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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
CENTRAL DIVISION
- - - - - - - - - - - - - X
THE ARC OF IOWA, et al., :
:
Plaintiffs, :
:
vs. : Case No. 4:21-cv-264
:
KIM REYNOLDS, In her : TRANSCRIPT OF HEARING ON MOTION
Official Capacity as : FOR TEMPORARY RESTRAINING ORDER
Governor of Iowa, et al., :
:
Defendants. :
- - - - - - - - - - - - - X
Courtroom 455, Fourth Floor
U.S. Courthouse
123 East Walnut Street
Des Moines, Iowa
Friday, September 10, 2021
9:59 a.m.
BEFORE: THE HONORABLE ROBERT W. PRATT, Senior Judge
TONYA R. GERKE, CSR, RDR, CRR
United States Courthouse
123 East Walnut Street, Room 197
Des Moines, Iowa 50309
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APPEARANCES:
For the Plaintiff: JOHN ARAK FREEDMAN, ESQ.
Arnold & Porter LLP
601 Massachusetts Avenue Northwest
Washington, D.C. 20001
JIM T. DUFF, ESQ.
Duff Law Firm, P.L.C.
The Galleria
4090 Westown Parkway, Suite 102
West Des Moines, IA 50266
LEAH DENISE PATTON, ESQ.
ACLU of Iowa Foundation
505 Fifth Avenue, Suite 808
Des Moines, IA 50309
CATHERINE ELLIZABETH JOHNSON, ESQ
CYNTHIA ANN MILLER, ESQ.
Disability Rights Iowa
666 Walnut Street, Suite 1140
Des Moines, IA 50309
For State Defendants: SAMUEL P. LANGHOLZ, ESQ.
Assistant Iowa Attorney General
1305 East Walnut Street
Des Moines, IA 50319
For the School District KRISTY M. LATTA, ESQ.
Defendants:
Ahlers & Cooney, P.C.
(Except Iowa City CSD) 100 Court Avenue, Suite 600
Des Moines, IA 50309
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P R O C E E D I N G S
THE COURT: Please be seated.
MR. MESSINA: Your Honor, the case before the Court
this morning is 4:21-cv-264, the Arc of Iowa, et al. versus
Reynolds, et al.
Counsel, please enter your appearances for the record.
MR. DUFF: Tom Duff for the plaintiffs.
MR. FREEDMAN: John Freedman for the plaintiffs.
MS. PATTON: Leah Patton for the plaintiffs.
MS. JOHNSON: Catherine Johnson for the plaintiffs.
MS. MILLER: Cynthia Miller for the plaintiffs.
MR. LANGHOLZ: Sam Langholz for Governor Reynolds and
Director Lebo.
MS. LATTA: Kristy Latta for all defendant school
districts excepting the Iowa City School District.
THE COURT: Mr. Freedman, is it your burden?
MR. FREEDMAN: It is, Your Honor, if I may approach.
Your Honor, I'm not sure what the local practice is removing the
mask for argument or not.
THE COURT: That will be fine.
MR. FREEDMAN: Good morning, Your Honor. John
Freedman for the plaintiffs. We're here on plaintiffs' motion
for a temporary restraining order. The record we submitted we
believe is clear, and we think that it shows why interim
injunctive relief should be entered. Unless the Court would
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prefer a different order, I plan to start with irreparable harm,
then turn to likelihood of success on the merits, then talk
about burden on other parties, and then, finally, the public
interest.
THE COURT: That's fine.
MR. FREEDMAN: So with regard to irreparable harm, I
think there are three key points. The first is that our
clients, these students and their families, face irreparable
harm because defendants' acts have caused them to face
heightened risk of danger to their health. Each of these
children -- each of our clients has a disability that makes them
particularly vulnerable to severe medical consequences if they
contract COVID-19: lung conditions, heart problems, Down
syndrome, cerebral palsy, immunocompromised conditions.
National and state officials, including the Centers for Disease
Control, American Academy of Pediatrics, the American Medical
Association, the Iowa Medical Association, and the Iowa chapter
of the Academy of Pediatrics, have all said unambiguously that
universal masking at schools makes children safer at schools,
and it makes schools safer for our plaintiffs and thousands of
other children in Iowa with disabilities.
THE COURT: Mr. Freedman, do you want to offer the
declarations so we have a record?
MR. FREEDMAN: I do. I offer the declarations of our
two medical experts as well as our individual plaintiffs.
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THE COURT: Okay. Mr. Langholz, do the defendants
have objections?
MR. LANGHOLZ: The State defendants have no
objections, Your Honor.
THE COURT: Are the school districts defendants here
as well?
MS. LATTA: Yes, they are.
THE COURT: Is there any objection?
MS. LATTA: No, Your Honor.
THE COURT: Go ahead, Mr. Freedman. I'm sorry to have
interrupted you.
MR. FREEDMAN: Thank you, Your Honor. The guidance --
the unambiguous guidance from national and state authorities is
why school districts around the country have adopted universal
masking requirements. The impact of the State defendants taking
a different approach is clear. The numbers since Iowa schools
have reopened in the last few weeks speak for themselves. 22
percent of the new cases in the state last week were pediatric
cases. 22 percent. In the short time since schools have
reopened, school districts have reported increasing numbers of
cases. Cedar Rapids reports 66 students infected through
September 3rd. That's a week ago. Iowa City has reported 115
students infected and another 130 put in quarantine. Des Moines
has reported 215 students and 66 staff infected. That's as
of -- as of yesterday.
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THE COURT: Mr. Freedman, are these -- are these the
same figures that were in your earlier brief?
MR. FREEDMAN: They're updated.
THE COURT: Updated?
MR. FREEDMAN: Yes, updated, Your Honor. And we can
submit record evidence if that would be --
THE COURT: Okay. Well, I have read your brief. I
suspect Mr. Langholz and Ms. Latta have as well. So I had some
specific questions that I was going to go to the standard that I
think I'm bound by. The -- I think the Rounds versus Planned
Parenthood from my circuit says that when you have a, quote,
democratically, small d, passed statute that the threshold
requirement -- I think the circuit uses the term, and I'm sure
Mr. Langholz will correct me if I'm wrong -- that the Court has
to be more deferential to the passing of a statute by another
branch of government as opposed to enjoining another kind of act
by non-governmental defendants, so I guess I'd like to know do
you accept that as the law of this circuit, Rounds, and what
deference all of these factors that you've set out for
irreparable harm, balance of the equities, et cetera -- what --
how should I handle Rounds in approaching the factual record
that you've made in the declarations?
MR. FREEDMAN: Your Honor, I think that it goes to
the -- the issue of Rounds and putting aside the question of
whether or not Rounds is the governing standard or not, we
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believe that we meet that standard. I think the issue that goes
to his likelihood of success on the merits, we have identified
in our papers in our brief five separate violations of the
Americans with Disabilities Act, any one of which would override
any deference the Court owes to the State legislature. We've
separately identified as a preemption ground under the American
Relief Plan Act which under the Supremacy Clause would overrule
any deference the Court owes to State legislative
determinations.
THE COURT: Okay. Thank you.
MR. FREEDMAN: Just -- I want to -- just in terms of
the harm -- and this is -- because the numbers are evolving, I
just want to give the Court some sense of how serious these
numbers are, so the 215 cases that the Des Moines district had
reported as of yesterday, that's 215 cases in 11 school days.
That's more than 25 percent of the total number of cases that
the Des Moines district reported in a full year last year. So
we're on a -- on a fast-spreading trajectory. It's faster than
anything that any school district saw last year.
The Eighth Circuit has repeatedly held that danger to
a plaintiff's health is sufficient to establish irreparable
harm. We cite in our brief the Kai versus Ross case, the Harris
versus Blue Cross case, and courts across the country have found
that exposing somebody to elevated risk of contracting COVID-19
constitutes irreparable harm. That's the cases we cite at pages
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13 and 14 of our brief.
The second -- and we have two other bases for
irreparable harm. The second is the loss of educational
opportunities. A number of our plaintiffs, the Craig family
and -- I'm going to mispronounce the name -- the Valencourt
[phonetic] family have removed their children from public
schools because of increased risk for attending schools where
masks were not required, and we cite in our brief various
circuit court decisions from around the country where the loss
of educational opportunities has been found to constitute
irreparable harm.
The third source of irreparable harm flows from
plaintiffs having their civil rights violated, being subject to
discrimination. Here being subject to the illegal choice of
exposing their clients -- my clients to risk -- risk to their
health or exclusion and loss of education also establishes
irreparable harm with the cases we cite in our brief.
Now, defendants filed a partial response to this late
last night. I want to address --
THE COURT: Right. Because I'm concerned about the
first thing I think they concede -- or maybe they don't. I'm
assuming they concede jurisdiction, but the next thing they
claim is that standing is doubtful because even if I do what you
want, i.e., enjoin 847, it doesn't give your plaintiffs what
they want.
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MR. FREEDMAN: Right.
THE COURT: Is that essentially the argument they
make?
MR. FREEDMAN: That's on their papers, Your Honor.
THE COURT: Yeah.
MR. FREEDMAN: And I think our response to that is
it's wrong both, I think, in their articulation of the legal
standard as well as on the facts. So I think that with regard
to the question of ascertainability, if we look at the key
Supreme Court cases on this, Friends of the Earth, for example,
a plaintiff who faces threat of future injury due to illegal
conduct from the defendants, anything that will abate that
conduct and prevent -- and prevent a violation of the law in the
future is a form of redress. That's from the Friends of --
Friends of the Earth decision. Anything also that -- and also
from that decision, anything that encourages defendants to
discontinue current violations and deters them from future
violations is also sufficient to establish redress.
It's also important and the Supreme Court emphasizes
this last term in a case called Uzeugbunam -- Uzeugbunam. I'll
try my best to spell it for the court reporter; it's
U-z-u-e-g-b-u-n-a-m, versus Preczewski, P-r-e-c-z-e-w-s-k-i, 141
Supreme Court 792 at 801. The Supreme Court in that decision
emphasized citing prior holdings that the ability to effectuate
a partial remedy satisfies the redressability requirement, so
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even if the relief that we're seeking only partially provides a
partial remedy, that's sufficient to meet the redressability
hurdle.
THE COURT: As I got your prayer for relief, you want
an injunction against the enforcement of 847 which if I
understand the mechanics here would restore to a school the
discretion whether to require a mask or not. Is that
essentially what would happen?
MR. FREEDMAN: That's correct, Your Honor. That's our
current request to the Court.
But I think on the -- on the factual basis why that's
sufficient -- so I think if you look at our complaint, three
important things to keep in mind. One is that plenty of school
districts, including my understanding is every school district
where we have a plaintiff -- individual plaintiff last year, had
a universal masking requirement. We cite some of those in
paragraph 4 of our complaint on page 3, but they all at some
point last year had masking mandates, and several of them
publicly said that they were suspending them in light of passage
of HF 847.
The second thing is that plaintiffs' school districts
have indicated that if the law is -- if enforcement of the law
is suspended or enjoined, they would reestablish universal
masking. We cite some of the school districts that have
publicly stated that in paragraph 53 of our complaint at pages
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18 and 19.
And the third point that I think is important to
remember and not to lose sight of is that the defendants -- the
State defendants -- I should qualify -- the State defendants
have made clear that they intend to enforce HF 847. That's --
we cite the statements to that effect at paragraphs 48 and 49 of
our complaint, pages 16 and 17, and those statements along with
the other evidence we cite in our complaint establishes that but
for the defendants' -- State defendants' efforts to enforce the
law, they would reintroduce universal masking, so we think
that's sufficient to establish -- establish a likelihood that --
of redressability which is all we're required to do.
THE COURT: The partial relief case sounds like it's
very much in your favor then because what you're claiming is
that if I enjoin it, then it will revert to the school district
to give you the relief that you -- that they may or may not give
you. I guess the State's point is that there's no guarantee
that if you get what you want, it helps your clients at all.
MR. FREEDMAN: We think we've established facts that
it's likely that the defendant school districts would give us
the relief. They had similar measures in effect last year.
THE COURT: And that's the redressability element of
standing.
MR. FREEDMAN: That's correct, Your Honor.
One other point that they -- that they made in last
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night's filing I also want to address is the timing. They say
we should have sued four months ago when the law was first
passed.
THE COURT: Right. And I want to know should that be
part of the analysis about your entitlement to this
extraordinary remedy, the fact that they claim that you've
delayed, and I guess they essentially argue what's the hurry?
That's the way I read their brief.
MR. FREEDMAN: So here's what I'd say. I don't think
it's relevant to -- considering the issue.
THE COURT: Okay.
MR. FREEDMAN: I think it's important to keep a couple
of things in mind.
THE COURT: Okay. Well, they contrasted what happened
in Western Tennessee -- they said that claim -- and it is
distinguishable. I get that. But the claim that -- claim that
Judge Lipman addressed had -- it was like 18 days after the
Governor's intervening by use of an executive way to get around
the Shelby County mandate, that that's the reason they were
entitled to the extraordinary remedy. You, on the other hand,
have waited four months. So how should I approach that?
MR. FREEDMAN: So I do think that the question of
timing may go to an affirmative defense like laches or anything
like that. I don't think it factors into the considerations the
Court is supposed to apply in considering a request for
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emergency injunctive relief, and I think it's important to keep
in mind two important -- maybe three important things with
regard to timing.
First is that schools just started in Iowa. A lot of
school districts have been in session for two or three weeks at
this point. Relatedly, and I think the second point is, that
the injury and irreparable injury to our clients has only been
manifest since the schools reopened and are operating without
universal masking.
THE COURT: They cite to a New York Times article -- I
think it was July 7th -- in the brief that you knew the variant
was out of control two months ago; you didn't do anything. Your
point is we didn't know of the specific harms that were to visit
us until we all got together with unmasked individuals. I guess
that's your claim.
MR. FREEDMAN: I think that's right, Your Honor. I
think, like, we look at -- you don't have a claim before your
injury is manifest. It took reopening the schools and see how
spread impacts -- how spread is occurring for injury to be
manifest, and we look at that school district -- I cited
Des Moines earlier where we're already 11 days into the school
year at 25 percent of the total number of students that were
infected last year. And Des Moines is not alone. Cedar Rapids
is at 16 percent of their totals from last year. Linn-Mar is at
30 percent of their total from last year, and that -- that's at
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the end -- as of the end of last week. We haven't gotten the
updated numbers. Waterloo as of two weeks ago -- again, they
haven't updated the numbers since end of August.
THE COURT: And you're going to supplement the record
this morning by a filing with that?
MR. FREEDMAN: Yes, Your Honor.
THE COURT: Okay.
MR. FREEDMAN: Waterloo is at 55 percent of where --
the total numbers that they were at last year. I mean, we're
seeing spread unlike anything that we've seen previously, and
the data I think substantiates our clients' concern, fear,
threat that they're actually going to be irreparably harmed.
I think the other important point is that it's only
been in the last few weeks that the State defendants have made
clear their intent to vigorously defend the law and to punish
school districts that take basic steps to comply with federal
law and to follow public health guidance. We cite statements
from the Governor or statements from Director Lebo at paragraphs
48 and 49 of our complaint. And they've made those statements
after they were advised by the federal government that the
federal government put them on notice of potential violations of
federal law. Like, in response to that, they said we're going
to go ahead and stick with our --
THE COURT: You're referring to Director Cardona's
letter.
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MR. FREEDMAN: That's correct, which is the
August 18th letter as well as the Office of Civil Rights letter
that came in on August 30th.
THE COURT: Is that in the record?
MR. FREEDMAN: It's in the complaint.
THE COURT: All right. Thank you.
MR. FREEDMAN: The -- on the likelihood -- just
turning to the likelihood of success on the merits, I alluded to
a lot of what I was planning to say. A lot of it is covered in
our brief. I just want to emphasize a couple points. With
regard to our claims under Title II of the Americans with
Disabilities Act and the Rehabilitation Act, we don't think
there's any dispute that our plaintiffs have disabilities, and
they're all being discriminated against because of their
disabilities.
The violations -- the violations -- we identify five
separate violations or particular elements of the statute or
regulations in our brief. They all flow from the legal
requirement that no person with a disability can 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. I can walk through the five
separate violations -- they're outlined in our brief -- if it
would be helpful for Your Honor to do that.
THE COURT: I don't think it's necessary unless you
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do. I've read your brief.
MR. FREEDMAN: And I don't think that they respond or
engaged on that in last night's filing, so I think we can let
the brief speak for itself.
We've separately pointed to a second -- second set of
federal violations under our preemption claim. When Congress
passed the American Rescue Plan, it provided Iowa schools with
hundreds of millions of dollars in emergency relief so that they
could adopt and implement policies in line with guidance for the
Centers for Disease Control. CDC guidance -- I mentioned this
before -- specifically recommends that each school district
implement mask mandates. The defendants' threat to enforce
HF 847 to punish schools who adopt and implement CDC guidance is
directly contrary and frustrates Congress's purpose in providing
this money. That was the main message of Secretary Cardona's
August 18th letter. We don't think that the preemption case is
closed. It's clearly contrary and frustrates Congress's
purpose. Separate basis -- it's a separate basis for why we
think we will prevail on the merits.
And just turning quickly to the -- to the last two
factors, the interests of other parties and the public interest,
as we note in our brief, when the Government -- when a
Governmental entity is the defendant, those factors effectively
merge. There's no discernible cost or administrative burden to
the defendants from enjoining enforcement of HF 847. Defendants
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certainly -- the State defendants certainly didn't cite any in
their brief last night.
And with regard to the public interest, it's always in
the public -- in the public's interest to enforce a nation's
anti-discrimination laws, and it's also in the public interest
to protect children with disabilities and indeed all children to
reduce their risk of contracting COVID-19. Again, they did not
engage on this last night, so I think we win on all four
factors. We think that interim injunctive relief is warranted
and should be entered, and I'm happy to entertain any other
questions Your Honor has.
THE COURT: Mr. Freedman, how do you respond to their
claim in their brief last evening that said that an order
enjoining -- well, let me put it this way. Two questions.
First of all, what exact relief are you requesting? I went --
when I read that part of their brief, I went to your prayer. It
looked to me -- you had three -- three clauses. You want an
injunction based upon each of the substantive claims -- ADA,
Rehabilitation Act of '73, and the American Rescue Plan of
2021 -- and it's a broad claim for enjoin 847. So when they
claim in their brief it will cause -- an order enjoining would
cause confusion, what's your response to that?
MR. FREEDMAN: Your Honor, I think we are seeking --
to be clear, we are seeking enjoining the State defendants from
attempting to enforce HF 847. I think that's relatively clear.
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I think that that would permit the defendant school districts
and, frankly, school districts around the state to make their
own judgment as to whether they think universal masking should
be introduced. Many, many school districts including -- it's my
understanding all defendant school districts had universal
masking last year. It would essentially restore things to the
status quo before passage of the law. I don't think that's
confusing. The attorney for the school districts can speak to
whether they think that would be confusing, but people wore --
students wore masks all last year. Students all over the
country are wearing masks. School districts in Minnesota, in
Illinois, in Missouri, in Nebraska -- school districts in those
states have adopted universal masking. It's not rocket science,
Your Honor.
THE COURT: Mr. Freedman, the other argument they
make -- one of the other arguments they make is that there's
nothing that prevents school districts and, I guess, everybody
from complying with 847 by saying we're enforcing the Americans
with Disabilities Act, therefore, it takes a back seat -- I'm
paraphrasing, and I'm sure counsel will correct me but -- or
maybe you can put this in better context than I just did. But
the way I get their argument is that a school district can still
comply with federal law by permitting a mask mandate, and I
guess the school district would -- I'm trying to envision how
they'd do that. I assume they'd say you can mask because we
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want to comply with the ADA, but you don't have to. I mean, I'm
confused by their argument.
MR. FREEDMAN: Yeah. I found that to be something of
a head scratcher when I read that this morning, Your Honor. As
I understand the argument -- as I read or interpret it, there's
savings language at the end of the statute that says the
universal masking -- there's a carve-out for any other provision
of the law, which the State is now taking the position that the
violations that we're talking about would be considered other
provisions of the law.
I think -- you know, I've got two sort of factual
questions about that for the State if that's their position.
The first is that the State defendants have taken the
position -- and this is the language we cite at paragraphs 48
and 49 of our complaint at pages 16 and 17 -- that they intend
to enforce HF 847 vigorously. That includes statements
attributed to a Department of Education spokesperson that risks
to school districts if they impose mask mandates include various
sanctions including loss of accreditation.
The second thing that I think it's important to keep
in mind is that those statements that we cited, including
statements from the Governor, are statements after the U.S.
Department of Education twice put the State on notice that
enforcement of HF 847 would violate the same federal laws that
we're citing in our complaint. That's the Secretary Cardona
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letter on August 18th and the Office of Civil Rights letter on
August 30th. So I don't understand how they can be taking the
position publicly that they don't think there's any -- any
problem with federal law and the position that they articulate
in the brief that this is all much to do about nothing because
school districts can go ahead -- their position is school
districts can go ahead.
We think clearly for the Court on this and just making
clear that if HF 847 is enjoined would make it perfectly clear
to the school districts that they can go back to the way things
were before the statute was passed. That's usually what the
purpose of an injunction is.
THE COURT: Mr. Freedman, are you familiar with the
concept called judicial estoppel?
MR. FREEDMAN: I am, Your Honor.
THE COURT: So the defendant claims on the one hand
that we're going to vigorously enforce the law, and then they
come here and say, But wait a minute; we want -- we -- you can
have a mask mandate and say we're complying with federal law.
Is that essentially judicial estoppel?
MR. FREEDMAN: Your Honor, I'm not sure if it meets
the technical finding.
THE COURT: I'm not either.
MR. FREEDMAN: I'm not sure it's sufficiently binding
on the Governor. If the Governor comes out today and says,
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Never mind; the school districts should do what they want; we
now see the light, that would be something I think the Court can
take notice of. Given the pattern and the recalcitrance that
we've seen in the public statements to date, I don't think it's
sufficient to overcome a paragraph in a brief.
THE COURT: Right. The savings language we talked
about says, quote, The facial covering is required by any other
provision of law. So I assume if a student came to school with
a mask, would the student be able to say, Well, never mind your
mandate; I'm relying on federal law?
MR. FREEDMAN: Well, I think it's not a question of
individual masking. I think the risk presented to our clients
and thousands of other children with disabilities here is the
risk that others are not masking. That's really the -- I mean,
the -- the CDC is clear that these are recommendations that are
designed to reduce risk, and for our clients it's important to
reduce risk to the minimum extent possible. Nothing is going to
eliminate risk. Getting vaccines wouldn't 100 percent eliminate
the risk. Masking -- masking reduces the risk. Vaccines reduce
risk. What we believe the ADA and the Rehabilitation Act
require is to allow our clients and students with disabilities
to be able to participate as full participants in school. The
school can take the very easy step -- districts can take the
very easy step of telling everybody to wear masks, universal
masking. They did it last year. They did it last year before
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the law. States around the country, including every neighboring
state, have school districts that require this.
THE COURT: Mr. Freedman, I saw nothing in the brief
of the State about the Supremacy Clause, and obviously I don't
have those kinds of cases every day involving the Supremacy
Clause, but I -- I did -- you cited -- in your opening brief,
you cited two cases about the Supremacy Clause. One was Pacific
Gas and Electric from 1983 term and then Hines versus
Davidowitz, and I -- I'm going to ask Mr. Langholz this as well,
but in Hines versus Davidowitz that you cited, it says, This
Court, in considering the validity of state laws in the light of
treatises or federal laws touching on this same subject, has
made use of the following expressions: conflicting; contrary
to; occupying the field; repugnance; difference;
irreconcilability; inconsistency; violation; curtailment; and
interference. But none of these expressions provides an
infallible constitutional test or exclusive constitutional
yardstick. In the final analysis, there can be no one crystal
clear distinctly marked formula.
So when I look at Article VI, Clause 2, of the
Constitution, how should I -- if we let 847 go forward with no
injunctive relief, is that in opposition to the three acts of
Congress? Is that repugnant to the three acts of Congress?
What's my analysis?
MR. FREEDMAN: So, Your Honor, I think we're just
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talking about one act of Congress which is the American Rescue
Plan Act.
THE COURT: All right.
MR. FREEDMAN: I think, though, the answer is it's all
of the above. It's everything you just cited. It's contrary
to, inconsistent with, repugnant to.
Congress was very clear when it gave this money that
schools were expected to address compliance with CDC
recommendations. HF 847 says, in effect, we don't care what the
CDC says -- in fact, the Governor has made statements to that
effect: No school can adopt this; we don't care what the CDC
has said. So that's -- given Congress's express invocation of
the CDC guidance, the conflict, the inconsistency is clear. We
think that that's -- that's -- you know, it's as clear a
violation of the Supremacy Clause as we can have other than
writing into the statute or making the statute language like we
are expressly directing you to disregard anything the CDC says.
That's the only thing I can think of that would be a clearer
violation.
THE COURT: I have the sense that you don't feel as
strongly about your third claim as you do about the first two.
Is my impression wrong?
MR. FREEDMAN: Well, I think that -- here's what I
would say. I think that our clients -- the first two claims are
really directed at our clients and protection of our clients,
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and they directly intend to invoke our civil rights of our
clients as recognized in federal law. I think the third claim
is a broader claim that could be asserted on behalf of our
clients but also all children in this state. All children
deserve to be kept safe. I do -- I do feel strongly about -- I
think we all -- we feel strongly about all three claims. I
think the -- you know, the heart of our case for our clients, as
I think Your Honor correctly identifies, is probably more
focused on the first two claims.
THE COURT: Okay. Lastly, the State's brief says, in
essence, put this off; we want to file a motion to dismiss, and
the Court could benefit by more robust briefing. I know the
latter is true. I can always learn more. But I wanted to know,
I guess, in contrast to the State, your claim is you're entitled
to the extraordinary remedy of injunctive relief because this is
indeed an emergency; there is irreparable harm. Is that it?
MR. FREEDMAN: That's correct, Your Honor. I mean, we
look at the trends in the schools, you know, in the short time
that they've been open. I mean, the Des Moines numbers are --
are off the charts, and a number of other districts are off the
charts.
THE COURT: Okay. Thank you, Mr. Freedman.
MR. FREEDMAN: Thank you, Your Honor.
THE COURT: Good morning, Mr. Langholz.
MR. LANGHOLZ: Good morning, Your Honor. My name is
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Sam Langholz, and it's my privilege to represent Governor
Reynolds and Director Lebo here today, and, first of all, Your
Honor, we appreciate the opportunity to have this hearing. We
recognize that in a temporary restraining order you could have
made the decision that it was appropriate to issue that
immediately.
THE COURT: Well, you know, I talked to Ms. Austen
last week -- I think the day after she filed it -- and, you
know, I always quote Judge Vietor, my predecessor, when I
started said only if there is a nuclear explosion should you
give injunctive relief without a hearing because you can always
learn more, and so I appreciate you saying that, but I have
learned something here in the time I've been here, and your
brief and Mr. Freedman and Ms. Austen's brief as well has been
very helpful to me because when you -- as you know from your
previous work, Mr. Langholz, when you guess, which is
essentially what you're doing at this early stage, you hope that
you -- just pray that you don't make a mistake because people's
rights are very valuable. So I appreciate you saying that.
So anyway, go ahead.
MR. LANGHOLZ: And given that and given the weighty
issues that plaintiffs present here, the State takes the
position that this is not appropriate for a temporary
restraining order, that the Court would benefit, as you noted,
from further briefing and development of a record and a
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preliminary injunction and that really when you're looking at
whether a TRO should be granted, we're looking at the harm just
in this interim time period between when you would otherwise
have the opportunity to rule on a temporary injunction.
You know, stepping back just a bit, I think it's
helpful to remember that this is now the third year that Iowa's
students have been affected by the COVID-19 pandemic. The
federal government, the state government, school districts, and
parents have all been faced with challenging decisions trying to
navigate that, and we're here today now talking about one
provision of House File 847, you know, section 280.31, that is,
you know, the latest attempt to resolve some of those issues for
the benefit of Iowa students, and there's certainly, like all
the decisions through the last three years, strong opinions on
all of those sides, but it's not a basis for granting the
temporary restraining order.
I want to kind of address a preliminary issue that
struck me as I was listening to the discussion and the specific
request here, and there's -- there was talk of enjoining
enforcement of House File 847, and although that's the short
term that's sort of been used throughout the plaintiffs' briefs,
that's a large bill. So an injunction enjoining House File 847
would -- regardless of any other basis would be overly broad and
significant. My understanding from plaintiffs' briefing and
discussion is that they're concerned about one section of that
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bill which is now, you know, Iowa Code section 280.31.
THE COURT: Right. And I noted that as well. Because
as you just pointed out, 65(d)(1)(C) says -- and it's entitled
Contents and Scope of Every Injunction and Restraining Order.
It says, (C), Describe in reasonable detail -- and not by
referring to the complaint or other document -- the act or acts
restrained or required. So your point is that as you understand
the request, they're requesting only that the ban of a local
school district's being able to impose a mask mandate be
enjoined.
MR. LANGHOLZ: Correct. That's correct.
THE COURT: And if that's not the case -- excuse me
for interrupting. And if that's not the case, Mr. Freedman is
going to tell me in rebuttal that I got it wrong.
MR. LANGHOLZ: That's correct. And the State cites,
you know, at the beginning of our introduction on page 2, you
know, what we believe is a proper citation, you know, of that
act and what section, you know, ultimately is codified at
section 280.31. And we understand -- you know, and it sounded
like there was no change in that position today that the request
is to enjoin Governor Reynolds and Director Lebo from enforcing
that provision, and this request, you know, whether at a TRO or
preliminary injunction, is neither necessary nor sufficient to
remedy the alleged harms of plaintiffs.
As Your Honor just discussed with counsel, section
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280.31 contains an explicit exception that allows mandates of
face coverings when required by any other provision of law.
That includes federal law. There was, in fact, a discussion,
you know, about this provision during the debates on the House
floor. You know, the legislators expressed some confusion about
what -- you know, how broad that could be; it wasn't fully
acknowledged, you know, kind of an acknowledgment. In fact, one
of the opponents, Representative Bohannan, was raising
perhaps -- this was a concern perhaps because how do we know
what sort of exceptions could come in there, but nonetheless,
you know, that's the law that was passed.
THE COURT: Did that include a discussion of the State
prohibition against discrimination regarding the disabled, or
was that just -- was the discussion of the legislature just
limited to the federal law?
MR. LANGHOLZ: It was -- it was a discussion of this
provision --
THE COURT: Okay.
MR. LANGHOLZ: -- recognizing that there's an
exception for other provisions of law and raising questions.
You know, that could be, you know, any number of things, you
know, legislators that were complaining, you know, that they had
only had a short period of time to -- to consider and hadn't
fully thought through all of the provisions of law that might be
implicated in that regard.
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THE COURT: So does the CDC order requiring masks on
school buses fall within that exception?
MR. LANGHOLZ: The State has given guidance, I
believe -- and I think that's outside the scope of any claim
here but has -- has given guidance that that is a -- a mandate
that's required that this statute does not prohibit --
THE COURT: Okay.
MR. LANGHOLZ: And as the Court points out as well, I
mean -- you know, as a matter of law, you know, leaving aside
this injunction, you know, with the Supremacy Clause, regardless
of whether or not there's a savings clause in the statute, I --
governmental entities, private citizens are required to follow
federal law as a matter of the Supremacy Clause regardless of
whether the statute acknowledged it. But when we're talking
about an injunction and whether it's necessary to take that
extraordinary relief or the even more extraordinary relief of a
temporary restraining order while we're sorting things out, the
fact that there's a savings clause and that that allows mask
requirements without an injunction, if it is required by -- by
federal law, you know, is significant for the question before
the Court here today.
And I want to -- the Court and plaintiffs expressed
some confusion about, you know, what the State's position is is
contradictory to some of the public statements, and I want to be
absolutely clear that the State defendants do not agree that
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federal law -- the federal -- you know, any federal law that
we're aware of or the three federal claims that have been
brought here mandate as a matter of law that a universal mask
mandate in the entire school district that these 10
plaintiffs -- or perhaps if their argument is taken to its full
implications, you know, all Iowa schools -- that as a matter of
federal law, every school district must implement a universal
mask mandate for all students.
THE COURT: I don't think that's their claim. That's
not their claim. Isn't their claim that we want discretion
restored to local schools, and absent that, there's violations
of federal law? Isn't that their claim?
MR. LANGHOLZ: That may be -- you are correct that
they don't state what I just said.
THE COURT: Right.
MR. LANGHOLZ: And I'm unclear at this juncture from
the briefing exactly what they claim. I mean, all of the
declarations, you know, of these individuals are claiming they
will only feel safe with a universal mask mandate. That's the
harm they're asking about. You know, when outlined about the
harm, you know, it's the heightened risk to health or
alternatively being pulled out of school and having, you know,
harms from the education and the Hobson's choice, you know, that
they argue. That presents -- if that's the harm -- you know,
and it's more nuanced -- you know, and it's a more nuanced
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federal position -- then I think we have the serious
redressability problems that --
THE COURT: Okay. Well, I want to talk about
redressability in a minute because on ECF 17, which is their
brief, they've got -- and I'm at page 24. Here's what the
plaintiffs tell me about this, because you just got into the
part about let me be clear; there was no contradictory position
of the State. Because here's what the defense -- in footnote 29
the plaintiffs write, The Defendants cannot avoid their
obligations under the ADA even if compliance may violate state
law. Under the Supremacy Clause, U.S. Constitution Article VI,
Clause 2, The laws of the United States, quote, shall be the
supreme Law of the Land, and Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of any
State or to the Contrary notwithstanding. State law must give
way to the extent it conflicts with federal law.
So they're telling me you don't have a choice. You,
the district court -- you don't have a choice; you have to
enjoin this because they can't enforce 847 because if they
enforce 847, it violates the Constitution.
MR. LANGHOLZ: That appears to be their argument, Your
Honor.
THE COURT: Yeah.
MR. LANGHOLZ: And I don't disagree with any of the
legal propositions cited there about the Supremacy Clause and
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the nature of the federal law, but there's nothing to give way
here because this statute already allows schools to enforce a
mask mandate if it is required by federal law. Again, there's a
dispute about whether it's required by federal law or whether
discretion is required by federal law in some way, but the --
you know, the -- I think it may help, again, to kind of look
specifically -- you know, move a bit to the discrimination
claims because as we start to look at that -- as we start to
look at the discrimination --
THE COURT: Mr. Langholz, let me interrupt there. I
apologize. I have the advantage of a transcript. Because what
you just said was -- when you mentioned discretion: Again,
there's a dispute about whether it's required by federal law or
whether discretion is required by federal law, and so that's two
different claims, isn't it?
MR. LANGHOLZ: Yes.
THE COURT: I mean, I don't think one -- and
Mr. Freedman is going to correct me or Mr. Duff will. I don't
think they're claiming the first part of your statement is their
claim, but I do believe that the second part of your statement
is their claim. You say, Again, there's a dispute about whether
it's required by federal law or whether discretion is required
by federal law in some way. That's the way I get their claim.
MR. LANGHOLZ: And I will be interested as well in
plaintiffs' response to that.
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THE COURT: Okay.
MR. LANGHOLZ: As we looked at their complaint, their
application, the requested relief, I'm unclear how expansive --
THE COURT: Okay. And does that get back to your
redressability where you were at when I interrupted you?
MR. LANGHOLZ: It does. You know, and I can address
that -- that point briefly here too. Again, it -- the request
they're asking for doesn't give them a mask mandate; it only
does the same thing that the statute already does, saying that
the school districts can comply with federal law.
Now, plaintiffs point to the school districts'
practices last year, to some statements of individual school
board members or superintendents about, you know, possible
intentions. To my knowledge, there's nothing in the record and
I'm not aware of any school boards that have taken a vote that
have put in, you know, a mask mandate that is conditioned on
this -- you know, this statute being struck down in some manner,
you know, which is what the situation was before the Court in
Tennessee and why the Court there was able to avoid, you know,
redressability problems.
But there's changed circumstances now. Certainly, you
know, plaintiffs have pointed out, you know, some of those, you
know, on the side of the Delta variant and such, but the subject
of masks in schools has been the topic of significant debate
throughout these school districts, you know, before you here
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today. Across the whole state, there are school board elections
coming up. It's been the subject of, you know, campaigns and
discussions there. I think, you know, there's not a basis to
conclude certainly at the level of facts that might be
necessary, even if facts can get us there without an absolute
government action, that, you know, Article III standing has been
met for this, you know, requested relief when it's uncertain and
speculative.
It's also speculative, you know, at this juncture in
the record here whether there's going to be any actual harm --
irreparable harm between now and when a preliminary injunction
could be ruled, and there's other processes to address these
concerns. That's the normal IEP, IDEA special education
process, and, in fact, plaintiffs talk about that process in
their applications, and that demonstrates why this statute is
not what's causing their harm.
If you look at the declaration that's docket 3-11,
Ms. Preston's declaration, you know, paragraph 18, she talks
about how her child had a -- you know, new reasonable
precautions put into her plan to try to address the safety
issues and then complains after the first day of school at the
Des Moines Public School -- or the first week of school at the
Des Moines Public Schools that the plan they put in place was
not being followed. You know, the remedy to that problem is to
go through the complaint process with Des Moines Public Schools,
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with the AEAs, with the state agency. There's nothing in the
declarations or the pleadings that are before you that this
remedy that is available in a way to go through the process --
the fact-specific process to decide for this individual student
what's necessary to keep them safe and comply with federal law,
you know, has been complied with.
THE COURT: So she -- he or she then has an
administrative remedy that -- and who would be the arbiter of
that? Who would be the decider of that?
MR. LANGHOLZ: Well, ultimately it would come back to
this court, Your Honor. It's, you know, a process -- or it
could come back to this court. It's a process that starts at
the school level that can go to the AEA. Eventually there's an
administrative law judge proceeding, and that can be appealed
either to the Iowa District Court or to the federal court. Most
often it comes to this court.
THE COURT: Right. And I think Judge Lipman addressed
that in the Western Tennessee case if I recall, and she said
exhaustion wasn't required.
MR. LANGHOLZ: That's correct. You know, and I would
point out as well, again, that was a temporary restraining order
and with limited briefing from the State of Tennessee. They
actually just in the last couple days, you know, have held a
preliminary injunction hearing that's still pending. There's
been additional briefing filed by the State of Tennessee that
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more robustly outlines, you know, those exhaustion arguments.
You know, the State of Iowa will certainly intend to be more
robustly explaining, you know, those as well.
I'd also briefly direct the Court to docket 3-12,
another declaration, a similar issue, again, where Ms. Geest
talks about, you know, asking for an accommodation that -- and
this is paragraphs 9 through 12 -- asking for an accommodation
that the child's teacher whenever there would be one-on-one
interaction would mask, you know, as a part of their reasonable
accommodation and, again, after the first week of school
complained -- or was complaining in this declaration -- although
there's no suggestion she complained through the proper channels
and started those administrative processes -- that the teacher
wasn't following those reasonable accommodations. Those are the
processes.
And also, again, going back to the question about
what's the State's position and what do you mean when you say
you can comply with federal law, you know, although the question
is not before us right here, I would be hard-pressed to say
that, you know, it is -- that federal law might not require, you
know, one-on-one interaction between a teacher and, you know, a
medically fragile student to have to have a mask and that that
would be a situation where the school district could say, Yes,
teacher, you know, you need to do this when you're around them
because that's a reasonable accommodation required by federal
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law, and, again, it would be possible right now with the
existing law because that's permitted under section 280.31
without an injunction, and it's unclear, again, why that isn't
happening or why the processes for -- for doing that --
One last also point to docket 3-5, paragraph 10, which
is another situation like this talking about a plan put
together, you know, for masking in close contact and small
groups, you know, a voluntary masking, try and have that done.
Again, the complaint there was that voluntary is not good
enough. Now, I can't tell you from the factual record here
whether there would be a basis to conclude that mandatory
masking for those small group contacts would be appropriate, but
it's possible through the normal process that that's the
determination that could be made, that for that student and the
situation of that classroom and the interactions they're going
to have that federal law requires it. And, again, it's not --
there's no injunction required to sort those problems out.
And that's really why this lawsuit's not appropriate.
These are fact-specific situations. There's a process set up to
resolve those without enjoining the statute, without -- without
even the more nuanced version of, you know, their claim that
Your Honor suggested that there needs to be discretion. There
is discretion where federal law authorizes and mandates that
discretion already under the statute. But the State's position
and what the public comments, you know, appear to be discussing,
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you know, is the idea that, you know, one of these public
schools could say, Well, because I have one medically fragile
student, you know, in this building, I am now required by
federal law to -- to implement a districtwide universal mask
mandate. If a school were to do that, I suspect that the State
of Iowa would be very concerned that that's, you know, not
actually required by federal law and that they're violating Iowa
law by doing that.
You know, these are significant merits issues. You
know, there's disability issues on both sides. You know, the
federal Department of Education Q and A documents on their
website, you know, talk about how there have to be -- for
schools that do do mandatory mask mandates, there have to be
exceptions for disabled students on the other side, you know,
autistic students who may have issues with -- you know, with
wearing masks or those with sensory issues or deaf and, you
know, situations where masks are, you know, problematic. These
are tough choices for the schools. They're fact-specific
choices. The legislature made a decision to help remove some of
these challenges by making clear, you know, what -- that on a --
which side of that equation they should start from and start
making exceptions to accommodate disabled students and the
requirements of federal law with respect to them, but that's not
a basis to enjoin the lawsuit.
As we've talked about, you know, ultimately as we
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start to go into the merits and the things I think we should be
talking about, when we think about the likelihood of success and
eventually a preliminary injunction -- I mean, as we go
fact-specific, the questions are, you know, what is the
accommodation that would be necessary for these students? You
know, are there accommodations short of universal mask mandates,
which repeatedly throughout the declarations and complaints
appear to be what plaintiffs are asserting are the only, you
know, possible solution? But are there PPE that -- you know,
whether it's masks or other things that can be done for the
students who need to protect themselves? You know, how has this
been handled, you know, with other sorts of significant --
protections from significant illnesses in the past? You know,
are there distancing options? You know, a host of fact-specific
things that through the normal process that can be followed, you
know, are an appropriate way to address these issues.
THE COURT: Mr. Langholz, can I interrupt for just a
minute?
MR. LANGHOLZ: Absolutely.
THE COURT: One of the things I asked Mr. Freedman
about -- and it's in your brief and I want to know -- you know,
the public interest is always one of the important factors in
equitable relief, particularly emergency equitable relief, so
you've said in your brief -- and I think you cite The New York
Times article of July 7th about the Delta variant is here. I
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may have the dates of that wrong. And you tell me that they
delayed four months; this was passed and effective May 20th. So
I asked Mr. Freedman this as well. In considering the public
interest and the balance of the harms, should I take into
account the fact that there's been four months and nothing
happened until last Thursday when they filed the lawsuit?
And, secondly, Mr. Freedman's response to that is,
Hey, nobody was in school then; we didn't know -- you know,
while we knew there was a pandemic, we didn't know the extent of
it until school which has only been recently convened two or
three weeks ago, and then he recites for me the record cases
that have come. So that's a long question, but should I take it
into account, the four-month delay in their filing?
MR. LANGHOLZ: The short answer is yes. The U.S.
Supreme Court says that you should in the Benisek case that we
cite. That says that the timing in coming forward -- certainly
that was a case where the timing was significantly more delayed
than even four months, but timing is an appropriate
consideration as is -- you know, you asked about the Rounds
standard and an injunction of, you know, a statute. That's also
an appropriate consideration.
Although we did not cite it in our brief, I'd also
point the Court to New Motor Vehicle Board v. Orrin Fox, which
is 434 U.S. 1345, and there the U.S. Supreme Court talks about
the irreparable harm to a State anytime that a statute is
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enjoined. And that's particularly heightened here when we're
talking about a TRO rather than a preliminary injunction and
we're talking about a statute that already says you can follow
federal law.
THE COURT: Right. Well, it bothers me when you've
got the numbers that both I think you agree on. I think
Mr. Freedman or Mr. Duff's brief tell me that there are 415,000
students in the Iowa public schools, 62,000 of which the
Department of Education says have some kind of disability, so
when you say -- I don't know. Mr. Freedman I think used the
term in his brief calamitous consequences and the idea of
calamitous consequences to the plaintiffs. I assume that your
request, as I get it, you want to put off a decision; you want
more time to file a motion and further briefing, that an order
now is going to create -- is going to impair the public
interest. Is that --
MR. LANGHOLZ: That's correct. Yes, especially -- I
mean, whether it's a TRO or a preliminary injunction, either of
those, the State would believe it would impair the public
interest and put this exceedingly controversial issue back on
the plates of all of the school boards around the state. That
could have been one of the conceivable rational bases for the
statute in the first place to, you know -- given everything
that's going on --
THE COURT: What do you see -- I mean, is there going
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to be a substantial -- is this going to boil down to just a
straight-out legal question? Because it doesn't seem to me like
there's a great deal of difference about the affidavits of
Dr. Waddell and Dr. Srinivas. I apologize for not getting that
pronunciation correct. So if I did that going forward, do you
anticipate a lot of discovery? Have you talked to counsel about
the way they've framed their lawsuit and what's necessary to get
the thing at issue if you want it put off?
MR. LANGHOLZ: Unfortunately, Your Honor, we have not
really yet, given the short time frame from the filing and
preparing for this hearing --
THE COURT: Okay.
MR. LANGHOLZ: -- and other emergency matters --
THE COURT: That's fine.
MR. LANGHOLZ: -- but we stand ready to do that. You
know, I can't represent for certain, you know, that we wouldn't
have any evidence, you know, to present. We certainly may, but
I think your perception is accurate that this is largely a legal
question which also goes, you know, I think, as my answer to
your question about what do we say, you know, about the
statistics, the potential calamity, you know, coming -- and
those are certainly valid policy public concerns that are a
subject of debate, you know, right now throughout the state of
Iowa, throughout state government. They were a part of the
debate in the legislature when the statute was passed about what
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would happen, but it does not appear that any of those
evidentiary issues connect up to the legal claims that are being
brought here certainly in such a sufficient way, you know, for
the narrow question here about likelihood of success on a TRO
but likely on the claim at all.
THE COURT: I have to tell you that your brief has
been helpful because it's brought to bear on many of the
Dataphase and Rounds factors. You know, the argument about, you
know, we can still comply without violating the statute, what
I'll call the savings clause, I hadn't realized before when you
argued that facial covering is required by any other provision
of law that perhaps that's a, I guess, defense is what you
argued, so I hadn't seen that before your brief.
So anything else, Mr. Langholz?
MR. LANGHOLZ: Just briefly, Your Honor. I want to
make sure that I responded to every, you know, question that had
been raised last time.
There was some discussion about, you know, the
accuracy of the standing and redressability and whether the
recent U.S. Supreme Court case that I'm also not going to
attempt to present -- to pronounce has a contrary assertion, and
I want to be clear. It's not contrary. In fact, you know, the
majority opinion cites the case that we, you know, cited for the
proposition that you need standing for every form of relief, and
it needs to be redressing. It was a critical part of their
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analysis for why nominal damages, you know, was appropriate, and
so it's not contrary in any way; it was just recently reaffirmed
that that's an appropriate consideration.
So at bottom, this is upsetting the status quo. You
know, we will also be arguing that, you know, a preliminary
injunction isn't appropriate, but regardless if this Court
ultimately disagrees for the drastic extraordinary remedy of
enjoining a duly enacted statute of the State of Iowa, the Court
should decline to grant a temporary restraining order and wait
until after a preliminary injunction.
THE COURT: Mr. Langholz, unless I missed it, I didn't
see any response to the claim of the plaintiffs that 847 -- this
section of 847 violates the Supremacy Clause. Did you argue
that and I missed it or --
MR. LANGHOLZ: Well, we did not in the expedited
briefing here get into the significant merits of the substantive
claims. The Supremacy Clause kind of flows throughout all three
of these claims. I think specifically they highlighted
specifically with respect to the ARP Act, and it similarly --
you know, if that is, in fact, a federal requirement -- and the
State disputes that there is -- that the plaintiffs are correct
that there's anything in that statute that can -- is clear
enough to be a mandate that school districts either must have
universal mask mandates or must have discretion to implement
universal mask mandates, you know, again, an injunction wouldn't
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be necessary because districts could comply with that as well.
But we've closely parsed from when we first received,
you know, the Secretary's letter, you know, explaining --
directing to the Act, the letter itself, as it's a hyperlink in
the complaint. It doesn't actually say that mask mandates are
required or that school districts are required to be able to
implement universal mask mandates. It's an interesting chain of
legal reasoning. You know, it appears to be very carefully
lawyered, but it's a novel claim both from that letter and
from -- you know, as asserted here that somehow a -- an
appropriation and language authorizing the use of that money
linked somehow now to a regulation that a school comes up with a
plan to come back to return to learning and guidance from the
CDC that, you know, masking is appropriate. That that chain of
links turns into a clear federal mandate that all schools either
must have discretion or must actually implement, you know, mask
mandates was a novel and unprecedented claim that the State of
Iowa would resist as well. But if it's correct and if schools
concluded that it was correct, they would have authority under
the statute already without an injunction from the Court.
THE COURT: When you're an older person like I am,
Mr. Langholz, Cooper versus Aaron was the Little Rock case that
all nine justices signed, and they talked about the supremacy of
federal law, and so I went and read Cooper yesterday. If the
design of the Constitution is that federal law is supreme, I
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don't see a way that this statute can be enforced. Do you?
MR. LANGHOLZ: Well, it would be -- it presupposes
that there is a federal mask requirement, and if a federal mask
requirement exists, then, you know, a school district would be
allowed, you know, and, in fact, would be required to implement
it. It would -- perhaps in that situation if plaintiffs are
correct that there's not just a -- if it is correct -- and I
don't want to put words in plaintiffs' mouth that this is their
assertion, but if it's correct that federal law requires all
school districts to implement a mandatory mask mandate, school
districts could do so under the terms of this law. Effectively
it would be a nullity at that point, you know, if it didn't have
a savings clause, as we're calling it, you know, in it, correct,
the Supremacy Clause would supersede it and prevent enforcement,
but we do have a savings clause, so an injunction is not
necessary at least, again, on the -- I can conceive perhaps of a
way -- you know, different sorts of injunctions than what's
being requested by plaintiffs here that might be more
appropriate, you know, depending on the nuance of the claim, but
a strictly just don't enforce the statute is an unnecessary
injunction.
THE COURT: Thanks very much.
MR. LANGHOLZ: Thank you, Your Honor.
THE COURT: Ms. Latta, do the school boards have any
input that they -- that your clients want to make at this point
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or -- no?
MS. LATTA: No, Your Honor. Yes. We're not taking a
position with respect to this portion of the proceedings at
least on behalf of the nine districts that I represent.
THE COURT: Right. But as to the chaos, confusion,
calamitous impact, nothing?
MS. LATTA: No position.
THE COURT: All right. All right. Okay.
Mr. Freedman, do you want any rebuttal?
MR. FREEDMAN: Yes, Your Honor, just briefly --
THE COURT: Yes.
MR. FREEDMAN: -- if I may. So I want to just address
a few points Mr. Langholz raised. The first is on the citation
to HF 847, that's a fair point. I think we're looking
specifically to enjoin enforcement of section 280.31. I
believe -- just so we're clear, I believe the specific language
we're talking about was a last-minute addition to the overall
education bill which is HF 847. I believe it was -- the bill
was HR 2147. We'll confirm that with Mr. Langholz, but it was
the -- the bill passed on -- the amendment to the overall House
File, it was passed on May 20th, 2021. But I -- the statutory
citation in defendants' brief is certainly correct and is what
we're seeking to enjoin enforcement of.
THE COURT: Okay.
MR. FREEDMAN: I think the second point I want to
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address is you had a colloquy with Mr. Langholz about the
State's position -- State defendants' position regarding whether
we're seeking to impose a universal statewide mask mandate or
give school districts the discretion to implement them based on
their judgment, their application of public health guidance, and
in accordance with their local public health authorities
applying CDC guidance. Your Honor is correct. We're asserting
the latter in this litigation. We think that that's
consistent -- and to preview an argument we'll come back to, we
think that's consistent with what Congress intended in the
American Rescue Plan Act, that local school districts are
empowered to follow the CDC guidance in the language of the Plan
Act to the maximum extent practical. I believe that's the
statutory language.
We think that exercising that judgment last year in
the absence of this prohibition, many school districts --
probably even most school districts across the state -- made the
judgment that universal masking was appropriate as a public
health measure to protect their -- to protect the student
population. I don't know whether the disability community was
also advocating it at that time, but it certainly benefited and
protected the community of students with disabilities. But just
so we're clear, we are just saying the purpose of this
injunction is to restore back the status quo before this bill
passed, which is what the purpose of an injunction serves, to
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empower school districts to be able to take -- impose or adopt
universal masking, if that's the decision that they make.
Mr. Langholz suggested that our record is unclear on
sort of what -- what -- whether that would be necessary to
provide relief to our clients. I don't want to revisit the
discussion of redressability. I think that we've provided
sufficient facts to show that we meet the redressability
standard. I do want to say -- I mean, it may be the case that
no school boards have taken a vote to implement this --
implement universal masking, but I think that's readily
explainable by a couple of things.
One is the defendants have stated that they consider
any such measures to be illegal under State law. They've
also -- Director Lebo's department has taken public positions
that school boards who engage in enacting universal masking will
be sanctioned including up to loss of accreditation. We look at
particular Iowa communities that have as public health measures
adopted universal masking and see that school districts in those
communities have said, We can't follow our local law because of
the State law. Iowa City has -- the mayor has adopted a
universal masking, and the superintendent of the school district
has said, We can't follow that because of the State law. So we
think that's sufficient to establish redressability along with
the fact that the school districts where all of our clients
reside had made that decision last year.
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A lot of Mr. Langholz's -- turn to another point. A
lot of Mr. Langholz's argument was directed towards questions of
exhaustion of remedies. We are not bringing -- to be clear, we
are not bringing a claim in this lawsuit that requires us to
exhaust administrative remedies. Mr. Langholz is suggesting
that maybe if we brought a claim under IDEA and that our
students were seeking enforcement of their Individualized
Education Plans, IEPs, there are exhaustion requirements there.
We are not bringing those claims there. We considered them, and
we decided we don't need to do that to get our plaintiffs
relief. Our claims here are under the Americans with
Disabilities Act which has no exhaustion requirement and under
the Rehabilitation Act which has no exhaustion requirement, so a
lot of the argument and a lot of what we just heard is just
simply a red herring. It's not relevant to the claims we're
bringing.
On the -- on the question of timing, you know, I --
where I practice, one of our -- one of our D.C. judges, my
regular court -- he's a retired judge now, but he was very fond
of saying the federal government, the Department of Justice,
whenever they came in to defend a suit always claimed that the
plaintiff was both too early and too late, and I think that's
what we're hearing now: too early to know whether it's really
going to cause harm; too late because the law was passed months
ago. And you can't have it both ways. I mean, if we look at it
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another way, we brought suit promptly when it was clear from the
defendants' statements that they intended to vigorously enforce
the law, including statements from Director Lebo's department
about the consequences for school districts if they passed -- if
they enacted or reintroduced universal masking. That's only
been clear since the school has resumed. It's a matter of days,
not months.
It's also, I think, clear that our students are -- or
our plaintiffs are in districts where we're seeing spread unlike
anything that we saw last year. So whether that would have been
apparent in May I think is not really relevant. It's apparent
now. We have injury now. That's sufficient to grant relief.
On the -- on the colloquy at the end of Mr. Langholz's
argument about the -- about the preemption plan, there was some
suggestion that this was a novel or creative or crazy preemption
theory. It's not. Appropriations bills have substantive riders
all the time that make policy changes, implement policy changes.
That's something Congress is very fond of doing because it's
frequently easier to get something enacted as part of an
appropriation or otherwise. It doesn't change things, the fact
that Congress directed that school districts in taking this
money were supposed to follow recommendations and guidance from
the CDC to the maximum extent practical.
HF 847 prevents, frustrates, directs Iowa school
districts that they can't follow that Congressional direction,
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takes that discretion away from them, takes away any ability of
school districts to assess and make decisions for their
districts whether they want to -- whether they -- what they want
to do. We know that last year the school districts where our
plaintiffs reside and many other school districts across the
state in assessing and making -- in assessing that guidance
concluded that they wanted universal masking.
Just two other sort of short points. One is that I
think if the defendants' position -- if the defendants' position
is that the statute actually allows districts to comply with
federal law and adopt universal masking in order to comply with
federal law, there's really no harm -- no harm that they've
cited in granting the TRO. There's simply -- if that's their
position, that's really -- entering the TRO is preserving the
status quo. We have grave concerns based on the public
statements that the defendants -- State defendants have made
that they don't really -- that's not really their position in
which case we think a TRO would bring great clarity to the
situation and make it far easier for school districts to comply
with federal law, but if it's really the State's position and if
it's really Governor Reynolds' position that state [sic]
districts can adopt universal mask mandates if they conclude
that's what they're entitled to under federal law, there's no
harm to the State from entering the TRO.
And the final point I want to make, Your Honor, is
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that we recognize that entry of a TRO and entry of emergency
injunctive relief is an extraordinary remedy, but we think these
circumstances warrant it. When you look at the harm that our
plaintiffs face, the harm that thousands of other children with
disabilities in the state of Iowa face, the harm that could be
reduced, mitigated, potentially prevented if school districts
are allowed to make and in their judgment adopt universal
masking clearly weighs in favor of an injunction. We think
similarly the violations of federal law here are clear and
warrant an injunction. We think the public interest
currently -- certainly warrants an injunction, and we don't
think we've heard any burden from the State defendants that
would offset any of those. So we recognize this is a big ask,
but we do think that circumstances warrant it, and we ask Your
Honor to enter an injunction.
THE COURT: Mr. Freedman, the last thing I asked
Mr. Langholz, if I get in Count 1 and Count 2 the analysis about
are they disabled, were they discriminated against, did they
accommodate their disability -- okay. If I get through that
analysis and the analysis on the Count 2 that the 280 -- 280.31
violates those two, then on a straightforward analysis, the last
question I ask you, am I being too simplistic to think that the
Supremacy Clause means that if Congress -- or if the State
passed a law saying you can discriminate -- I'm trying to think.
Is it -- what's the right analysis to look at the Supremacy
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Clause here? This can't -- this -- 280.31 cannot stand because
of the ADA and the Vocational -- and the Vocational [sic] Act of
'73. Is that as simple as it is?
MR. FREEDMAN: So here's what I'd say. We have been
looking at the Supremacy Clause issue as related to the direct
language in the Congressional language in the American Rescue
Plan Act. I don't think -- the question of whether it's
preempted under the -- under the Americans with Disabilities Act
I will tell Your Honor is far more complicated than I was
hoping.
THE COURT: Okay.
MR. FREEDMAN: We looked at that. The issue, I think,
is that courts construing the question of preemption of the
Americans with Disabilities Act recognize that a lot of states
at the time the ADA was passed had State pronouncements and did
not intend to preempt -- Congress did not intend to preempt
those protections, so, you know, I can't cite -- I don't know
whether I can think of an Eighth Circuit case specifically
holding that, but in all candor, Your Honor, I think our
stronger claim on preemption is under the American Rescue Plan
Act.
THE COURT: Okay. Candor is always appreciated.
MR. FREEDMAN: Unless Your Honor has any other
questions --
THE COURT: No. We'll consider the matter submitted.
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Thank you very much.
We'll be in recess.
MR. FREEDMAN: Thank you, Your Honor.
MR. LANGHOLZ: Thank you, Your Honor.
(Proceedings concluded at 11:24 a.m.)
C E R T I F I C A T E
I, Tonya R. Gerke, a Certified Shorthand Reporter of
the State of Iowa and Federal Official Realtime Court Reporter
in and for the United States District Court for the Southern
District of Iowa, do hereby certify, pursuant to Title 28 U.S.C.
Section 753, that the foregoing is a true and correct transcript
of the stenographically reported proceedings held in the
above-entitled matter and that the transcript page format is in
conformance with the regulations of the Judicial Conference of
the United States.
Dated at Des Moines, Iowa, September 16, 2021.
/s/ Tonya R. Gerke
Tonya R. Gerke CSR, RDR, CRR
Federal Official Court Reporter
Case 4:21-cv-00264-RP-HCA Document 37 Filed 09/17/21 Page 55 of 55