Resistance to Motion for — Preliminary Injunction — The Arc of Iowa et al. v. Kim Reynolds (Document 39-1)

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Defendants Governor Kim Reynolds and Ann Lebo's Resistance to Motion for Preliminary Injunction, Document 39-1, filed September 17, 2021 in The Arc of Iowa et al. v. Kim Reynolds et al., Case No. 4:21-CV-00264-RP-SBJ, in the U.S. District Court for the Southern District of Iowa, Central Division. The brief addresses section 280.31 of the Iowa Code, which it quotes as barring schools from adopting, enforcing, or implementing a policy requiring facial coverings. The State argues that Plaintiffs are not harmed by section 280.31 and are unlikely to succeed on claims under title II of the Americans with Disabilities Act, section 504 of the Rehabilitation Act, and the American Rescue Plan Act of 2021. The conclusion asks the Court to deny the motion and allow the temporary restraining order to expire.

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“Resistance to Motion for — Preliminary Injunction — The Arc of Iowa et al. v. Kim Reynolds (Document 39-1).” Original at archive.org. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2021-09-17-plaintiffs-v-kim-reynolds-in-her-official/, SHA-256 4905c0daf8adb5ffecf3c270bb291024c99716b5379c1ffe8b0b8abad7889c58.

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Case 4:21-cv-00264-RP-SBJ Document 39-1 Filed 09/17/21 Page 1 of 26

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

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

Plaintiffs,

v. DEFENDANTS GOVERNOR
KIM REYNOLDS AND ANN LEBO’S
KIM REYNOLDS, in her official RESISTANCE TO MOTION FOR
capacity as Governor of Iowa, et al. PRELIMINARY INJUNCTION

Defendants.

COME NOW Defendants Governor Kim Reynolds and Ann Lebo (collectively,

“the State”) and submit this Resistance to Motion for Preliminary Injunction.

TABLE OF CONTENTS
INTRODUCTION .......................................................................................................... 2
STANDARD FOR PRELIMINARY INJUNCTION ..................................................... 4
ARGUMENT .................................................................................................................. 6
I. Plaintiffs are not harmed by section 280.31 because it doesn’t prevent
schools from complying with federal law and enjoining its enforcement
doesn’t redress Plaintiffs’ alleged harms because such relief doesn’t provide
a universal mask mandate. ............................................................................... 6
II. Plaintiffs are unlikely to succeed on the merits of their claims because
neither federal disability law nor the American Rescue Plan Act of 2021
requires universal mask mandates in schools or requires schools to have
the discretion to implement such mandates. .................................................... 9
A. Federal disability law doesn’t require schools to impose—or to
have the discretion to impose—universal mask mandates. ................. 9
1. Section 280.31’s prohibition on school districts adopting
universal mask mandates is a neutral nondiscriminatory
policy. ......................................................................................... 9
2. A universal mask mandate in schools is not a reasonable
modification and other reasonable modifications exist. ......... 11
Case 4:21-cv-00264-RP-SBJ Document 39-1 Filed 09/17/21 Page 2 of 26

3. Plaintiffs failed to exhaust their administrative remedies
under the IDEA........................................................................ 15
B. ARPA doesn’t require schools to impose—or have the discretion to
impose—universal mask mandates. ................................................... 19
III. The balance of the harms and the public interest do not support enjoining
a duly enacted statute that has been in effect for nearly four months that
upsets the status quo and causes unnecessary confusion and conflict
throughout Iowa............................................................................................... 23
CONCLUSION............................................................................................................. 25

INTRODUCTION

Nearly four months ago, the Legislature passed, and Governor Reynolds

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

20, 2021 (H.F. 847), ch. 139, 2021 Iowa Act § 28 (to be codified at Iowa Code § 280.31).

That statute became effective immediately, see id. § 31, and provides:

The board of directors of a school district, the superintendent or chief
administering officer of a school or school district, and the authorities in
charge of each accredited nonpublic school shall not adopt, enforce, or
implement a policy that requires its employees, students, or members of
the public to wear a facial covering for any purpose while on the school
district’s or accredited nonpublic school’s property unless the facial
covering is necessary for a specific extracurricular or instructional
purpose, or is required by section 280.10 or 280.11 or any other provision
of law.

Id. § 28.

Plaintiffs sued Governor Reynolds, Iowa Department of Education Director

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

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

the American Rescue Plan Act of 2021 (“ARPA”). Compl., Doc. 1 ¶ 76–102. And this

Court granted their requested temporary restraining order enjoining all Defendants

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

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utilizing their discretion to mandate masks for students, staff, teachers, and visitors.”

TRO Order at 29; see also Compl., Doc. 1, at 37 ¶ 4.

But the extraordinary remedy of preliminary injunctive relief sought by

Plaintiffs remains unnecessary and inappropriate. Enforcement of section 280.31 is

not the source of Plaintiffs alleged harms and enjoining it will not redress them.

Section 280.31 doesn’t prevent schools from complying with federal law and enjoining

its enforcement won’t necessarily provide them a universal mask mandate.

Even looking past these defects, Plaintiffs are unlikely to succeed on the merits

of their novel claims. Section 280.31 is a neutral, nondiscriminatory State policy set

in statute and thus doesn’t violate federal disability law. Universal mask mandates

in schools are not a reasonable modification to this policy because it would be an

undue burden, fundamentally alter the nature of the State’s education program, and

infringe on the rights of others. And Plaintiffs are barred from asserting these claims

because they haven’t exhausted administrative remedies or properly pursued

reasonable modifications for their disabilities.

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

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

discretion to impose—universal mask mandates. And interpreting either to impose

such a requirement would raise serious constitutional concerns.

Finally, the balance of the harms and the public interest do not support

enjoining a duly enacted statute that has been in effect for nearly four months,

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upsetting the status quo, and causing unnecessary confusion and conflict throughout

Iowa.

Plaintiffs are understandably concerned about the health and education of

their children. But this lawsuit is not the proper tool to accomplish their goals.

Instead, they could seek appropriate reasonable modifications from their schools to

protect their health and meet their educational needs. Or they could advocate for

increased public health measures or changes to section 280.31 to their elected

Governor and legislators. The law does not provide them the relief they seek.

Plaintiffs’ request for a preliminary injunction should be denied and the temporary

restraining order should be allowed to expire.1

STANDARD FOR PRELIMINARY INJUNCTION

“A preliminary injunction is an extraordinary remedy never awarded as of

right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). The power to grant

a preliminary injunction has been called “an awesome power” that “necessarily

requires the Court to analyze the record carefully to determine whether Plaintiff has

shown that it will be irreparably harmed absent the issuance of the requested relief.”

1 Because this Court issued the temporary restraining order on September 13 and

provided it “shall remain in full force and effect until the Court enters an Order on
Plaintiffs’ request for a preliminary injunction,” this Court must rule on Plaintiffs’
request on or before September 27, when the 14-day time limit on temporary
restraining orders expires. See Fed. R. Civ. P. 65(b)(2). This time limit applies even
to a temporary restraining order—like this one—that was entered after a hearing.
See Quinn v. Missouri, 839 F.2d 425, 426 (8th Cir. 1988); Waste Mgmt., Inc. v.
Defenbaugh, 534 F.2d 126, 129 (8th Cir. 1976) (holding that a temporary restraining
order that had been issued after an evidentiary hearing had “extended beyond the
permissible time limit . . . must be treated as if it were a preliminary injunction”); see
also Chicago United Indus. V. City of Chicago, 445 F.3d 940, 946 (7th Cir. 2006);
Nutrasweet Co. v. Vit-Mar Enters., 112 F.3d 689, 692–94 (3d Cir. 1997).

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Mediacom Communications Corp. v. Sinclair Broad. Group, Inc., 460 F. Supp. 2d

1012, 1017 (S.D. Iowa 2006).

Courts in the Eighth Circuit apply a four-part test—generally called the

Dataphase factors—to determine whether preliminary injunctive relief is

appropriate. Sanborn Mfg. Co., Inc. v. Campbell Hausfeld/Scott Fetzer Co., 997 F.2d

484, 485–86 (8th Cir. 1993) (citing Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d

109, 114 (1981) (en banc)). The four Dataphase factors are: “(1) the probability of

success on the merits; (2) the threat of irreparable harm 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.” Id. Ordinarily, “[n]o single factor in itself is dispositive; in each case all of

the factors must be considered to determine whether on balance they weigh towards

granting the injunction.” Baker Elec. Co-op., Inc. v. Chaske, 28 F.3d 1466, 1472 (8th

Cir. 1994).

But when a preliminary injunction seeks to “enjoin the implementation of a

duly enacted state statute,” a district court must “make a threshold finding that a

party is likely to prevail on the merits.” Planned Parenthood Minn., N.D. v. Rounds,

530 F.3d 724, 732–33 (8th Cir. 2008) (en banc). Only if a plaintiff makes this threshold

showing should the court “then proceed to weigh the other Dataphase factors.” Id. at

732. This “more rigorous standard” is intended “to ensure that preliminary

injunctions that thwart a state’s presumptively reasonable democratic processes are

pronounced only after an appropriately deferential analysis.” Id. at 733.

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ARGUMENT

I. Plaintiffs are not harmed by section 280.31 because it doesn’t prevent
schools from complying with federal law and enjoining its
enforcement doesn’t redress Plaintiffs’ alleged harms because such
relief doesn’t provide a universal mask mandate.

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

covering . . . is required by . . . any other provision of law.” Act of May 20, 2021 (H.F.

847), ch. 139, 2021 Iowa Act § 28 (to be codified at Iowa Code § 280.31). So if Plaintiffs

are correct that federal law requires some facial coverings in schools, section 280.31

doesn’t prohibit it. No injunction of the statute’s enforcement is required. A school

already has it within its power to comply with any requirement of federal law.

To be sure, as discussed below in Part II, the State disputes that the ADA, the

Rehabilitation Act, or ARPA impose any federal requirement that a universal mask

mandate be imposed in all Iowa schools—or that they require local school

decisionmakers to have the discretion to impose such universal mandates rather than

the Governor. And presumably Iowa schools and their lawyers have come to the same

conclusion since none acted to impose a district-wide, or building-wide universal

mask mandate based on some requirement of federal law before this Court’s

temporary restraining order. But it any event, there’s no need to enjoin enforcement

of section 280.31.

Plaintiffs’ requested preliminary injunction isn’t just unnecessary—it’s also

insufficient to redress their alleged irreparable harms. They assert that their

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

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

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school. Mem. of Authorities in Support of Mtn. for PI & TRO, Doc. 17, at 13–14. And

they believe that “[i]f everyone were wearing a mask,” these harms would be avoided

and “their children would be safe.” Id. at 12.

But Plaintiffs are not asking this court for an injunction requiring everyone in

their children’s schools to wear a mask. They seek only to enjoin Governor Reynolds

and Director Lebo from enforcing section 280.31. Compl., Doc. 1, at 37 ¶ 4. That won’t

remedy their claimed harm. It’s dependent on the actions of independently elected

school boards to decide whether they will in fact implement a universal mask

mandate in their school districts like Plaintiffs hope. This lack of redressability is an

Article III standing concern with the relief that Plaintiffs seek. See Friends of the

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

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

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

“fairly . . . trace[able] to the challenged action of the defendant”). And it shows that a

preliminary injunction granting such relief is inappropriate.

True, since this Court issued its temporary restraining order, some schools

attended by some Plaintiffs have imposed a universal mask mandate. See, e.g., Press

Release, Des Moines Public Schools Will Reinstate Mask Mandate (Sept. 14, 2021),

https://perma.cc/CB3R-NBG6; Anthony Watt, “A Safe Learning Environment: Inside

the Davenport School District’s Debate to Mask Up, Quad-City Times (Sept. 16, 2021),

https://perma.cc/RJ8N-HXPQ. But the mask mandates might not be maintained—

that depends on actions of third parties not being required by court order to provide

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such a mandate. Defendant Linn Mar Community School District decided to impose

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

vaccines are available for children under twelve. See Trevor Oates, Linn-Mar School

Board Approves Mask Mandate for PK-6 Students, KWWL (Sept. 16, 2021),

https://perma.cc/MG3B-VVRU. And other districts have decided not to impose

mandates or are delaying any decision, even after the order, showing that this

injunction didn’t remedy their harms. See Scott Carpenter, Johnston School Board

Tables Decision to Institute a Mask Mandate, KCCI (Sept. 15, 2021),

https://perma.cc/8X2L-LH6Z; Teresa Kay Albertson, Ankeny School Board Debates

Mask Mandate as Crowd Voices Concerns about ‘Body Autonomy’, ‘Freedom of Choice,’

Des Moines Reg. (Sept. 14, 2021), https://perma.cc/SH6S-AMNP; see also Mask

Mandate Fails to Pass at Special Sioux City School Board Meeting, Radio Iowa (Sept.

16, 2021), https://perma.cc/PR5H-VWXE; Taj Simmons, Waukee School Board Votes

in Opposition of Mask Mandate Within the District, WHO 13 (Sept. 16, 2021),

https://perma.cc/55XJ-YKH9.

Plaintiffs’ requested injunction is divorced from their alleged harm and any

likely valid legal claim. Because of this lack of standing, they are unlikely to succeed

on the merits and fail to show the injunction will remedy irreparable harm. Their

request for a preliminary injunction should be denied.

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II. Plaintiffs are unlikely to succeed on the merits of their claims because
neither federal disability law nor the American Rescue Plan Act of
2021 requires universal mask mandates in schools or requires schools
to have the discretion to implement such mandates.

Plaintiffs assert that section 280.31 violates three federal laws: title II of the

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

the American Rescue Plan Act of 2021 (“ARPA”). Their pleading and briefing is

unclear as to whether they assert that these federal laws require universal mask

mandates in schools or merely that federal law requires school districts—rather than

the Governor—to have discretion to impose such mandates. At the hearing on the

temporary restraining order, counsel for Plaintiffs asserted it is only the latter,

despite most of the Complaint and Declarations being devoted to showing the alleged

need for universal mask mandates in schools. But regardless of the precise

formulation of the claims, they fail. Neither federal disability law nor the American

Rescue Plan Act of 2021 requires universal mask mandates in schools or requires

schools to have the discretion to implement such mandates.

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

1. Section 280.31’s prohibition on school districts adopting
universal mask mandates is a neutral nondiscriminatory
policy.

Courts typically analyze disability discrimination claims under title II of the

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

to administer medication in schools only consistent with the maximum dosage

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

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

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

respect.

Section 280.31 establishes a uniform nondiscriminatory policy that unless

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

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

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

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

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

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

allocation of decision-making authority entirely disconnected from disabilities. After

passage of section 280.31, a universal mask mandate as a public health precaution

can only be imposed by the Governor as a part of her emergency powers during a

public health disaster, rather than by a school district. See Iowa Code §§ 135.144(3),

29C.6.

The alleged denial of Plaintiff’s desired universal mask mandates in their

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

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

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

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

statutory product of Iowa’s democratic process.

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

In granting the temporary restraining order, this Court concluded that

Defendants are required to make “reasonable modifications” and that “[a] universal

masking requirement instituted by a school is a reasonable modification.” TRO

Ruling at 26. But the Eighth Circuit has not decided “whether the failure to make

reasonable modifications in a policy is itself discrimination even where the policy and

its rationale cannot be shown to be discriminatory.” Davis, 138 F.3d at 757; see also

DeBord, 126 F.3d at 1106; see also CERT; cf. Alexander v. Sandoval, 532 U.S. 275,

284-86 (2001) (holding that similar Title VI does not create private cause of action for

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disparate-impact discrimination claims). So Plaintiffs can hardly be likely to succeed

on a claim where the law is unsettled.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Modifying the uniform policy established by section 280.13 to impose a

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

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

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

would void the Legislature’s policy decision to take the highly contentious and

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emotional issue of masks in schools from the responsibility of local schools, allowing

that local leadership to devote their time to under important concerns. And imposing

a universal mask mandate would impose the administrative and potential financial

and legal burdens of enforcing a mask mandate on all students, distracting teachers

and school administrators from their educational duties. It also can have negative

educational and social consequences. See World Health Organization, Advice on the

Use of Masks for Children in the Community in the Context of COVID-19, Aug. 21,

2020, available at https://perma.cc/TTQ8-PNHU (stating that “the benefits of

wearing masks in children for COVID-19 control should be weighed against potential

harm associated with wearing masks, including feasibility and discomfort, as well as

social and communication concerns”).

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

requires infringing on the rights of third parties—other students, employees, and

visitors. In the employment context, the Eighth Circuit has repeatedly recognized

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

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

collective bargaining agreement.” Wooten v. Farmland Foods, 58 F.3d 382, 386 (8th

Cir. 1995); see also Buckles v. First Data Resources, Inc., 176 F.3d 1098, 1100–02 (8th

Cir. 1999) (rejecting “irritant-free work environment” as a reasonable accommodation

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

319 (1994) (holding that an accommodation isn’t reasonable if it “would violate the

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

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

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

That’s all the more so here, where there are disability interests on both sides

of the debate. Imposing a universal mandatory mask requirement can harm disabled

students with social communication issues, such as those with autism, because it

prevents the students from advancing “social skills and understanding the express of

those around [the student] due to [the] fellow students and teachers wearing masks.”

Gronau Dec. (attached) ¶ 6; see also Givens Dec. (attached) ¶¶ 9–10. It can also harm

disabled students with anxiety. See Gronau Dec. ¶¶ 4–6. And those who struggle with

speech and pronunciation. See Givens Dec. ¶ 11. And those with asthma. Givens Dec.

¶¶ 7–8. And those with severe and painful sensory processing issues. See Parker Dec.

(attached) ¶¶ 4–6, 12 (describing how wearing a mask feels like skin is “on fire or

poked with sharp needles” creating “a ‘traffic jam’ in her brain and she essentially

becomes ‘paralyzed’ in that moment)

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

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

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

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

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

that it would remove the issue of universal mask mandates from local schools. And

modifying this decision to permit (or require) universal mandates is a fundamental

alternation and undue burden. It’s not reasonable.

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

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

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

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

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

teachers or students while interacting closely with the individual. Some Plaintiffs

assert that they have asked for such modifications, but the schools aren’t providing

or following through on the agreement.2 See Preston Dec., Doc. 3-11, ¶ 18; Geest Dec.,

Doc. 3-12, ¶¶ 9–12; Roise Dec., Doc. 3-5, ¶ 10; Devereaux Dec., Doc. 3-10, ¶ 10. But if

this is so, that’s a harm being caused by the school, not enforcement of section 280.31

by the State. And such a failure doesn’t support a claim against the State or this

requested preliminary injunction.

3. Plaintiffs failed to exhaust their administrative remedies
under the IDEA.

This Court need not even reach these questions about the scope of federal

disability law because Plaintiffs have failed to exhaust their administrative remedies

under the Individuals with Disabilities Education Act (“IDEA”). This dooms their

claims.

The IDEA ensures that children with disabilities receive a “free appropriate

public education,” known as a FAPE. See Fry v. Napoleon Cmty. Sch., 137 S. Ct. at

743, 748 (2017). And the IDEA sets up a comprehensive procedure to provide a FAPE,

2 Failing to request a modification poses another reason some Plaintiffs claims are

unlikely to succeed. Cf. Ballard v. Rubin, 284 F.3d 957, 960–61 (8th Cir. 2002).

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starting with the development of an individualized education program (“an IEP”) and

then progressing through an administrative process to resolve disputes between a

school and a family that can ultimately lead to a hearing before a neutral

administrative law judge and then judicial review in state or federal court. See id. at

748–49; see also Iowa Code §§ 256B.2(2), 256B.4, 256B.6; Iowa Admin. Code r. 281-

41.321–.328 (IEP process), 281-41.506 (mediations); 281-41.507–.518 (due-process

hearings).

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

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

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

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

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

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

IDEA—first exhaust the IDEA’s administrative procedures.”). This “exhaustion rule

hinges on whether a lawsuit seeks relief for the denial of a free appropriate public

education.” Fry, 137 S. Ct. at 754. If the suit claims discrimination in a way that does

not result in denial of a FAPE, then exhaustion is not required “because, once again,

the only ‘relief’ the IDEA makes ‘available’ is relief for the denial of a FAPE. Id. at

755. In conducting this analysis, “[w]hat matters is the crux—or, in legal-speak, the

gravamen—of the plaintiff’s complaint, setting aside any attempts at artful

pleading.” Id.; see also J.M. v. Francis Howell Sch. Dist., 850 F.3d 944, 948–49 (8th

Cir. 2017) (holding that gravamen of claim was denial of FAPE where parent alleged

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disabled student was in physical restraints for half of his school days and thus

“‘denied . . . because of his disability, participation in and the benefits of a public

education’” (quoting the complaint)).

Plaintiffs allege that the lack of a universal mask mandate—or perhaps the

lack of their schools authority to be able to consider such a mandate—is excluding

them from receiving their education. See Compl, Doc. 1, ¶ 56 (“Students with

disabilities who are unable to safely return to brick-and-mortar schools because of

continued health concerns are being excluded from the public school system . . . .”);

id. ¶ 59 (“Iowa state officials have effectively excluded these students from

participation in the public education system . . . .”); id. ¶ 58 (“Thus the Defendants’

actions will have the perverse effect of either placing children with disabilities in

imminent danger or unlawfully forcing those children out of the public school

system.”); id. ¶ 57 (complaining of lack of “virtual learning” and that “virtual learning,

even if available, is not a viable or adequate substitute for in person learning.”

id. ¶ 54 (complaining that “Children with disabilities are entitled to learn and

interact with all other children, to receive the same education as all other children”);

id. ¶ 1 (alleging schools cannot comply with section 280.31 and still provide “equal

access to their education”); id. ¶ 2 (alleging student risk harm to health or harm to

“their education and development”); ¶¶ 38–40 (alleging various educational harms

to disabled students because of the pandemic). Their claimed discrimination is thus

an injury that is allegedly denying them a FAPE and that could be remedied by

granting relief under the IDEA. Exhaustion was required.

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In its TRO ruling, this Court concluded otherwise by considering two

hypothetical questions: Could they have brought this claim against an entity other

than a school? And could a teacher or visitor bring a similar claim? TRO Ruling at

17–18. But the Eighth Circuit has explained that it’s improper to approach this

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

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

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

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

Given that Plaintiff’s claims are driven by the focus on the importance of

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

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

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

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

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

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

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

IDEA administrative process.

Because Plaintiffs have not exhausted their administrative remedies under the

IDEA their claims under the ADA or the Rehabilitation Act are subject to dismissal

as a matter of law and they are thus unlikely to succeed on these claims.

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

As an alternative basis for enjoining section 280.31, Plaintiffs contend that it

conflicts with the American Rescue Plan Act of 2021 (“ARPA”). Compl. Doc. 1, ¶¶ 95–

102. They argue that the statute, agency guidance, and a letter from the Secretary of

Education are “squarely at odds” with section 280.31 because it “prohibits local school

districts, including Defendant School Boards, from implementing precisely the type

of safe return-to-school policies ARPA expects.” Id. ¶ 101. But ARPA says nothing of

the sort. Neither does the agency guidance. And interpreting either to impose such a

requirement would raise serious constitutional concerns. Plaintiffs are unlikely to

succeed on this claim.

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

requirement. PI Brief, Doc. 17, at 25. Section 2001 establishes a $123 billion

Elementary and Secondary School Emergency Relief Fund and sets certain

requirements for allocation of the funds to the States and then to local schools. It

imposes two mandates on schools—that they publicly post “a plan for the safe return

to in-person instruction and continuity of services” and that they “shall reserve not

less than 20 percent of such funds to address learning loss.” American Rescue Plan

Act of 2021, Pub. L. No. 117-2, 135 Stat 4, § 2001(e)(1), (i). And then it provides that

they “shall use the remaining funds for any of” a list of 18 alternative purposes. Id.

§ 2001(e)(2). These include, for example: “Purchasing supplies to sanitize and clean

the facilities,” id. § 2001(e)(2)(I); “Planning for, coordinating, and implementing

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

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and upgrade projects to improve the indoor air quality in school facilities.” Id.

§ 2001(e)(2)(P).

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

provides the appropriated funds could be used for:

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

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

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

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

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

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

purpose.3 It would make no more sense to turn that single alternative into a blanket

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

long-term or replace their HVAC systems.

The agency guidance from the U.S. Department of Education fares no better.4

Plaintiffs point to Interim Final Requirements established by the Department

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

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

3 Indeed, even applying the statute’s terms, it’s not at all clear that it would be

“practicable” for a school to violate another law, such as section 280.31.
4 The correspondence from the Secretary of Education has no force of law and is

irrelevant to any preemption analysis.

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

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

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

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

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

2021); see also PI Brief, Doc. 17, at 25–26.

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

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

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

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

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

requirement without violating section 280.31.

Neither ARPA nor the agency guidance imposes any requirement that schools

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

But if there were any doubt, the Constitution removes it. While Congress has the

power to impose requirements on the States through its spending power, “if Congress

intends to impose a condition on the grant of federal moneys, it must do so

unambiguously.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981).

This is because “[t]he legitimacy of Congress’ power to legislate under the spending

power . . . rests on whether the State voluntarily and knowingly accepts the terms of

the ‘contract’” for the federal funds. Id. “By insisting that Congress speak with a clear

voice, we enable the States to exercise their choice knowingly, cognizant of the

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consequences of their participation.” Id.; see also South Dakota v. Dole, 483 U.S. 203,

208 (1987).

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

school districts must have discretionary authority to impose universal mask

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

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

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

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

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

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

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

requirements of Dole).

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

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

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

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

Hum. Servs., No. 21A23, 2021 WL 3783142, at *3 (U.S. Aug. 26, 2021). And under

the Tenth Amendment, the federal government cannot intrude on the State’s power

to structure its internal division of governmental power to school districts. See Hunter

v. Pittsburgh, 207 U.S. 161, 178 (1907) (“The number, nature, and duration of the

powers conferred upon these [political subdivisions] and the territory over which they

shall be exercised rests in the absolute discretion of the state.”).

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At bottom, this Court cannot imply the requirement alleged by Plaintiffs

consistent with these constitutional demands.5

III. The balance of the harms and the public interest do not support
enjoining a duly enacted statute that has been in effect for nearly four
months that upsets the status quo and causes unnecessary confusion
and conflict throughout Iowa.

Section 280.31 has been in effect since May 20, 2021. See Act of May 20, 2021

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

these past four months, Plaintiffs have thus been on notice that schools are now

generally prohibited from mandating face coverings. They have known that classes

would be resuming in August. And more than two months ago, it was publicly known

that the Delta Variant of COVID-19 was the dominant strain in the United States.

See Emily Anthes, Delta, as Expected, Is Now the Dominant Virus Variant in the U.S.,

the C.D.C. Estimates, N.Y. Times, July 7, 2021, available at https://perma.cc/BL3W-

2DBC.

Yet they filed this lawsuit just two weeks ago and immediately sought the

extraordinary remedies of a temporary restraining order and preliminary injunction.

Their delay in suing counsels against concluding that enjoining section 280.31 is truly

an emergency that cannot wait while this proceeding progresses to full consideration

of the merits of their claims. See Benisek v. Lamone, 138 S. Ct. 1942, 1944 (2018) (“[A]

party requesting a preliminary injunction must generally show reasonable

diligence.”). This is all the more so, when they are unlikely to succeed in this suit.

5 These same constitutional concerns also counsel against interpreting federal
disability law as Plaintiffs’ suggest to so intrude into the states’ domain.

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A preliminary injunction—like the temporary restraining order currently in

place—would continue to upset the status quo rather maintain it. Schools were

providing education to their students with section 280.31 in effect, in many cases for

several weeks before this Court’s temporary restraining order ruling. Suddenly

enjoining that law—as predicted, see TRO Resistance, Doc. 21, at 7—has reopened

the debate in each school board and management team as to whether to adjust

masking requirements in their school, creating significant unnecessary confusion and

conflict that will continue until the injunction is dissolved. See Tim Johnson,

Shouting, Police Officers and Tears: Bluffs School Board Meeting Turns into an Anti-

Mask Demonstration, The Daily Nonpareil, (Sept. 14, 2021), https://perma.cc/D9N3-

HSS5; (Sept. 14, 2021), Teresa Kay Albertson, Ankeny School Board Debates Mask

Mandate as Crowd Voices Concerns about ‘Body Autonomy’, ‘Freedom of Choice,’ Des

Moines Reg. (Sept. 14, 2021), https://perma.cc/SH6S-AMNP. Even schools that would

choose not to adopt a mask mandate will question whether they are now violating

federal law given the implications of this Court’s order.

And while Plaintiffs only seek injunction of enforcement of section 280.31, the

necessary implications of this Court holding that they are entitled to such an

injunction based on any of the federal laws are much broader. If a universal mask

mandate is a reasonable modification, is every school district in the state violating

federal disability law if it does not impose a universal mask mandate? For that

matter, is every government entity or recipient of federal funds required to do so in

all its buildings? And every employer or public accommodation that is subject to the

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ADA? This cannot be. Yet these questions are now present and will continue

percolating so long as section 280.31 is enjoined by this Court on the basis of federal

disability law.

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

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

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

chambers); see also Planned Parenthood Minn., N.D. v. Rounds, 530 F.3d 724, 732–

33 (8th Cir. 2008) (en banc). And so too are those parents, including those of disabled

students, who made decisions in reliance on section 280.31’s prohibition on local

schools imposing universal mask mandates. See Gronau Dec. (attached); Givens Dec.

(attached) Parker Dec. (attached).

The balance of the harms and the public interest do not support continuing to

enjoin section 280.31.6

CONCLUSION

For these reasons, this Court should deny Plaintiffs’ Motion for a Preliminary

Injunction and allow the temporary restraining order to expire.

6 If this Court nevertheless grants Plaintiffs’ motion for a preliminary injunction,

Rule 65(c) requires the court to set a bond. See R. Civ. P. 65(c) (authorizing issuance
of preliminary injunction “only if the movant gives security in an amount the court
considers proper to pay the costs and damages sustained by any party found to have
been wrongly enjoined”) (emphasis added)); see also Rathmann Group v. Tanenbaum,
889 F.2d 787, 789 (8th Cir. 1989). Absent other evidence from the school district
Defendants, a bond of $25,000 would likely be appropriate under the circumstances
to cover the potential costs and attorney fees incurred by all Defendants in response
to the injunction.

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Respectfully submitted,

THOMAS J. MILLER
Attorney General of Iowa

JEFFREY S. THOMPSON
Solicitor General

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

ATTORNEYS FOR DEFENDANTS
GOVERNOR KIM REYNOLDS AND
ANN LEBO

PROOF OF SERVICE
The undersigned certifies that the foregoing instrument was
served upon all parties of record by delivery in the following
manner on September 17, 2021:

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

Signature: /s/ Samuel P. Langholz

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