Declaration Of John A
Summary
The Declaration of John A. Freedman, counsel for the plaintiffs at Arnold & Porter Kaye Scholer LLP, filed September 10, 2021 as Document 28 in The Arc of Iowa v. Kim Reynolds, Case No. 4:21-cv-00264-RP-SBJ, in the U.S. District Court for the Southern District of Iowa. It supports the plaintiffs' motions for a temporary restraining order and preliminary injunction. The declaration attaches a letter from counsel for the Iowa City Community School District stating no objection to a TRO enjoining Section 280.31 of the Code of Iowa. It sets out school-district COVID-19 case counts cited at the TRO hearing and later updates, such as 233 positive tests reported by Des Moines Schools as of September 10. Exhibits B through F are a state motion to dismiss in Parr v. Iowa Dep't of Edu. et al., EQCE 086981, state guidance on HF 847, and two school board members' affidavits.
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Case 4:21-cv-00264-RP-SBJ Document 28 Filed 09/10/21 Page 1 of 7
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 DECLARATION OF JOHN A.
STEWART, individually and on behalf of FREEDMAN IN SUPPORT
E.M.S., a minor; and ERIN VERCANDE, MOTION FOR TEMPORARY
individually and on behalf of S.V., a minor, RESTRAINING ORDER
AND PRELIMINARY
Plaintiffs, INJUNCTION
v.
KIM REYNOLDS, in her official capacity as
Governor of Iowa; ANN LEBO, in her official
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.
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Case 4:21-cv-00264-RP-SBJ Document 28 Filed 09/10/21 Page 2 of 7
DECLARATION OF JOHN A. FREEDMAN
I, John A. Freedman, declare as follows:
1) I am an attorney with Arnold & Porter Kaye Scholer LLP, counsel for Plaintiffs in the
above-captioned action. I make this declaration upon my personal knowledge, and in
support of Plaintiffs’ Motions for Temporary Restraining Order and Preliminary
Injunction.
2) Attached hereto as Exhibit A is a true and correct copy of a Letter from C. Joseph
Holland, counsel for the Iowa City Community School District, dated September 10,
2021, re The Arc of Iowa v. Reynolds. The letter, submitted with counsel’s permission,
states that the Iowa City Community School District has “no objection or resistance to the
Court granting a Temporary Restraining Order and enjoining enforcement of Section
280.31 of the Code of Iowa (2021)” and that if the Court does so, the school district “is
prepared to meet as soon as possible to consider a mask requirement . . . .”
3) In the hearing on Plaintiffs’ motion for a Temporary Restraining Order earlier today, I
represented certain COVID-19 case data that was not previously in the record. That data
was collected from public sources, including “dashboards” maintained by various school
districts and a statewide compendium of case counts called the Iowa COVID-19 Tracker
(iowacoid19tracker.org) which compiles data from each school district dashboard. The
numbers I reported in Court were all based on my review of these websites on the
morning of September 10; it is important to note that school districts periodically update
this data, and in certain cases, the numbers I reported have changed since the hearing.
The numbers, source, and updated information is as follows:
a. As of September 9, the Des Moines Schools reported that this school year, 215
children in the Des Moines school district have tested positive for COVID-19.
This data is reported by the Des Moines Schools at
https://www.dmschools.org/covid19dashboard/. Positive cases from this school
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Case 4:21-cv-00264-RP-SBJ Document 28 Filed 09/10/21 Page 3 of 7
year are already 25.1% of those from Des Moines for all of the last school year.
Id. (“during the 2020-21 school year, 526 staff members and 855 students
reported positive COVID-19 tests”).
b. Since I last checked the Des Moines dashboard, the Des Moines Schools has
updated the information and, as of September 10, is now reporting 233 positive
COVID tests since the school year began. This is more than double the number of
cases reported on September 2. Compare Complaint ¶ 51 (reporting 101
students).
c. As of September 9, Iowa City Community School District reported a total of 127
students as having tested positive since schools opened. While I did not make the
point in argument, I note that cases among students have thus increased by more
than 50% since September 2. Compare Complaint ¶ 51 (reporting seventy-one
students as having tested positive).
d. Since I last checked the Iowa City dashboard, the Iowa City Schools has released
new data showing 132 positive student cases as of September 10 on its dashboard.
https://www.iowacityschools.org/Page/18796.
e. For the week ending September 3, Cedar Rapids Community School District
reported sixty-six positive COVID-19 tests among students. This data is reported
by the Cedar Rapids Community School District at
https://sites.google.com/crschools.us/crcsdcovidhub/data-archive?authuser=0.
That is 16% of the total number of positive cases reported for students (411) for
all of last year. The number of cases last year is available on the Iowa COVID-19
Tracker.
https://onedrive.live.com/view.aspx?resid=26D8C5E551E13BAD!3773&ithint=fi
le%2cxlsx&authkey=!APBwLfln6ifYM9s.
f. For Waterloo schools, I reported that the number of positive cases for students
was already 55% of the total cases reported for all students last year. This
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Case 4:21-cv-00264-RP-SBJ Document 28 Filed 09/10/21 Page 4 of 7
percentage is based on cases for this school year to date when I looked (30
students) as reported the Waterloo Schools’ dashboard
(https://www.waterlooschools.org/hrs/covid-district-data/) and last year (54
students), as reported on the Iowa COVID-19 Tracker.
https://onedrive.live.com/view.aspx?resid=26D8C5E551E13BAD!3773&ithint=fi
le%2cxlsx&authkey=!APBwLfln6ifYM9s.
g. Since I last checked, Waterloo Schools’ dashboard, updated as of September 10,
is reporting 33 positive student cases, and another 335 students in quarantine
pending testing results. https://www.waterlooschools.org/hrs/covid-district-data/.
This number of positive students is now more than 60% of the cases for last year
(54 students).
h. The Linn-Mar dashboard only presents two weeks of data and does not provide
cumulative totals. https://www.linnmar.k12.ia.us/covid-19-information/. When I
checked this morning, the data showed 70 cases (not distinguished between
students and staff), which was 30% of the total number of cases reported for last
year on the Iowa COVID Tracker. The Linn-Mar School District has
subsequently updated the dashboard to report an additional 32 student cases for
the week ended September 10.
4) The following link is a video of a September 2, 2021 press conference by Governor
Reynolds. At 17:19 in the video, when asked how she would respond to parents of
children with underlying disabilities concerned about the law prohibiting mask mandates
in schools, the Governor reiterated that state law prohibits local school districts from
requiring masks, and that their options were to mask their own children, or to stay home
and use the online schooling option. See Press Conference video,
available https://www.weareiowa.com/video/news/health/coronavirus/watch-full-press-
conference-governor-kim-reynolds-covid-website-data-tracking-september-2/524-
443249c6-79c6-4f22-9b51-b5847dad529f (timestamp 17:19).
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Case 4:21-cv-00264-RP-SBJ Document 28 Filed 09/10/21 Page 5 of 7
5) Attached hereto as Exhibit B is a true and correct copy of the state’s Motion to Dismiss,
filed in Polk County District Court on August 25, 2021 in Parr v. Iowa Dep’t of Edu. et
al., EQCE 086981. This motion to dismiss was filed in a state court proceeding
challenging HF 847 on state law grounds. In this proceeding, the state did not take the
position that the law would allow schools to require masks. To the contrary, the state
represented in its motion to dismiss that one of the state’s interests in the legislation was
to take away the authority of local school boards to require masks:
If each district had to make its own decision, each district might face
litigation brought by parents who disagreed, with the attendant effort and
expense. Under section 280.31, each school district does not have to decide
on its own whether to satisfy parents who wish their students to be masked,
or to satisfy parents who do not, and districts have more time to devote to
other important concerns.
Parr v. Iowa Dep’t of Edu. et al., Mot. to Dismiss at 22, EQCE 086981 (Polk Co. Dist.
Ct. Aug. 25, 2021).
Cities, counties, and school boards have authority over some issues, but
others, including the issue of masks in schools, are outside of that authority.
Id. at 38.
6) Attached as Exhibit C is a true and correct copy of the Iowa Department of Education’s
September 2, 2021 “Frequently Asked Questions” (“FAQs”) issued to schools.
https://cdn.linnmar.k12.ia.us/wp-content/uploads/2021/09/9-2-21-Frequently-Asked-
Questions-on-IDPH-guidance.pdf. The FAQs were “provided as clarifications for schools
to accompany the guidance released on August 6, 2021, by the Iowa Department of
Public Health (IDPH): COVID-19 and K-12 School Update for Fall 2021." The FAQs
make no further clarification or change to the previous information provided about HF
847 in the August 6, 2021 IDPH guidance, cited in Plaintiffs’ Complaint, stating that:
HF 847, signed by Governor Reynolds on May 20, 2021, prohibits a school
district from adopting or enforcing a policy that requires employees,
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Case 4:21-cv-00264-RP-SBJ Document 28 Filed 09/10/21 Page 6 of 7
students, or the public to wear a mask while on school property. As such,
masks must be optional for students, teachers, and visitors.
Iowa Department of Public Health, COVID-19 and K-12 Schools Update for Fall 2021,
https://idph.iowa.gov/Portals/1/userfiles/61/covid19/resources/School%20Update%20Fall
%202021.pdf.
8) Attached hereto as Exhibit D is a true and correct copy of August 6, 2021 IDPH
Guidance which is quoted above. The September 2, 2021 Department of Education
Guidance thus incorporates and affirms the IDPH guidance cited in Plaintiffs’ Complaint.
9) Attached hereto as Exhibit E is an Affidavit of Jill Shudak, member of the Council Bluffs
Community School District School Board, dated September 3, 2021, filed in Parr v. Iowa
Dept. of Edu. et al. In that affidavit, Ms. Shudak states: “I am aware that pursuant to
Iowa Code Section 280.31, that as a member of the Council Bluffs Community School
District, I am not able to issue a facial covering/mask mandate for students and school
personnel in the Council Bluffs Community Schools.”
10). Also attached hereto as Exhibit F is an Affidavit of Stacy Anderson, member of the
Urbandale Community School Board, dated September 3, 2021, stating the same.
I swear under the penalty of perjury under the laws of the United States that the foregoing
is true and correct to the best of my knowledge.
Dated this 10th day of September, 2021
_[s] John A. Freedman
John A. Freedman
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Case 4:21-cv-00264-RP-SBJ Document 28 Filed 09/10/21 Page 7 of 7
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.
All parties other than the Iowa City Community Schools have filed an appearance in this case and
will be served through the CM/ECF system.
I will separately serve the Iowa City Community Schools.
Date: September 10, 2021
/s/Rita Bettis Austen
Rita Bettis Austen
7
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