Plaintiffs’ Motion For Preliminary Injunction
- Date
- 2021-09-30
Summary
Document 59 in The Arc of Iowa, et al. v. Kim Reynolds, in her official capacity as Governor of Iowa, et al., Case No. 4:21-cv-264, in the U.S. District Court for the Southern District of Iowa, filed September 30, 2021 and marked Exhibit A. It is a brief of amici curiae the Iowa Chapter of the American Academy of Pediatrics and the American Academy of Pediatrics in support of the plaintiffs' motion for a preliminary injunction, dated September 28, 2021. The brief argues that the public interest favors enjoining House File 847, which it states bars schools from implementing universal mask policies. It describes the AAP's interim guidance on face masks and safe schools and cites reported data, including 5,518,815 child COVID-19 cases in the United States as of September 16, 2021. The 21-page brief is signed by counsel for amici.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
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Case 4:21-cv-00264-RP-HCA Document 59 Filed 09/30/21 Page 1 of 21
EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
THE ARC OF IOWA, et al.,
Plaintiffs, Case No. 4:21-cv-264
v.
KIM REYNOLDS in her official capacity
as Governor of Iowa, et al.,
Defendants.
BRIEF OF AMICI CURIAE IOWA CHAPTER OF AMERICAN ACADEMY OF
PEDIATRICS AND AMERICAN ACADEMY OF PEDIATRICS IN SUPPORT OF
PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Case 4:21-cv-00264-RP-HCA Document 59 Filed 09/30/21 Page 2 of 21
TABLE OF CONTENTS
INTEREST OF AMICI CURIAE .....................................................................................................1
INTRODUCTION ...........................................................................................................................1
ARGUMENT ...................................................................................................................................2
I. Children With Special Health Needs are Especially Vulnerable to COVID-19............2
II. Overview of the AAP’s Research Efforts into School Safety During the
Pandemic........................................................................................................................5
III. Based on Extensive Research, the AAP Strongly Recommends that Schools
Maintain Universal Mask Policies in Schools as an Infection Control Measure...........7
IV. Enjoining HF 847, Which Bars Schools from Implementing Universal Mask
Policies, Is in the Public Interest. .................................................................................11
CONCLUSION ..............................................................................................................................18
Case 4:21-cv-00264-RP-HCA Document 59 Filed 09/30/21 Page 3 of 21
INTEREST OF AMICI CURIAE 1
The Iowa Chapter of the American Academy of Pediatrics, (“IA AAP”) is a non-profit
educational organization and professional society comprising more than 350 members, including
pediatricians, residents, and medical students from Iowa hospitals, community clinics, and
school-based health centers. IA AAP works to support the optimal health of children by
addressing the needs of children, their families, their communities, and their health care
providers.
The American Academy of Pediatrics (“AAP”) was founded in 1930 and is a national,
not-for-profit professional organization dedicated to furthering the interests of child and
adolescent health. The AAP’s membership includes over 67,000 primary care pediatricians,
pediatric medical subspecialists, and pediatric surgical specialists. Over the past year and a half,
the AAP has devoted substantial resources to researching the scientific literature regarding how
to treat COVID-19 and reduce its spread so that the AAP can provide up-to-date, evidence-based
guidance for pediatricians and public health officials. This includes, among other things, interim
guidance on the use of face masks as an infection control measure and on operating safe schools
during the COVID-19 pandemic.
INTRODUCTION
The public interest is a paramount consideration in adjudicating Plaintiffs’ motion for a
preliminary injunction. As the Supreme Court has explained, “courts of equity should pay
particular regard for the public consequences in employing the extraordinary remedy of injunction.”
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). Here, there is no question about where
1
Amici certify that no party’s counsel authored this brief in whole or in part, no party or party’s
counsel contributed money intended to fund this brief, and no person other than Amici, their
members, and their counsel contributed money intended to fund this brief.
1
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the public interest points: the balance of the equities and the public interest weigh in favor of an
injunction barring enforcement of House File 847 (“HF 847”), which prohibits schools from
implementing universal masking policies. H.F. 847, 89th Gen. Assemb., Reg. Sess. (Iowa 2021).
The science is clear: universal mask policies in schools protect all children, particularly the medically
vulnerable. Schools that lack such policies experience significantly higher rates of COVID-19
transmission.
Over the past 18 months, Amici have worked ceaselessly to evaluate the dangers of and
potential public health measures for reducing the deadly spread of COVID-19. COVID-19 poses
grave risks to children, even more so to children with special health needs, and these risks are
spreading rapidly with the rise of the Delta variant and the start of the school year. At the same time,
the AAP strongly recommends that everything possible must be done to keep students in school in-
person, something that can be done safely only if all reasonable precautions are taken. The AAP has
conducted a comprehensive review of the medical literature to determine what public health
measures can effectively reduce the risk that COVID-19 poses to American’s children. That review
and the experiences of the front-line pediatric practitioners who make up the IA AAP and AAP’s
membership prove beyond any doubt that universal mask policies in schools significantly reduce the
spread of COVID-19 in school populations where many children—including all children under the
age of 12—are unvaccinated. This brief provides an overview of that literature and explains why
universal mask policies are so crucial in fighting COVID-19.
ARGUMENT
I. Children With Special Health Needs are Especially Vulnerable to COVID-19.
The AAP and the Children’s Hospital Association have collaborated throughout the
pandemic to collect and share all publicly available data from states on COVID-19 cases among
2
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children. 2 As of September 16, 2021, 5,518,815 total child COVID-19 cases have been reported
in the United States, representing more than 15% of the total U.S. cases. 3 Iowa alone has
reported 56,171 child cases of COVID-19. 4 The prevalence of pediatric COVID-19 has
skyrocketed since the school year began, with 20% of all child cases since the beginning of the
pandemic diagnosed between August 13 and September 16. 5 This surge appears to be due to two
principal factors: the resumption of in-person schooling (and particularly schooling in places
without masks), and the emergence of the Delta variant, which is more than twice as contagious
as previous variants. 6
As the rate of COVID-19 has soared, so has the number of serious cases; just among the
24 states and 1 city that report child hospitalizations, more than 3,200 children were hospitalized
due to COVID-19 between August 13 and September 16, more than 5% of the total child
hospitalizations to date.7 Since the beginning of August, more children have died each week than
in all but one previous week of the pandemic. 8
2
See Children and COVID-19: State-Level Data Report, Summary of Findings, AAP,
https://www.aap.org/en/pages/2019-novel-coronavirus-covid-19-infections/children-and-covid-
19-state-level-data-report/ (data available as of 9/16/21).
3
Id.
4
Children and COVID-19: State Data Report at Tab. 3A, Children’s Hosp. Ass’n & Am. Acad.
of Pediatrics (Sept. 16, 2021), https://downloads.aap.org/AAP/PDF/AAP%20and%20CHA%20-
%20Children%20and%20COVID-19%20State%20Data%20Report%209.16%20FINAL.pdf.
5
Id. at Fig. 6.
6
See Delta Variant: What We Know About the Science, CDC (Aug. 26, 2021),
https://www.cdc.gov/coronavirus/2019-ncov/variants/delta-variant.html.
7
See Children and COVID-19: State Data Report, supra n. 4, at Appx. Tab. 2B.
8
Id. at Appx. Tab. 2C. The week ending December 3, 2020, is the only previous week in which
as many child deaths were reported as even the lowest week since the beginning of August. Id.
3
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As the hospitalization rate and CDC’s changed position reflect, COVID-19 can cause
severe symptoms and potentially fatal outcomes even in children. Among other things, COVID-
19 infections can produce multisystem inflammatory syndrome (MIS-C), which involves
clinically severe levels of fever, inflammation, and dysfunction or shock in multiple organ
systems. 9 Several studies have shown that, even when the initial symptoms are mild, COVID-19
can also lead to long-term symptoms in children and adolescents. 10 Potential long-term
symptoms include chest pain, cough, and exercise-induced dyspnea to pulmonary emboli;
myocarditis (i.e., inflammation of the heart muscle), shortness of breath, arrhythmia, and/or
fatigue, and potentially leading to heart failure, myocardial infarction, stroke, or sudden cardiac
arrest; persistent loss of the sense of smell (anosmia) or taste (ageusia), which can affect the
nutritional status and quality of life of children and adolescents and be particularly disruptive to
Notably, this was the week after Thanksgiving. This drives home the importance of promptly
enjoining the Executive Order, to reduce the rate of COVID-19 in advance of the surge that will
likely accompany the upcoming holidays.
9
See Multisystem Inflammatory Syndrome in Children (MIS-C) Associated with Coronavirus
Disease 19 (COVID-19), CDC (May 14, 2020),
https://emergency.cdc.gov/han/2020/han00432.asp; Multisystem Inflammatory Syndrome in
Children (MIS-C) Interim Guidance, AAP (last updated Feb. 10, 2021),
https://www.aap.org/en/pages/2019-novel-coronavirus-covid-19-infections/clinical-
guidance/multisystem-inflammatory-syndrome-in-children-mis-c-interim-guidance/.
10
See, e.g., Danilo Buonsenso, et al., Preliminary evidence on long COVID in children, Acta
Paediatrica (Apr. 9, 2021), https://doi.org/10.1111/apa.15870 (studying 129 children in Italy and
reporting that 42.6% experienced at least one symptom more than 60 days after infection); Helen
Thomson, Children with long covid, 249 New Scientist 10 (2021),
https://www.sciencedirect.com/science/article/abs/pii/S0262407921003031?via%3Dihub (U.K.
Office of National Statistics estimate that 12.9% of children 2-11 years of age and 14.5% of
children 12-16 years of age experienced symptoms 5 weeks after infection).
4
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the feeding behavior of very young children. 11 They can also include neurodevelopmental
impairment, including significant acute injuries such as stroke or encephalitis and subtle but
persistent injury in cognitive, language, academic, motor, mood, and behavioral domains;
cognitive fogginess or fatigue; physical fatigue; and mental or behavioral health impacts such as
stress and adjustment disorders. 12
Moreover, the uncontrolled spread of COVID-19 poses an even greater risk for children
with special health needs. Children with certain underlying conditions who contract COVID-19
are more likely to experience severe acute biological effects and to require admission to the
hospital or intensive care unit. 13 This includes children with, for example, Down’s syndrome,
lung conditions, heart conditions, and weakened immune systems—all conditions suffered by
one or more of the Plaintiffs. 14
II. Overview of the AAP’s Research Efforts into School Safety During the Pandemic
One of the AAP’s chief functions is to provide evidence-based guidance to America’s
pediatric professionals and public health officials, thereby helping its members and policymakers
improve the health of all children. To do so, the AAP issues Policy Statements that report the
11
Post-COVID-19 Conditions in Children and Adolescents, AAP (last updated July 28, 2021),
https://www.aap.org/en/pages/2019-novel-coronavirus-covid-19-infections/clinical-
guidance/post-covid-19-conditions-in-children-and-adolescents/.
12
Id.
13
Caring for Children and Youth with Special Health Needs During the COVID-19 Pandemic,
AAP (last updated Sept. 20, 2021), https://www.aap.org/en/pages/2019-novel-coronavirus-covid-
19-infections/clinical-guidance/caring-for-children-and-youth-with-special-health-care-needs-
during-the-covid-19-pandemic/.
14
People with Certain Medical Conditions, CDC, (last updated Aug. 20, 2021),
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-
conditions.html.
5
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most up-to-date, evidence-based expert consensus on key issues of pediatric practice and public
health. These Policy Statements are written by recognized pediatrician experts who undertake a
comprehensive review of the medical literature and available data on the topic at hand. They are
then peer-reviewed by additional experts across the AAP and approved by the AAP’s executive
staff and board of directors.
Since the spring of 2020, as the COVID-19 pandemic began to sweep across the country,
the AAP’s top focus has been supporting practicing pediatricians and public health policymakers
in treating COVID-19 and reducing its spread, particularly among children. The AAP has issued
Interim Guidance Statements on several topics related to COVID-19, including guidance on
when and how pediatricians should test patients for COVID-19; 15 on providing clinical care to
patients with COVID-19; 16 on treating post-COVID conditions; 17 on how to safely provide
routine medical care such as check-ups, screenings, laboratory exams, treatment, and
immunizations during the COVID-19 pandemic; 18 on supporting the emotional and behavioral
health needs of children, adolescents, and families during the COVID-19 pandemic; 19 and—most
15
COVID-19 Testing Guidance, AAP (last updated July 8, 2021),
https://www.aap.org/en/pages/2019-novel-coronavirus-covid-19-infections/clinical-
guidance/covid-19-testing-guidance/.
16
COVID-19 Interim Guidance, AAP (last updated Aug. 2, 2021),
https://www.aap.org/en/pages/2019-novel-coronavirus-covid-19-infections/clinical-guidance/.
17
Post-COVID-19 Conditions in Children and Adolescents, supra n. 11.
18
Guidance on Providing Pediatric Well-Care During COVID-19, AAP (last updated Aug. 30,
2021), https://www.aap.org/en/pages/2019-novel-coronavirus-covid-19-infections/clinical-
guidance/guidance-on-providing-pediatric-well-care-during-covid-19/.
19
Interim Guidance on Supporting the Emotional and Behavioral Health Needs of Children,
Adolescents, and Families During the COVID-19 Pandemic, AAP (last updated July 28, 2021),
https://www.aap.org/en/pages/2019-novel-coronavirus-covid-19-infections/clinical-
6
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relevant to this case—on the use of face masks as an infection control measure; 20 on operating
safe schools during the COVID-19 pandemic that foster the overall health of children,
adolescents, educators, staff, and communities 21; and on caring for youth with special health
needs during the COVID-19 pandemic. 22 The AAP has repeatedly reviewed and updated these
Interim Guidance Statements to ensure that they reflect the best medical understanding and
current scientific evidence regarding COVID-19, including its transmission and health effects.
III. Based on Extensive Research, the AAP Strongly Recommends that Schools
Maintain Universal Mask Policies in Schools as an Infection Control Measure
Beginning early in the pandemic, members of the AAP began receiving questions from
families and school boards about how in-person education could be conducted safely during the
pandemic. As pediatrician organizations, the AAP and IA AAP recognize and are seriously
concerned about the impact on children of being away from in-person. This can negatively affect
children’s cognitive, educational, and social development, as well as children’s short and long-
term mood, behavior, and mental health. At the same time, as discussed above, the COVID-19
pandemic poses serious risks to children. As a result, the AAP decided to develop Interim
Guidance for pediatricians and school boards on considerations regarding safe and healthy
guidance/interim-guidance-on-supporting-the-emotional-and-behavioral-health-needs-of-
children-adolescents-and-families-during-the-covid-19-pandemic/.
20
Face Masks, AAP (last updated Aug. 11, 2021), https://www.aap.org/en/pages/2019-novel-
coronavirus-covid-19-infections/clinical-guidance/cloth-face-coverings/.
21
COVID-19 Guidance for Safe Schools, AAP (last updated July 18, 2021),
https://www.aap.org/en/pages/2019-novel-coronavirus-covid-19-infections/clinical-
guidance/covid-19-planning-considerations-return-to-in-person-education-in-schools/.
22
Caring for Children and Youth with Special Health Needs, supra n. 11.
7
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schooling and recommendations for measures that can decrease the risk and facilitate in-person
learning.
Based on the AAP’s expert review of the scientific literature and the guidance outlined by
the World Health Organization (“WHO”), United Nations Children’s Fund (“UNICEF”), and
Centers for Disease Control and Prevention (“CDC”), along with our members’ collective
expertise as pediatricians and researchers, the AAP concluded that “[e]verything possible must
be done to keep students in schools in-person.” COVID-19 Guidance for Safe Schools, supra n.
21. This is because “[s]chools and school-supported programs are fundamental to child and
adolescent development and well-being and provide our children and adolescents with academic
instruction; social and emotional skills, safety, reliable nutrition, physical/occupational/speech
therapy, mental health services, health services, and opportunities for physical activity, among
other benefits.” Id. By contrast, “[r]emote learning highlighted inequities in education, was
detrimental to the educational attainment of students of all ages, and exacerbated the mental
health crisis among children and adolescents.” Id.
The initial AAP Interim Guidance, developed in the spring of 2020, was drafted and
reviewed by a number of pediatricians with expertise in a wide variety of disciplines. The
drafters reviewed dozens of articles and available data to determine whether and how children
could safely attend school during the pandemic.
The result was the AAP Interim Guidances on Face Masks, 23 Safe Schools, 24 and
Children with Special Health Needs. 25 These statements were first issued in the spring of 2020
23
Face Masks, supra n. 20.
24
COVID-19 Guidance for Safe Schools, supra n. 21.
25
Caring for Children and Youth with Special Health Needs, supra n. 11.
8
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and have been continually reviewed and updated since that time. By this point, the AAP’s
experts have reviewed hundreds of articles related to the efficacy and safety of masks, as well as
their effects (or lack thereof) on the cognitive, social, and psychological development of
children. The following discussion is based principally on the current (summer 2021) iterations
of these interim guidance documents.
Based on our review of the medical literature, the AAP has determined that “at this point
in the pandemic, given what we know now about low rates of in-school transmission when
proper prevention measures are used, together with the availability of effective vaccines for
those age 12 years and up, that the benefits of in-person school outweigh the risks in almost all
circumstances.” COVID-19 Guidance for Safe Schools, supra n. 21 (emphasis added). Among
the prevention measures we recommend (such as immunization of all eligible individuals and
adequate and timely COVID-19 testing), one of the most important is that “[a]ll students older
than 2 years and all school staff should wear face masks at school (unless medical or
developmental conditions prohibit use).” Id. (emphasis added).
The AAP’s strong recommendation of universal masking for students, teachers, and
support staff in school has remained consistent from the beginning—because masks are a safe,
effective, and critical infection control measure. This conclusion has been consistently reinforced
by all relevant data and credible research regarding the transmission and health risks of COVID-
19 and the effect of wearing masks on children’s education, health, and development.
After significant analysis, including analysis of the emerging Delta variant, the AAP
reaffirmed its recommendation of universal masking in school settings on July 19, 2021. Eight
9
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days later, on July 27, 2021, the CDC followed suit, recommending “universal indoor masking
for all teachers, staff, students, and visitors to schools, regardless of vaccination status.” 26
With respect to children with special health needs, the recommendations with respect to
masks are the same. 27 Schools should “maintain universal masking” and educate teachers and
staff in proper mask use. 28 Universal masking reduces community transmission, thus reducing
the likelihood that an infected person will come in contact with a child with special health needs,
and reduces the likelihood of transmission to the child if an infected person does come into
contact with an especially vulnerable child. 29 These steps should be universal and are separate
and apart from any Individual Education Plans that may be necessary for individual children. 30
In other words, masking should apply to everyone at the school, not solely to a particular
vulnerable child. (Of course, schools should also continue to work with parents as necessary to
update Individual Education Plans.)
There are several reasons for our (and the CDC’s) recommendation of universal masking
in school. The most important, the efficacy of masks in reducing transmission, is discussed in the
next section. In addition:
a. a significant portion of the student population is not eligible for vaccination;
26
Interim Public Health Recommendations for Fully Vaccinated People—Summary of Recent
Changes, CDC (July 28, 2021), https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-
vaccinated-guidance.html.
27
Caring for Children and Youth with Special Health Needs, supra n. 11.
28
Id.
29
Id.
30
Id.
10
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b. the need to protect unvaccinated students from COVID-19 and to reduce
transmission;
c. the lack of systems to monitor vaccine status among students, teachers and staff;
d. the potential difficulty in monitoring or enforcing mask policies for those who are
not vaccinated; in the absence of schools being able to conduct this monitoring,
universal masking is the best and most effective strategy to create consistent
messages, expectations, enforcement, and compliance without the added burden
of needing to monitor vaccination status;
e. the possibility of low vaccination uptake within the surrounding school
community; and
f. the continued concerns for variants that are more easily spread among children,
adolescents, and adults.
COVID-19 Guidance for Safe Schools, supra n. 21.
IV. Enjoining HF 847, Which Bars Schools from Implementing Universal Mask
Policies, Is in the Public Interest.
The State, relying on parent declarations that purport to offer medical opinions, suggests
that other accommodations would sufficiently protect Plaintiffs, that universal mask policies are
harmful, and that the status quo of barring schools from imposing universal mask policies is in
the public interest. Def. Resistance to P.I. Mot. at 14, 15, 25. Quite to the contrary, the AAP’s
research indicates that the balance of equities and public interest weigh in favor of enjoining HF
847.
First, the research literature reviewed by the AAP has confirmed that masks are an
effective method to measurably reduce the transmission of COVID-19. As the CDC has
explained, masks “reduce the emission of virus-laden droplets . . . , which is especially relevant
for asymptomatic or presymptomatic infected wearers who feel well and may be unaware of their
infectiousness to others, and who are estimated to account for more than 50% of transmissions.”
Cloth masks “not only effectively block most large droplets (i.e., 20-30 microns and larger) but
they can also block the exhalation of fine droplets.” As a result, “[m]ulti-layer cloth masks can
11
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both block up to 50-70% of these fine droplets and particles,” with “[u]pwards of 80% blockage
recorded in some studies. To a slightly lesser extent, masks also “help reduce inhalation of these
droplets by the wearer”; multi-layer cloth masks can filter out “nearly 50% of fine particles less
than 1 micron.” 31
Second, as the ABC Science Collaborative, a 13-state initiative coordinated by the Duke
Clinical Research Institute at the Duke University School of Medicine, summed it up, “[p]roper
masking is the most effective mitigation strategy to prevent COVID-19 transmission in schools
when vaccination is unavailable or there are insufficient levels of vaccination among students
and staff.” 32 Numerous studies have shown that increasing the rate of mask-wearing, including
through universal mask policies in particular, significantly reduces the spread of COVID-19. 33 In
31
Science Brief: Community Use of Cloth Masks to Control the Spread of SARS-CoV-2, CDC
(May 7, 2021), https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/masking-
science-sars-cov2.html (citations omitted).
32
ABC Science Collaborative, The ABCs of North Carolina’s Plan,
https://abcsciencecollaborative.org/the-abcs-of-north-carolinas-plan-a/ (last visited Sept. 1,
2021); see also ABC Science Collaborative, Final Report for NC School Districts and Charters
in Plan A, at 3 (June 30, 2021) , available at https://abcsciencecollaborative.org/wp-
content/uploads/2021/06/ABCs-Final-Report-June-2021.06-esig-DB-KZ-6-29-21.pdf (emphasis
added).
33
See, e.g., Jeremy Howard, et al., An Evidence Review of Face Masks Against COVID-19, 118
Proc. of the Nat’l Acad. of Servs. e2014564118 (Jan. 26, 2021),
https://www.pnas.org/content/118/4/e2014564118; John T. Brooks & Jay C. Butler,
Effectiveness of Mask Wearing to Control Community Spread of SARS-CoV-2, 325 J. of Am.
Med. Ass’n 998 (Feb 10, 2021), https://jamanetwork.com/journals/jama/fullarticle/2776536;
Heesoo Joo, et al., Decline in COVID-19 Hospitalization Growth Rates Associated with
Statewide Mask Mandates—10 States, March–October 2020. 70 Morbidity & Mortality Weekly
Rep. 212 (Feb. 12, 2021), https://www.cdc.gov/mmwr/volumes/70/wr/mm7006e2.htm; Derek K.
Chu, et al., Physical Distancing, Face Masks, and Eye Protection to Prevent Person-to-Person
Transmission of SARS-CoV-2 and COVID-19: A Systematic Review and Meta-Analysis, 395
Lancet 1973 (June 1, 2020), https://www.thelancet.com/journals/lancet/article/PIIS0140-
6736(20)31142-9/fulltext; Christopher T. Leffler, et al., Association of Country-wide
Coronavirus Mortality with Demographics, Testing, Lockdowns, and Public Wearing of Masks,
103 Am. J. Tropical Med. Hygiene 2400 (Oct. 26, 2020),
12
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particular, studies have shown that masking and similar mitigation measures can limit
transmission in schools. 34 And just this past Friday, the CDC released three new studies
conducted during this school year, all of which found that “schools without a universal masking
https://pubmed.ncbi.nlm.nih.gov/33124541/; Miriam E. Van Dyke, et al., Trends in County-Level
COVID-19 Incidence in Counties With and Without a Mask Mandate—Kansas, June 1-August
23, 2020. 69 Morbidity & Mortality Weekly Rep. 1777 (Nov. 27, 2020),
https://www.cdc.gov/mmwr/volumes/69/wr/mm6947e2.htm; Wei Lyu & George L. Wehby,
Community Use of Face Masks and COVID-19: Evidence from a Natural Experiment of State
Mandates in the US, 39 Health Aff. 1419 (June 16, 2020),
https://www.healthaffairs.org/doi/10.1377/hlthaff.2020.00818.
34
See, e.g., Patrick Dawson, et al., Pilot Investigation of SARS-CoV-2 Secondary Transmission
in Kindergarten Through Grade 12 Schools Implementing Mitigation Strategies—St. Louis
County and City of Springield, Missouri, December 2020, 70 Morbidity & Mortality Weekly
Rep. 449 (Mar. 26, 2021),
https://www.cdc.gov/mmwr/volumes/70/wr/mm7012e4.htm?s_cid=mm7012e4_w; Darria L.
Gillespie, et al., The Experience of 2 Independent Schools With In-Person Learning During the
COVID-19 Pandemic, 91 J. Sch. Health 347 (Mar. 25, 2021),
https://onlinelibrary.wiley.com/doi/10.1111/josh.13008; Rebecca B. Hershow, et al., Low SARS-
CoV-2 Transmission in Elementary Schools - Salt Lake County, Utah, December 3, 2020-
January 31, 2021, 70 Morbidity & Mortality Weekly Rep. 442 (Mar. 26, 2021),
https://www.cdc.gov/mmwr/volumes/70/wr/mm7012e3.htm; Amy Falk, et al., COVID-19 Cases
and Transmission in 17 K-12 Schools - Wood County, Wisconsin, August 31-November 29, 2020,
70 Morbidity & Mortality Weekly Rep. 136 (Jan. 29, 2021),
https://www.cdc.gov/mmwr/volumes/70/wr/mm7004e3.htm; Fiona Russell et al., COVID-19 in
Victorian Schools: An Analysis of Child-Care and School Outbreak Data and Evidence-Based
Recommendations for Opening Schools and Keeping Them Open, Murdoch Children’s Rsch.
Inst. & The Univ. of Melb. (Nov. 9, 2020), available at
https://www.mcri.edu.au/sites/default/files/media/documents/covid-
19_in_victorian_schools_report.pdf.
13
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policy in place were more likely to have COVID-19 outbreaks.” 35 The CDC found that pediatric
COVID-19 cases increase twice as quickly in schools lacking universal mask policies. 36
Indeed, masking is so effective that courts have found that it may be required in schools
under the federal Americans with Disabilities Act and Rehabilitation Act. See, e.g., S.B. v. Lee,
No. 21-CV-00317, 2021 WL 4346232 (E.D. Tenn. Sept. 24, 2021). Courts have recognized that
indoor mask-wearing is “the most important of the CDC’s guidelines,” and “the primary way to
mitigate the spread of COVID-19.” Id. at *15 (internal quotation omitted). Even before the latest
CDC studies, “the evidence show[ed] that the absence of a mask mandate is fueling infections
. . . with frightening celerity.” Id. at *16. There is “only one conclusion: . . . among the
unvaccinated, [the Delta variant] is untamable without community-wide masking inside
schools.” Id. at *17.
Third, masks are safe. The State argues that masks policies are harmful to respiratory
function, to children’s social or language skills, for children with anxiety, or for children with
sensory disorders. Def. Resistance to P.I. Mot. at 14. As the AAP’s Interim Guidance explains,
35
Studies Show More COVID-19 Cases in Areas Without School Masking Policies, CDC (Sept.
24, 2021), https://www.cdc.gov/media/releases/2021/p0924-school-masking.html; see Megan
Jehn, et al., Association Between K–12 School Mask Policies and School-Associated COVID-19
Outbreaks—Maricopa and Pima Counties, Arizona, July–August 2021, 70 Morbidity &
Mortality Weekly Rep. (Early Release) (Sept. 24, 2021),
https://www.cdc.gov/mmwr/volumes/70/wr/pdfs/mm7039e1-H.pdf; Samantha E. Budzyn, et al.,
Pediatric COVID-19 Cases in Counties With and Without School Mask Requirements—United
States, July 1–September 4, 2021, 70 Morbidity & Mortality Weekly Rep. (Early Release) (Sept.
24, 2021), https://www.cdc.gov/mmwr/volumes/70/wr/pdfs/mm7039e3-H.pdf; Sharyn E. Parks,
et al., COVID-19–Related School Closures and Learning Modality Changes—United States,
August 1–September 17, 2021, 70 Morbidity & Mortality Weekly Rep. (Early Release) (Sept. 24,
2021), https://www.cdc.gov/mmwr/volumes/70/wr/pdfs/mm7039e2-H.pdf.
36
Press Release, Studies Show More COVID-19 Cases in Areas Without School Masking
Policies, CDC (Sept. 24, 2021), https://www.cdc.gov/media/releases/2021/p0924-school-
masking.html.
14
Case 4:21-cv-00264-RP-HCA Document 59 Filed 09/30/21 Page 17 of 21
it is appropriate to make exceptions to mask requirements where “medical or developmental
conditions prohibit use.” Face Masks, supra n. 20. However, “[f]ace masks can be safely worn
by all children 2 years of age and older, including the vast majority of children with underlying
health conditions, with rare exception.” Id. To the extent the State claims that masks policies are
harmful to respiratory function, to children’s social or language skills, or for children with
anxiety, Def. Resistance to P.I. Mot. at 14, these claims lack any scientific basis. 37
Respiratory function: Masking has no significant effect on respiratory function in the
vast majority of cases. Cloth and surgical masks are gas-permeable, which means that carbon
dioxide can pass out of the mask and oxygen pass in, without obstruction. Masks do not present a
risk of hypercapnia (excess CO 2) or hypoxemia (inadequate oxygen saturation), even among
people with lung disease, as proven by studies using pulse oximetry to test changes in end-tidal
CO 2 and oxygen saturation. 38 Even among infants and young children, the use of facial masks is
not associated in significant changes in respiratory function. 39
37
The State also claims that children with severe sensory processing issues may be unable to
wear a mask. Def. Resistance to P.I. Mot. at 14. While the AAP and IA AAP cannot comment on
a particular child, it is feasible that a severely autistic child may be able to establish a medical
reason for an exemption from a universal mask policy.
38
See, e.g., Rajesh Samannan, et al., Effect of Face Masks on Gas Exchange in Healthy Persons
and Patients with Chronic Obstructive Pulmonary Disease, 18 Annals of Am. Thoracic Soc’y
539 (2021), https://www.atsjournals.org/doi/full/10.1513/AnnalsATS.202007-812RL; Steven L.
Shein, et al., The effects of wearing facemasks on oxygenation and ventilation at rest and during
physical activity, PLoS One (Feb. 24, 2021), https://pubmed.ncbi.nlm.nih.gov/33626065/ (“The
risk of pathologic gas exchange impairment with cloth masks and surgical masks is near-zero in
the general adult population.”).
39
See, e.g., Ricardo Lubrano, et al., Assessment of Respiratory Function in Infants and Young
Children Wearing Face Masks During the COVID-19 Pandemic, JAMA Network Open (Mar. 2,
2021), https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2776928.
15
Case 4:21-cv-00264-RP-HCA Document 59 Filed 09/30/21 Page 18 of 21
Claims that masks obstruct breathing are also belied by the decades-long history of mask
usage in surgical settings, for immunocompromised individuals (including children) such as
chemotherapy patients, and in countries where masks have long been used to prevent spread of
illness. For example, surgeons and other medical professionals may wear surgical masks for 6 to
8 hours at a time while performing involved surgery. If masks posed a risk of hypercapnia,
hypoxemia, or any other harm, it would have been discovered long ago due to surgeons and
attendants fainting or hospitals in other countries receiving adult or pediatric patients who were
harmed by mask wearing.
Cognitive, social, and speech development: There is “no known evidence that use of face
masks interferes with speech or language development . . . .” 40 Not being able to see part of a
person’s face is not an impediment to social and speech development—as the experience of
children who are blind from birth confirms. “[V]isually impaired children develop speech and
language skills at the same rate as their peers.” 41 Indeed, being unable to see speakers’ mouths
for a portion of the day may help children use other clues to understand and learn language and
non-verbal communication, such as gestures, changes in tone of voice, and the like. 42
40
Do Masks Delay Speech and Language Development?, AAP (last updated Aug. 26, 2021),
https://healthychildren.org/English/health-issues/conditions/COVID-19/Pages/Do-face-masks-
interfere-with-language-development.aspx.
41
Id.
42
Id.; see also Ashley L. Ruba & Seth D. Pollak, Children’s emotion inferences from masked
faces: Implications for social interactions during COVID-19, PLoS One (Dec. 23, 2020),
https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0243708 (finding that “while
there may be some challenges for children incurred by others wearing masks, in combination
with other contextual cues, masks are unlikely to dramatically impair children’s social
interactions in their everyday lives”).
16
Case 4:21-cv-00264-RP-HCA Document 59 Filed 09/30/21 Page 19 of 21
Crucially, the AAP does not recommend that children wear masks 24 hours a day, or that
their parents do so. In the home, children’s experiences will presumably be largely or entirely
maskless, providing ample opportunity for interacting with people without masks.
Some children with preexisting developmental disabilities may have difficulty wearing
masks. In many cases, this can be overcome with coaching, 43 although in some cases there could
be particular aspects of a child’s developmental needs that counsel against using masks in certain
situations. Here again, the AAP’s guidance recommends allowing for accommodations when
necessary. 44
Anxiety: Mask-wearing is not linked to emotional or psychological harm, particularly
when caregivers promote positive associations around mask-wearing. 45 While children can
develop secondary anxieties about wearing a mask, this is no different from the possibility of
developing secondary anxieties about eating, attending school, or any other activity. The risk of
43
See, e.g., Maithri Sivaraman, et al., Telehealth mask wearing training for children with autism
during the COVID-19 pandemic, 54 J. Applied Behav. Analysis 70 (Nov. 25, 2020),
https://pubmed.ncbi.nlm.nih.gov/33241588/; Madelynn A. Lillie, et al., Increasing passive
compliance to wearing a facemask in children with autism spectrum disorder, 54 J. Applied
Behav. Analysis 582 (Mar. 19, 2021), https://pubmed.ncbi.nlm.nih.gov/33740281/; Mary Halbur,
et al., Tolerance of face coverings for children with autism spectrum disorder, 54 J. Applied
Behav. Analysis 600 (Mar. 26, 2021), https://pubmed.ncbi.nlm.nih.gov/33772777/.
44
See Face Masks, supra n. 20.
45
Interim Guidance on Supporting the Emotional and Behavioral Health Needs of Children,
Adolescents, and Families During the COVID-19 Pandemic, supra n. 19; Face Masks, supra n.
20 (providing recommendations for “help[ing] my child get used to wearing a mask”);
Supporting your child’s mental health during COVID-19 school returns, UNICEF (Aug. 28,
2020), https://www.unicef.org/coronavirus/supporting-your-childs-mental-health-during-covid-
19-school-return (“Approach this conversation with empathy, saying that you know she is
feeling anxious about coronavirus, but that it’s healthy to talk about our worries and emotions.
Children may also get upset or frustrated if they are finding it hard to wear masks, especially
when running or playing. You can reassure your children that lots of adults are working hard to
help keep your family safe, but emphasize that it’s important we all follow the recommended
measures to take care of more vulnerable members of our community.”).
17
Case 4:21-cv-00264-RP-HCA Document 59 Filed 09/30/21 Page 20 of 21
developing secondary anxiety or disordered behavior related to masking may be especially high
when parents or community members perpetuate false claims that masks are harmful. But there
is nothing intrinsic about mask-wearing that makes it particularly harmful, whether physically,
socially, or emotionally.
In sum, whatever fears some may have about mask wearing, universal mask policies are
the most effective and safe way to reduce the risk that children, including Plaintiffs, will acquire
a grave and dangerous illness at school. HF 847 bans such policies. The balance of equities thus
weighs heavily in favor of the requested injunction.
CONCLUSION
For these reasons and those stated in Plaintiffs’ filings, the public interest would be
served by enjoining the HF 847.
18
Case 4:21-cv-00264-RP-HCA Document 59 Filed 09/30/21 Page 21 of 21
Dated: September 28, 2021 Respectfully submitted,
s/ Caitlin L. Slessor
Caitlin L. Slessor (AT0007242)
Samuel E. Jones (AT0009821)
SHUTTLEWORTH & INGERSOLL,
P.L.C.
115 3rd St SE, Ste 500
P.O. Box 2107
Cedar Rapids, IA 52406-2107
(319) 365-9461
(319) 365-8443 (fax)
cls@shuttleworthlaw.com
sej@shuttleworthlaw.com
Samara M. Spence (DC Bar 1031191)*
Jeffrey B. Dubner (DC Bar 1013399)*
DEMOCRACY FORWARD FOUNDATION
655 15th St. NW, Ste 800
Washington, D.C. 20005
Tel.: (202) 448-9090
sspence@democracyforward.org
jdubner@democracyforward.org
Counsel for Amici
* Pro hac vice motion pending
CERTIFICATE OF SERVICE
I certify that on September 28, 2021, the above brief was filed using the court’s CM/ECF
system, which will notify all registered counsel.
Dated: September 28, 2021 Respectfully submitted,
s/ Caitlin L. Slessor
Counsel for Amici
19
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