remedies under the IDEA
as required before suing under federal disability law.................................... 12
IV. Federal disability law doesn’t require schools to impose—or to have the
discretion to impose—universal mask mandates. .......................................... 17
A. Section 280.31’s prohibition on school districts imposing universal
mask mandates is a neutral and nondiscriminatory policy that does
not violate federal disability law. ........................................................ 17
B. A universal mask mandate in schools is not a reasonable
modification and other reasonable modifications exist. ..................... 19
C. A contrary interpretation of federal disability law would raise
constitutional concerns. ....................................................................... 23
V. ARPA doesn’t require schools to impose—or have the discretion to
impose—universal mask mandates. ............................................................... 24
CONCLUSION............................................................................................................. 29

INTRODUCTION

Over a year ago, the Legislature passed, and Governor Reynolds signed,

legislation enacting section 280.31 of the Iowa Code into law. See Act of May 20, 2021

(H.F. 847), ch. 139, 2021 Iowa Act § 28 (codified at Iowa Code § 280.31 (2022))

available at https://perma.cc/XM6Q-A3HX. That statute became effective

immediately, see id. § 31, and provides:

The board of directors of a school district, the superintendent or chief
administering officer of a school or school district, and the authorities 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.
Iowa Code § 280.31.
Plaintiffs sued Governor Reynolds, Iowa Department of Education Director

Ann Lebo, and ten school districts, alleging that section 280.31 violates title II of the

Americans with Disabilities Act (“ADA”), section 504 of the Rehabilitation Act, and

the American Rescue Plan Act of 2021 (“ARPA”) because it prevents their schools

from implementing universal mask mandates to protect their children. Compl., Doc.

1 ¶ 76–102. And this Court granted their requested temporary restraining order and

preliminary injunction enjoining all Defendants “from enforcing Iowa Code section

280.31 banning local public school districts from utilizing their discretion to mandate

—2—
masks for students, staff, teachers, and visitors.” TRO Order, Doc. 32, at 29; see also

Prelim. Inj. Order, Doc. 60, at 27; Compl., Doc. 1, at 37 ¶ 4.

After an expedited appeal of the injunction and a successful rehearing petition,

the Eighth Circuit vacated the preliminary injunction as moot because it found that

the circumstances of the pandemic had changed. See Arc of Iowa v. Reynolds, 33 F.4th

1042, 1044–45 (8th Cir. 2022). Indeed, despite the statute being enjoined, by the time

of the Eighth Circuit decision, none of Plaintiffs’ school districts had universal mask

mandates in place. See Samantha Hernandez, Des Moines Public Schools Drops Mask

Mandate Following Federal Changes, D.M. Register (Mar. 3, 2022), available at

https://perma.cc/7AE8-C2YK (noting Des Moines Public Schools was the last school

to drop its mandate).

Proceedings in this Court were stayed while that appeal was pending. But now

that the stay has been lifted, it’s time for this suit to end. All Plaintiffs’ claims fail as

a matter of law and should be dismissed under Rule 12(b)(1) and (6).

First, Plaintiffs lack standing for two reasons. They aren’t injured by section

280.31 because it doesn’t prevent schools from complying with federal law. And any

injury isn’t redressed by this suit because enjoining section 280.31’s enforcement

won’t provide them a universal mask mandate.

Second, their claims are moot. The Eighth Circuit held that their request for a

preliminary injunction was moot because of the changed circumstances of the

pandemic. See Arc of Iowa, 33 F.4th at 1044–45. That decision is now law of the case.

And since they seek the same relief permanently as an injunction or declaratory

judgment, the suit as a whole is also moot.

Third, Plaintiffs are barred from asserting their federal-disability-law claims

because they haven’t exhausted administrative remedies. And even looking past this

defect, the novel claims fail as a matter of law because section 280.31 is a neutral,

—3—
nondiscriminatory State policy set in statute and thus doesn’t violate federal

disability law. Universal mask mandates in schools are not a reasonable modification

to this policy because it would be an undue burden, fundamentally alter the nature

of the State’s education program, and infringe on the rights of others. What’s more, a

contrary interpretation would raise serious constitutional concerns.

Finally, Plaintiffs’ alternative claim based on ARPA also fails. Neither the text

of the ARPA statute nor the agency guidance requires schools to impose—or have the

discretion to impose—universal mask mandates. Interpreting either to impose such

a requirement would raise serious constitutional concerns. And regardless, ARPA

provides no private cause of action to enforce whatever requirements might be hidden

somewhere in it. This suit should be dismissed.1

STANDARD FOR MOTION TO DISMISS

A complaint that fails “to state a claim upon which relief can be granted” must

be dismissed. Fed. R. Civ. P. 12(b)(6). While a complaint need not contain “detailed

factual allegations,” in order to state a claim, it must provide more than “unadorned,

the-defendant-unlawfully-harmed-me accusation[s]”. Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)); see also

Fed. R. Civ. P. 8(a). Complaints which offer nothing more than “labels or conclusions”

or “formulaic recitation of the elements of a cause of action” are not sufficient. Id.

“Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further

factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557). To survive a motion

to dismiss, the complaint must “contain sufficient factual matter, accepted as true, to

1 This motion is filed by Governor Reynolds and Ann Lebo. But if granted, the Court

should dismiss the entire case. While Plaintiffs name the school districts as
“indispensable but not adverse parties,” Compl., Doc. 1, ¶ 27, they do not bring any
claims against them or seek any relief against them. See id. ¶¶ 76—102. This motion
thus addresses all claims asserted in this case and should dispose of it in its entirety.

—4—
‘state a claim to relief that is plausible on its face.’” Id. at 678 (quoting Twombly, 550

U.S. at 570). Facial plausibility exists “when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. This “plausibility” standard is not the equivalent of a

“probability requirement,” but requires “more than a sheer possibility that a

defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 557).

In evaluating the sufficiency of a complaint under a 12(b)(6) motion, a court

must accept the factual allegations as true. Id. There is no such requirement that the

Court accept the legal conclusions set forth in a complaint as true. Id. Courts evaluate

plausibility under Iqbal and Twombly by “drawing on their own judicial experience

and common sense” and will consider “only the materials that are necessarily

embraced by the pleadings and exhibits attached to the complaint.” Whitney v.

Franklin General Hosp., 995 F. Supp. 2d 917, 925 (N.D. Iowa 2014) (cleaned up). But

when considering dismissals for lack of standing and mootness—which challenges

Article III jurisdiction—the Court may consider other evidence outside the

Complaint. See Yersanian v. B. Riley FBR, Inc., 984 F.3d 633, 636–37 (8th Cir. 2021).

ARGUMENT

I. Plaintiffs lack standing to challenge Iowa Code section 280.31 because
the statute doesn’t injure them and their requested relief wouldn’t
redress their alleged harms.

Plaintiffs want their children’s schools to impose universal mask mandates so

that they may feel that their disabled children are safer from COVID-19. Section

280.31 stands in their way because it generally prohibits schools from imposing

universal mask mandates unless the mask “is required by . . . any other provision of

law.” Act of May 20, 2021 (H.F. 847), ch. 139, 2021 Iowa Act § 28 (to be codified at

Iowa Code § 280.31). They allege that the statute violates federal disability law and

ARPA and seek to permanently enjoin its enforcement entirely.

—5—
But the desired injunction is a mismatch with Plaintiffs’ novel disability

discrimination claims. A statute that carves out an exception to permit compliance

with federal law can’t violate federal law. Nor can enjoining the statute get Plaintiffs

the mask mandates they desire—because that decision merely reverts to each

independent school. Plaintiffs thus lack a fairly traceable injury that can be redressed

by the injunction.

A. Plaintiffs are not injured by section 280.31 because it permits schools
to mandate facial coverings when required by federal law.

Section 280.31 doesn’t prohibit any actions of a school where “the facial

covering . . . is required by . . . any other provision of law.” Iowa Code § 280.31 (2022).

So even if Plaintiffs are correct that federal law requires some masks in schools,

section 280.31 doesn’t prohibit it. The Eighth Circuit agreed, holding that “[i]f

another state or federal law requires masks, Section 280.31 does not conflict with

that law—and thus should not be completely enjoined.” Arc of Iowa v. Reynolds, 33

F.4th 1042, 1045 (8th Cir. 2022). And the Eighth Circuit “emphasize[d] that the

parties and district court should pay particular attention to” this exception “to the

extent that this case continues.” Id. Therefore, no injunction of the statute’s

enforcement is required. A school already has it within its power to comply with any
requirement of federal law.

To be sure, as discussed in Parts IV and V, the State disputes that federal law

imposes any requirement that a universal mask mandate be imposed in all Iowa

schools—or that they require local school decisionmakers to have the discretion to

impose such universal mandates rather than the Governor. And presumably Iowa

schools and their lawyers came to the same conclusion since none acted to impose a

district-wide, or building-wide universal mask mandate based on some requirement

of federal law before this Court enjoined section 280.31.

—6—
And it is also true that this Court has already rejected this standing argument

in granting a preliminary injunction, prohibiting Governor Reynolds and Director

Lebo “from enforcing Iowa Code section 280.31 banning local public school districts

from utilizing their discretion to mandate masks for students, staff, teachers, and

members of the public.” Prelim. Inj. Order, Doc. 60, at 27. The Court reasoned then

that “schools in Iowa did not believe they were allowed to implement mask

mandates.” Id. at 12. But following that logic again would conflict with the Eighth

Circuit’s direction. See Arc of Iowa, 33 F.4th at 1045. And in any event, lack of

awareness of one provision in a statute is not a valid reason to unnecessarily enjoin

that entire statute. And it cannot change the text of the statute which includes the

exception—whether or not every school board member or administrator in Iowa was

aware.2

Neither do the Governor’s statements contradict this argument any more than

the first paragraph of this Part A contradicts the second. Contra Prelim. Inj. Order,

Doc. 60, at 12 n.12. While nuanced, the State’s position is consistent. No question—

the parties disagree over whether federal law requires universal mask mandates in

schools. But that dispute—even if Plaintiffs are right in their interpretation of federal

law’s requirements—does not justify the permanent injunction sought by Plaintiffs

in this case against these parties.

If Plaintiffs are correct that universal mask mandates in schools are required

by federal disability law, then section 280.31 doesn’t stand in the way of their desired

mandates. Their quarrel would be with their schools. Now, a school may well disagree

2 If anything, the evidence of schools’ beliefs supports the State’s view set forth in

Part III that federal law doesn’t require universal mask mandates. A school would be
accurate in believing that they couldn’t implement a universal mask mandate if
federal law doesn’t require the mandates. And if true, there still could be no
injunction because the merits of the federal claims fail.

—7—
that federal law requires a mask mandate. Or the school may fear that it will be

subject to enforcement action by the State and not want to risk waiting until then to

find out if the State is correct in its interpretation of federal disability law. But

enjoining section 280.31 is a mismatch with their claims.

An unnecessary injunction, relying primarily on evidence of possible confusion

over the text of a statute, is particularly problematic when it is a federal injunction

against a state statute. See Dixon, 950 F.3d at 1056 (vacating injunction for failure

to properly consider “whether a preliminary injunction served the public interest in

comity between the state and federal judiciaries”). “‘Few public interests have a

higher claim upon the discretion of a federal chancellor than the avoidance of needless

friction with state policies.’” Id. (quoting R.R. Comm’n of Tex. V. Pullman Co., 312

U.S. 496, 500 (1941)); see also id. (“‘[F]ederal courts must be constantly mindful of the

special delicacy of the adjustment to be preserved between federal equitable power

and State administration of its own law.’” (quoting Rizzo v. Goode, 423 U.S. 362, 378

(1976))). This case should be dismissed because Plaintiffs are not injured and thus

lack standing.

B. Enjoining enforcement of section 280.31 does not redress Plaintiff’s
alleged harms because it doesn’t require their children’s schools to
impose universal mask mandates.

The Plaintiff’s requested permanent injunction and other relief isn’t just

unnecessary—it’s also insufficient to redress Plaintiffs’ alleged irreparable harms.

The core injury that Plaintiffs allege is that their districts cannot impose “universal

masking” accommodation that they seek. See Compl., Doc. 1, ¶¶ 9, 42–47, 53, 59–82,

98–99. They reiterated in the preliminary injunction filings, asserting that their

irreparable harms are “heightened risk of exposure” to COVID-19 if they attend in-

person school or “loss of educational opportunities” if the students are removed from

school. Doc. 17, at 13–14. And they believe that “[i]f everyone were wearing a mask,”

—8—
these harms would be avoided and “their children would be safe.” Id. at 12. Indeed,

every Plaintiff expressed their desire to “block” section 280.31 so that their schools

could impose a universal mask mandate. See Doc. 3-3, at 4 ¶ 16; Doc. 3-4, at 2 ¶ 14;

Doc. 3-5, at 3 ¶ 15; Doc. 3-6, at 2, ¶ 18; Doc 3-7, at 3 ¶ 22; Doc. 3-8, at 3 ¶ 14; Doc. 3-

9, at 2 ¶ 15; Doc. 3-10, at 4 ¶ 17; Doc. 3-11, at 3 ¶ 24; Doc. 3-12, at 2 ¶ 12; Doc. 3-13,

at 2 ¶ 17.

But Plaintiffs don’t ask for an injunction requiring everyone in their children’s

schools to wear a mask. They seek only to enjoin Governor Reynolds and Director

Lebo from enforcing section 280.31. Compl. Doc. 1, ¶ 4. That won’t remedy their

claimed harm. It’s dependent on the actions of independently elected school boards

and leaders of private schools to decide whether they will in fact implement a

universal mask mandate in their school districts like Plaintiffs hope. Because of this

lack of redressability, Plaintiffs do not have Article III standing to seek this

injunction and it should not have been issued. See Friends of the Earth, Inc. v.

Laidlaw Envt’l Servs (TOC), Inc., 528 U.S. 167, 185 (2000) (“[A] plaintiff must

demonstrate standing separately for each form of relief sought.”); Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560–61 (1992) (requiring showing that injury is “fairly . . .

trace[able] to the challenged action of the defendant”); see also U.S. Const. art. III, §

2 (“The judicial power shall extend to all cases . . . .”).

In rejecting this argument before, this Court speculated that redressability

was not a concern since many districts had mask mandates in the last school year

before the enactment of section 280.31, and at least one school district indicated it

was prepared to impose a mandate again. TRO Order, Doc. 32, at 16–17. Then, after

issuance of the injunction, and some districts again implemented mandates, the

Court took those actions and evidence that Plaintiffs’ alleged injuries were

redressable by its injunction. Prelim. Inj. Order, Doc. 60, at 11.

—9—
Indeed, after the Court issued its temporary restraining order, some schools in

Iowa did impose a universal mask mandate. See Doc. 48-2, at 1–5. And this includes

some of the school attended by Plaintiffs’ children. See id.; see also Doc. 48-16, at 2–

4. But some schools, like Defendant Linn Mar Community School District, decided to

impose a mandate only for students sixth grade and younger and set it to expire 60

days after vaccines are available for children under twelve. See Trevor Oates, Linn-

Mar School Board Approves Mask Mandate for PK-6 Students, KWWL (Sept. 16,

2021), https://perma.cc/MG3B-VVRU; see also Doc. 48-2, at 2. And other districts have

decided not to impose mandates or are delaying any decision, even after the court’s

orders, showing that this injunction didn’t remedy their harms. For example, one

Plaintiff complains that even after the statute has been enjoined and the school board

has met three times, her child’s district still has not imposed a mandate. Doc. 48-12,

at 2; see also Mask Mandate Fails to Pass at Special Sioux City School Board Meeting,

Radio Iowa (Sept. 16, 2021), https://perma.cc/PR5H-VWXE; Taj Simmons, Waukee

School Board Votes in Opposition of Mask Mandate Within the District, WHO 13

(Sept. 16, 2021), https://perma.cc/55XJ-YKH9.

Still other Plaintiffs remained uncomfortable with returning their children to

in-person learning even after their schools imposed universal mask mandates. One

parent with a child enrolled at a school with a new mandate says that the child’s

doctor recommends “one-on-one or home learning” and that she is still “working with

the school on a plan for my child to return to school, specifically additional

accommodations that would make it safer for her to attend school.” Doc. 48-8, at 1–2,

¶ 2–5. Another was dissatisfied that his children’s school district mask mandate was

not imposed for a longer period of time and kept his children enrolled online. Doc. 48-

9, at 1–2 ¶ 2–5. And a third parent, with a child at a school with a mandate only for

students through sixth grade, expressed her opinion that the school should have

— 10 —
imposed a mandate for all grades and was also waiting “to finalize further

accommodations under the ADA so that [her child] may return to school in person

safely.” Doc. 48-15, at 1.

And eventually, despite the statute being enjoined, by the time of the Eighth

Circuit decision, none of Plaintiffs’ school districts had universal mask mandates in

place. See Samantha Hernandez, Des Moines Public Schools Drops Mask Mandate

Following Federal Changes, D.M. Register (Mar. 3, 2022), available at

https://perma.cc/7AE8-C2YK (noting Des Moines Public Schools was the last school

to drop its mandate).

All these actual circumstances in response to the preliminary injunction show

that the remedy is dependent on the independent decisions of others. And enjoining

the statute did not get Plaintiffs the universal mask mandates they desired. In some

cases, it changed nothing about the disabled students’ access to education at all. How

can Plaintiff’s requested permanent relief be said to provide any redress in these

circumstances?

In sum, Plaintiffs’ requested relief is divorced from their alleged harm and any

likely valid legal claim. Because of this mismatch and lack of standing, their claims

should be dismissed.

II. Plaintiffs’ claims are moot because of changed circumstances since
September 2021 resulting in a lower risk of contracting COVID-19 at
school and a lower risk of serious injury or death from the disease.

On appeal, the Eighth Circuit vacated this Court’s “preliminary injunction as

moot.” Arc of Iowa v. Reynolds, 33 F.4th 1042, 1044 (8th Cir. 2022). The court

explained that “[t]he issues surrounding the preliminary injunction are moot because

the current conditions differ vastly from those prevailing when the district court

addressed it.” It reasoned that because of the availability of COVID-19 vaccines for

children and changing variants of the virus and lower transmissions “[n]o court could

— 11 —
grant effective relief as sought for the preliminary injunction.” Id. at 1045. And it

concluded that “enjoining Defendants’ enforcement of Section 280.31 has no effect on

Plaintiffs’ children, whose risk of contracting COVID-19 at school is now low even

without mask requirements, as is their risk of serious injury or death.” Id.

The Eighth Circuit’s decision is now binding law of the case here. See In re

Raynor, 617 F.3d 1065, 1068 (8th Cir 2010) (quoting Agostini v. Felton, 521 U.S. 203,

236 (1997)) (“‘[A] court should not reopen issues decided in earlier stages of the same

litigation.’”); United States v. Bartsh, 69 F3d 864, 866 (8th Cir. 1995).

And Plaintiffs’ claims for permanent relief are all based on the same legal and

factual theories as their preliminary injunction. Indeed, they made the same request

for relief to “[p]reliminarily and permanently enjoin the Defendants from enforcing

HF 847, and thereby violating the ADA, Section 504 of the Rehabilitation Act, and

ARPA;” Compl., Doc. 1, at 37. Thus, for the same reasons that their preliminary

injunction is moot, their whole case is moot. It must be dismissed.

III. Plaintiffs failed to exhaust their administrative remedies under the
IDEA as required before suing under federal disability law.

Plaintiffs failed to exhaust their administrative remedies under the

Individuals with Disabilities Education Act (“IDEA”). This dooms their federal
disability claims and requires dismissal.

The IDEA ensures that children with certain physical or intellectual

disabilities receive a “free appropriate public education,” known as a FAPE. See Fry

v. Napoleon Cmty. Sch., 137 S. Ct. 743, 748 (2017). And the IDEA sets up a

comprehensive procedure to provide a FAPE. See id. at 748–49. The process starts

with the development of an individualized education program (“an IEP”). And it

includes administrative procedures to resolve disputes between a school and a family

that could ultimately lead to a hearing before a neutral administrative law judge and

— 12 —
then judicial review in state or federal court. See id. at 748–49; see also Iowa Code

§§ 256B.2(2), 256B.4, 256B.6; Iowa Admin. Code r. 281-41.321–.328 (IEP process),

281-41.506 (mediations); 281-41.507–.518 (due-process hearings).

While Plaintiffs sue under title II of the ADA and section 504 of the

Rehabilitation Act—rather than under IDEA—they must still exhaust the

administrative remedies provided by the IDEA if they are “seeking relief that is also

available under” the IDEA. 20 U.S.C. § 1415(l); see also Fry, 137 S. Ct. at 750 (“[A]

plaintiff bringing suit under the ADA, the Rehabilitation Act, or similar laws must in

certain circumstances—that is, when ‘seeking relief that is also available under’ the

IDEA—first exhaust the IDEA’s administrative procedures.”).3

This “exhaustion rule hinges on whether a lawsuit seeks relief for the denial of

a free appropriate public education.” Fry, 137 S. Ct. at 754. If the suit claims

discrimination in a way that does not result in denial of a FAPE, then exhaustion is

not required “because, once again, the only ‘relief’ the IDEA makes ‘available’ is relief

for the denial of a FAPE. Id. at 755. In conducting this analysis, “[w]hat matters is

the crux—or, in legal-speak, the gravamen—of the plaintiff’s complaint, setting aside

any attempts at artful pleading.” Id.

Thus, in J.M. v. Francis Howell Sch. Dist., 850 F.3d 944, 948–49 (8th Cir.

2017), the Eighth Circuit affirmed dismissal of several federal claims—including

under the ADA and section 504—because exhaustion was required. The plaintiff was

the parent of a disabled elementary student who alleged that her son had been

physically restrained “‘for half of the time he actually spent at Defendant’s schools’”

over several months. Id. (quoting the complaint). And she alleged that he was “‘denied

3 At the hearing on Plaintiffs’ Motion for a Temporary Restraining Order, their
counsel admitted that they considered bringing a claim directly under the IDEA. Doc.
37, at 50:9–11 (“We considered them, and we decided we don’t need to do that to get
our plaintiffs relief.”). He didn’t say that they concluded the relief wasn’t “also
available” under the IDEA—just that the IDEA claims were unnecessary.

— 13 —
. . . because of his disability, participation in and the benefits of a public education.’”

The Court reasoned that “[t]hese allegations show that the complaint was based on

the ‘denial of a FAPE’ under the IDEA.” Id. at 949.

Plaintiffs allege throughout their Complaint that the lack of a universal mask

mandate—or perhaps merely the lack of their schools’ authority to be able to consider

such a mandate—is excluding them from receiving their appropriate public

education. See Compl., Doc. 1, ¶ 56 (“Students with disabilities who are unable to

safely return to brick-and-mortar schools because of continued health concerns are

being excluded from the public school system . . . .”); id. ¶ 59 (“Iowa state officials

have effectively excluded these students from participation in the public education

system . . . .”); id. ¶ 58 (“Thus the Defendants’ actions will have the perverse effect of

either placing children with disabilities in imminent danger or unlawfully forcing

those children out of the public school system.”); id. ¶ 57 (complaining of lack of

“virtual learning” and that “virtual learning, even if available, is not a viable or

adequate substitute for in person learning”); id. ¶ 54 (complaining that “Children

with disabilities are entitled to learn and interact with all other children, to receive

the same education as all other children”); id. ¶ 1 (alleging schools cannot comply

with section 280.31 and still provide “equal access to their education”); id. ¶ 2

(alleging student risk harm to health or harm to “their education and development”);

id. ¶¶ 38–40 (alleging various educational harms to disabled students because of the

pandemic).

Plaintiffs’ claimed discrimination is thus an injury that is allegedly denying

them a FAPE. That injury could be remedied by granting relief under the IDEA.

Exhaustion was required.

This Court previously held otherwise, reasoning that while “Plaintiffs’ claims

relate to the children’s education, Plaintiffs do not seek the type of special education

— 14 —
services that the IDEA guarantees.” Prelim. Inj. Order, Doc. 60, at 14. The court

relied on the Supreme Court’s recognition in Fry that not every dispute between a

disabled student and a school involves the denial of a FAPE. Id. (citing Fry, 137 S.Ct.

at 754). But the Court in Fry didn’t hold that the question turns on whether a plaintiff

seeks any particular “type of special education services.” In fact, it rejected any

requirement to use “magic words” or refer to “FAPE” or “IEP” or “IDEA.” See Fry, 137

S. Ct. at 755.

The proper analysis is whether a plaintiff alleges the denial of a FAPE—the

free appropriate public education required by the IDEA—rather than some other

injury that doesn’t deny appropriate education. Id. at 754. In Fry, a student with

cerebral palsy sought to bring a service dog instead of the one-on-one human aide

that the school district offered to meet her educational needs. Id. at 758. The plaintiff

did not even implicitly allege a denial of her educational needs. Id. And thus the Court

concluded it likely exhaustion was not required—though it ultimately remanded for

reconsideration. See id. 758–59.

Unlike Fry, Plaintiffs’ complaint is explicitly tied to a deprivation of their

educational needs. They contend that they are being deprived their education because

they’re not able to safely attend in-person school without a mask mandate and the

alternative of virtual school is inadequate. Compl., Doc. 1, ¶¶ 56–59. Their claims are

thus like the student in J.M. who alleged discrimination for being kept in restraints

for the half the time and deprived his full education. See J.M., 850 F.3d at 948–49.

Before, this Court developed its reasoning by considering two hypothetical

questions: Could Plaintiffs have brought this claim against an entity other than a

school? And could a teacher or visitor bring a similar claim? Prelim. Inj. Order, Doc.

60, at 13–14. But the Eighth Circuit has explained that it’s improper to approach this

question at a “higher level of generality” Nelson v. Charles City Cmty. Sch. Dist., 900

— 15 —
F.3d 587, 592 (8th Cir. 2018); see also Fry, 137 S. Ct. at 759 (Alito, J., concurring)

(explaining that the hypotheticals are “false clues” that “are likely to confuse and lead

courts astray” given the overlapping coverage of the statutes).

Fifth Circuit also recently rejected the analogy that this sort of suit is merely

seeking “physical access.” E.T. v. Paxton, 19 F.4th 760, 767 (5th Cir. 2021). That court

explained, “the plaintiffs at base allege something very particular: the deprivation of

an in-person state-sponsored education because of their risk of contracting COVID-

19 without a mask mandate.” Id. The Court thus concluded that the answer to both

Fry questions was no—and exhaustion was likely required. See id.

Because Plaintiffs’ claims are driven by the focus on the importance of

education for their children and their exclusion from receiving that education, the

proper level of comparison is whether a teacher or visitor could bring a claim that

they’re being forced to choose between their health or receiving an equal education—

and they could not. Nor could the students bring that same claim against a different

entity, like a county courthouse or public library. But at bottom, asking the true

question demanded by the statute and Fry, students could get the relief they’re asking

for—accommodation to their disabilities so they can receive a FAPE through the

IDEA administrative process.

This case shows the wisdom of the exhaustion requirement. Precisely what

additional accommodations these disabled students need because of the pandemic are

highly fact-specific, individualized determinations. They depend on the unique health

and educational needs of each student, their classrooms and facilities, the current

public health conditions, and the most recent and accurate public health guidance on

appropriate mitigation measures. Those decisions should be made individually. And

if disputes arise, they should be resolved through the proper processes in place—not

through a one-size-fits-all injunction in this lawsuit.

— 16 —
Indeed, the record indicates that some of the Plaintiffs started to seek

individualized solutions for their children. These included teachers wearing a mask

when working on-on-one with the child. Doc. 3-12, at 2 ¶ 9; Doc. 3-11, at 3 ¶ 18. And

special arrangements for avoiding crowded hallways. Doc. 3-11, at 3 ¶ 18. Masking of

only those small groups near the child. Doc. 3-5, at 2 ¶ 10. Or other social distancing

measures. Doc. 3-10, at 2 ¶ 10. In some cases, however, the parents reported that

their schools were not following the agreed upon measures. Doc. 3-11, at 3 ¶ 18; Doc.

3-12, at 2 ¶ 10. Yet there’s no evidence that they took any steps to try to enforce the

agreed measures or seek additional help through any of the remedies available. See

Doc. Doc. 3-5, at 2; Doc. 3-10, at 2; Doc. 3-11, at 3; 3-12, at 2.

Because Plaintiffs have not exhausted their administrative remedies under the

IDEA their claims under the ADA or the Rehabilitation Act must be dismissed.

IV. Federal disability law doesn’t require schools to impose—or to have
the discretion to impose—universal mask mandates.

Plaintiffs assert that section 280.31 violates two federal disability laws: title II

of the Americans with Disabilities Act (“ADA”) and section 504 of the Rehabilitation

Act. Their complaint is unclear as to whether they assert that these federal laws

require universal mask mandates in schools or merely that federal law requires
school districts—rather than the Governor—to have discretion to impose such

mandates. But regardless of the precise formulation of the claims, they fail. Neither

the ADA nor the Rehabilitation Act require universal mask mandates in schools or

requires schools to have the discretion to implement such mandates.

C. Section 280.31’s prohibition on school districts imposing
universal mask mandates is a neutral and nondiscriminatory
policy that does not violate federal disability law.

Courts typically analyze disability discrimination claims under title II of the

ADA and section 504 of the Rehabilitation Act together. See, e.g., Davis v. Francis

— 17 —
Howell Sch. Dist., 138 F.3d 754, 756 (8th Cir. 1998). Under both statutes, “a plaintiff

must show that he was a qualified individual with a disability and that he was denied

the benefits of a program, activity, or services by reason of that disability.” Id. (citing

42 U.S.C. § 12132; 29 U.S.C. § 794(a)). And under both, when the denial occurs

because of a neutral nondiscriminatory policy rather than because of a plaintiff’s

disability, no violation arises. See Davis, 138 F.3d at 756–57. It matters not whether

the plaintiffs “question the wisdom” of the policy. Id. at 756. The policy doesn’t violate

the federal statutes where it “applies to all students regardless of disability and rests

on concerns unrelated to disabilities or misperceptions about them.” Id. (cleaned up);

see also Timothy H. v. Cedar Rapids Cmty. Sch. Dist., 178 F.3d 968, 971–72 (8th Cir.

1999); DeBord v. Bd. of Educ., 126 F.3d 1102, 1105–06 (8th Cir. 1997).

The Eighth Circuit has thus held that following a policy that all students in

an intra-district transfer program must provide their own transportation is not

disability discrimination. See Timothy H., 178 F.3d at 972. Nor is following a policy

to administer medication in schools only consistent with the maximum dosage

recommended by the Physician’s Desk Reference. See Davis, 138 F.3d at 756; DeBord,

126 F.3d at 1105–06. And these were just policies of school districts—not a duly

enacted statute setting statewide education policy that is entitled to even greater

respect.

Section 280.31 establishes a uniform nondiscriminatory policy that—unless

required by other law or a specific instructional or educational purpose—local schools

cannot require students, employees, or visitors to wear face coverings. There’s been

no suggestion that the statute was adopted to single out individuals with disabilities.

And it imposes no restriction on individuals—whether disabled or not—at all. To be

clear, all students, employees, and visitors remain free to wear face coverings or take

any other health precautions they (or their parents) choose. The statute is mainly an

— 18 —
allocation of decision-making authority between the State and local government,

disconnected from students with disabilities. After passage of section 280.31, a

universal 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. See Iowa Code §§ 135.144(3), 29C.6.

The alleged denial of Plaintiffs’ desired universal mask mandates in their

children’s schools, and their further alleged denial of education, is not caused because

of their disability. If it’s caused at all, it’s because of this neutral, nondiscriminatory

statute. And since title II of the ADA and the Rehabilitation Act do not override

neutral local school district policies, they also do not provide a basis to override this

statutory product of Iowa’s democratic process.4

D. A universal mask mandate in schools is not a reasonable modification
and other reasonable modifications exist.

In rejecting this argument before, this Court held that schools are required to

make “reasonable modifications” and that “universal masking policies are a

reasonable modification, which public schools are required to provide.” Prelim. Inj.,

Doc. 1 at 16, 20. But the Eighth Circuit has not decided “whether the failure to make

reasonable modifications in a policy is itself discrimination even where the policy and
its rationale cannot be shown to be discriminatory.” Davis, 138 F.3d at 757; see also

DeBord, 126 F.3d at 1106; cf. CVS Pharmacy, Inc. v. Doe, No. 20-1374 (U.S. July 2,

2021) (granting certiorari on question—which was later dismissed because of a

settlement—whether a private cause of action exists for disparate-impact disability

discrimination claim under section 504); Alexander v. Sandoval, 532 U.S. 275, 284–

4 To be clear, this argument—like the alternative arguments in subsections B and

C—defeats all of Plaintiffs’ ADA and section 504 claims because they negate the
required statutory element of being denied a benefit because of a disability. See Davis,
138 F.3d at 756.

— 19 —
86 (2001) (holding that similar Title VI does not create private cause of action for

disparate-impact discrimination claims).

But even if reasonable modifications are required, a universal mask mandate

is not a reasonable modification. A modification that imposes an undue

administrative burden or a fundamental alternation in the nature of the State’s

education program is not reasonable. See Davis, 138 F.3d at 757 (holding that request

to deviate from medication policy wasn’t reasonable because it would “impose undue

financial and administrative burdens on the district by requiring it to determine the

safety of the dosage and the likelihood of future harm and liability in each individual

case”); Timothy H, 178 F.3d at 972–73 (holding that request to establish a special free

bus route would be “an undue financial burden and a fundamental alteration in the

nature of the intra-district transfer program”); Pottgen v. Mo. State High Sch.

Activities Ass’n, 40 F.3d 926, 929–30 (8th Cir. 1994) (holding that request to

participate in high school baseball program as a nineteen year-old despite uniform

age limit was not reasonable modification because it would “constitute a fundamental

alteration in the nature of the baseball program” given its intent to protect younger

athletes, have fair competition, and discouraging delays in education).

Modifying the uniform policy established by section 280.13 to impose a

universal mask mandate in schools—or permitting schools to make those decisions—

would be an undue burden and fundamentally alter the nature of the educational

program established by the State. Modifying the policy to give schools discretion

would void 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. This

fundamentally alters Iowa’s education program as set in section 280.31. And

imposing a universal mask mandate would impose the administrative and potential

— 20 —
financial and legal burdens of enforcing a mask mandate on all students, distracting

teachers and school administrators from their educational duties.

A universal mask mandate is also not a reasonable modification because it

infringes on the rights of third parties—other students, employees, and visitors. In

the employment context, the Eighth Circuit has repeatedly recognized that ADA

doesn’t require “accommodations that would violate the rights of other employees”

and doesn’t impose “obligation to terminate other employees or violate a collective

bargaining agreement.” Wooten v. Farmland Foods, 58 F.3d 382, 386 (8th Cir. 1995);

see also Buckles v. First Data Resources, Inc., 176 F.3d 1098, 1100–02 (8th Cir. 1999)

(rejecting “irritant-free work environment” as a reasonable accommodation for

employee with severe sensitivity to strong smells); Mason v. Frank, 32 F.3d 315, 319

(8th Cir. 1994) (holding that an accommodation isn’t reasonable if it “would violate

the rights of other employees under a legitimate collective bargaining agreement”).

Plaintiffs’ desired modification of a universal mask mandate is an imposition on the

rights of all the other students and visitors to the school. And that is not reasonable.

That’s all the more so here. Plaintiff’s proposed reasonable accommodation

isn’t merely an imposition on employees, who are voluntarily working and paid to

abide by their employers’ directives. Such a comparison might be a fair when talking

just about requiring teachers to mask around disabled students, which very well

could be reasonable. But that’s significantly different than imposing a requirement

on students who have a right to receive a free public education and are compelled to

attend some school.

What is the limiting principle for the reasonableness of an accommodation, if

a single disabled student can sue and require nearly everyone in her school district

to wear masks to protect her health? Could she also sue to mandate that they all

become vaccinated for COVID-19? It’s difficult to see why not under Plaintiffs’ logic.

— 21 —
But while a State can of course exercise its police powers to enact such a statute, it

doesn’t follow that federal disability law could permit a private plaintiff to force such

an intrusion on third parties in the name of reasonable accommodation.

Even more, here, there are disability interests on both sides of the debate.

Imposing a universal mask mandate can harm disabled students with social

communication issues, such as those with autism, because it prevents the students

from advancing “social skills and understanding the express of those around [the

student] due to [the] fellow students and teachers wearing masks.” Doc. 42-2, at 1

¶ 6; Doc. 42-1, at 2 ¶¶ 9–10. It can also harm disabled students with anxiety. Doc. 42-

1, at 1 ¶¶ 4–6. And those who struggle with speech and pronunciation. Doc. 42-1, at

2 ¶ 11. And those with asthma. Id. ¶¶ 7–8. And those with severe and painful sensory

processing issues. Doc. 42-3, at 1–2 ¶¶ 4–6, 12 (describing how wearing a mask feels

like skin is “on fire or poked with sharp needles” creating “a ‘traffic jam’ in her brain

and she essentially becomes ‘paralyzed’ in that moment). And those who are deaf.

Doc. 45-1, at 1–3; 45-2, at 1–2.

The Legislature thus could have reasonably been concerned about balancing

all these competing interests, includes the possible negative educational and social

consequences. See World Health Organization, Advice on the Use of Masks for

Children in the Community in the Context of COVID-19, Aug. 21, 2020, available at

https://perma.cc/TTQ8-PNHU (stating that “the benefits of wearing masks in

children for COVID-19 control should be weighed against potential harm associated

with wearing masks, including feasibility and discomfort, as well as social and

communication concerns”).

Even the U.S. Department of Education acknowledges that any universal

mask mandates in schools must attempt to provide reasonable accommodations. See

U.S. Dep’t of Educ., Questions and Answers on Civil Rights and School Reopening in

— 22 —
the COVID-19 Environment, available at https://perma.cc/G88U-32SD, at 8–9. The

Legislature could conclude that where there are interests such as these on both sides

that it would remove the issue of universal mask mandates from the discretion of

local schools. And modifying this decision to permit (or require) universal mandates

is a fundamental alternation and undue burden of the State’s policy choices. It’s not

reasonable.

Plaintiffs could seek other modifications that would be reasonable. And section

280.31 doesn’t prevent schools from engaging with students to provide such

modifications. Those could include, for example, greater personal protective

equipment for the student (such as a higher quality N95 mask), greater social

distancing, or perhaps if justified by the particular facts even limited masking of

teachers or students while interacting closely with the individual.

Indeed, as recognized by the Fifth Circuit, Plaintiffs’ claim that universal mask

mandates are a reasonable accommodation “rests on the faulty premise that the only

accommodation available to plaintiffs is their schools’ ability to impose mask

mandates.” E.T., 19 F.4th at 768. It overlooks the “availability of vaccines, voluntary

masking, and other possible accommodations” Id. After all, Plaintiffs “are not entitled

to their preferred accommodation, but only a reasonable” one. Id. at 767. This claim

fails as a matter of law.

E. A contrary interpretation of federal disability law would raise
constitutional concerns.

“[A]ny time a State is enjoined by a court from effectuating statutes enacted

by representatives of its people, it suffers a form of irreparable injury.” New Motor

Vehicle Bd. V. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in

chambers); see also Rounds, 530 F.3d at 732–33.

— 23 —
But education and protection of the public health are at the core of the State’s—

rather than the federal government’s—domain. And the Supreme Court requires

“Congress to enact exceedingly clear language if it wishes to significantly alter the

balance between federal and state power.” Ala. Ass’n of Realtors v. Dep’t of Health &

Hum. Servs., 141 S. Ct. 2485, 2489 (2021). Nothing in the text of either the ADA or

section 504 suggests, let alone clearly states, that it authorizes these disability

discrimination statutes authorize this injunction’s intrusion into the State’s authority

to set education and public health policy. Plaintiffs’ novel interpretation that a State

engages in disability discrimination if it chooses to generally ban universal mask

mandates should be rejected to avoid this constitutional concern.

To the extent that Plaintiffs can cabin their interpretation of the statutes to

only require that schools have discretion to consider mask mandates, the

constitutional concerns are even greater. There is even less of a federal interest in

merely dictating the allocation of authority between the State and local governments

about masks. And under the Tenth Amendment, the federal government cannot

intrude on the State’s power to structure its internal division of governmental power

to school districts. See Hunter v. Pittsburgh, 207 U.S. 161, 178 (1907) (“The number,

nature, and duration of the powers conferred upon these [political subdivisions] and

the territory over which they shall be exercised rests in the absolute discretion of the

state.”); see also U.S. Const. amend. X (“The powers not delegated to the United States

by the Constitution, nor prohibited by it to the States, are reserved to the States

respectively, or to the people.”). Such a constitutional problem should be avoided.

V. ARPA doesn’t require schools to impose—or have the discretion to
impose—universal mask mandates.

As an alternative basis for permanently enjoining section 280.31, Plaintiffs

contend that it conflicts with the American Rescue Plan Act of 2021 (“ARPA”). Compl.

— 24 —
Doc. 1 ¶¶ 95–102. They argue that the statute, agency guidance, and a letter from

the Secretary of Education are “squarely at odds” with section 280.31 because it

“prohibits local school districts, including Defendant School Boards, from

implementing precisely the type of safe return-to-school policies ARPA expects.” Id.

¶ 101. But ARPA says nothing of the sort. Neither does the agency guidance. And

interpreting either to impose such a requirement would raise serious constitutional

concerns. Even more, ARPA creates no private cause of action for its enforcement.

This claim must also be dismissed.

Plaintiffs rely on section 2001(e)(2)(Q) of ARPA as the source of this purported

requirement. Compl,, Doc. 1 ¶ 98. Section 2001 establishes a $123 billion Elementary

and Secondary School Emergency Relief Fund and sets certain requirements for

allocation of the funds to the States and then to local schools. It imposes two

mandates on schools—that they publicly post “a plan for the safe return to in-person

instruction and continuity of services” and that they “shall reserve not less than 20

percent of such funds to address learning loss.” American Rescue Plan Act of 2021,

Pub. L. No. 117-2, 135 Stat 4, § 2001(e)(1), (i). And then it provides that they “shall

use the remaining funds for any of” a list of 18 alternative purposes. Id. § 2001(e)(2).

These include, for example: “Purchasing supplies to sanitize and clean the facilities,”

id. § 2001(e)(2)(I); “Planning for, coordinating, and implementing activities during

long-term closures,” id. § 2001(e)(2)(J); and “repair, replacement, and upgrade

projects to improve the indoor air quality in school facilities.” Id. § 2001(e)(2)(P).

The provision relied on by Plaintiffs is one of these 18 alternative purposes. It

provides the appropriated funds could be used for:
Developing strategies and implementing public health protocols
including, to the greatest extent practicable, policies in line with
guidance from the Centers for Disease Control and Prevention for the
reopening and operation of school facilities to effectively maintain the
health and safety of students, educators, and other staff.

— 25 —
Id. § 2001(e)(2)(Q). Nothing in section 2001 requires a school or a State to choose to

spend any of the federal funds it receives for this purpose rather than any of the other

16 authorized purposes. So even if its text could be interpreted to impose some limited

requirement for any funded strategies and protocols “in line” with CDC guidance “to

the greatest extent practicable,” it would only apply if when funds are used for that

purpose.5 It would make no more sense to turn that single alternative into a blanket

mandate than it would to say that the other quoted provisions require schools to close

long-term or replace their HVAC systems.

The agency guidance from the U.S. Department of Education fares no better.6

Plaintiffs point to Interim Final Requirements established by the Department

elaborate on the statutory requirement that schools adopt a plan for safe return to

in-person learning by requiring schools to include “how it will maintain the health

and safety of students, educators, and other school and LEA staff, and the extent to

which it has adopted policies, and a description of any such policies, on each of the

CDC’s safety recommendations including Universal and correct wearing of masks.”

Dep’t of Educ. Interim Final Requirements, American Rescue Plan Act Elementary

and Secondary School Emergency Relief Fund, 86 Fed. Reg. 21,195, 21200 (Apr. 22,

2021); see also Compl., Doc. 1 ¶¶ 99–100.

Yet this language as well merely requires a school to describe what it is doing.

As the Department’s guidance itself acknowledges, “[t]he requirement does not

mandate that [a school] adopt the CDC guidance, but only requires that the [school]

describe in its plan the extent to which it has adopted the key prevention and

mitigations strategies.” 86 Fed. Reg. 21,195, 21,201. A school can follow this

5 Indeed, even applying the statute’s terms, it’s not at all clear that it would be
“practicable” for a school to violate another law, such as section 280.31.
6 The correspondence from the Secretary of Education has no force of law and is

irrelevant to any preemption analysis.

— 26 —
requirement without violating section 280.31. See E.T. v. Paxton, 19 F.4th 760, 769

(5th Cir. 2021) (holding that it was “likely error” for district court to conclude that

Texas prohibition on mask mandates was preempted by ARPA because “[r]ather than

requiring local educational agencies to adopt universal masking, the American

Rescue Plan Act requires local educational agencies to communicate with the public

regarding what requirements, if any, it maintains regarding masking”).

Neither ARPA nor the agency guidance imposes any requirement that schools

have authority to impose universal mask mandates. The analysis could stop there.

But if there were any doubt, the United States Constitution removes it. While

Congress has the power to impose requirements on the States through its spending

power, “if Congress intends to impose a condition on the grant of federal moneys, it

must do so unambiguously.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1,

17 (1981). This is because “[t]he legitimacy of Congress’ power to legislate under the

spending power . . . rests on whether the State voluntarily and knowingly accepts the

terms of the ‘contract’” for the federal funds. Id. “By insisting that Congress speak

with a clear voice, we enable the States to exercise their choice knowingly, cognizant

of the consequences of their participation.” Id.; see also South Dakota v. Dole, 483 U.S.

203, 208 (1987).

Section 2001(e)(2)(Q) does not clearly and unambiguously alert States that

school districts must have discretionary authority to impose universal mask

mandates. Neither does the agency guidance—and in any event only Congress, not

an agency, impose the unambiguous requirement. See Va Dep’t of Educ. v. Riley, 106

F.3d 559, 567 (4th Cir. 1997) (en banc) (rejecting use of agency regulation to provide

constitutionally required clarity in spending-clause challenge); Tex. Educ. Agency v.

U.S. Dep’t of Educ., 992 F.3d 350, 361 (5th Cir. 2021) (“Relying on regulations to

present the clear condition, therefore, is an acknowledgment that Congress’s

— 27 —
condition was not unambiguous, so that method of analysis would not meet the

requirements of Dole).

Education and protection of the public health is also at the core of the State’s—

rather than the federal government’s—domain. And the Supreme Court requires

“Congress to enact exceedingly clear language if it wishes to significantly alter the

balance between federal and state power.” Ala. Ass’n of Realtors v. Dep’t of Health &

Hum. Servs., 141 S. Ct. 2485, 2489 (2021). And the Tenth Amendment prevents the

federal government from intruding on the State’s power to structure its internal

division of governmental power to school districts. See Hunter v. Pittsburgh, 207 U.S.

161, 178 (1907). The Court cannot imply the requirement alleged by Plaintiffs

consistent with these constitutional demands.

The Court can avoid even reaching these merits questions because ARPA

creates no private cause of action for its enforcement “The . . . argument that the

American Rescue Plan Act provides a private cause of action is tenuous at best.” E.T.

v. Paxton, 19 F.4th 760, 771 n.3. (5th Cir. 2021). “Like substantive federal law

itself, private rights of action to enforce federal law must be created by

Congress.” Alexander v. Sandoval, 532 U.S. 275, 286 (2001). When Congress does not

expressly create a private cause of action in a statute, the judiciary is tasked with

determining whether the statute shows an intent to create a private cause of action

or a private remedy. See Id. “Statutory intent . . . is determinative. Without it, a cause

of action does not exist and courts may not create one, no matter how desirable that

might be as a public policy matter, or how compatible with the statute.” Id. at 286–

287 (citations omitted). Therefore, the burden rests on the plaintiff to show that

Congress intended for ARPA to include a private cause of action.

The Supreme Court has only implied a private cause of action where one was

not included in the statute a few times. Unlike the multi-faceted ARPA, they arose in

— 28 —
the context of discrimination statutes. Congress has enacted four statutes prohibiting

recipients of federal financial assistance from discriminating based on certain

protected grounds: Title VI, Title IX, the Rehabilitation Act, and the Affordable Care

Act. See Cummings v. Premier Rehab Keller, P.L.L.C., 142 S. Ct. 1562, 1569 (2022).

Title VI and Title IX were found to have an implied private cause of action for

enforcement, and Congress amended the statutes to include this right after the

Court’s decision. See Id. “[T]he Rehabilitation Act and the Affordable Care Act . . .

each expressly incorporates the rights and remedies provided under Title VI.” Id.

ARPA does not include the discrimination language from Title VI, or any language

that would show Congress intended to imply a private cause of action.

Further, the Supreme Court contemplated whether a student may sue for

damages under 42 U.S.C. § 1983 to enforce the Family Education Rights and Privacy

Act (FERPA), even though FERPA did not create a private cause of action. Gonzaga

Univ. V. Doe, 536 U.S. 273, 276 (2002). The U.S. Supreme Court vacated the decision

by the Supreme Court of Washington holding “where the text and structure of a

statute provide no indication that Congress intends to create new individual rights,

there is no basis for a private suit, whether under § 1983 or under an implied right of

action.” Id. at 256. Finally, the Court suggested with legislation enacted under the

spending power, the general remedy would be a termination of funds rather than

private action. See Pennhurst, 451 U.S. 1 at 28.

Here, the regulations promulgated under ARPA have not conferred any private

right of action. No individual rights have been created in the statute. Even more,

ARPA creates no remedy for private individuals wishing to bring suit. Plaintiffs’

claim based on ARPA must be dismissed.

CONCLUSION

For all these reasons, the Court should dismiss this case.

— 29 —
Respectfully submitted,

THOMAS J. MILLER
Attorney General of Iowa

JEFFREY S. THOMPSON
Solicitor General

/s/ Samuel P. Langholz
SAMUEL P. LANGHOLZ
Assistant Attorney General
Iowa Department of Justice
1305 E. Walnut Street, 2nd Floor
Des Moines, Iowa 50319
(515) 281-5164
(515) 281-4209 (fax)
sam.langholz@ag.iowa.gov
jeffrey.thompson@ag.iowa.gov

ATTORNEYS FOR DEFENDANTS
GOVERNOR KIM REYNOLDS AND
ANN LEBO

PROOF OF SERVICE
The undersigned certifies that the foregoing instrument was
served upon all parties of record by delivery in the following
manner on July 1, 2022:

U.S. Mail Email
Hand Delivery Overnight Courier
Federal Express Other
CM/ECF

Signature: /s/ Samuel P. Langholz

— 30 —

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