Motion - ERIN VERCANDE, individually and on behalf of S.V., a minor, Plaintiffs, v. KIM REYNOLDS, in her official capacity as Governor of Iowa (2021-09-09)
- Date
- 2021-09-09
Summary
A memorandum of authorities in support of a motion for preliminary injunction and temporary restraining order, filed September 9, 2021 as Document 17 in The Arc of Iowa v. Kim Reynolds, Case No. 4:21-cv-264, in the U.S. District Court for the Southern District of Iowa. The plaintiffs, The Arc of Iowa and parents suing on behalf of minor children with disabilities, challenge HF 847, the state law barring school districts from requiring facial coverings. The memorandum argues irreparable injury, discrimination against students with disabilities in violation of the ADA and Section 504 of the Rehabilitation Act, and preemption of HF 847 by federal law. Defendants include Director Ann Lebo of the Iowa Department of Education and ten school districts. The 33-page filing is signed by counsel including the ACLU of Iowa Foundation and Disability Rights Iowa.
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Case 4:21-cv-00264-RP-SBJ Document 17 Filed 09/09/21 Page 1 of 33
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
THE ARC OF IOWA; CHARMAINE
ALEXANDER, individually and on behalf of
C.B., a minor; JONATHAN CRAIG,
individually and on behalf of E.C. and J.C.,
minors; MICHELLE CROFT, individually and
on behalf of J.J.B., a minor; AMANDA
DEVEREAUX, individually and on behalf of
P.D., a minor; CARISSA FROYUM ROISE, Case No. 4:21-cv-264
individually and on behalf of H.J.F.R., a minor;
LIDIJA GEEST, individually and on behalf of
K.G., a minor; MELISSA HADDEN,
individually and on behalf of V.M.H., a minor;
HEATHER LYNN PRESTON, individually
and on behalf of M.P. and S.P, minors; LISA
HARDISTY SITHONNORATH, individually
and on behalf of A.S., a minor; REBEKAH MEMORANDUM OF
STEWART, individually and on behalf of AUTHORITIES IN SUPPORT OF
E.M.S., a minor; and ERIN VERCANDE, MOTION FOR PRELIMINARY
individually and on behalf of S.V., a minor, INJUNCTION AND
TEMPORARY RESTRAINING
Plaintiffs, ORDER
v.
KIM REYNOLDS, in her official capacity as EXPEDITED RELIEF
Governor of Iowa; ANN LEBO, in her official REQUESTED
capacity as Director of the Iowa Department of
Education; ANKENY COMMUNITY
SCHOOL DISTRICT; COUNCIL BLUFFS
COMMUNITY SCHOOL DISTRICT;
DAVENPORT COMMUNITY SCHOOL
DISTRICT; DECORAH COMMUNITY
SCHOOL DISTRICT; DENVER
COMMUNITY SCHOOL DISTRICT; DES
MOINES PUBLIC SCHOOLS; IOWA CITY
COMMUNITY SCHOOL DISTRICT;
JOHNSTON COMMUNITY SCHOOL
DISTRICT; LINN MAR COMMUNITY
SCHOOL DISTRICT; and WATERLOO
COMMUNITY SCHOOL DISTRICT,
Defendants.
Case 4:21-cv-00264-RP-SBJ Document 17 Filed 09/09/21 Page 2 of 33
TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT ....................................................................................1
FACTS ........................................................................................................................2
1. The Risk Posed by COVID-19 to Students with Disabilities ..................................2
2. COVID-19 Prevention in Schools ...........................................................................4
3. HF 847 and Actions of the Defendant State Officials .............................................6
4. Harm to the Named Plaintiffs ..................................................................................8
LEGAL STANDARD ................................................................................................. 13
ARGUMENT ............................................................................................................. 13
I. THE PLAINTIFFS WILL SUFFER IRREPARABLE INJURY UNLESS
AN INJUNCTION ISSUES. ............................................................................. 13
II. THE PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS ................ 16
A. The Defendants are Discriminating Against Students with Disabilities in
Violation of Federal Law. ......................................................................................16
1. The Plaintiffs have disabilities, are otherwise qualified to receive a
public education, and have standing to bring this action. ..........................18
2. The Plaintiffs have been discriminated against by a public entity by
virtue of disability, excluded from participation in or been denied
the benefits of the services, programs, or activities of a public
entity ..........................................................................................................20
B. HF 847 is Preempted by Federal Law....................................................................24
III. THE BALANCE OF EQUITIES WEIGHS HEAVILY IN THE
PLAINTIFFS’ FAVOR AND THE INJUNCTION SERVES THE PUBLIC
INTEREST. ..................................................................................................... 27
CONCLUSION .......................................................................................................... 27
i
Case 4:21-cv-00264-RP-SBJ Document 17 Filed 09/09/21 Page 3 of 33
PRELIMINARY STATEMENT
As the school year begins and COVID-19 cases soar, school districts face a dilemma:
whether to comply with the state law HF 847, which precludes them from imposing mask
mandates, or whether to meet their obligations under federal disability rights laws, to integrate,
not exclude, children with disabilities from public education. Parents too face a dilemma:
whether to risk their children’s health by sending them to school or to keep them home and safe
but without the education to which they are entitled. The Hobson’s choice is particularly acute
for parents whose children have disabilities, leaving them to decide whether to expose their
medically vulnerable children to an unsafe educational environment or to remove them from in-
person schooling and thereby deprive them of a safe and integrated public school education.
The U.S. Centers for Disease Control (“CDC”) recommends universal masking. So does
the American Association of Pediatrics. And so does the American Medical Association, and
hundreds of physicians and educators across the state. Yet under the challenged law—HF 847—
all masking requirements are illegal. HF 847, which went into effect immediately upon signing
on May 20, 2021, provides that “school district[s] . . . 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 . . . property unless the facial covering is necessary
for a specific extracurricular or instructional purpose . . . .” This directive reversed the Iowa
Department of Education’s prior policy which deferred to local districts . . . to determine how
and when” school activities could be conducted, and required numerous school districts around
the state to end policies requiring students, staff, and visitors to wear masks while at school.
Most relevant now, the directive is preventing schools from taking action at this moment, at time
of high transmission of COVID-19 in all but three of Iowa’s twenty-nine counties, due to the
highly contagious Delta variant. Waddell ¶ 9.
1
Case 4:21-cv-00264-RP-SBJ Document 17 Filed 09/09/21 Page 4 of 33
By prohibiting that basic public health measure, the Defendant State Officials are
preventing public entities statewide from complying with the Americans with Disabilities Act
(“ADA”) and the Rehabilitation Act. The Defendant State Officials are illegally forcing Iowa
families who have children with disabilities to choose between their child’s education and their
child’s health and safety, in violation of the ADA and Section 504 of the Rehabilitation Act.
Further, the enforcement of HF 847 needlessly and unconscionably exposes Iowa school children
and their families to a heightened risk of infection, hospitalization, and death. It is against the
calamitous consequences of HF 847’s enforcement that the Plaintiffs seek emergency injunctive
relief.
FACTS
1. The Risk Posed by COVID-19 to Students with Disabilities
For many students with disabilities across Iowa, it is too risky to return to brick-and-
mortar schools if schools do not follow recommended health guidelines to protect them from
COVID-19. These students have underlying health conditions—all of which are disabilities—
that would make COVID-19 infections much more likely to lead to severe illnesses. According to
the American Academy of Pediatrics, “the Delta variant has created a new and pressing risk to
children and adolescents across this country” and pediatric cases of COVID-19 have been
“skyrocketing.” 1 See generally Waddell Decl. ¶¶ 12-13; Srinivas Decl. ¶¶ 13-18.
All children and staff in schools are at risk but school-aged children with certain
disabilities, including a range of underlying medical conditions, can face a higher rate of severe
illness from COVID-19 as compared to other children without those underlying medical
1
Letter from American Academy of Pediatrics to Acting FDA Commissioner Janet Woodcock (Aug. 5, 2021),
https://downloads.aap.org/DOFA/AAP%20Letter%20to%20FDA%20on%20Timeline%20for%20Authorization%20
of%20COVID-19%20Vaccine%20for%20Children_08_05_21.pdf.
2
Case 4:21-cv-00264-RP-SBJ Document 17 Filed 09/09/21 Page 5 of 33
conditions. Waddell Decl. ¶ 17; Srinivas Decl. ¶¶ 29-36. For the 2020-2021 school year, of
Iowa’s 485,581 students enrolled in public schools, the State identified 12.9% (approximately
62,000 students) as students with disabilities.2 According to the CDC, “current evidence suggests
children with medical complexity, with genetic, neurologic, metabolic conditions, or with
congenital heart disease” can be at increased risk for severe illness from COVID-19.3 Waddell
Decl. ¶ 17; Srinivas Decl. ¶ 29. And “children with obesity, diabetes, asthma or chronic lung
disease, sickle cell disease, or immunosuppression can also be at increased risk for severe illness
from COVID-19-19.” 4 Waddell Decl. ¶ 17; Srinivas Decl. ¶ 29.
Individuals with intellectual disabilities are also at increased risk of contracting COVID-
19. Waddell Decl. ¶ 19. A recent study published in the New England Journal of Medicine
found that individuals with intellectual disabilities were more likely to contract COVID-19; if
diagnosed with COVID-19, more likely to be admitted to the hospital; and more likely to die
following admission.5 Waddell Decl. ¶ 19.
The beginning of the school year coincides with a dramatic increase in COVID-19
transmission in recent weeks in Iowa. Waddell Decl. ¶ 9. Since the end of July, Iowa has
2
State Summary: Reporting Year: 2020, Iowa Dep’t of Education (2020),
https://www.iaschoolperformance.gov/ECP/StateDistrictSchool/StateSummary?y=2020.
3
People with Certain Medical Conditions, Ctrs. for Disease Control & Prevention (Aug. 20, 2021 update),
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html.
4
Id.
5
Jonathan Gleason et. al., Commentary: The Devastating Impact of Covid-19 on Individuals with Intellectual
Disabilities in the United States, New Eng. J. Med. (Mar. 5, 2021),
https://catalyst.nejm.org/doi/full/10.1056/CAT.21.0051.
3
Case 4:21-cv-00264-RP-SBJ Document 17 Filed 09/09/21 Page 6 of 33
reported 3,500 new cases among children.6 Recent numbers show children accounting for over
22% of all Iowa COVID-19 cases.7
The risk to school children and staff is already apparent. Though most Iowa schools have
only just opened, schools across the state had (by August 29) reported 464 cases, including 62
from the Des Moines district, 47 from Iowa City, 27 from Cedar Rapids, 24 from College
Community, 23 from Marshalltown, and 22 from Keokuk and Ankeny.8
2. COVID-19 Prevention in Schools
The CDC unambiguously recommends “universal indoor masking for all students, staff,
teachers, and visitors to K-12 schools, regardless of vaccination status.” 9 Waddell Decl. ¶ 22;
Srinivas Decl. ¶ 41. In making this recommendation, the CDC has noted “At least ten studies
have confirmed the benefit of universal masking in community level analyses . . . Each analysis
demonstrated that, following directives from organizational and political leadership for universal
masking, new infections fell significantly.”10
Leading medical organizations, including the American Academy of Pediatrics and the
American Medical Association, the Infectious Disease Society of America, and the American
6
Children and COVID-19: State Data Report: Version: 8/26/21, Am. Acad. Pediatrics (Aug. 26, 2021 update),
https://www.aap.org/en/pages/2019-novel-coronavirus-covid-19-infections/children-and-covid-19-state-level-data-
report/at 25 (reporting 48,618 cumulative child cases in Iowa) with Children and COVID-19: State Data Report:
Version: 7/29/21, Am. Acad. Pediatrics (July 29, 2021 update),
https://downloads.aap.org/AAP/PDF/AAP%20and%20CHA%20-%20Children%20and%20COVID-
19%20State%20Data%20Report%207.29%20FINAL.pdf at 24 (reporting 45,121 cumulative child cases in Iowa).
7
Tim Webber, Children make up nearly a quarter of new COVID-19 cases in Iowa, Des Moines Reg. (Sept. 1,
2021), https://www.desmoinesregister.com/story/news/health/2021/09/01/covid-19-iowa-testing-data-shows-kids-
make-up-22-percent-cases/8167419002/.
8
Compilation from School District COVID-19 Dashboards (Aug. 29, 2021).
9
Guidance for COVID-19 Prevention in K-12 Schools, Ctrs. for Disease Control & Prevention (Aug. 5, 2021),
https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/k-12-guidance.html.
10
Use of Cloth Masks to Control the Spread of SARS-CoV-2, Ctrs. for Disease Control & Prevention (May 7, 2021),
https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/masking-science-sars-cov2.html.
4
Case 4:21-cv-00264-RP-SBJ Document 17 Filed 09/09/21 Page 7 of 33
Academy of Family Physicians all strongly recommend universal masking as part of school
openings.11 Waddell Decl. ¶ 23; Srinivas Decl. ¶¶ 37, 41.
The health departments in Iowa’s three most populous counties, as well as the Iowa
Medical Society and the Iowa Chapter of the American Academy of Pediatrics have similarly
recommended universal indoor masking by all students (age two and older), staff, teachers, and
visitors to K-12 schools, regardless of vaccination status.12 Waddell Decl. ¶ 24.
Recent studies have confirmed that wearing masks is one of the most powerful tools to
thwart the transmission of COVID-19 in indoor settings, such as schools. 13 Waddell Decl. ¶ 25;
Srinivas Decl. ¶ 38. Researchers at Duke University conducted a study on COVID-19
transmission considering over 1 million students in North Carolina K-12 schools and concluded
that “wearing masks is an effective strategy to prevent in-school COVID-19 transmission.” 14
Waddell Decl. ¶ 25.
In the opinion of Dr. Joel Waddell, a specialist in pediatric infectious diseases at Blank
Children’s Hospital, “the only safe course at this time is universal masking at school and school-
related functions. . . .” Waddell Decl. ¶ 28. And as Dr. Megan Srinivas, the infectious disease
consultant for Broadlawns Medical Center says, “masks matter.” Srinivas Decl. ¶ 25.
11
Guidance for COVID-19 Prevention in K-12 Schools, Ctrs. for Disease Control & Prevention (Aug. 5, 2021),
https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/k-12-guidance.html.
; Gerald Harmon, AMA statement on CDC’s updated mask guidance to combat COVID-19 spread, Am. Medical
Ass’n (July 27, 2021), https://www.ama-assn.org/press-center/ama-statements/ama-statement-cdc-s-updated-mask-
guidance-combat-covid-19-spread.
12
Sydney Maras, IMS & IA AAP: Back to School Face Mask Usage Statement, Iowa Medical Society (Aug. 19,
2021), https://www.iowamedical.org/news/10941537.
13
Use of Cloth Masks to Control the Spread of SARS-CoV-2, Ctrs. for Disease Control & Prevention (May 7, 2021)
(referencing ten studies), https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/masking-science-sars-
cov2.html.
14
The ABCs of North Carolina's Plan A, ABC Science Collaborative (July 1, 2021),
https://abcsciencecollaborative.org/the-abcs-of-north-carolinas-plan-a/.
5
Case 4:21-cv-00264-RP-SBJ Document 17 Filed 09/09/21 Page 8 of 33
3. HF 847 and Actions of the Defendant State Officials
On May 20, 2021, the Iowa legislature enacted HF 847, its education bill, which
contained a mask mandate ban. The bill, which went into effect immediately upon signing,
provides that “school district[s] . . . 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 . . . property unless the facial covering is necessary for a specific
extracurricular or instructional purpose . . . .”15
This directive reversed the Department of Education’s prior policy which “adopts . . .
CDC guidelines in all of our training manuals,” “encourage[d] the use of cloth face coverings
when feasible, and “deferred to local districts . . . to determine how and when” school activities
could be conducted.”16 Since HF 847 was passed, the Department of Education has not posted
COVID guidance or policies for school districts on its website. And numerous school districts
around the state which had mask mandates prior to HF 847 – including Des Moines, West Des
Moines, Waukee, Sioux City, Urbandale, Linn-Mar, and Norwalk – have rescinded them.17
In the months since HF 847 was enacted, COVID-19 infection rates, daily cases, and
COVID-19-related hospitalizations have ballooned in Iowa.18 With the emergence of the Delta
variant, the number of reported new cases is seven times higher; hospitalizations are at the
15
2021 Iowa Acts ch. 139, § 28 (codified at Iowa Code § 280.31).
16
COVID-19 Guidance and Information, Iowa Dep’t of Educ. (Oct. 7, 2020),
http://web.archive.org/web/20210109052728/https://educateiowa.gov/article/2021/01/07/covid-19-guidance-and-
information.and Reopening Guidance for Schools: Frequently Asked Questions, Iowa Dep’t of Educ. (June 30,
2020), http://web.archive.org/web/20201028011619/https://educateiowa.gov/sites/files/ed/documents/COVID-
19%20Reopening%20FAQ%206%2030%2020.pdf.
17
Grant Gerlock, Schools Review Mask Policies After IDPH Issues New Guidelines, Iowa Public Radio (May 18,
2021), https://www.iowapublicradio.org/state-government-news/2021-05-18/schools-review-mask-policies-after-
idph-issues-new-guidelines.
18
Nick Coltrain, Iowa COVID hospitalizations highest since January, 25% increase since last week to nearly 500,
Des Moines Reg. (Aug. 26, 2021), https://www.desmoinesregister.com/story/news/health/2021/08/26/iowa-covid-
19-hospitalization-rate-positive-cases-surges-delta-variant/5541193001/.
6
Case 4:21-cv-00264-RP-SBJ Document 17 Filed 09/09/21 Page 9 of 33
highest point since January of 2021; and COVID-19-related deaths are rapidly climbing.19 Over
the week of August 18 to 25, 2021, more than 7,000 new cases were reported in Iowa.20
Notwithstanding the reemergence of COVID-19, Governor Reynolds has doubled down
on the prohibition on mask mandates, issuing a press release that she was “proud” to “protect
Iowans against unnecessary government mandates in our schools.” 21 Earlier this week, on
August 30, after the U.S. Department of Education announced an investigation into potential
civil rights violations, Governor Reynolds proclaimed, “In Iowa, we will continue to support
individual liberty over government mandates.”22 Yesterday (on September 2) she said “it doesn’t
really matter” whether the Iowa Department of Public Health recommended students wear masks
in schools, because “it’s the law at this point.”23 Ignoring the numerous public studies the CDC
cited in support of its mask mandate recommendation, she has publicly challenged guidance
from public health officials, asking, “Where’s the data that the CDC is using to justify mask
mandates.”24 While Director Lebo has refused to comment publicly on HF 847, her department
has warned that “school districts that choose not to follow the ban could receive citations” and
19
Id.
20
Tim Webber, Children make up nearly a quarter of new COVID-19 cases in Iowa, Des Moines Reg. (Sept. 1,
2021), https://www.desmoinesregister.com/story/news/health/2021/09/01/covid-19-iowa-testing-data-shows-kids-
make-up-22-percent-cases/8167419002/.
21
Reynolds Statement on New COVID-19 Guidance from the Biden Administration, Office of the Governor of Iowa
(July 27, 2021), https://governor.iowa.gov/press-release/reynolds-statement-on-new-covid-19-guidance-from-the-
biden-administration%C2%A0%C2%A0.
22
Gov. Reynolds issues a statement in response to the Biden Administration’s latest letter, Office of the Governor of
Iowa (Aug. 30, 2021), https://governor.iowa.gov/press-release/%C2%A0gov-reynolds-issues-a-statement-in-
response-to-the-biden-administration%E2%80%99s-latest.
23
Ian Richardson & Stephen Gruber-Miller, Gov. Kim Reynolds declines to recommend masks for students: 'It
doesn't really matter because it's a law', Des Moines Reg. (Sept. 2, 2021),
https://www.desmoinesregister.com/story/news/politics/2021/09/02/kim-reynolds-declines-recommend-masks-iowa-
students-citing-ban-school-mandates/5696537001/.
24
Rod Boshart, Iowa Gov. Kim Reynolds vows to ‘hold strong’ against mask mandates in schools, Gazette (Aug. 19,
2021), https://www.thegazette.com/state-government/iowa-gov-kim-reynolds-vows-to-hold-strong-against-mask-
mandates-in-schools/; Ian Richardson, As Gov. Kim Reynolds shares uncertainty on masks, Iowa health experts say
their benefit is clear, Des Moines Reg. (Aug. 27, 2021),
https://www.desmoinesregister.com/story/news/politics/2021/08/26/iowa-medical-experts-say-masks-work-covid-
governor-kim-reynolds-wavers-delta-variant-transmission/8214830002/.
7
Case 4:21-cv-00264-RP-SBJ Document 17 Filed 09/09/21 Page 10 of 33
“be referred to the State Board of Education”; under state law, the Board of Education has the
power to assume oversight over school districts, and districts can lose accreditation.25
The enforcement of HF 847 by State officials places all children at risk. Waddell Decl. ¶¶
7, 29; Srinivas Decl. ¶¶ 9, 25-26.
4. Harm to the Named Plaintiffs
As Dr. Waddell succinctly describes the dilemma families face as result of Provision
1.108:
In communities where COVID-19 is prevalent, parents with
children with conditions that can make them vulnerable to severe
illness in particular will face a terrible dilemma of whether to risk
their children’s health and even life, or to keep the children out of
school. That is not a decision they should be forced to make, when
we have the option of masks to protect the safety of those in the
school. . . . No child should risk serious illness if we can prevent it.
Waddell Decl. ¶¶ 29-30.
That is the dilemma faced by families across the state, including the children of the
named Plaintiffs and those represented by The Arc of Iowa, who have disabilities that make them
susceptible to severe illness if they contract COVID-19. Compl. ¶ 10. Whether these children
live with Down Syndrome, asthma, heart disease, lung conditions, sickle cell anemia, Autism
Spectrum Disorder, or other conditions that make them more vulnerable to contracting COVID-
19, they face losing equal access to their education.
Because of HF 847, for the Plaintiffs’ children in this case, going to school is nothing
short of perilous. To a one, they have disabilities that put them at risk of severe illness should
they contract COVID-19.
25
Ian Richardson, Can Iowa Schools Defy the State’s COVID Mask Ban Like Florida and Texas Schools Are? Des
Moines Reg. (Aug. 16, 2021), https://www.desmoinesregister.com/story/news/politics/2021/08/16/what-backlash-
could-schools-face-if-they-defy-iowas-mask-mandate-ban-kim-reynolds-cdc-covid/5512069001/.
8
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Ten year old S.V. has a brain injury, cerebral palsy, and a history of strokes and epilepsy.
Vercande ¶¶ Decl. 4, 8. E.M.S. is entering fourth grade. She has a condition known as Williams
Syndrome, which is a genetic condition that results in heart problems, gastrointestinal issues,
slow growth, and learning disabilities. Stewart Decl. ¶ 3. A.S. and E.C., both just five, have
Down syndrome, amongst other conditions. Sithonnorath ¶ 6; Craig Decl. ¶ 2. E.C. also has
chronic respiratory problems. Craig Decl. ¶ 2. E.C.’s sibling, J.C., a new fifth grader, has sickle
cell anemia, functional asplenia, and a compromised immune system. Craig Decl. ¶ 3. M.P. and
S.P. are eleven year old siblings. Preston Decl. ¶ 2. M.P. has a rare condition – heterotaxy –
where many organs can be formed abnormally. Preston Decl. ¶ 4. Because of his condition, M.P.
has heart and lung defects among other issues. Preston Decl. ¶ 5. S.P. has hypertension because
of small kidneys and experiences seizures, amongst other conditions. Preston Decl. ¶ 8. C.B,
K.G., and J.J.B. have asthma. Alexander Decl. ¶5. Geest Decl. ¶ 4; Croft Decl. ¶ 3. H.J.F.R
often has to use a ventilator because of his condition – congenital central hypoventilation
syndrome; he is in fifth grade. Roise Decl. ¶ 3. P.D. is in kindergarten. She has symptomatic
congenital cytomegalovirus, amongst other conditions; she uses a feeding tube and has
intellectual and developmental delays. Devereaux Decl. ¶ 3. And preschooler V.M.H. has heart
disease, autism, and cerebral palsy, among other conditions. Hadden Decl. ¶ 2.
In every case, the CDC and/or the Plaintiffs’ doctors recognize these children as having a
condition that puts them at risk of severe illness should they contract COVID-19. Alexander
Decl. ¶¶ 5, 7; Craig Decl. ¶¶ 2-3; Croft Decl. ¶ 3; Devereaux Decl. ¶ 7; Geest Decl. ¶¶ 4, 6;
Hadden Decl. ¶ 2; Preston Decl. ¶¶ 6, 9, 11; Roise Decl. ¶ 3; Sithonnorath Decl. ¶¶ 7, 10; Stewart
Decl. ¶ 4; Vercande Decl. ¶¶ 9, 11. In every case, the children are too young to get vaccinated.
Alexander Decl. ¶ 4; Craig Decl. ¶ 5; Croft Decl. ¶ 4. Devereaux Decl. ¶ 5; Geest Decl. ¶ 3;
9
Case 4:21-cv-00264-RP-SBJ Document 17 Filed 09/09/21 Page 12 of 33
Hadden Decl. ¶ 3; Preston Decl. ¶ 3; Roise Decl. ¶ 5; Sithonnorath Decl. ¶ 5; Stewart Decl. ¶ 6;
Vercande Decl. ¶ 7.
The Plaintiff parents want their children to go to school, for the learning, the social
interaction, the intellectual and emotion development. Their doctors, like the CDC, have
identified masking for students and staff as essential to the children’s safety. Both the CDC and
their doctors say in person learning is essential. Compl. ¶ 39; Devereaux Decl. ¶ 7. The
Plaintiffs report that many teachers and students in their schools are not masked. Alexander
Decl. ¶ 11; Craig Decl. ¶ 12; Geest Decl. ¶10; Hadden Decl. ¶¶ 9-10; Roise Decl. ¶ 11. In some
cases, there are already infections in the school district. Alexander Decl. ¶ 13; Craig Decl. Decl.
¶ 13; Croft Decl. ¶ 11; Devereaux Decl. ¶ 12; Roise Decl. ¶ 12.
And the parents repeatedly report that remote learning did not work for their children.
See, e.g., Craig Decl. ¶ 10; Croft Decl. ¶¶ 9, 12; Preston Decl. ¶¶ 12-14. Their parents saw their
children regress when learning in school was not an option. Craig Decl. ¶ 10; Preston Decl. ¶¶
12-14, Sithonnorath Decl. ¶¶ 12-14; Stewart Decl. ¶ 9. K.G.’s “mental health suffered greatly,”
Geest Decl. ¶ 8; “M.P. has regressed,” Preston Decl. ¶ 13; “S.P. faced mental health issues that
were exacerbated by the online learning,” Preston Decl. ¶ 14, and “A.S. has regressed in several
areas, even with significant parental involvement.” Sithonnorath Decl. ¶ 13.
But without universal masking, because of their disabilities, these children can’t be safe.
HF 847’s bar on universal masking makes it impossible for school districts to provide a safe
learning environment.
The Plaintiff parents are afraid to send their children to school, and both parents and
children are experiencing enormous anxiety. Alexander Decl. ¶ 10, Preston Decl. ¶ 19;
Sithonnorath Decl. ¶ 17. M.P. is “very afraid of getting sick and potentially dying.” Preston
10
Case 4:21-cv-00264-RP-SBJ Document 17 Filed 09/09/21 Page 13 of 33
Decl. ¶ 20; see also Alexander Decl. ¶ 12; Sithonnorath Decl. ¶ 18. M.P’s sibling is in “fear of
what might happen to his brother if he is exposed.” Preston Decl. ¶ 21. And the Plaintiff parents
are afraid for themselves and other family members who are at increased risk for severe illness
risk should their children contract COVID-19 at school. Alexander Decl. ¶ 14; Devereaux Decl.
¶ 14; Hadden Decl. ¶ 12; Preston Decl. ¶ 22; Sithonnorath Decl. ¶19.
Faced with the prospect of school without any requirement of masks, S.V.’s parents have
pulled him out of school. Vercande Decl. ¶ 15. His neurologist said S.V. otherwise risked more
severe seizures and further brain damage if he were to contract COVID. Vercande Decl. ¶ 11.
E.C.’s parents too have pulled her out of school, even though she was held back last year in part
because of the challenges online learning presented for her. Craig Decl. ¶¶ 10, 14.
Most other Plaintiff parents feel they have no choice but to send their child to school.
Roise Decl. ¶ 13; Hadden Decl. ¶ 11. Some of their schools are not offering virtual learning for
their children. Alexander Decl. ¶ 9; Hadden Decl. ¶ 6; Roise Decl. ¶ 13. Even when they do, for
most of the Plaintiffs’ children, the virtual learning is no learning. In many cases, it is nothing
more than prerecorded videos, a mode of education highly unsuited to many children with
disabilities. Devereaux Decl. ¶¶ 8 13; Geest Decl. ¶ 7; Preston Decl. ¶ 15; Sithonnorath Decl. ¶
15; Stewart Decl. ¶¶ 8, 11.
For many of the Plaintiff parents, homeschooling, remote learning, or private instruction
is not an option. As the parent of M.P. and S.P. explained, “either my husband or I would have
to quit our jobs to teach them.” Preston Decl. ¶ 15. That’s just not an option. See, e.g., Croft
Decl. ¶ 12 (“we were unable to give our child the attention and support he needed during online
learning and homeschooling”); Devereaux Decl. ¶ 13 (“My husband and I work full-time
remotely so we can’t pick up the instruction”); Roise Decl. ¶ 13 (“Both my husband and I work
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full-time. Therefore, homeschooling is not an option for our family.”); see also Hadden Decl. ¶
11; Stewart Decl. ¶ 11.
The Plaintiff parents face an impossible choice, if it can even be called a choice. “I am in
the horrible position of deciding between my child’s physical safety and mental health.” Geest
Decl. ¶ 8. “I am extremely nervous about M.P. returning to school . . . . Recently, due to this
stress, I have had difficulty sleeping and have experienced debilitating spells of anxiety. I don’t
know if I am doing the right thing but I feel as though I have no choice in the matter.” Preston
Decl. ¶ 19.
Absent relief from this court, parents are sending their children to school at significant
threat to their health, because they have no other real choice. Alexander Decl. ¶ 9; Croft Decl. ¶
12; Hadden Decl. ¶ 11; Preston Decl. ¶ 12-16; Roise Decl. ¶ 13; Sithonnorath Decl. ¶ 13; Stewart
Decl. ¶ 11. If everyone were wearing a mask, the parents would feel their children would be safe
in school. Alexander Decl. ¶ 15; Craig Decl. ¶ 8; Croft Decl. ¶ 13. Devereaux Decl. ¶ 15; Geest
Decl. ¶ 11; Hadden Decl. ¶ 7; Preston Decl. ¶ 23; Roise Decl. ¶ 9-10; Sithonnorath Decl. ¶ 20;
Stewart Decl. ¶ 12; Vercande Decl. ¶ 17.
In short, C.B., J.J.B., P.D., K.G., V.M.H., M.P., S.P., H.J.F.R., A.S., and E.M.S – all of
whom have disabilities that put them at risk of severe illness from COVID – are forced to take
greater, and unnecessary, risks to get their education. Alexander Decl. ¶ 16; Croft Decl. ¶ 14.
Devereaux Decl. ¶ 16; Geest Decl. ¶ 6; Hadden Decl. ¶ 13; Preston Decl. ¶¶ 6, 9, 11; Roise Decl.
¶ 14; Sithonnorath Decl. ¶ 21; Stewart Decl. ¶ 13. And E.C. and S.V. are excluded from school.
Craig Decl. ¶ 14: Vercande Decl. ¶ 15. As their parents say, it is unfair. E.g., Alexander ¶ 16;
Sithonnorath ¶ 21. And it is discriminatory.
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LEGAL STANDARD
The standards for the issuance of a preliminary injunction are the same as for the
issuance of a temporary restraining order. The Court must weigh four factors: “(1) the
probability of success on the merits; (2) the threat of irreparable injury to the movant; (3) the
balance between this harm and the injury that granting the injunction will inflict on other
interested parties; and (4) whether the issuance of an injunction is in the public
interest.” Sanborn Mfg. Co., Inc. v. Campbell Hausfeld/Scott Fetzer Co., 997 F.2d 484, 485-86
(8th Cir. 1993) (citing Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109, 114 (8th Cir.
1981) (en banc)).
ARGUMENT
I. THE PLAINTIFFS WILL SUFFER IRREPARABLE INJURY UNLESS AN
INJUNCTION ISSUES.
The Plaintiffs need only demonstrate that irreparable harm “is likely in the absence of an
injunction.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 22 (2008). Here, the Plaintiffs can
show three types of irreparable harm that flow directly from Defendants’ enforcement of HF
847.
First, the Plaintiffs, because of HF 847, face heightened risk of exposure to a deadly viral
contagion—COVID-19. As the Eighth Circuit has noted, “[W]e entertain no question but that
irreparable injury exist[s]” when the harm is a “life threatening interest.” Harris v. Blue Cross
Blue Shield of Mo., 995 F.2d 877, 879 (8th Cir. 1993). See also Kai v. Ross, 336 F.3d 650, 656
(8th Cir. 2003) (“[T]he danger to plaintiffs' health, and perhaps even their lives, gives them a
strong argument of irreparable injury.”). Courts throughout the country have repeatedly found
that exposure to a life-threatening virus, or one that can cause life-long complications such as
COVID-19, is an irreparable harm that cannot be remedied at law. See, e.g., Coreas v. Bounds,
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451 F. Supp. 3d 407, 428-29 (D. Md. 2020) (finding COVID-19 exposure risks irreparable
harm); Banks v. Booth, 459 F.Supp.3d 143, 159 (D.D.C. 2020) (same); Peregrino Guevara v.
Witte, No. 6:20-CV-01200, 2020 WL 6940814, at *8 (W.D. La. Nov. 17, 2020) (noting that “[i]t
is difficult to dispute that an elevated risk of contracting COVID-19 poses a threat of irreparable
harm”). Furthermore, when the risk of contraction or serious illness is augmented due to a
person’s disability, including an underlying health condition, emergency injunctive relief is
necessary. Thakker v. Doll, 451 F. Supp. 3d 358, 362, 365 (M.D. Pa. 2020) (in granting an
injunction to release petitioners in civil detention who suffered from “chronic medical conditions
and face[d] an imminent risk of death or serious injury if exposed to COVID-19,” the court
determined that “[t]here can be no injury more irreparable” than the “very real risk of serious,
lasting illness or death”).
Second, the Plaintiffs face loss of educational opportunities. Given the heightened risks
posed by COVID-19 to the Individual Plaintiffs, several parents have opted to temporarily
remove their child from public school. See McDougald Scott Decl. ¶¶ 8-9; Finny Decl. ¶ 9. But
that merely substitutes one irreparable harm for another. The loss of educational opportunities is
a paradigmatic example of irreparable harm, as it is both intangible and deeply damaging. See,
e.g., Issa v. School Dist. of Lancaster, 847 F.3d 121, 142 (3d Cir. 2017) (“[E]ven a few months
in an unsound program can make a world of difference in harm to a child’s educational
development”) (citing Nieves-Marquez v. Puerto Rico, 53 F.3d 108, 121-22 (1st Cir. 2003))
(internal quotation marks omitted). “[T]he gravity of the harm is vast and far reaching” when a
child is deprived of his or her education. Ass’n for Disabled Ams., Inc. v. Fla. Int’l Univ., 405
F.3d 954, 958 (11th Cir. 2005) (citing Brown v. Board of Educ., 347 U.S. 483, 493 (1954)
(“[E]ducation is perhaps the most important function of state and local governments” because “it
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is doubtful that any child may reasonably be expected to succeed in life if he is denied the
opportunity of an education.”)).
On those grounds, courts have issued preliminary injunctions in order to immediately
stop the irreparable harm deriving from a child’s absence in school. See, e.g., Alejandro v. Palm
Beach State Coll., 843 F. Supp. 2d 1263, 1270-71 (S.D. Fla. 2011) (concluding that missing
school classes constitutes irreparable harm, and granting temporary injunctive relief); Borough of
Palmyra, Bd. of Educ. v. F.C. ex rel. R.C., 2 F. Supp. 2d 637, 645 (D.N.J. 1998) (holding that the
loss of an appropriate education is an irreparable harm under preliminary injunction analysis).
Finally, HF 847 causes irreparable harm because it violates federal disability laws. See
Part II (below). Where a “defendant has violated a civil rights statute,” courts can “presume that
the plaintiff has suffered irreparable injury from the fact of the defendant's violation.” Silver
Sage Partners, Ltd. v. City of Desert Hot Springs, 251 F.3d 814, 827 (9th Cir. 2001) (citing
cases); see also Gresham v. Windrush Partners, Ltd., 730 F.2d 1417, 1423 (11th Cir.
1984) (“[I]rreparable injury may be presumed from the fact of discrimination and violations of
fair housing statutes”). Thus, the Defendants’ violation of the ADA and the Rehabilitation Act
alone can give rise to a presumption of irreparable injury.
Without emergency relief from this Court, the Individual Plaintiffs—and many others
like them—are forced to decide which irreparable injury they would rather endure: an imminent
risk of infection for their child with disability, or the exclusion, alienation, and deprivation of
services that would result from being removed from school. Waddell Decl. ¶¶ 29-33; Croft Decl.
¶¶ 12, 14; Geest Decl. ¶ 8; Devereaux Decl. ¶¶ 13. 16; Stewart Decl. ¶¶ 11, 13; Alexander Decl.
¶¶ 10, 16; Preston Decl. ¶ 19; Vercande Decl. ¶ 15; Sithonnorath Decl. ¶¶ 17, 21; Roise Decl. ¶¶
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13; Craig Decl. ¶¶ 15-16; Hadden Decl. ¶¶ 13-14. The Court has authority to spare Plaintiffs
from this cruel choice, and the law weighs heavily in favor of it doing so.
II. THE PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS
A. The Defendants are Discriminating Against Students with Disabilities in
Violation of Federal Law.
By their enforcement of HF 847, the Defendants have violated the ADA and Section 504
of the Rehabilitation Act. They have done so by effectively excluding disabled students from
public school in the state; discriminating against students with disabilities; and failing to take
steps to ensure students with disabilities can be safely integrated in the public schools. As set
forth below, the Plaintiffs readily show a likelihood of success on the merits of these claims.
Title II of the ADA provides that “no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be denied the benefits of the
services, programs or activities of a public entity, or be subjected to discrimination by any such
entity.” 42 U.S.C. § 12132. Likewise, Section 504 of the Rehabilitation Act of 1973 provides
that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his
disability, be excluded from the participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial assistance … .” 29
U.S.C. § 794(a). "Enforcement remedies, procedures and rights under Title II are the same as
under section 504." Pottgen v. Missouri State High Sch. Activities Ass'n, 40 F.3d 926, 930 (8th
Cir. 1994) (citing 42 U.S.C. § 12133). Accord Birmingham v. Omaha Sch. Dist., 220 F.3d 850,
856 (8th Cir. 2000).
The ADA and the Rehabilitation Act prohibit discrimination against a disabled person by
reason of the person’s disability. See 42 U.S.C. § 12132. Together, the ADA and the
Rehabilitation Act require public entities, including public school districts and state school
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systems, to afford students with disabilities an equal opportunity to participate in or benefit from
any aid, benefit, or service provided to others. 28 C.F.R §§ 35.130(b)(1), 34 C.F.R.
§104.4(b)(ii). As explained by Judge Frank:
Title II of the ADA, applicable to public entities, provides that "no
qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public entity, or
be subjected to discrimination by any such entity." 42 U.S.C. §
12132. Further, an implementing regulation referred to as the
"integration mandate" states: "A public entity shall administer
services, programs, and activities in the most integrated setting
appropriate to the needs of qualified individuals with disabilities."
28 C.F.R. § 35.130(d). The preamble to these regulations describes
"the most integrated setting" as "a setting that enables individuals
with disabilities to interact with nondisabled persons to the fullest
extent possible." 28 C.F.R. Pt. 35, App. B, Subp. B., § 35.130.
Murphy ex rel. Murphy v. Minn. Dep’t of Human Servs., 260 F. Supp. 3d 1084, 1114 (D. Minn.
2018); see also Steimel v. Wernert, 823 F.3d 902, 909 (7thCir. 2016) (“In accordance with
Olmstead, the Department of Justice has released guidance directing that the integration mandate
[should] be read broadly”).
In other words, a public school system cannot explicitly or constructively exclude
students with disabilities from the classroom, nor can it provide different or separate aids,
benefits, or services to individuals with disabilities … unless such action is necessary to provide
qualified individuals with disabilities with aids, benefits, or services that are as effective as those
provided to others. 28 C.F.R. § 35.130(b)(1)(iv). Nor can a public entity otherwise limit a
qualified individual with a disability in the enjoyment of any right, privilege, advantage, or
opportunity enjoyed by others receiving the aid, benefit, or service. 28 C.F.R. §
35.130(b)(1)(vii).
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To demonstrate a violation of the Rehabilitation Act or Title II, a plaintiff must
demonstrate: “1) he is a qualified individual with a disability; 2) he was excluded from
participation in or denied the benefits of a public entity’s services, programs, or activities, or was
otherwise discriminated against by the entity; and 3) that such exclusion, denial of benefits, or
other discrimination, was by reason of his disability.” Layton v. Elder, 143 F.3d 469, 472 (8th Cir.
1998); see also Argenyi v. Creighton University, 703 F.3d 441, 447 (8th Cir. 2013).
Here, the Plaintiffs have demonstrated likelihood of success on the merits of each of these
elements.
1. The Plaintiffs have disabilities, are otherwise qualified to receive a
public education, and have standing to bring this action.
“Disability” is defined by the ADA as “a physical or mental impairment that substantially
limits one or more major life activities.” 42 U.S.C. § 12102(1)(A). Through the ADA
Amendments Act, Congress clarified that “[t]he primary object of attention in cases brought
under the ADA should be whether covered entities have complied with their obligations and
whether discrimination has occurred, not whether the individual meets the definition of
disability.” 29 C.F.R. § 1630.1(c)(4).
Here, each Individual Plaintiff has a disability – one that places them at high risk of
contracting COVID-19 and/or heightened risk of complications if they contract COVID-19. The
ADA defines disability as “a physical or mental impairment that substantially limits one or more
major life activities of such individual.”26 Major life activities for purposes of the Act “include
but are not limited to, caring for oneself, …, speaking, breathing, learning, reading,
concentrating, thinking, communicating, and working;” a major life activity “also includes the
operation of a major bodily function, including but not limited to, functions of the immune
26
42 U.S.C. § 12102(1).
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system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory,
circulatory, endocrine, and reproductive functions.”27 Conditions such as asthma, chronic lung
disease, diabetes, sickle cell disease, and congenital heart disease by definition substantially limit
a major bodily function. The Individual Plaintiffs readily meet this definition. Alexander Decl. ¶
5 (asthma); Craig Decl. ¶ 3 (sickle cell anemia and compromised immune system); Croft Decl. ¶
3 (asthma); Devereaux Decl. ¶¶ 3, 7 (congenital cytomegalovirus); Hadden Decl. ¶ 2 (heart
disease, cerebral palsy, and autism); Preston Decl. ¶¶ 4-6 & 8-9 (heart defects & chronic kidney
disease); Roise Decl. ¶ 2 (congenital hypoventilation syndrome); Sithonnorath Decl. ¶¶ 6-7
(Down syndrome); Stewart Decl. ¶¶ 3-4 (Williams Syndrome); Vercande Decl. ¶¶ 8-9 (cerebral
palsy and brain injury). The Organizational Plaintiff has members who are individuals with
disabilities that place them at high risk of experiencing severe health complications from
COVID-19. Compl. ¶ 10.
Additionally, each Individual Plaintiff, as well as the many members of the Arc of Iowa
are enrolled in a public school and are qualified to receive the guarantee of a free public
education. Alexander Decl. ¶¶ 3, 16; Craig Decl. ¶ 6; Croft Decl. ¶ 5; Devereaux Decl. ¶ 6;
Geest Decl. ¶ 2; Hadden Decl. ¶ 4; Preston Decl. ¶ 2; Roise Decl. ¶ 5; Sithonnorath Decl. ¶ 2;
Stewart Decl. ¶ 7; Vercande Decl. ¶ 2. The Organizational Plaintiff is a membership organization
that has members that are impacted by HF 847 and have associational standing. Arkansas
Medical Soc’y, Inc. v. Reynolds, 6 F.3d 519, 528 (8th Cir. 1993) (citing Hunt v. Washington
Apple Advertising Comm’n, 432 U.S. 333 (1977)).
27
42 U.S.C. §§ 12102(2)(A)-(B).
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Accordingly, the Individual Plaintiffs and the students represented by the Organizational
Plaintiff are all qualified individuals with disabilities who meet the essential eligibility
requirements for the services in question. 28 C.F.R. § 35.104.
2. The Plaintiffs have been discriminated against by a public entity by
virtue of disability, excluded from participation in or been denied the
benefits of the services, programs, or activities of a public entity
Plaintiffs are likely to succeed on the merits of their discrimination claims because the
Defendants’ conduct in enforcing HF 847 violates the ADA and/or the Rehabilitation Act.
Under federal disability rights laws, discrimination occurs not just because of outright
exclusion, but also because of a host of other prohibited activities that lead to exclusion and
discrimination, including inaction. Defendants’ conduct violates these civil rights laws and
discriminates in at least five ways, any one of which suffices as grounds for injunctive relief.
First, the Defendants are failing to make services, programs, and activities “readily
accessible” to disabled individuals in violation of 28 C.F.R. § 35.150 by making school
programs and activities available exclusively under conditions that are demonstrably
dangerous to children with disabilities. See generally Argenyi v. Creighton University, 703
F.3d 441, 451 (8th Cir. 2013) (quoting Baughman v. Walt Disney World Co., 685 F.3d 1131,
1135 (9th Cir. 2012) (“[T]the ADA and the Rehabilitation Act require [schools] to start by
considering how [their educational programs] are used by non-disabled . . . students and then
take reasonable steps to provide [disabled students] with a like experience.”)).
For children whose parents have made the hard decision to attend in-person, their
educational experience is not equal to their general education peers. Alexander Decl. ¶ 16;
Croft Decl. ¶ 14. Devereaux Decl. ¶¶ 10, 16; Hadden Decl. ¶ 13; Preston Decl. ¶ 20-21;
Roise Decl. ¶ 14; Sithonnorath Decl. ¶ 21; Stewart Decl. ¶ 13. The Defendants are subjecting
the Individual Plaintiffs who come to school to adverse conditions not required of other
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students. Students with disabilities that put them at risk of severe illness from COVID are
entering the school at their peril in a way that is demanded of no other student. It is as if
they, and only they, must run a gauntlet in order to enter the school. Where there are simple
steps schools could take to ensure equal opportunities, all of which follow public health
guidelines, the Defendants’ conduct is discriminatory. Universal masking is the best
protection from COVID infection in unvaccinated youth, and would allow students with
disabilities to fully participate in all educational programs, activities and extracurriculars.
Second, by creating an unreasonably dangerous environment for children with
disabilities that put them at risk of severe illness from COVID-19, the Defendants are
effectively excluding Plaintiffs from participation in public education in violation of 42
U.S.C. § 12132;, 28 C.F.R. § 35.130, 29 U.S.C. § 794 (a), and 34 C.F.R. 104.4 (a) & b(1). ,
As the Eighth Circuit has written, under Title II of the ADA “no qualified individual with a
disability shall, by reason of such disability, be excluded from participation in or be denied
the benefits of the services, programs, or activities of a public entity.” Layton v. Elder, 143
F.3d 469, 472 (8th Cir. 1998) (quoting 42 U.S.C. § 12132). For some Plaintiffs with
disabilities, the risk of attending school without universal masking is so dire that the lack of
masking effectively excludes them from the classroom. Layton, 143 F.3d at 472 (discussing
exclusion); Heather K. v. City of Mallard, Iowa, 946 F. Supp. 1373, 1383 n.13 (N.D. Iowa
1996) (noting that regulations promulgated under ““ “the ADA forbid[s] public entities from .
. . exclude[ing] from participation”).
Third, the Defendants are violating the requirement to provide reasonable
modifications in order to provide equal access to programs, services, and activities. As the
Eighth Circuit has recognized, a public entity is required to “make reasonable modifications
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in policies . . . when the modifications are necessary to avoid discrimination on the basis of
disability . . . ’” DeBord v. Board of Educ. Of Ferguson-Florissant, 126 F.3d 1102, 1105
(8th Cir. 1997) (quoting 28 C.F.R. § 35.130(b)(7)). The ADA further requires that if
reasonable modifications to policies, practices, or procedures would permit a child with
disabilities to safely attend their school, the school district must make those modifications
unless doing so would fundamentally alter the nature of the service, program, or activity
being provided. 28 C.F.R. § 35.130(b)(7). HF 847 prohibits school districts from making the
modification of universal masking, which would allow students with disabilities to safely
attend school.
Fourth, the Defendant’s method of administration has imposed a policy that has the
purpose or effect of defeating or substantially impairing accomplishment of the objectives of
the public entity’s program with respect to individuals with disabilities in violation of 28
C.F.R. § 35.130(b)(3) and 34 C.F.R. § 104.4 (b)(4), because the objectives of public school
programs are to provide safe, healthy environments for students to learn, and participate in all
school activities with other children. By refusing to follow public health guidelines, and by
relegating students with disabilities to remote learning (or no learning at all), the Defendants
have undermined the purpose of public education with respect to students with disabilities in
violation of both the ADA and the Rehabilitation Act. 28 C.F.R. § 35.130(b)(3); 34 C.F.R. §
104.4 (b)(4). In addition, the Department of Education’s threat to strip accreditation from
schools impacts a district’s ability to provide education services,28 and is a prohibited criteria
or method of administration that has “the effect of subjecting qualified individuals with
28
Ian Richardson, Can Iowa Schools Defy the State’s COVID Mask Ban Like Florida and Texas Schools Are? Des
Moines Reg. (Aug. 16, 2021), https://www.desmoinesregister.com/story/news/politics/2021/08/16/what-backlash-
could-schools-face-if-they-defy-iowas-mask-mandate-ban-kim-reynolds-cdc-covid/5512069001/.
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disabilities to discrimination on the basis of disability” or has “the purpose or effect of
defeating or substantially impairing accomplishment on the objectives of the public entity’s
program with respect to individuals with disabilities.” 28 C.F.R. § 35.130(b)(3)(i), (ii).
Fifth, the Defendants are failing to permit public entities to administer services,
programs, and activities in the most integrated setting appropriate to the needs of qualified
individuals with disabilities. By telling students with disabilities who fear for their health in
attending school in person to use remote learning, the Defendants are not only relegating
these students to a lesser service, they are also unnecessarily segregating them from their
peers, and separating them from the community, in violation of 28 C.F.R. § 35.130(d) and 34
C.F.R. § 104.34(a). See generally Olmstead v. L.C., 527 U.S. 581, 592 (1999) (noting that
the “most integrated setting” means “a setting that enables individuals with disabilities to
interact with non-disabled persons to the fullest extent possible” (citing 28 C.F.R. pt. 35 App.
A, p. 450 (1998)); see also Jennsen v. Minn. Dep’t. of Social Servs., 138 F.Supp.3d 1068,
1070 (D. Minn. 2015) (the ADA, as interpreted by the Supreme Court in Olmstead, “gave
individuals throughout the country hope to believe that they could one day be truly integrated
into society and given the same dignity and respect afforded to all persons”).
Defendants are “public entities” as defined under federal law, 42 U.S.C. §12131(1)(B),
and they receive federal financial assistance. Defendants are therefore subject to the
requirements of the ADA and Rehabilitation Act. See 29 U.S.C. § 794(b)(2)(B) (any “local
educational agency” eligible to receive federal grants under the Elementary and Secondary
Education Act (“ESEA”) (20 U.S.C. § 7801) is a covered entity under the Rehabilitation
Act). Governor Reynolds and Director Lebo, acting in their official capacities, are subject to
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suit under the Rehabilitation Act and the ADA where they have taken affirmative steps to
implement and enforce HF 847.
Without HF 847, the Individual Plaintiffs and individuals represented by the
Organizational Plaintiffs would have the option of attending public schools that follow public
health guidelines, or have the option of requesting the reasonable modification of universal
masking, in order to attend their schools in person.29
B. HF 847 is Preempted by Federal Law
The Supremacy Clause of the United States Constitution renders federal law the
“supreme Law of the Land.” U.S. Const. art. VI, cl. 2. Under the doctrine of federal
preemption, “any state law, however clearly within a State's acknowledged power, which
interferes with or is contrary to federal law, must yield.” Felder v. Casey, 487 U.S. 131, 138
(1988) (citing Free v. Bland, 369 U.S. 663, 666 (1962)). State law is preempted when, among
other things, it “stands as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.” Pac. Gas & Elec. Co. v. State Energy Res. Cons. &
Dev. Comm’n, 461 U.S. 190, 204 (1983).
29
The Defendants cannot avoid their obligations under the ADA even if compliance may violate
state law. Under the Supremacy Clause, U.S. Const. art. VI, cl. 2, the laws of the United States
“shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any
Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” State law must
give way to the extent it “conflicts with federal law.” Crosby v. Nat’l Foreign Trade Council,
530 U.S. 363, 378 (2000). Such conflicts exist not only where “it is impossible . . . to comply
with both state and federal law,” but also “where under the circumstances of [a] particular case,
[the challenged state law] stands as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.” Id. at 372-73 (citation and internal quotation marks
omitted). Simply put, a defendant “is duty bound not to enforce a [state] statutory provision if
doing so would either cause or perpetrate unlawful discrimination” under federal law. Astralis
Condo. Ass’n v. Sec’y, U.S. Dep’t of Hous. & Urb. Dev., 620 F.3d 62, 67-70 (1st Cir. 2010). To
the extent HF 847 or any other Iowa law, regulation, or directive impedes any School Board’s
ability to comply with its ADA obligations, state law must “give way.” N. Carolina State Bd. of
Educ. v. Swann, 402 U.S. 43, 45 (1971).
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HF 847 conflicts with federal law because it frustrates Congress’ purpose to ensure that
local school districts have the authority to adopt public health policies, including mask
requirements, to protect students and educators as they develop plans for safe return to in-
person instruction. Under Section 2001(i) of the American Rescue Plan Act of 2021 (ARPA),
local school districts in Iowa have been allocated over $[770] million dollars in Elementary
and Secondary School Emergency Relief (ESSER) funding so that they can adopt plans for a
safe return to in-person instruction. Pub. L. No. 117-2, § 2001(i), 135 Stat. 4, 23 (2021).
Section 2001(e)(2)(Q) of the ARP Act expressly gives local school districts the authority to
use these ARPA ESSER funds for “[d]eveloping 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.”
Id. § 2001(e)(2)(Q), 135 Stat. 21. As discussed above, the CDC’s guidance specifically
recommends universal indoor masking in all K-12 schools.
Furthermore, interim final requirements adopted by the U.S. Department of Education
specifically require each local school district to adopt a plan for safe return to in-person
instruction that describes “the extent to which it has adopted policies, and a description of any
such policies, on each of the following safety recommendations established by the CDC …”,
including specifically “[u]niversal and correct wearing of masks.” See Am. Rescue Plan Act
Elementary and Secondary School Emergency Relief Fund, 86 Fed. Reg. 21,195, 21,200-01
(April 22, 2021). While the requirement “does not mandate that [a local educational agency]
adopt the CDC guidance” it does “requires that [each district] describe in its plan the extent to
which it has adopted the key prevention and mitigation strategies identified in the guidance,”
25
Case 4:21-cv-00264-RP-SBJ Document 17 Filed 09/09/21 Page 28 of 33
which include both “[u]niversal and correct wearing of masks,” and notably “appropriate
accommodations for children with disabilities with respect to health and safety policies,”
among others. Id. at 21,200. The interim requirements further provide that a local educational
agency must ensure the interventions it implements will respond to the needs of all students,
“and particularly those students disproportionately impacted by the COVID-19 pandemic,
including . . . children with disabilities.” Id. at 21,201. The school districts of Iowa cannot
satisfy this requirement given HF 847.
On August 18, the Department of Education sent Defendants Reynolds and Lebo a
letter warning that HF 847 is squarely at odds with the purpose of ARPA and stands as an
obstacle to the accomplishment and execution of ARPA’s full purposes and objectives.
Rather than affording discretion to local school boards to develop and implement safety
protocols as envisioned by ARPA, HF 847 prohibits local school districts, including the
Defendant School Boards, from implementing precisely the type of safe return-to-school
policies encouraged by ARPA. As explained by U.S. Education Secretary Cardona, HF 847
“restrict[s] the development of local health and safety policies and is at odds with the school
district planning process embodied in the U.S. Department of Education’s (Department’s)
interim final requirements.”30
HF 847 impermissibly conflicts with and is preempted by the American Rescue Plan Act
and the implementing final requirements of the U.S. Department of Education. In particular, it
bars school districts from complying with the American Rescue Plan Act requirement as
implemented by the Department of Education that school districts adopt plans for a safe return to
30
Letter from Miguel A. Cardona, Sec. of Educ., to Kim Reynolds, Governor & Ann Lebo, Education Director
(Aug. 18, 2021), https://oese.ed.gov/offices/american-rescue-plan/american-rescue-plan-elementary-and-secondary-
school-emergency-relief/21-006972-letter-from-secretary-cardona-iowa-final-signed/.
26
Case 4:21-cv-00264-RP-SBJ Document 17 Filed 09/09/21 Page 29 of 33
in-person instruction consistent with CDC guidance, including mask requirements. Accordingly,
HF 847 should be declared null and void.
III. THE BALANCE OF EQUITIES WEIGHS HEAVILY IN THE PLAINTIFFS’
FAVOR AND THE INJUNCTION SERVES THE PUBLIC INTEREST.
The balance of equities tips decisively in favor of the Plaintiffs and an injunction is
undoubtedly in the public interest. When the Defendants are governmental actors, the third and
fourth factors merge and are properly considered together. Nken v. Holder, 556 U.S. 418, 435
(2009).
Congress has mandated that the public interest requires equal treatment for persons with
disabilities, thereby maximizing their integration and independence. An injunction here supports
that public interest, toward the ends which the federal law requires. Layton v. Elder, 143 F.3d
469, 472 (8th Cir. 1998) (the “public interest strongly favors” enforcement of Title II of the
ADA); Heather K. by Anita K. v. City of Mallard, Iowa, 887 F. Supp. 1249, 1261-1263 (N.D.
Iowa 1995) (“the public interest is served by enforcement of anti-discrimination provisions of
Title II of the ADA”). It is against the public interest to allow a state to continue to violate
federal law, because the Supremacy Clause requires that federal law be paramount.
Moreover, allowing schools to require masks will benefit all children and their
communities by providing the protection against the spread of COVID-19.
With little administrative burden and no discernible costs associated with the requested
modification, the balance of the hardships is greatly in favor of the Plaintiffs and the Motion for
Preliminary Injunction should be granted.
CONCLUSION
The Plaintiffs, on behalf of their children with disabilities, respectfully request that this
Court immediately enjoin enforcement of HF 847 and allow the school districts to ensure that
27
Case 4:21-cv-00264-RP-SBJ Document 17 Filed 09/09/21 Page 30 of 33
each child receives a free and appropriate education in the least restrictive and the most
integrated environment—without jeopardizing their lives or safety.
Date: September 3, 2021
AMERICAN CIVIL LIBERTIES UNION OF IOWA
/s/ Rita Bettis Austen
Rita Bettis Austen, AT0011558
ACLU of Iowa Foundation Inc.
505 Fifth Avenue, Suite 901
Des Moines, IA 50309-2316
Telephone: 515-243-3988
Facsimile: 515-243-8506
rita.bettis@aclu-ia.org
/s/ Shefali Aurora
Shefali Aurora, AT0012874
ACLU of Iowa Foundation Inc.
505 Fifth Avenue, Suite 901
Des Moines, IA 50309-2316
Telephone: 515-243-3988
Facsimile: 515-243-8506
shefali.aurora@aclu-ia.org
/s/Leah Patton
Leah Patton, AT0006022
ACLU of Iowa Foundation Inc.
505 Fifth Avenue, Suite 901
Des Moines, IA 50309-2316
Telephone: 515-243-3988
Facsimile: 515-243-8506
leah.patton@aclu-ia.org
DISABILITY RIGHTS IOWA
Cynthia A. Miller (AT0005382)
666 Walnut Street, Suite 1440
Des Moines, IA 50309
T: (515) 278-2502
E: cmiller@driowa.org
Catherine Johnson* (AT0004006)
666 Walnut Street, Suite 1440
28
Case 4:21-cv-00264-RP-SBJ Document 17 Filed 09/09/21 Page 31 of 33
Des Moines, IA 50309
T: (515) 278-2502
E: cjohnson@driowa.org
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
Louise Melling*
125 Broad St.
New York, NY 10004
T: (212) 549-2637
E: lmelling@aclu.org
Susan Mizner*
39 Drumm Street
San Francisco, CA 94111
T: (415) 343-0781
E: smizner@aclu.org
ARNOLD & PORTER KAYE SCHOLER LLP
John A. Freedman*
Tara L. Williamson*
601 Massachusetts Ave, NW
Washington, DC 20001
T: 202.942.5316
E: john.freedman@arnoldporter.com
*Motion to proceed pro hac vice forthcoming
THE ARC
Shira Wakschlag*
The Arc of the United States
1825 K Street, NW, Suite 1200
Washington, DC 20006
Telephone: 202-534-3708
Facsimile: 202-534-3731
wakschlag@thearc.org
*pro hac vice admission pending
29
Case 4:21-cv-00264-RP-SBJ Document 17 Filed 09/09/21 Page 32 of 33
TOM DUFF LAW FIRM
/s/ THOMAS J. DUFF
THOMAS J. DUFF
/s/ JIM DUFF
JIM T. DUFF
DUFF LAW FIRM, PLC
The Galleria
4090 Westown Pkwy, Suite 102
West Des Moines, Iowa 50266
Telephone: (515) 224-4999
Fax: (515) 327-5401
Email : tom@tdufflaw.com
jim@tdufflaw.com
wendy@tdufflaw.com
Attorneys for the Plaintiffs
30
Case 4:21-cv-00264-RP-SBJ Document 17 Filed 09/09/21 Page 33 of 33
CERTIFICATE OF SERVICE
I hereby certify that on this date, I electronically filed the foregoing paper with the Clerk
of Court by using the CM/ECF system.
The foregoing paper will also be served along with the Complaint and Summons to all
Defendants.
Date: September 3, 2021
/s/Rita Bettis Austen
Rita Bettis Austen
31
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