Appendix — The Arc of Iowa v. Kim Reynolds (Case No. 4:21-cv-264)
Summary
This is Plaintiffs' Appendix in support of the partially unresisted motion for summary judgment, Case No. 4:21-cv-264, in the United States District Court for the Southern District of Iowa. The caption lists The Arc of Iowa and individual plaintiffs against Kim Reynolds, in her official capacity as Governor of Iowa, Ann Lebo, in her official capacity as Director of the Iowa Department of Education, and named school districts. The table of contents lists declarations of Lisa Menzies, Stephen Mooradian, Froyum Roise, Joel Waddell and Megan Srinivas, Des Moines Register articles, a declaration of Michelle Croft, brief excerpts and an excerpt of the transcript of the TRO hearing. The certificate of service is dated July 1, 2022 and bears /s/ Rita Bettis Austen.
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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“Appendix — The Arc of Iowa v. Kim Reynolds (Case No. 4:21-cv-264).”
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRT 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,
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
STEWART, individually and on behalf of
E.M.S., a minor; and ERIN VERCANDE,
individually and on behalf of S.V., a minor,
Plaintiffs,
V.
KIM REYNOLDS, in her official capacity as
Governor of lowa; ANN LEBO, in her official
capacity as Director of the lowa Department of
Education; ANKENY COMMUNITY
SCHOOL DISTRICT; COUNCIL BLUFFS
COMMUNITY SCHOOL DISTRICT;
DAVENPORT COMMUNITY SCHOOL
DISTRICT; DECORAH COMMUNITY
SCHOOL DISTRICT; DENVER
COMMUNITY SCHOOL DISTRICT; DES
MOINES PUBLIC SCHOOLS; IOWA CITY
COMMUNITY SCHOOL DISTRICT;
JOHNSTON COMMUNITY SCHOOL
DISTRICT; LINN MAR COMMUNITY
SCHOOL DISTRICT; and WATERLOO
COMMUNITY SCHOOL DISTRICT,
Defendants.
Case No. 4:21-cv-264
PLAINTIFFS’ APPENDIX IN
SUPPORT OF THE PARTIALLY
UNRESISTED MOTION FOR
SUMMARY JUDGMENT
PLAINTIFFS' APPENDIX 001
TABLE OF CONTENTS
Declaration of Dr. Lisa Menzies
Declaration of Dr. Stephen Mooradian
Declaration of Froyum Roise
16
Declaration of Dr. Joel Waddell in Support of Plaintiffs’ Motion for TRO/PI
20
Declaration of Dr. Megan Srinivas in Support of Pl. Mot. for TRO/PI
39
Letter of C. Joseph Holland (Sept. 10, 2021)
56
Article of Nick Coltrain, Des Moines Register (Aug. 26, 2021)
58
Article of Tim Weber, Des Moines Register (Sept. 2, 2021)
63
Article of Ian Richardson, Des Moines Register (Aug. 16, 2021)
67
72
Statement of Governor Reynolds (Aug. 30, 2021)
74
Declaration of Michelle Croft (July 1, 2022)
Defendant-Appellant Br. (Oct. 19, 2021), Dkt. 508885 (Excerpt)
77
Defendant Br. (Sept. 21, 2021) (Excerpt)
96
Plaintiffs’ Declarations in Support of Motion for TRO/PI
123
Tr. of TRO Hearing (Sept. 17, 2021) (Excerpt)
170
PLAINTIFFS' APPENDIX 002
Exhibit A
PLAINTIFFS' APPENDIX 003
DECLARATION OF DR. LISA MENZIES
COMES-NOW, Doctor Iisa-Menzies-and-pursuant-to-28-U.S.C, § 1-746, declares-under.
penaity of perjury that the following is true anid correct:
th
My name is Dr. Lisa Menzies, and | am over 18 years oid. I have personal knowledge of
the facts as stated herein.
j.am.a-pediatric physician.at-Unity. Point Health Blank Children’s-Pediatric Clinic, My-
CV is attached to this declaration.
E.C., who is six years oid, is one oi my pediairic patienis.
E.C. has the following diagnoses: Down’s Syndrome, hypothyroidism, Lennox-Gastaut
Syndrome, cardiac defects, chronic lung disease, high-risk. of- aspiration, and-high-risk. for.
pneumonia.
These conditions put E.C. at high risk for severe complications if she were io become
infected with COVID-19, even though E.C. has been fully vaccinated and boosted.
Due to-her. inteilectual-chailenges; E.C. is-unabie to-fully. tolerate mask. wearing,
For these reasons, E.C. has not been attending school in-person for some time. She has
been receiving Home-bound schooiing.
Home-bound schooling has its downsides. Where home-bound schooling has been the
safest- way to-care for. E.C. due to-the lack. of:a-mask. mandate, she is-not-able to obtain-the
same level of special education services as she would get if she were attending school in
person.
It is E.C.’s right to get the best special education she can get. Therefore, a return to in-
person learning in-the fail-of 2022 is-preferable to-continued-heme-bound-schoeling.
However, this must be done safely, considering E.C.’s significant medical conditions that
PLAINTIFFS' APPENDIX 004
10.
1-1.
12.
13.
14,
make her highly susceptible to severe complications if she were to become infected with
COVID-19,
I recommend that E.C. return to in-person learning in the fall of 2022. I base this
recommendation on several considerations. E.C.’s ability to maintain focus on a
computer screen, which is required for online or remote learning, is hampered because of
her. disabilities, Homebound.-services-do not have the breadth-or. depth.of education that
E.C. would get from in-person learning, do not provide E.C. with the social interaction
she wouid have with her peers in an ia-person iearning setting, and iack the required
therapies that E.C. would get in an in-person setting.
However, certain-measures-must-be undertaken for F.C, to-safely. return-to-in-persen.
learning in the fall. These measures would also medically benefit all children in special
education who have medical challenges.
In terms of recommendations for a safe return to in-person learning, I recommend, among
other: precautions, that-masking.may. be necessary, depending. on-conditions-in-the fall-or.
if conditions are like they are iow, by E.C.’s teachers and aides and by all others in the
ciassroom Who can wear masks.
There is good evidence that wearing masks can stop or lessen the spread of COVID-19
infection.in-the classroom.
Masks are still necessary even with the availability of current vaccines and treatments.
Currently, the vaccination of £.C.’s school aged peers is low compared to the vaccination
rate of the adult population, which affects the lowered immunity level of this age group.
Therefore, even-if F.C. is-vaccinated, the low-vaccination-rate andthe lowered-immunity.
level of her peers means that masking is still necessary for others in close contact with
PLAINTIFFS' APPENDIX 005
Lisa J Menzies MD
4245 Foster Driva, Des Moines, IA 50312
(515)-208-7904
lisamenzies@msn.com
EDUCATION
Rush Presbyterian-St Luke's Medical Center, Chicago, IL 1993-94, Chief Resident
e
Rush Presbyterian-St Luke’s Medical Center, Chicago, IL 1990-93, Resident, Pediatrics
Rush Medical College, Chicago, IL 1986-1990, MD
University of Illinois Urbana-Champaign, Urbana, IL. 1982-86, BS- Hialogical Sciences
WORK EXPERIENCE
Rush Presbyterian-St. Luke's Medical Center, Chicago, IL 1993-94, Junior Atending
a
UnityPoint Health, Blank Children's Pediatric Clinic 1994-present
CERTIFICATION
e
American Board of Pediatrics 1994- present
LICENSURE
lowa
HONORS AND AWARDS
Outstanding Senior Resident, Rush Presbylerian-St Luke’s Pectiatris Residency 1993
Yeacher of the Year Award, Blank Children’s Hospital 1996
Charlotte Fisk Award, Blank Children’s Hospital 2002
Eves of the Child Award, Blank Children's Hospital 2006
Continuity Care Partner Award, Blank Children’s Pediatric Clinic
Heroes of the Heartland Award, American Red Cross, 2017
Excellence in Patient Experience Award, National Medical tlome Initiative, 2019
RESEARCH EXPERIENCE
e
WeeseMayer, DE, Silvestri JM, Menzies LJ CCHS: Diagnosis, Management and
Outcome in 32. Children J. Pediatrics 120 381-387
ACCREDITATIONS
American Board of Pediatrics
e
American Academy of Pedciiatrics
lowa Medical Society
PLAINTIFFS' APPENDIX 007
Exhibit B
PLAINTIFFS' APPENDIX 009
THE ARC OF [OWA et al.,
KIM REYNOLDS et al.,
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
Case No, 4:21-cv-264
Plaintiffs,
Vv, DECLARATION OF STEPHEN J.
MOORADIAN, M.D. |
Defendants.
J, Dr. Stephen J, Mooradian, declare as follows pursuant to 28 U.S.C. § 1746:
Tam a pediatric cardiologist and owner at Pediatric Cardiology, P.C. in Des Moines, lowa,
{ am certified by the American Board of Pediatrics in pediatric cardiology. I practice
general pediatric cardiology and [ have a special training in fetal echocardiography, as well
as transthoracic and transesophageal echocardiography. I have over 28 years of experience
in the medical field. My CV is attached as Ex. A.
I have treated M.P. since July 2, 2015.
M.P. is diagnosed with Heterataxy, an extremely rare condition where many organs tn the
body can be formed abnormally, in the wrong position, ot are even missing.
M.P. has several medical complications resulting from Heterotaxy, including a complex
cardiac anatomy. He has an unbalanced complete atrioventricular septal defect, D-
transposition of the great arteries, and right atrial isomerism (bilateral right sidedness). He
also has a lung abnormality resulting in two right lungs.
Under my care M.P. had Fontan surgery to address his cardiac anomaly. In the normal heart
cach ventricle does a separate job. The right ventricle pumps blood to the lungs. The leti
ventricle pumps blood to the body. In a single ventricle heart, there is only one ventricle
PLAINTIFFS' APPENDIX 010
10.
12.
large cnough to do the normal job of pumping blood. Fontan surgery is used to change the
circulation and allows the single ventricle to pump blood without overworking it, {tts a
palliative surgery for patients with univentricular heart of many different varieties, When
a heart only has one good ventricle, the Fontan surgery is the typical surgical approach.
The Fontan surgery is not a cure; rather, it is a way to route the blood flow to allow the
circulation to be as effective as possible.
As a Fontan patient, M.P."s heart and lungs are under chronic stress. His liver is also under
stress. Since his blood flow can be sluggish, he is at increased risk of blood clots.
Based on my experience and consistent with CDC guidance, because of these heart and
lung conditions M.P is at high risk for severe complications from COVID-19, even thou gh
he is fully vaccinated.
For all my Fontan patients, ] recommend vaccination along with other mitigation strategies
such as masking.
Evidence is clear that masks are most effective when worn by all surrounding the patient.
If those around a patient arc masked, they can decrease risk of the patient contracting the
VITUS.
T would recommend all those who are around M.P. at school, including other students and
staff, wear a mask to protect his health.
Many people who are infected with COVID-19 will recover without need for
hospitalization, However, patients with chronic heart conditions such as M.P. are at more
risk of severe complications, both in the short term and long term.
PLAINTIFFS' APPENDIX 011
13, This ts confirmed by M.P.'s own experience. M.P. contracted COVID-19 last fall and asa
result, he was hospitalized for approximately five days. His oxygenation was extremely
low, and he required treatment in a hospital to recover.
14. He first went to the ER where he tested positive and was initially sent home. His parents
were told to return if his oxygenation dropped. His oxygenation dropped, and he was
hospitalized. In the hospital he received Remdesivir, along with steroids and other fluids
through the IV,
15. M.P.’s standard oxygenation level is at best 88-91%, most people need to be hospitalized
at 90%, His oxygenation dropped into the 70% range, and he was hospitalized.
16. The medication and constant medical supervision at hospital were critical to making sure
he recovered and did not have to be put on a ventilator,
17. Currently we do not have a complete understanding of the long-term consequences of
COVID-19, but there is a group of patients who develop “Long Covid” which seems to
include lung dysfunction and hypercoagulable state, both of which would be especially
dangerous for a Fontan patient such as M.P.
18, It is my medical opinion that M.P. still requires masking by those around him in school in
order to best protect him from further COVID-19 infections,
L9. Despite having had COVID-19 M.-P. remains at high risk for complications from COVID-
19 because having COVID-19 once does not prevent one trom the possibility of reinfection
from a different variant. Reinfections are not unusual with COVID-19. In fact, a
recent study found the risk of reinfection increased substantially with the emergence of
omicron in November. |
' Juliet R. ©, Pulliam, Cari van Scha lkwyk. Nevashan Govender, Anne von Gottberg, Cherv! Cohen, Michelle J.
Groome, Jonathan Dushoff, Koleka Mlisana, Harry Moultrie, Increased risk of SARS-CoV«2 reinfection associated
PLAINTIFFS' APPENDIX 012
20. Additionally, though he is vaccinated he continues to be at high risk for severe
complications because vaccinations do not provide complete immunity and with cach new
variant there are additional risks.
21.1 swear under penalty of perjury under the laws of the United States that the foregoing ts
true and correct to the best of my knowledge.
Dates this aay of June 2022, at Des Moines, Towa,
Dr. St¢pien J. Mooradian
with emergence of Omicron in South Africa 376 Science 6593 (Mar, 15, 2022), available at
PLAINTIFFS' APPENDIX 013
EXHIBIT A
June 2022
Curriculum Vitae
Stephen J. Mooradian, MD
Personal Data:
Current Position: Pediatric Cardiologist
Pediatric Cardiology, P.C.
Office address: 330 Laurel Street, Suite 2200
Des Moines, lowa 50314
Tel. (515) 288-1097
Fax. (515) 288-2847
E-mail: stephenm@pedscard.com
Date of Birth: 24 November 1967
Citizenship: United States of America
Medical Licensure:
1997-2006 State of Michigan, No. 4301063710
2007-Present State of lowa, No. 33317
Certification:
1997-2011 American Board of Pediatrics, General Pediatrics
2000-Present American Board of Pediatrics, Pediatric Cardiology
Society Memberships:
2000-Present Polk County Medical Society
2000-Present lowa Medical Society
2000-Present American Society of Echocardiography
2002-Present Fellow, American College of Cardiology
Education:
1985-1989 Harvard College, AB in Medical Anthropology, cum laude
1990-1994 Columbia College of Physicians and Surgeons, MD
Post-Graduate Training:
1994-1997 Pediatric Residency: C.S. Mott Children’s Hospital, University of Michigan
1997-2000 Pediatric Cardiology Fellowship: University of Michigan Congenital Heart Center
PLAINTIFFS' APPENDIX 014
Leadership Activities:
2015-2016
2016-2017
Honors and Awards:
1987-1989
1988-1989
1991
1994
1994
2008
2017
Publications:
2000
SJ Mooradian, MD
Vice-chair, Department of Pediatrics, Mercy Medical Center
Chair, Department of Pediatrics, Mercy Medical Center
Harvard College Scholarship for Academic Excellence
White Scholarship for Academic Achievement at Harvard University
Rudin Scholarship; Columbia Center for the Study of Medicine and Society
Marie Nercessian award for dedication to the care of sick people
Rebecca A. Schwartz Prize for outstanding work in Pediatric Cardiology
Teaching / Academic Excellence Award, Blank Children’s Hospital
Pediatric Recognition Award, Blank Children’s Hospital
Mooradian S, Goldberg C, Crowley D, Ludomirsky, A. Evaluation of a Noninvasive
Index of Global Ventricular Function to Predict Rejection Following Pediatric
Cardiac Transplantation. The American Journal of Cardiology; 86: 358-360.
Research Presentations:
1998
1998
1999
Teaching Activities:
2000-Present
A Non-Invasive Index for Global Ventricular Function: A Predictor for Rejection
after Pediatric Cardiac Transplantation?
Oral Presentation, Midwest Pediatric Cardiology Society annual meeting
Poster Presentation, Michigan Chapter of ACC annual meeting
Oral Presentation, American Society of Echocardiography annual meeting
Numerous lectures on pediatric cardiology topics
- Des Moines University, 4-8 lectures per year
- Mercy Medical Center
- Blank Children’s Hospital
PLAINTIFFS' APPENDIX 015
Exhibit C
PLAINTIFFS' APPENDIX 016
DECLARATION OF CARISSA FROYUM ROISE
COMES NOW, Carissa Froyum Roise and pursuant to 28 U.S.C. § 1746, declares under
penalty of perjury that the following is true and correct:
1. My name is Carissa Froyum Roise, and I am over 18 years old and have personal
knowledge of the facts as stated herein.
2. The attached letter is a true and correct copy of my son H.J.F.R.’s medical record from
his treating physician, Dr. Tim Starner. |
I swear under penalty of perjury under the laws of the United States that the foregoing is true
and correct to the best of my knowledge.
Dates this 1 day of July 2022, at Denver, Iowa.
Carissa Froyum Roise, Plaintiff
PLAINTIFFS' APPENDIX 017
6/21/22, 5:02 AM MyChart - Letters
Paticnt: inp | DOC: QD | Printed from MyChart on Tuesday June 21, 2022 at 5:02:02 AM | This instance
of MyChart connects to information in the records of UW Health (Wisconsin), Access Community Health Centers (Madison), and
Quartz Health Solutions.
Letter Details (Hans)
UWHealth AMERICAN FAMILY CHILDRENS HOSPITAL PULMONARY
1675 HIGHLAND AVE
MADISON WI 53792
608-263-6420
June 20, 2022
Denver IA 50622
To Whom It May Concern:
(GED) is an established patient of mine at American Family
Childrens Hospital Pulmonary. {iiiBhas the following diagnoses: Congenital Central
Hypoventilation Syndrome (CCHS), autonomic dysfunction, chronic respiratory failure
with hypoxia and hypercapnia, and dependence on bilevel positive airway pressure
ventilation due to central sleep apnea.
Becauseq@giihas CCHS, he is at an elevated risk of needing additional ventilatory
support if he should contract COVID-19. COVID-19 is different from influenza and RSV
as it has a higher risk for lingering/sustained effects.
As such, he benefits from wearing a face mask to reduce the risk of contracting COVID-
19. He should follow the CDC guidelines on masking. He is free to always wear a
mask if he prefers, as that does not constitute any harm for him.
Per current CDC guidelines, when his county is in the medium transmission category,
he should wear a mask when indoors with other non-household contacts. When his
county is in the high transmission category, we recommend that all people should wear
a mask when indoors with other people to reducegigg@exposure to COVID-19 spread
by others.
If you have any questions, please contact our office at 608-263-6420.
Sincerely,
Ton hom
Timothy D Starner, MD
Electronically signed by Timothy D Starner, MD on 6/20/2022 at 12:53 PM
Dept of Pediatrics Pulmonary and Sleep Medicine Division
American Family Children's Hospital; University of Wisconsin - Madison
Phone: 608-263-6420 Option 2
PLAINTIFFS' APPENDIX 018
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6/21/22, 5:02 AM MyChart - Letters
FAX: 608-890-6395
NPI: 1972592004
Patient Nance QD (O08: CY MRN: Gua» Page 1 of 1
This letter was initially viewed by ZED ot 6/21/2022 5:01 AM.
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PLAINTIFFS' APPENDIX 019
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Exhibit D
PLAINTIFFS' APPENDIX 020
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1746:
Case 4:21-cv-00264-RP-HCA Document 3-1 Filed 09/03/21 Page 1 of 18
Declaration of Dr. Joel Waddell
I, Dr. Joel Waddell, declare as follows under penalty of perjury pursuant to 28 U.S.C. §
Background
I am currently a practicing pediatric infectious diseases physician at the Blank Children’s
Hospital in Des Moines, Iowa. At the Blank Children’s Hospital, I currently serve as the
Pediatric Residency Associate Program Director and as the Pediatric Residency
Curriculum Committee Chair. All statements within this declaration represent my
thoughts, and these statements do not necessarily represent the positions of Blank
Children’s Hospital, lowa Methodist Medical Center, or UnityPoint Health.
I received my Bachelor of Science from East Tennessee State University in 2009 and my
D.O. from Des Moines University in 2013. I completed my residency in General Pediatrics
at Kansas University in 2016 and fellowship in Pediatric Infectious Diseases at the
University of Missouri-Kansas City in 2019. I received three years of additional training
in Pediatric Clinical Pharmacology at the University of Missouri-Kansas City. I am
currently a member of the Society for Pediatric Research, the Pediatric Infectious Diseases
Society, the Infectious Diseases Society of America, the Society for Healthcare
Epidemiology of America, and the American Academy of Pediatrics.
Since completing my residency and fellowship training, I have practiced at the Blank
Children’s Hospital in Des Moines providing both inpatient and outpatient consultations in
pediatric infectious diseases. In addition to serving as the Pediatric Residency Associate
Program Director and as the Pediatric Residency Curriculum Committee Chair, I am also
a member of the Pediatric Residency Scholarship Oversight Committee and the Pediatric
Death Review Committee. Before beginning at the Blank Children’s Hospital, I also served
on various committees during my time as a resident and as a fellow. I served for two years
(2017-2019) as a member of the Pediatric Infectious Diseases Society Research Affairs
Committee, for two years (2017-2019) as a member of the Musculoskeletal Infection
Hospital Care Committee at Children’s Mercy Hospital, for two years (2014-2016) as a
member of the Pediatric Hospital Ethics Committee at the Kansas University Medical
Center, for three years (2013-2016) as a member of the Pediatric Medical Education
Committee at the Kansas University Pediatric Residency program, and for two years (2009-
1
PLAINTIFFS' APPENDIX 021
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Case 4:21-cv-00264-RP-HCA Document 3-1 Filed 09/03/21 Page 2 of 18
2011) as the Research Committee Chair of the Student Osteopathic Medical Association at
Des Moines University.
My academic and medical policy work includes forty scientific presentations and invited
lectures, two co-authored hospital policies and handbooks, and two co-authored
publications on subjects relevant to pediatric infectious diseases. I have also appeared in
nine television, newspaper, and radio interviews where I provided insight into the impact
of COVID-19 on children. I spoke at the state of lowa’s annual school nursing conference
discussing COVID-19 clinical presentations, treatment options, and various modalities to
prevent COVID-19 infections in schools. I have provided five didactic lectures regarding
COVID-19 in children at three different medical centers in Iowa. Additionally, I will be
the keynote speaker at the 2021 Iowa Physiology Society annual meeting in December
2021.
I received the Most Outstanding Faculty Teaching Award at the Blank Children’s Hospital
Pediatrics Residency Program in 2021, the Teaching & Academic Excellence Award at the
Blank Children’s Hospital Pediatric Education Department in 2019, the Most Outstanding
Fellow Teaching Award at Children’s Mercy Hospital, the Most Outstanding Pediatric
Resident Award at the Kansas University Pediatric Residency program in 2016, and the
Resident Researcher of the Year Award at the Kansas University Pediatric Residency
program in 2015.
My CV is attached as Exhibit A.
I am familiar with the state law prohibiting mask mandates in schools. In my expert
opinion, this law will hurt the children of this state and their families by denying schools
the ability to fashion policies for their districts that attend to the health needs of their
students. If students face the prospect of going to school in areas of substantial or high risk
of COVID-19 transmission, with no requirements of masks, they are forced either to attend
school at risk to their health and that of their families or to stay out of school, also a risk to
their physical psychological, emotional, and developmental well-being. I am particularly
concerned for those students with disabilities that increase the risk of severe illness should
they contract COVID-19. Given the dominance of the Delta variant in Iowa and across the
United States, it is even more likely that entire classrooms, including those with students
2
PLAINTIFFS' APPENDIX 022
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Case 4:21-cv-00264-RP-HCA Document 3-1 Filed 09/03/21 Page 3 of 18
with disabilities, could be infected with COVID-19 in the absence of vaccines or mask
mandates.
I am not being compensated for my time reviewing materials and preparing this report.
Increased COVID-19 Transmission and Prevalence of the Delta Variant in Iowa
The beginning of this school year coincides with a dramatic increase in COVID-19
transmission. As of August 31, all but three of Iowa’s ninety-nine counties were
experiencing “high” levels of community COVID-19 transmission, with “high” being the
most severe CDC transmission designation.! Between June 27 and August 31, the average
daily cases per 100,000 residents in Iowa has risen sixteen-fold from two per 100,000 to
thirty-three per 100,000.” Furthermore, the test positivity rate, an indicator of increasing
COVID-19 community spread,’ has risen seven-fold from about 2% to over 14% during
this same time period.* Iowa is also experiencing a faster rate of increase in new COVID-
19 cases than the United States as a whole; for the fourteen-day period ending on August
31, Iowa recorded a 46% increase in daily average COVID-19 cases per 100,000 residents,
compared to a 18% increase in this same rate for the United States as a whole.°
Iowa’s hospitals show the strain of the COVID-19 pandemic. As of August 31, the State
of Iowa reported 498 COVID-19 hospitalizations, a number not seen since the 2020-2021
winter COVID-19 surge.® August also saw an all-time low availability of ICU beds
available in Iowa. On September 2, the state of Iowa Regional Medical Coordination
Center Dashboard reported only 297 available ICU beds in the state of Iowa, fewer
available beds than at any point during the 2020-2021 winter COVID-19 surge.’
' COVID-19 Integrated County View, Ctrs. for Disease Control & Prevention (Aug. 31, 2021 update),
https://covid.cdc.gov/covid-data-tracker/#county-view (last visited Sept. 2, 2021).
2 Mayo Found. for Medical Educ. & Res., Jowa coronavirus map: What do the trends mean for you?, Mayo Clinic,
https://(www.mayoclinic.org/coronavirus-covid-19/map/iowa (last visited Sept. 2, 2021).
> See, e.g., Positivity Rate Explained, Barry-Eaton Dist. Health Dep’t. (Oct. 2020),
https://www.barryeatonhealth.org/sites/default/files/Positivity“%20Rate%20Explained.pdf (last visited Sept. 2,
2021).
* Mayo Found. for Medical Educ. & Res., supra note 2.
> Coronavirus in the U.S.: Latest Map and Case Count, N.Y. Times (Sept. 2, 2021 update),
https://www.nytimes.com/interactive/2021/us/covid-cases.html (last visited Sept. 2, 2021).
° Hospitalization Analysis, lowa Dep't of Pub. Health, https://coronavirus.iowa.gov/pages/hospitalization-analysis
(last visited Sept. 2, 2021).
’ Hospital Data Summary, Regional Medical Coordination Center Dashboard, lowa Dep't of Pub. Health,
https://coronavirus.iowa.gov/pages/rmcc-data (last visited Sept. 2, 2021).
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12.
13.
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. The COVID-19 Delta variant is estimated to account for 99.7% of COVID-19 infections
in HHS Region 7, which includes Iowa, as of August 31.° This is relevant to the overall
COVID-19 transmission landscape given that the Center for Disease Control and
Prevention (CDC) estimates that the Delta variant is at least twice as transmissible as
previous variants and that it could likely lead to more severe illness in adults.’
I. The Impact of the Delta Variant for Children
Pediatric COVID-19 cases comprise an increasing share of overall COVID-19 cases in the
United States. While Iowa stopped updating its pediatric COVID-19 testing data on July
15,'° the most recent available data from Iowa suggest a similar trend statewide as well.
On August 16, 2021, the number of children hospitalized due to COVID-19 in the United
States reached an all-time high exceeding 1,900.'! Pediatric hospitalizations now account
for 2.3% of all COVID-19-related hospitalizations, compared to less than 1% in May of
2020.'* Similarly, pediatric COVID-19 cases represented fewer than 5% of all cases in
May of 2020, but now account for over 14% of total cases.'°
In Iowa, the most recent data indicate similar trends. According to the last full week of
pediatric data reporting in Iowa, ending on July 8, there were nearly 50,000 cumulative
childhood COVID-19 cases reported in the state.'* Even with the gap in data reporting,
Iowa still exceeds the national average in terms of cumulative COVID-19 cases per
100,000 children.'> Since Iowa last reported pediatric COVID-19 data, the weekly number
of new pediatric COVID-19 cases has increased ten-fold from fewer than 20,000 to over
8 COVID Data Tracker: Variant Proportions, Ctrs. for Disease Control & Prevention (Aug. 28, 2021 update),
https://covid.cdc.gov/covid-data-tracker/#variant-proportions (last visited Sept. 2, 2021).
? Delta Variant: What We Know About the Science, Ctrs. for Disease Control & Prevention (May 7, 2021 update),
https://www.cdc.gov/coronavirus/2019-ncov/variants/delta-variant.html (last visited Sept. 2, 2021).
'0 Children and COVID-19: State Data Report: Version: 8/26/21, Am. Acad. Pediatrics (Aug. 26, 2021 update),
https://www.aap.org/en/pages/2019-novel-coronavirus-covid- 1 9-infections/children-and-covid-19-state-level-data-
report/ (last visited Sept. 2, 2021).
'! Carolyn Crist, U.S. Reports Record COVID Hospitalizations of Children, WebMD (Aug. 16, 2021),
https://www.webmd.com/lung/news/202 108 16/u-s-reports-record-covid-hospitalizations-of-children (last visited
Sept. 2, 2021).
'2 Children and COVID-19: State Data Report, supra note 11, at 16, 20.
'3 Td. at 12, 15.
'4 Td. at 25.
'S Td.
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203,962 as of August 26.'° It is clear from the available data that COVID-19 currently
presents as acute threat to children in Iowa.
Ill. The Availability of Vaccines for Children and Overall Vaccination Rates in Iowa
14. Children in Iowa are vulnerable to the Delta variant given the unavailability of vaccines
from children under the age of twelve and the low vaccination rate for children twelve to
nineteen years old. None of the three available COVID-19 vaccines have been approved,
for emergency use or otherwise, for children under the age of twelve.'’ As of September 2,
only about 30% of children aged twelve to fifteen were fully vaccinated, only about 39%
of children aged sixteen and seventeen were fully vaccinated, and only about 40% of
adolescents aged eighteen and nineteen were fully vaccinated in Iowa.'® Nationally, 64%
of adults above the age of eighteen were fully vaccinated as of September 2, underscoring
the particularly low vaccine coverage for Iowa minors.!°
15. In addition, as with adults, some children with cancer, immunodeficiencies, and those
receiving immunosuppressive medications cannot mount an appropriate immune response
to COVID-19 vaccines. Therefore, they are less protected from COVID-19 vaccination.
16. According to the CDC, unvaccinated people are much more likely to contract, transmit,
and experience severe symptomatic illness from the Delta variant than their vaccinated
counterparts.”° In light of the data on pediatric vaccination rates and the unavailability of
vaccines to the youngest school-aged children, children account for a disproportionate
share of Americans to whom the Delta variant poses the greatest risk.
'6 Td. at 9.
'7 Covid-19 Vaccines for Children and Teens, Ctrs. for Disease Control & Prevention (Aug. 17, 2021 update),
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/recommendations/adolescents.html (last visited Sept. 2,
2021).
'8 Fully Vaccinated Demographics, lowa Dep't of Pub. Health,
https://coronavirus.iowa.gov/pages/vaccineinformation (last visited Sept. 2, 2021).
'9 See How Vaccinations Are Going in Your County and State, N.Y. Times (Sept. 1, 2021 update),
https://www.nytimes.com/interactive/2020/us/covid-19-vaccine-doses.html (last visited Sept. 2, 2021).
'9 Hospitalization Analysis, lowa Dep't of Pub. Health, https://coronavirus.iowa.gov/pages/hospitalization-analysis
(last visited Sept. 2, 2021).
?0 Delta Variant: What We Know About the Science, Ctrs. for Disease Control & Prevention (Aug. 27, 2021 update),
https://www.cdc.gov/coronavirus/2019-ncov/variants/delta-variant.html (last visited Sept. 2, 2021).
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18.
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IV. Conditions That Can Put Children at Greater Risk of Severe Illness from
COVID-19
As noted above, children are particularly vulnerable to COVID-19 as a result of vaccination
rates within this population. Of greatest concern are those children who are not or cannot
be vaccinated who have underlying medical conditions that increase their risk for severe
illness as a result of COVID-19 infection. According to the CDC, “children with medical
complexity, with genetic, neurologic, metabolic conditions, or with congenital heart
disease,” as well as “children with obesity, diabetes, asthma or chronic lung disease, sickle
cell disease, or immunosuppression” may fall into this category.”!
Most if not all of the children with these conditions are disabled within the meaning of the
Americans with Disabilities Act (the ADA).”? The ADA defines disability as “a physical
or mental impairment that substantially limits one or more major life activities of such
individual.”*> Major life activities for purposes of the Act “include but are not limited to,
caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking,
standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking,
communicating, and working;” a major life activity “also includes the operation of a major
bodily function, including but not limited to, functions of the immune system, normal cell
growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine,
and reproductive functions.”* Conditions such as asthma, chronic lung disease, diabetes,
sickle cell disease, and congenital heart disease by definition substantially limit a major
bodily function.
These are not the only children at risk of grave harm. Individuals with intellectual
disabilities are also at increased risk of contracting COVID-19 and of dying from COVID-
19 infection. A recent study published in the New England Journal of Medicine—working
with a data set of 64,414,495 patients across more than 500 U.S. healthcare systems, of
which “127,003 were patients with intellectual disabilities and 64,287,492 were patients
without intellectual disabilities’
concluded that “intellectual disability was the strongest
71 People with Certain Medical Conditions, Ctrs. for Disease Control & Prevention (Aug. 20, 2021 update),
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html (last
visited Sept. 2, 2021).
2242 U.S.C. § 12101 et seg.
3 AZ USS.C. § 12102(1).
442 U.S.C. §§ 12102(2)(A)-(B).
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independent risk factor for presenting with a Covid-19 diagnosis and the strongest
independent risk factor other than age for Covid-19 mortality.”"? The study found
individuals with intellectual disabilities were more likely to contract COVID; if diagnosed
with COVID, more likely to be admitted to the hospital; and more likely to die following
admission.”° The risks reflect the risks associated with intellectual disability itself, as well
as comorbidities that in the study were overrepresented among those with intellectual
disabilities. Notably, the odds of mortality among those with intellectual disabilities in the
study were “significantly higher than other conditions such as congestive heart failure,
kidney disease, and lung disease.’”’
During the 2020-2021 school year, the families of many of my patients have expressed
significant concerns about their children being exposed to COVID-19 in school. However,
they are even more concerned about the 2021-2022 school year due to the Delta variant
and lack of mask mandates. The parents of a young child (under the age of twelve) told
me they lie awake every night trying to balance the risks of sending their boy to school.
The child has a genetic immunodeficiency. Therefore, he is at higher risks of various
infections and their complications, including more severe outcomes from COVID-19.
These parents are anguished because they know how healthy and important in-person
school is for their boy, but they fully understand the likelihood of their child contracting
COVID-19 from their unvaccinated peers without masks. Another family of a young girl
with leukemia has expressed similar concerns. They no longer believe that our schools are
a safe place for their child. I have been caring for a teenage young lady who is on various
immunosuppressant medications due to a rheumatologic condition. While she has been
vaccinated against COVID-19, she is less likely to be protected from COVID-19 infection.
I have sat with the mother of this patient as she cries not seeing a safe avenue for in-person
school for her daughter. I have also had to sit with many distraught families of previously
healthy children who require hospitalization with post-infectious complications of
COVID-19 called Multisystem Inflammatory Syndrome in Children (MIS-C). With MIS-
?° Jonathan Gleason et. al., Commentary: The Devastating Impact of Covid-19 on Individuals with Intellectual
Disabilities in the United States, New Eng. J. Med. (Mar. 5, 2021),
https://catalyst.nejm.org/doi/full/10.1056/CAT.21.0051 (last visited Sept. 2, 2021).
°6 Td.
°" Td.
7
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181 C, children often require continuous infusions of medications that help their heart beat
182 strong enough to maintain life. Several of these parents have looked me in the eyes while
183 crying and asked, “could we have done something to prevent this from happening?” If the
184 appropriate risk mitigation steps are not taken in the schools of Iowa, we will almost surely
185 see more cases of MIS-C and other complications of COVID-19 in children this school
186 year compared to last year.
187 21. Finally, when we think about the risk to children in the state, we can’t ignore the risk of
188 children developing what has come to be known as long COVID, where symptoms remain
189 months after an initial COVID diagnosis. While study is essential to know the scope of
190 long COVID in children, with current estimates varying significantly, there are increasing
191 concerns about the long-term impact of COVID even among the asymptomatic.”®
192
193 V. CDC and State Department of Health Recommendations on Masking in Schools
194 and the Efficacy of Masking for Reducing COVID-19 Transmission
195 22. The CDC recommends “universal indoor masking for all students, staff, teachers, and
196 visitors to K-12 schools, regardless of vaccination status.””? Underlying the CDC guidance
197 are concerns about “the highly transmissible nature of this variant,” the ineligibility of
198 children under twelve for the vaccine, and low levels of vaccination among youth ages
199 twelve to seventeen, all factors present in our state at this time.*°
200 23. Leading medical organizations, including the American Academy of Pediatrics and the
201 American Medical Association, similarly recommend universal masking as part of school
203 24. In addition to national organizations, the local health departments in each of Iowa’s three
204 most populous counties (Polk, Linn, and Scott counties) all recommend universal mask-
205 wearing in indoor settings. The Scott County Health Department simply recommends
206 “TmJasking of all in indoor spaces,” and the Polk County Health Department and the Linn
8 See, e.g., Dyani Lewis, Long COVID and Kids: Scientists Race to Find Answers, 595 Nature 482 (2021).
?° Guidance for Covid-19 Prevention in K-12 Schools, Ctrs. for Disease Control & Prevention (Aug. 5, 2021
update), https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/k-12-guidance.html (last visited
Sept. 2, 2021).
39 Td.
3! See, e.g., American Academy of Pediatrics Updates Recommendations for Opening Schools in Fall 2021, Am.
Acad. Pediatrics (July 19, 2021), https://www.aap.org/en/news-room/news-releases/aap/202 1/american-academy-of-
pediatrics-updates-recommendations-for-opening-schools-in-fall-202 1/.
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County Health Department both explicitly state that schools fall under their universal
mask-wearing recommendations.** The Iowa Medical Society and the Iowa Chapter of the
American Academy of Pediatrics both recommend universal indoor masking by all
students (age two and older), staff, teachers, and visitors to K-12 schools, regardless of
vaccination status.*
25. Recent studies have confirmed that wearing masks is one of the most powerful tools to
thwart the transmission of COVID-19 in indoor settings, such as schools. Researchers at
Duke University conducted a study on COVID-19 transmission within schools following
“Plan A” which “provided full, in-person instruction, masking, and minimal physical
distancing.”** Analysis conducted by Duke University researchers using data from North
Carolina K-12 schools —data that included more than 1,280,000 students and 160,000
staff—found that “there is very limited within-school transmission of COVID-19 in
schools participating in Plan A,” leading the researchers to conclude that “wearing masks
is an effective strategy to prevent in-school COVID-19 transmission.’
26. This study confirms what the CDC and other studies have reported. The CDC has stated,
“Experimental and epidemiological data support community masking to reduce the spread”
of the Delta variant.*° A recent literature review concluded that “nonmedical masks have
been effective in reducing transmission of respiratory viruses; and places and time periods
°? Quad Cities COVID-19 Coalition: August 19 Press Release, Scott Cnty. (Aug. 19, 2021),
https://www.scottcountyiowa.gov/sites/default/files/attachments/posts/20210819 COVID-
19 Update on Public Health Response.pdf (Scott County); COVID-19 cases and hospitalizations are surging: It
is time for our community to step up and do the right thing, Polk Cnty. (Aug. 24, 2021),
are-surging-it-is-time-for-our-community-to-step-up-and-do-the-right-thing/ (Polk County); Grace King, Masks
should be mandated to be worn in schools, Linn County board of health says, Gazette (Aug. 30, 2021),
https://www.thegazette.com/k/masks-should-be-mandated-to-be-worn-in-schools-linn-county-board-of-health-says/
(ast visited Sept. 2, 2021).
33 Sydney Maras, IMS & IA AAP: Back to School Face Mask Usage Statement, lowa Medical Society (Aug. 19,
2021), https://www.iowamedical.org/news/10941537 (last visited Sept. 2, 2021).
34 The ABCs of North Carolina's Plan A, ABC Science Collaborative (July 1, 2021),
https://abesciencecollaborative.org/the-abcs-of-north-carolinas-plan-a/ (last visited Sept. 2, 2021).
> Letter from Danny Benjamin & Kanecia Zimmerman to Joint Legislative Education Oversight Committee et al.
(June 30, 2021), https://abcsciencecollaborative.org/wp-content/uploads/202 1/06/ABCs-Final-Report-June-2021.06-
esig-DB-KZ-6-29-21 pdf (last visited Sept. 2, 2021).
36 Science Brief: Community Use of Cloth Masks to Control the Spread of SARS-CoV-2, Ctrs. for Disease Control &
Prevention (May 7, 2021 update), https://www.cdc.gov/coronavirus/20 19-ncov/science/science-briefs/masking-
science-sars-cov2.html#anchor_ 1619456988446 (last visited Sept. 2, 2021).
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Case 4:21-cv-00264-RP-HCA Document 3-1 Filed 09/03/21 Page 10 of 18
27.
28.
VI.
29.
30.
where mask usage is required or widespread have shown substantially lower community
Masking is also critical for the health of those who, for reasons of disability, cannot mask.
Those include people who struggle to take a mask off and on, whether because of motor
skills or cognitive issues; people with sensory processing disorders; and people with facial
deformities incompatible with a mask, among others.*®
As noted above, families that I worked with and all of the children not vaccinated are at
great risk for a COVID-19 infection. Given the rise in pediatric infections (and adult
infections) due to the Delta variant of COVID-19, in my expert opinion, the only safe
course at this time is universal masking for children for safe attendance at school and
school-related functions until our public health officials declare a safe level of population-
wide vaccination. As a pediatric infectious diseases physician, I am concerned about all
children but particularly worried about those children with complex medical conditions
and/or disabilities since the latter group could more likely sustain severe illness or even
death. The risk of death is low overall, but certainly elevated for the vulnerable group. Any
severe illness or death is unacceptable for a preventable disease.
The Necessity of Allowing Iowa Schools to Set Their Own Mask Policies
Iowa’s Mask Mandate Prohibition denies school districts the ability to require masks to
protect their students and staff. In communities where COVID-19 is prevalent, parents with
children with conditions that can make them vulnerable to severe illness in particular will
face a terrible dilemma of whether to risk their children’s health and even life, or to keep
the children out of school. That is not a decision they should be forced to make, when we
have the option of masks to protect the safety of those in the school.
My concern is greatest for these children, but it does not stop there. No child should risk
serious illness if we can prevent it.
37 Howard et. al., An evidence review of face masks against COVID-19, 118 PNAS 1, 1-12 (2021); Cheng, et al.,
Face masks effectively limit the probability of SARS-CoV-2 transmission, 372 Science 1439, 1439-1443 (2021).
38 Doron Dorfman & Mical Raz, Mask Exemptions During the COVID-19 Pandemic—A New Frontier for
Clinicians, JAMA Health Forum (July 10, 2020), https://jamanetwork.com/journals/jama-health-
forum/fullarticle/2768376?resultClick=1.
10
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270
Case 4:21-cv-00264-RP-HCA Document 3-1 Filed 09/03/21 Page 11 of 18
31,
a2:
33.
Without a mask requirement, children who chose to wear a mask will inevitably be subject
to a multitude of negative psychological effects, such as bullying and feeling ostracized
from their peers. Therefore, in the absence of mask mandates, we are not really giving
Iowa’s children a fair choice. We are telling them they have to choose between their
physical health and emotional/psychological health.
And it’s not just the children. Children who catch the virus at school will bring it home,
risking their families’ health and security. Without mask requirements, it is quite possible
that schools in Iowa could become hotspots for COVID-19 outbreaks, which then increase
the community spread of disease throughout our state. This is particularly concerning
given the state’s low vaccination rates and high rates of comorbidities in the adult
population.
In my opinion, the state cannot in good conscience let this policy stand given the threat it
poses to children and their families.
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.
d chy
Dated this Qe day of September 2021, at _, owe. (,°3\ OM LEE
Joel Waddell Za
11
PLAINTIFFS' APPENDIX 031
Case 4:21-cv-00264-RP-HCA Document 3-1 Filed 09/03/21 Page 12 of 18
Curriculum Vitae EXHIBIT A
Joel Waddell, D. O.
Date of Preparation: 08/28/2021
Citizenship Status
Country of Citizenship Type of Visa Work Authorization End Date
USA
EDUCATION
e Baccalaureate Degree
Year Degree Institution City, State
2004-2009 Bachelor of Science East Tennessee State University Johnson City, TN
e Graduate Degrees (Masters/Doctorate)
Year Degree Institution City, State
2009-2013 D.O. Des Moines University Des Moines, IA
e Residency/Fellowship Training
Year Specialty Institution City, State
2013-2016 General Pediatrics Kansas University Kansas City, KS
2016-2019 Pediatric Clinical Pharmacy University of Missouri-Kansas Kansas City, MO
2016-2019 Pediatric Infectious Diseases City/Children’s Mercy Hospital
Practice/Employment History (starting with most recent)
Years Practice Organization/Employer City, State
2019-Present Blank Children’s Hospital Des Moines, IA
Certification and Licensure
e Certifications:
Board Initial Year Most Recent Cert. Yr. Certificate No.
American Board of Pediatrics 2016 2016 118135
American Board of Pediatrics 2019 2019 1747
PLAINTIFFS' APPENDIX 032
Case 4:21-cv-00264-RP-HCA Document 3-1 Filed 09/03/21 Page 13 of 18
e Medical Licensure (current)
State
Initial Date License No.
2019 DO-05386
Leadership Positions
Years
2021 — Present
2021 — Present
2020 — Present
2020 — Present
2017 — 2019
2017 — 2019
2016 — 2019
2015 — 2016
2014 — 2016
2014 — 2016
2013 — 2016
2009 — 2011
Position
Pediatric Residency Associate Program Director
Blank Children’s Hospital, Des Moines, IA
Pediatric Residency Curriculum Committee Chair
Blank Children’s Hospital, Des Moines, IA
Pediatric Residency Scholarship Oversight Committee Member
Blank Children’s Hospital, Des Moines, IA
Pediatric Death Review Committee Member
Blank Children’s Hospital, Des Moines, IA
Musculoskeletal Infection Hospital Care Committee Member
Children’s Mercy Hospital, Kansas City, MO
Pediatric Infectious Diseases Society Research Affairs Committee
Member
Fellow Representative of Graduate Medical Education Committee
Children’s Mercy Hospital, Kansas City, MO
Resident Representative of Clinical Learning Environment Review
Program
Kansas University Pediatric Residency, Kansas City, KS
Resident Representative of Pediatric Hospital Ethics Committee
Kansas University Medical Center, Kansas City, KS
Clinical Skills Preceptor for Medical Students
Kansas University School of Medicine, Kansas City, KS
Resident Representative of Pediatric Medical Education Committee
Kansas University Pediatric Residency, Kansas City, KS
Research Committee Chair of Student Osteopathic Medical Association
Des Moines University, Des Moines, IA
PLAINTIFFS' APPENDIX 033
Case 4:21-cv-00264-RP-HCA Document 3-1 Filed 09/03/21 Page 14 of 18
Professional Affiliations and Memberships (currently only)
Organization
2017 — Present
2016 — Present
2016 — Present
2016 — Present
2013 — Present
Society for Pediatric Research
Pediatric Infectious Diseases Society
Infectious Diseases Society of America
The Society for Healthcare Epidemiology of America
American Academy of Pediatrics
Honors and Awards (if any)
2021
2019
2019
2018
2017
2016
2016
2015
2015
2014
Most Outstanding Faculty Teaching Award
Blank Children’s Hospital Pediatrics Residency, Des Moines, IA
Teaching & Academic Excellence Award
Blank Children’s Hospital Pediatric Education Department, Des Moines, IA
Most Outstanding Fellow Teaching Award Recipient
Children’s Mercy Hospital Graduate Medical Education, Kansas City, MO
Most Outstanding Fellow Teaching Award Nominee
Children’s Mercy Hospital Graduate Medical Education, Kansas City, MO
Most Outstanding Fellow Teaching Award Nominee
Children’s Mercy Hospital Graduate Medical Education, Kansas City, MO
Excellence in Teaching Award: Most Outstanding Pediatric Resident
Kansas University School of Medicine, Kansas City, KS
Most Outstanding Pediatric Resident
Kansas University Pediatric Residency, Kansas City, KS
Excellence in Residency Award Nominee: Exceptional Student Mentoring
Kansas University School of Medicine, Kansas City, KS
Resident Researcher of the Year Award
Kansas University Pediatric Residency, Kansas City, KS
Pediatric Hematology/Oncology Intern of the Year Award
Kansas University Pediatric Residency, Kansas City, KS
PLAINTIFFS' APPENDIX 034
Case 4:21-cv-00264-RP-HCA Document 3-1 Filed 09/03/21 Page 15 of 18
Publications and Presentations (if any)
e Papers Published or In Press
Kathryn E. Kyler, Brian R Lee, Earl F Glynn, Joel P Waddell, Mark A Hoffman, and Jennifer L Goldman.
Clinical outcome and antibiotic dosing differences by weight in children with acute osteomyelitis. Hospital
Pediatrics. Accepted on 4/27/2021.
Television Interview: Channel 8 KCCI News, Des Moines, IA. COVID-19 Delta variant, upcoming school
semester in Iowa, masks, and vaccines. August 27, 2021
Television Interview: Channel 8 KCCI News, Des Moines, IA. RSV, other illnesses keep Blank Children's
Hospital full, doctor says masks should be worn this fall. July 19, 2021.
Radio Interview: Iowa Public Radio — Talk of Iowa: Vaccine Offers Children 'Return To Normalcy,' Iowa
Doctors Say. May 13, 2021.
Newspaper Interview: Des Moines Register, Des Moines, IA. COVID vaccine will soon be offered to kids ages
12-15 — but will they come in for the shots? May 11, 2021.
Radio Interview: WHO Radio, Des Moines, IA. COVID-19 vaccine among adolescents. May 6, 2021.
Newspaper Interview: Des Moines Register, Des Moines, IA. Jowa doctor: 'It's going to be extremely difficult'
to get COVID herd immunity if kids can't be vaccinated. April 28, 2021.
Newspaper Interview: Des Moines Register, Des Moines, IA. COVID-19 rate in kids may be higher than
known, experts say, and until they can be vaccinated, pandemic may linger. April 25, 2021.
Television Interview: Channel 8 KCCI News, Des Moines, IA. What is PMIS? Rare illness linked to COVID-
19 comes to Iowa. May 18, 2020.
Television Interview: Channel 13 WHO News: MIS-C among children in Iowa. May 18, 2020.
Waddell, J. and McCulloh, R. “Pertussis.” From: Ferri’s Clinical Advisor. 2018.
Invasive mucormycosis management: mucorales PCR provides important, novel diagnostic information (poster
presentation). IDWeek™2018. San Francisco, CA. October 2018.
Coauthor of hospital’s outpatient antibiotic handbook. Children’s Mercy Hospital. Kansas City, MO. August
2018.
Clinical course and antibiotic dosing in healthy vs non-healthy weight children with osteomyelitis (poster
presentation). 2018 St. Jude/PIDS Pediatric Infectious Diseases Research Conference. Memphis, TN. March
2018.
Coauthor of hospital’s outbreak/suspected outbreak investigation policy. Children’s Mercy Hospital. Kansas
City, MO. January 2018.
PLAINTIFFS' APPENDIX 035
Case 4:21-cv-00264-RP-HCA Document 3-1 Filed 09/03/21 Page 16 of 18
e Scientific Presentations/Invited Lectures
2021
2021
2021
2021
2021
2021
2021
2021
2021
2021
2020
2020
2020
2020
2020
2019
2019
Blank Children’s Hospital, Des Moines, IA: Pediatric Grand Rounds
Topic: COVID-19 vaccines in children
Greater Regional Medical Center, Creston, IA: Lunch and Learn
Topic: COVID-19 in children
State of lowa Annual School Nursing Conference, Des Moines, IA:
Topic: COVID-19 in children
Blank Children’s Hospital, Des Moines, IA: Pediatric Residency didactic lecture series
Topic: COVID-19 associated Multisystem inflammatory syndrome in children (MIS-C)
Blank Children’s Hospital, Des Moines, IA: Webinar for Blank Children’s Hospital
Employees
Topic: COVID-19 pandemic and vaccines
Clark County Hospital, Osceola, IA: Lunch and Learn
Topic: COVID-19 pandemic and vaccines
Blank Children’s Hospital, Des Moines, IA: Hospital employee open forum
Topic: Q&A session regarding COVID-19 vaccines
Blank Children’s Hospital, Des Moines, IA: Pediatric Residency board review lecture
series
Topic: Pediatric infectious diseases
Blank Children’s Hospital, Des Moines, IA: Pediatric Residency didactic lecture series
Topic: Cervical lymphadenitis and skin/soft tissue infections
Broadlawns Medical Center, Des Moines, IA: Family Medicine Residency didactic
lecture series
Topic: Top 10 outpatient pediatric infectious diseases
Blank Children’s Hospital, Des Moines, IA: Pediatric Grand Rounds
Topic: Top 10 Vaccine Myths
Blank Children’s Hospital, Des Moines, IA: Clinical Pathology Conference
Topic: Potts Puffy Tumor
Blank Children’s Hospital, Des Moines, IA: Pediatric Residency didactic lecture series
Topic: Top 10 general outpatient pediatric infectious diseases
Blank Children’s Hospital, Des Moines, IA: Pediatric Residency didactic lecture series
Topic: Infections in immunocompromised hosts
lowa Lutheran Hospital, Des Moines, IA: Family Medicine Residency didactic lecture
series
Topic: Top 10 general outpatient pediatric infectious diseases
Blank Children’s Hospital, Des Moines, IA: Pediatric Residency didactic lecture series
Topic: Bugs and Drugs
Children’s Mercy Hospital, Infectious Diseases Department, Kansas City, MO: Fellows’
didactic lecture series
PLAINTIFFS' APPENDIX 036
Case 4:21-cv-00264-RP-HCA Document 3-1 Filed 09/03/21 Page 17 of 18
Topic: Congenital infections
2019 Children’s Mercy Hospital, Infectious Diseases Department, Kansas City, MO: Fellows’
didactic lecture series
Topic: Recurrent fevers
2019 Children’s Mercy Hospital, Infectious Diseases Department, Kansas City, MO: Fellows’
didactic lecture series
Topic: Gastroenteritis
2018 Progressive disseminated histoplasmosis of infancy (platform presentation). Kansas
City Infectious Diseases Society. Kansas City, KS. September 2018.
2018 Children’s Mercy Hospital, Clinical Pharmacology Mini Masters Course, Kansas City,
MO.
Topic: Utilizing big data resources to generate pharmacologic hypotheses
2018 Children’s Mercy Hospital, Infectious Diseases Department, Kansas City, MO: Journal
Club
Topic: Pharmacokinetic cefazolin modeling in bariatric surgery patients
2018 Children’s Mercy Hospital, Infectious Diseases Department, Kansas City, MO: Fellows’
didactic lecture series
Topic: Zoonoses
2017 Comparative analysis of initial antibiotic dosing among healthy weight, overweight, and
obese children with osteomyelitis (poster presentation). IDWeek™2017. San Diego, CA.
October 2017.
2017 Children’s Mercy Hospital, Infectious Diseases Department, Kansas City, MO: Fellows’
didactic lecture series
Topic: Viral CNS infections
2017 Children’s Mercy Hospital, Infectious Diseases Department, Kansas City, MO: Fellows’
didactic lecture series
Topic: Bacterial CNS infections
2017 Children’s Mercy Hospital, Infectious Diseases Department, Kansas City, MO: Journal
Club
Topic: Cellulitis, cephalexin, & obesity
2017 University of Missouri-Kansas City School of Pharmacy, Kansas City, MO: Second year
pharmacy student lecture series
Topic: Pediatric community-acquired pneumonia
2017 Children’s Mercy Hospital, General Pediatric and Medicine/Pediatric Residents, Kansas
City, MO: Core resident educational lecture series
Topic: Bugs and drugs
2017 Children’s Mercy Hospital, Infectious Diseases Department, Kansas City, MO: Research
Conference
Topic: Utilizing informatics-based research to answer questions regarding appropriate
antibiotic dosing among obese children
2017 Children’s Mercy Hospital, Infectious Diseases Department, Kansas City, MO: Fellows’
didactic lecture series
PLAINTIFFS' APPENDIX 037
Case 4:21-cv-00264-RP-HCA Document 3-1 Filed 09/03/21 Page 18 of 18
Topic: Antibiotic resistance mechanisms — a three part series
2016 Children’s Mercy Hospital, Infectious Diseases Department, Kansas City, MO: Journal
Club
Topic: Fever in returning traveler
2016 Children’s Mercy Hospital, Infectious Diseases Department, Kansas City, MO: Journal
Club
Topic: Impact of reported beta-lactam allergy on inpatient outcomes
multicenter prospective cohort study
2016 Children’s Mercy Hospital, Infectious Diseases Department, Kansas City, MO: Journal
Club
Topic: Antimicrobial dosing and pediatric obesity: murky waters
2016 Kansas University, Department of Pediatrics, Kansas City, KS: Senior Resident
Conference
Topic: Improving resident research in an attempt to further evidence-based medicine
within pediatrics
2015 Improving pediatric immunization rates in the inpatient setting: a hospital-based
intervention (poster presentation). Academic Pediatric Association Region VI Fall
Meeting. Kansas City, KS. September 2015.
2015 Children’s Mercy Hospital, Infectious Diseases Department, Kansas City, MO:
Laboratory Presentation
Topic: Ceftolozane/tazobactam activity against Pseudomonas
aeruginosa strains in pediatric cystic fibrosis patients
2015 Kansas University, Department of Pediatrics, Kansas City, KS:
Neonatology Conference
Topic: Short & long term management of neonatal HIV
2014 Kansas University, Department of Pediatrics, Kansas City, KS:
Board Prep lecture series
Topic: Presented various COMLEX Step 1 topics to incoming 1*' year
pediatric residents
2013 Kansas University, Department of Pediatrics, Kansas City, KS:
Center for Child Health & Development Lecture Series
Topic: Congenital cytomegalovirus infections-
neurodevelopmental/behavioral outcomes
2013 Kansas University, Department of Pediatrics, Kansas City, KS:
Neonatology Conference
Topic: Neonatal bacterial meningitis
PLAINTIFFS' APPENDIX 038
Exhibit E
PLAINTIFFS' APPENDIX 039
Case 4:21-cv-00264-RP-HCA Document 3-2 Filed 09/03/21 Page 1 of 16
Declaration of Dr. Megan Srinivas
I, Megan Srinivas, declare as follows under penalty of perjury pursuant to 28 U.S.C. § 1746:
1.
Background
I am currently an infectious diseases physician, clinical instructor, and fifth-year translational
health policy research fellow at the University of North Carolina School of Medicine in Chapel
Hill, North Carolina. Additionally, I currently serve as the infectious disease consultant for
Broadlawns Medical Center in Des Moines, Iowa.
I am licensed to practice medicine in Iowa and North Carolina. I hold degrees from Harvard
University (A.B. cum laude, Human Evolutionary Biology, 2009), Carver College of Medicine
at the University of Iowa (MD, 2014); and Harvard University.. School of Public Health
(MPH, Global Health & Health Policy, 2014). I completed my residency in Internal Medicine
at Johns Hopkins School of Medicine (2017) and my fellowship in Infectious Disease at the
University of North Carolina (2019). I also hold two board certifications with the American
Board of Internal Medicine in 1) Internal Medicine and 2) Infectious Disease.
I worked for 2.5 years at the Fort Dodge Community Health Center as its only infectious
diseases and internal medicine physician (January 2018-July 2020). I also have been providing
telehealth Hepatitis C care to rural Iowans through Iowa’s Project ECHO since March 2019.
I have extensive work and research experience in the areas of infectious disease and public
health and have served on numerous state and national boards, committees, and panels. Most
relevant to the this case, I currently sit on the Infectious Disease Society of America (IDSA)
Public Health Advisory Board, which represents all infectious disease providers in the nation.
I am also a national delegate to the American Medical Association (AMA), which represents
all physicians in the United States. I sit on the AMA’s 12-person national Council on Medical
1
PLAINTIFFS' APPENDIX 040
Case 4:21-cv-00264-RP-HCA Document 3-2 Filed 09/03/21 Page 2 of 16
Services and am one of the leaders of the organization’s Mask Up COVID Campaign.
Additionally, I sit on the Iowa Board of Directors for the National Alliance on Mental Illness
(NAMI) and delivered a statewide talk for NAMI in May 2020 on the impact of the novel
coronavirus SARS-CoV-2 (hereinafter, “COVID-19”) on mental health.
In March 2020, I co-founded the COVID-19 Health Animation Project (CHAP), to help
address the racialized disparities in COVID-19 mortality and morbidity in the US. CHAP
creates culturally-informed health messaging videos in various languages to deliver COVID-
19 public health education to marginalized communities. I recently co-lead a CHAP team that
collaborated with child psychologists and mental health professionals to focus on educating
caregivers on the anxiety/stress facing children during the COVID-19 pandemic and how these
issues can be effectively addressed. CHAP received a grant to pursue this project from the
Atlantic Institute based at the Rhodes Trust in the University of Oxford and we have been
asked by UNICEF to translate CHAP’s mental health videos into Spanish so UNICEF has the
opportunity to distribute both the English and Spanish version in the Americas.
I have given presentations on and authored or co-authored numerous medical and scientific
publications and policy papers on infectious diseases and public health, as well as specifically
on COVID-19 and its effects on rural areas and communities at-large.
. My detailed curriculum vitae is attached as Exhibit A.
If called as a witness, I could and would testify competently to the matters set forth below.
I am familiar with the provision of Iowa Law recently passed that is known as HF 847 or the
“Mask Mandate Ban.” In my expert opinion, this provision will hurt the children of this state
and their families by denying schools the ability to fashion policies for their districts that attend
to the health needs of their students. If students face the prospect of going to school in areas of
2
PLAINTIFFS' APPENDIX 041
Case 4:21-cv-00264-RP-HCA Document 3-2 Filed 09/03/21 Page 3 of 16
substantial or high risk of COVID-19 transmission, with no requirements of masks, they are
forced either to attend school at risk to their health and that of their families or to stay out of
school, at risk to their well-being. I am especially concerned for those students with disabilities
that are at an increased risk for complications from COVID-19.
10. Iam not being compensated for my time reviewing materials and preparing this report.
Increased COVID-19 Transmission and Prevalence of the Delta Variant in Iowa
11. Vaccination rates across Iowa remain low, with only 52% of the population fully vaccinated.!
12. The rate is even lower among children; as of August 25, only 30% of those twelve to fifteen
are vaccinated, and 37% of sixteen to seventeen year-olds.”
13. Iowa is seeing the most hospitalizations since January 2021.°
14. More than half of the new cases, 56%, are people younger than 40, and 17% are younger than
seventeen. Those age groups also have the lowest vaccination rates.* Data released August 31
shows 22% of new cases 1n Iowa last week, after one week of school for many, are in school-
age children.°
15. Each infected individual will, on average, infect six to seven others.° There is a median latency
to a detectable viral load of four days with the Delta variant rather than six days with the variant
' See How Vaccinations Are Going in Your County and State, N.Y.'Times (Sept. 1, 2021 update),
https://www.nytimes.com/interactive/2020/us/covid-19-vaccine-doses.html (last visited Sept. 2, 2021).
2 Nick Coltrain, Iowa COVID hospitalizations highest since January, 25% increase since last week to nearly 500, Des Moines Reg.
(Aug. 26, 2021), https://www.desmoinestegister.com/story/news/health/2021/08/26/iowa-covid-19-hospitalization-
rate-positive-cases-sutges-delta-variant/5541193001/ (last visited Sept. 2, 2021).
3 Id.
4 Td.
>’'Tim Webber, Children make up nearly a quarter of new COVID-19 cases in Iowa, Des Moines Reg. (Sept. 1, 2021),
https://www.desmoinesregister.com/stoty/news/health/2021/09/01/covid-19-iowa-testing-data-shows-kids-make-up-
22-percent-cases/8167419002/.
6 Michaeleen Doucleff, The Delta Variant Isn’t as Contagious as Chicken Pox. But It’s Still Highly Contagious, NPR (Aug. 11,
transmissioncdc-chickenpox (last visited Sept. 2, 2021).
3
PLAINTIFFS' APPENDIX 042
16.
17.
18.
Case 4:21-cv-00264-RP-HCA Document 3-2 Filed 09/03/21 Page 4 of 16
originally dominant in the US.’ This suggests very rapid dissemination and hyperlocal
outbreaks.®
As of August 30, the data on rolling average hospitalizations shows approximately 633 total
hospitalized with confirmed or suspected COVID-19 diagnosis, and this number remains on
an upward trajectory.’
The COVID-19 Delta variant is estimated to account for 99.7% of COVID-19 infections in
HHS Region 7, which includes Iowa, as of August 15.!° This is relevant to the overall COVID-
19 transmission landscape given that the Centers for Disease Control and Prevention (CDC)
estimates that the Delta variant is at least twice as transmissible as previous variants and that
it could likely lead to more severe illness. !!
The Spread of COVID-19 in Children
The Iowa Department of Public Health (hereinafter “IDPH’’) and IDPH medical director, Dr.
Pedati, have tried to downplay the risk of COVID-19 transmission to children, stating that a
paucity of early data equated to no transmission. However, now that we are seeing the
emergence of significant data about children and COVID-19, there are some inherent truths
that cannot be ignored: 1) children can contract COVID-19; 2) although the limited data
demonstrate that children are less likely to die from COVID-19, they can still suffer long-term
7 Baisheng Li et al., Vral infection and transmission in a large well-traced outbreak caused by the Delta SARS-CoV -2 variant,
medRxiv (July 12, 2021), https://www.medrxiv.org/content/10.1101/2021.07.07.21260122v1 (last visited Sept. 2, 2021).
8 Kathy Katella, 5 Things to Know About the Delta Variant, Yale Medicine (Aug. 26, 2021),
https://www.yalemedicine.org/news /5-things-to-know-delta-variant-covid (last visited Sept. 2, 2021).
? Towa Hospitals and COVID-19, lowa COVID-19 Tracker, https://iowacovid1 9tracker.org/hospitals/ (last visited Sept.
2, 2021).
10 COLD Data Tracker: Variant Proportions, Ctrs. for Disease Control & Prevention (Aug. 28, 2021 update),
https://covid.cde.gov/covid-data-tracker/#variant-proportions (last visited Sept. 2, 2021).
'l Delta Variant: What We Know About the Science, Ctrs. for Disease Control & Prevention (May 7, 2021 update),
4
PLAINTIFFS' APPENDIX 043
19.
20.
21.
Case 4:21-cv-00264-RP-HCA Document 3-2 Filed 09/03/21 Page 5 of 16
and even permanent damage from infection; and 3) children transmit the infection to other
children and adults.
Children of all ages are fully capable of contracting COVID-19. Per a recent report by the
American Academy of Pediatrics (hereinafter, “AAP”’), as of August 26, 2021, more than 4.8
million children have been diagnosed with COVID-19, representing 14.8% of all cases in the
US.” Between August 19-26, 2021, 203,962 children were diagnosed with COVID-19,
representing 22.4% of all new cases.!? And this is prior to school starting in most places, which
will hasten the spread in this vulnerable age group.
A Centers for Disease Control and Prevention (hereinafter, “CDC’’) case study analyzed the
infection attack rate in a weeklong sleep-away camp during June 2020 in Georgia.'* The CDC
found that of the 597 people attending the camp, 260 contracted COVID-19.!° The highest
rate of infection among the campers was amongst the youngest children between six to ten
years of age (51% attack rate in this group as compared to 33% in campers of ages eighteen to
twenty one).!° These findings demonstrate that transmission among children is happening at
significantly high rates. This may be behaviorally-based, which is a critical factor in the spread
of COVID-19.
Children infected with COVID-19 are fully capable of transmitting the virus to others. A study
published in the Journal of the American Medical Association (hereinafter, “JAMA”’) on July
30, 2020, studied the contagiousness of children by estimating the amount of nasopharyngeal
2 Children and COVID-19: State Data Report: Version: 8/26/21, Am. Acad. Pediatrics (Aug. 26, 2021 update),
https://www.aap.org/en/pages/2019-novel-coronavirus-covid-19-infections /children-and-covid-19-state-level-data-
repo
3 Td.
rt/ (last visited Sept. 2, 2021).
'4 Christine M. Szablewski et al., SARS-ColV-2 Transmission and Infection Among Attendees of an
Overnight Camp — Georgia, June 2020, Morbidity & Mortality Weekly Rep. (Aug. 7, 2020),
13 Id,
16 Td,
5
PLAINTIFFS' APPENDIX 044
Case 4:21-cv-00264-RP-HCA Document 3-2 Filed 09/03/21 Page 6 of 16
viral shedding occurring at various age groups.'’ They found that children younger than five
years of age with mild to moderate symptoms of COVID-19 carry higher amounts of SARS-
CoV-2 viral material in the nasopharynx than adults, suggesting that they may be more
contagious and, thus, more effective at transmitting the virus than adults.!® Children between
the ages of five and seventeen years appeared to have a similar amount of viral material as
adults (here classified as eighteen years of age or older).'?
22. Long COVID (post-acute sequelae of COVID-19, or “PASC”) can manifest as chronically
disabling fatigue, headache, difficulty concentrating, insomnia and other multisystemic
symptoms following even mild COVID infection (image below illustrates potential
manifestations of long COVID).*° Moreover, a Nature study published in April 2021
demonstrated that COVID-19 survivors had a 60% increased risk of death in the six months
following illness than the general population.*! Hospitalized survivors had a 50% increased
risk of death in the six months following recovery as compared to influenza survivors.
Figure 1: Long-Lasting COVID-19 Impacts”?
'7’Taylor Heald-Sargent, William J. Muller, & Xiaotian Zheng, Age-Related Differences in Nasopharyngeal Severe Acute
Respiratory Syndrome Coronavirus 2 (SARS-CoV -2) Levels in Patients With Mild to Moderate Coronavirus Disease 2019 (COVID-
19), JAMA Pediatrics (July 30, 2020), https://jamanetwork.com/journals/jamapediatrics/fullarticle/2768952 (last visited
Sept. 2, 2021).
18 Tq,
19 Td.
0 Julia Evangelou Strait, Among COVID-19 survivors, an increased risk of death, serious illness, Wash. Univ. in St. Louis (Apr.
22, 2021), https://source.wustl.edu/2021/04/among-covid-19-survivors-an-increased-tisk-of-death-serious-illness/ (last
visited Sept. 2, 2021).
21 Ziyad Al-Aly, Yan Xie & Benjamin Bowe, High-dimensional characterization of post-acute sequelae of COVID-19, Nature (Apr.
22, 2021), https://www.nature.com/artticles/s41586-021-03553-9 (last visited Sept. 2, 2021).
°2 Strait, supra note 21.
6
PLAINTIFFS' APPENDIX 045
Case 4:21-cv-00264-RP-HCA Document 3-2 Filed 09/03/21 Page 7 of 16
a
— Mental heatth _
anxiety, depress
COVID-19: Lasting impact ~™
sleep problems,
substance abuse
Even those survivors with mild
_ Cardiovascular
\
initial cases can have wide-
é
acute coronary
Nervous system ( Re
months or more,
ranging health issues for six
disease, heart failure,
palpitations, arrythmias
stroke, headaches,
memory problems,
)
small problems
WashU researchers link many
_Respiratory system _
diseases with COVID-19, signaling
cough, shortness
as
endocrine
long-term complications for
oxygen
of breath, low blood
obesity, diabetes,
patients and a massive health
high cholesterol
burden for years to come.
acute hidiney injury,
Gastrointestinal \ Ls)
chronic kidney disease
constipation,
diarrhea, acid reflux
/
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—
\
Joint pain, muscle
\
weakness
hair loss, rash
Skin disorders ( €
=
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General
Coagulation
‘4
anemia
malaise, fatigue,
disorders
blood clots:
23. In the meantime, masks matter. Converging experimental, epidemiological, and modeling
23
evidence consistent with the efficacy of masks in mitigating COVID transmission
stand
diametrically opposed to the ban on mask mandates at a time when we desperately need to
ensure compliance with masking, social distancing, and vaccinations.
24
The Washington Post adapted the graphic below from a CDC-funded study demonstrating the
impact of different mitigation strategies on spread of COVID within schools.”4 Elementary
schools where students are still ineligible for vaccination are the most vulnerable. And in such
schools, when universal masking and regular testing/randomized screenings are not being
implemented (as is occurring in Iowa), 91% of students will likely be infected within the first
3 months. Even with schools where immunity via vaccines is more prevalent (middle and high
schools), there is still a significant risk when mitigation is not appropriately used. Ultimately,
23 Howard et. al., Am evidence review of face masks against COVID-19, 118 PNAS 1, 1-12 (2021); Cheng, et al., Face masks
effectively limit the probability of SARS-CoV -2 transmission, 372 Science 1439, 1439-1443 (2021).
4 Ariana Eunjung Cha, A Calf. elementary school teacher took off her mask for a read-aloud. Within days, half her class was positive for
delta., Wash. Post (Aug. 28, 2021), https://www.washingtonpost.com/health/2021/08/28/delta-variant-unvaccinated-
children-elementary-schools/.
7
PLAINTIFFS' APPENDIX 046
Case 4:21-cv-00264-RP-HCA Document 3-2 Filed 09/03/21 Page 8 of 16
the study shows a harrowing prediction that 75% of all students (elementary through high
school) will likely be infected within 3 months without appropriate mitigation.”
Figure 2: Student Susceptibility”®
Share of susceptible students predicted to be
infected with the coronavirus
In a mathematical simulation, the predicted share of infections among
unvaccinated students not previously infected, who are in schools with:
By No masks, No masks, but {Jj Universal masks, Universal masks.
no testing testing occurs no testing and testing
Low immunity Medium immunity High immunity
Mostly elementary schools, or Mostly middle schools Mostly high schools
those with low vaccination rates
and/or low levels of prior infection
100% of students infected
91%
— _—— 86
79 73
70 /
/
57
50
735
25 22 23
16
0
0 30 =6—60 107 ~=—O 107 0 107
days
Source: COVSIM Research Group KATE RABINOWITZ/THE WASHINGTON POST
25. Children are not the only ones at risk of infection with in-person learning. The educators,
custodians, bus drivers, and all school staff are at significant risk of illness. Moreover, while
children may be asymptomatic or pauci-symptomatic from infection, they can still transmit to
others, including bringing the virus home to vulnerable caregivers and family members. From
5 These numbers, highlighted by the Washington Post, were derived from an academic study. See Yiwei Zhang et al.,
COVID-19 Projections for K12 Schools in Fall 2021: Significant Transmission without Interventions, medRxiv (Aug. 11, 2021),
https://www.medrxiv.org/content/10.1101/2021.08.10.21261726v1.full.
6 Cha, supra note 26.
8
PLAINTIFFS' APPENDIX 047
Case 4:21-cv-00264-RP-HCA Document 3-2 Filed 09/03/21 Page 9 of 16
March 1, 2020 to April 30, 2021 (prior to the onset of the more virulent delta variant), more
than 1.5 million children lost a caregiver to COVID-19 globally.”’
26. Although many schools in Iowa have only been in session for one week, COVID-19 activity
in schools is already rampant (47 different schools documented as of August 31, 2021),
numbers that will likely significantly worsen given inadequate notification of exposures and
the lack of quarantine for those exposed.”®
Conditions That Can Put Children at Greater Risk of Severe IlIness from COVID-19
27. The CDC has suggested higher risk for COVID complications in children who are medically
complex, have genetic, neurologic, or metabolic conditions, congenital heart disease or, like in
adults, chronic obesity, diabetes, asthma or chronic lung disease, sickle cell disease, and
immunosuppression.”’ I have reviewed the declarations of the plaintiffs in this case including
their ages and diagnoses. All qualify as higher risk per the CDC. Any child who is medically
complex (i.e. M.P., S.P., S.V., P.D., E.M.S, V.M.H., N.R.), has Down Syndrome (i.e. A.S.,
E.C.), has moderate to severe asthma (i.e. C.B, K.G., J.J.B.), as well as any child with chronic
heart or lung disease (i.e. M.P., H.J.F.R., V.M.H.) is vulnerable to poorer clinical outcomes
with COVID.
28. The American Academy of Pediatrics strongly recommends in-person learning for the mental,
emotional, and physical health of children, but emphasizes the critical importance of universal
27 Susan D. Hills et al., Global minimum estimates of children affected by COVID-19-associated orphanhood and deaths of caregivers: a
modelling study, Lancet (July 20, 2021), https://www.thelancet.com/journals/lancet/article/PIISO140-6736(21)01253-
8/fulltext (last visited Sept. 2, 2021).
28 COVID-19 in Our Schools, lowa COVID-19 Tracker, https://iowacovid1 9tracker.org/covid-19-in-our-schools/ (last
visited Sept. 2, 2021).
°° People with Certain Medical Conditions, Ctrs. for Disease Control & Prevention (Aug. 20, 2021 update),
https://www.cdc.gov/coronavitus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html (last visited
Sept. 2, 2021).
9
PLAINTIFFS' APPENDIX 048
29.
30.
31.
Case 4:21-cv-00264-RP-HCA Document 3-2 Filed 09/03/21 Page 10 of 16
masking (in children > two years) regardless of vaccination status.*° These are children who
have need for in-person instruction. And in many school districts, even nominally equivalent
educational services are not available through remote learning. The failure to allow local
entities to implement universal masking policies will have disproportionate impact on these
students.
Public Health Guidance on Masking to Reduce COVID-19 Transmission in Schools
Ways to mitigate the spread of COVID-19 in schools includes 1) universal masking; 11) spacing
of three feet with masking or at least 6 feet without masking; 111) testing with isolation and
quarantine for positive and exposed individuals, respectively; and iv) maximizing proper
ventilation of enclosed spaces.
The Delta variant is highly transmissible, which makes masking even more important. In a
recent study it was found that while vaccines are effective against the Delta variant, infection
risk remains elevated among unvaccinated persons in schools. In addition to vaccination, strict
adherence to multiple nonpharmaceutical prevention strategies, including masking, are
important to ensure safe school instruction.
From May 23 to June 12, 2021, 26 laboratory-confirmed COVID-19 cases occurred among
Marin County, California, elementary school students and their contacts following exposure to
an unvaccinated infected teacher. There was a 50% infection rate in an elementary classroom
where all were masked except for the infected teacher who removed her mask for only a short
period of time each day.*! This study demonstrates that the mask is most valuable in preventing
39 American Academy of Pediatrics Updates Recommendations for Opening Schools in Fall 2021, Am. Acad. Pediatrics (July 19,
2021), https://www.aap.org/en/news-room/news-teleases/aap/2021 /american-academy-of-pediatrics-updates-
recommendations-for-opening-schools-in-fall-2021 /.
3! Tracy Lam-Hine et al., Outbreak Associated with SARS-CoV -2 B.1.617.2 (Delta) Variant in an
Elementary School — Marin County, Cahfornia, May—June 2021, Morbidity & Mortality Weekly Rep. (Sept. 3, 2021),
10
PLAINTIFFS' APPENDIX 049
32.
33.
Case 4:21-cv-00264-RP-HCA Document 3-2 Filed 09/03/21 Page 11 of 16
spread when the infected individual is wearing a mask. It also emphasizes the importance of
universal masking in those who are medically able in order to prevent spread to vulnerable
students and staff. Additionally, this case study shows that rapid spread within a school and to
pediatric populations is possible, especially with the increased infectiousness of the delta
variant.
The American Medical Association, American Academy of Pediatrics, Infectious Disease
Society of America, American Academy of Family Physicians, and CDC all strongly endorse
return to in-person learning only in the setting of appropriate public health mitigation,
including universal masking.** The CDC specifically states that there are no known adverse
effects from mask use.*?
The Importance of Allowing Schools to Set Their Own Mask Policies
With significant inter-county differences in cases, test positivity, vaccinations, and health
resources, local authorities, including school districts, should be able to decide, based on the
dynamics of this pandemic, how to move on implementing mask mandates and other public
health policies to help prevent, contain, and mitigate this disease. While it is generally true that
the entire state of Iowa is facing a COVID surge, to illustrate the variation in impact over a
single snapshot in time, observe that in Polk County, there are currently 1,427 cases per
100,000, in Linn County, 699 per 100,000 cases, and in Black Hawk County, 353 per 100,000
cases.°4
32 See, e.g., American Academy of Pediatrics Updates Recommendations for Opening Schools in Fall 2021, Am. Acad. Pediatrics (July
19, 2021), https://www.aap.org/en/news-room/news-teleases/aap/2021 /american-academy-of-pediatrics-updates-
recommendations-for-opening-schools-in-fall-2021 /.
33 Use of Cloth Masks to Control the Spread of SARS-CoV -2, Ctrs. for Disease Control & Prevention (May 7, 2021),
https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs /masking-science-sats-cov2.html.
34 COVID-19 Integrated County View, Ctrs. for Disease Control & Prevention (Sept. 2, 2021 update),
https://covid.cde.gov/covid-data-tracker/#county-view (last visited Sept. 2, 2021).
11
PLAINTIFFS' APPENDIX 050
Case 4:21-cv-00264-RP-HCA Document 3-2 Filed 09/03/21 Page 12 of 16
34. Local districts and the boards which serve them need to be able to take action to protect their
students and staff, including implementation of mask requirements.
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 _3rd_ day of September 2021, at _, Iowa.
Megan L. Srinivas, MD MPH
12
PLAINTIFFS' APPENDIX 051
Case 4:21-cv-00264-RP-HCA Document 3-2 Filed 09/03/21 Page 13 of 16
MEGAN L. SRINIVAS, MD MPH EXHIBIT A
mls329@mail.harvard.edu; Ph. (515)269-9118
EDUCATION/TRAINING
UNIVERSITY OF NORTH CAROLINA SCHOOL OF MEDICINE - Infectious diseases physician/clinical instructor and NC TraCS
translational health policy research fellow. Completed clinical ID fellowship June 2019. Recipient of NIH T32 grant for STIs/HIV 2019-
2020 and NCATS Translational TL1 grant for 2020-2021. 2020 Atlantic Fellow for Health Equity. 2018 New Leaders Council Fellow.
Recipient of two 2020 Atlantic Philanthropies Solidary Grant. Asian Pacific American Institute for Congressional Studies (APAICS)
2018 National Leadership Academy. Recipient of Asian and Latino Coalition 2019 Leadership Award. 2020 Girl Scouts of Iowa Inspiring
Women of the Year Award. InStyle Magazine’s “Bad Ass Women” 2020 Award (featured in August 2020 issue). 2021 Emerge Iowa
DAWN Activist Award. 2021 Business Record 40 Under 40 in Iowa Award. 2021 National Minority Quality Forum 40 under 40 Health
Leaders in the United States. June 2017 — ongoing.
JOHNS HOPKINS SCHOOL OF MEDICINE — Johns Hopkins Bayview Medical Center Internal Medicine Residency Program.
American College of Physicians 2015 National Poster Winner. Tel Aviv University Advanced Epidemiology 2015 Summer Fellow.
President of Maryland American Medical Association (AMA) Resident/Fellow Section. National resident/fellow delegate to the AMA.
Paul Lietman Global Health Fellowship 2016 recipient. Caucus Fellow for Hillary Clinton 2016 campaign. National Delegate to 2016
Democratic National Convention. June 2014 — June 2017.
HARVARD UNIVERSITY SCHOOL OF PUBLIC HEALTH - Class of 2014 MPH global health. Student government MPH rep.
Student rep to Committee on Admissions and Degrees. David Rockefeller Center for Latin American Studies research grant winner.
UNIVERSITY OF IOWA COLLEGE OF MEDICINE - Class of 2014 MD. Teaching Distinction track. 2010 Minority Health and
Disparities International Research Training Fellowship winner. Barry Goldman Fellowship recipient.
HARVARD UNIVERSITY — Class of 2009 AB cum laude Human Evolutionary Bio. 3 minors: Global Health Policy, Spanish, Latin
American Studies. Thomas T. Hoopes Prize for Excellence in Undergraduate Work (top undergraduate student award at Harvard), David
Rockefeller Center for Latin American Studies Grant, David Roux Fund award, Goelet Fund award, Alex G. Booth award, Harvard Intl
Innovation Grant, Americorps Student Leader in Service scholarship, Justine Magazine Women’s 2006 Role Model award.
FORT DODGE SENIOR HIGH — 2005 Valedictorian. USA Today 1* All-Academic Team, Coca-Cola National Scholar, National
Toyota Community Scholar, National Merit Scholar, World Food Prize Foundation John Chrystal International Intern Award, Sports
Illustrated Magazine’s All-American Teen Award, President Hoover Uncommon Student Award, National Junior Science and Humanities
Symposium Winner, Intel International Science and Engineering Fair Prize Winner, 4-year Varsity Letter-Winner and Captain of tennis
team, 3-year National Congressional Debate Finalist and Captain of Speech and Debate team.
BOARD CERTIFICATION/MEDICAL LICENSURE
AMERICAN BOARD OF INTERNAL MEDICINE INFECTIOUS DISEASE BOARD CERTIFICATION - December 2019
AMERICAN BOARD OF INTERNAL MEDICINE BOARD CERTIFICATION - October 2017
NATIONAL BOARD OF MEDICAL EXAMINERS - May 2016
State Licensures: Iowa, North Carolina
WORK AND RESEARCH EXPERIENCE
AMERICAN MEDICAL ASSOCIATION (AMA)/CENTER FOR DISEASE CONTROL AND PREVENTION (CDC) Remote
Project First Line Podcast Host. Podcast focused on the intersection of infection prevention and control and health equity titled, “Stories of
Care with Dr. Srinivas.” Launching in fall 2021. June 2021 — ongoing.
COVID HEALTH ANIMATION PROJECT (CHAP) Virtual
Co-founder and health expert for collaborative effort that produces culturally-informed health messaging on COVID to help address racialized
disparities. Designed and created videos to improve COVID Vaccine clinical trial recruitment for Novavax trials at UNC. Funded by two
separate 2020 Atlantic Philanthropies Solidarity Grants. (https://www.cfrontiers.co/chap). March 2020 — ongoing.
UNIVERSITY OF NORTH CAROLINA INSTITUTE OF GLOBAL HEALTH AND INFECTIOUS DISEASE Chapel Hill, NC, USA
Infectious diseases physician/clinical instructor. NC prison system HIV & general infectious disease telehealth provider. Inpatient infectious
disease physician. Translational health policy researcher. July 2019 — ongoing
WORLD HEALTH ORGANIZATION SEXUAL & REPRODUCTIVE HEALTH RESEARCH Virtual & Nairobi, Kenya
Co-organizer/researcher. Co-led a WHO project using social innovation/crowdsourcing to create a harmonized global instrument for sexual
health research in HICs and LMICs. Aug 2019 — ongoing.
Srinivas . Page |
PLAINTIFFS' APPENDIX 052
Case 4:21-cv-00264-RP-HCA Document 3-2 Filed 09/03/21 Page 14 of 16
PROJECT ECHO —- IOWA Des Moines, IA, USA
Infectious Disease Physician Expert. Project ECHO uses telehealth to extend clinical reach to underserved & rural communities. Working to
increase diagnosis & linkage to care for Hepatitis C in rural areas where specialist care is not available. March 2019-ongoing.
MEDICAID/TITLE X STI RESEARCH Chapel Hill, NC, USA
Principal Investigator. Investigating reproductive health restrictions in Medicaid and Title X funding and their impact on creation of health care
deserts and STI rates. Received 2019-2021 NIH T32 grant and 2020-2021 NIH TL1 grant to fund research. December 2018 — ongoing.
FORT DODGE COMMUNITY HEALTH CENTER Fort Dodge, IA, USA
Infectious Disease and Internal Medicine Physician. Employed by rural federally-qualified health center as both the only infectious diseases
and internal medicine physician. January 2018-July 2020.
INDIAN MINISTRY OF HEALTH HIV/AIDS RESEARCH Bangalore, India
Researcher and PI. Funded by Barry Goldman Fellowship. Mapped HIV incidence in the state of Karnataka over a 6-year period. January
2014 — June 2014.
BRAZILIAN MINISTRY OF HEALTH HIV/AIDS RESEARCH Fortaleza, Brazil
Research Collaborator. Collaboration between Harvard research team and Brazilian government officials. Funded by Harvard’s David
Rockefeller Center for Latin American Studies grant. Worked with govt officials and NGOs to assess level of stigma and discrimination against
HIV/AIDS in healthcare workers and its effects on HIV testing. Jan 2013 — May 2013.
HONDURAS PARASITOLOGY RESEARCH Tegucigalpa, Honduras and Iowa City, IA, USA
Researcher. Member of National Dengue Taskforce during summer 2010 outbreak. Analyzed clinical presentation of leishmaniasis in relation
to species. Health educator training on dengue/malaria prevention, diagnosis, treatment. May — Aug 2010.
MALARIA POLICY RESEARCH Amazon Basin, Peru and Cambridge, MA, USA
Principal Investigator. Harvard’s 2009 Thomas Temple Hoopes Prize winner. Analyzed factors contributing to the evolution of drug resistance
in malaria parasites in Peru. Crafted health policy recommendations adopted by Peruvian govt. May 2007 — May 2009.
INDIAN INSTITUTE OF SCIENCE Bangalore, India
Research Fellow. Mathematical modeling to generate estimate of effective HIV population in an individual. June - Aug 2007
WEIZMANN INSTITUTE OF SCIENCE Rehovot, Israel
Researcher. Investigated conformational changes in glycoproteins-41 and -120 & their role in HIV virulence. June - July 2005.
NATIONAL ANIMAL DISEASE CENTER, US DEPT. OF AGRICULTURE Ames, IA, USA
Research Fellow. Developed novel diagnostic approach to detect the transmissible spongiform encephalopathic prion (causal agent of Mad Cow
Disease and its counterparts in other species) content in paraffin-embedded tissues. June 2004-June 2005.
INTERNATIONAL CENTER OF INSECT PHYSIOLOGY AND ECOLOGY Mbita, Kenya
Research Intern. World Food Prize Foundation intern; John Chrystal Award winner for outstanding work on hunger issues. Analyzed the role
of education on house-hold food security in rural Africa. June-August 2003.
LEADERSHIP AND PUBLIC SERVICE
IOWA’S BIDEN COVID RESPONSE COUNCIL August-November 2020
Chair. Worked with President Biden’s Iowa campaign team to chair this group on their COVID response. Traveled Iowa representing the group
and discussing the issues surrounding COVID and the policies needed to address the pandemic.
COVID PUBLIC HEALTH EDUCATION March 2020-ongoing
Educating the public on safety measures & latest research during the pandemic. Using social media (Twitter, Instagram, and Facebook) and
traditional media (television, radio, and newspaper). Invited speaker for local, national, and international panels and media.
ATLANTIC FELLOW FOR HEALTH EQUITY January 2020-ongoing
Selected as part of 2020 cohort for the Atlantic Institute’s health equity fellowship based at George Washington University in the US. Program
selects 20 fellows internationally each year to learn about leadership in the health equity sphere and collaborate on projects addressing disparities.
INFECTIOUS DISEASE SOCIETY OF AMERICA’s (IDSA) PUBLIC HEALTH ADVISORY BOARD October 2019-ongoing
IDSA represents all infectious disease providers in the nation. Selected to sit on the IDSA’s public health board, which makes public health
policy decisions for the organization and advocates directly with policymakers.
IOWA SUPREME COURT’S ACCESS TO JUSTICE COMMISSION September 2019-ongoing
Appointed to the commission by the Iowa Supreme Court. Addressing the social determinants of justice and improving access to the legal system
for vulnerable populations. Serving on the Rural Access Committee and on the Executive Board.
Srinivas —Page 2
PLAINTIFFS' APPENDIX 053
Case 4:21-cv-00264-RP-HCA Document 3-2 Filed 09/03/21 Page 15 of 16
AMERICAN MEDICAL ASSOCIATION September 2009 — ongoing
REFS Councilor to AMA Council on Medical Service & National Delegate to AMA House of Delegates
Elected by residents/fellow membership as a national delegate, helping craft AMA policies on US healthcare. Elected as the resident/fellow
member on the 12-person national Council on Medical Service, which focuses on the social & economic policies impacting medicine.
AMERICAN COLLEGE OF PHYSICIANS December 2014 — ongoing
Former resident physician rep on Maryland Health Policy Committee and current physician member.
NATIONAL ALLIANCE ON MENTAL ILLNESS (NAMI IOWA BOARD OF DIRECTORS February 2019-ongoing
Board member of Iowa branch of NAMI, a non-profit that centers on mental illness. We work to fight stigma about mental health, educate the
public on illness, and advocate for resources/access to treatment for patients and families.
ASIAN AND LATINO COALITION BOARD OF DIRECTORS January 2019- January 2020
Board member of this lowa organization focused on advocating for diversity and inclusion in the state.
2018 DEMOCRATIC NOMINEE FOR IOWA STATE HOUSE OF REPRESENTATIVES — DISTRICT 9 January-November 2018
Received multiple state and national endorsements. One of the highest non-incumbent fundraisers in the state. Won democratic primary June 5,
2018. Lost general election by 384 votes.
2018 NEW LEADERS COUNCIL (NLC) FELLOWSHIP January -May 2018
Selected as a fellow for the NLC, which focuses on creating a pipeline of progressive leaders for the future in both the political arena and in local
communities. Undergoing trainings to develop these skills and connect with local, state, and national policy leaders.
2016 WORLD FOOD PRIZE SYMPOSIUM October 14, 2016
Featured speaker at the 2016 Laureate Ceremony alongside former President of Malawi Joyce Banda, President Ameen Gurib-Fakim of
Mauritius, US Secretary of Agriculture Thomas Vilsack, and lowa Governor Terry Bransted.
2016 DEMOCRATIC NATIONAL CONVENTION February — July 2016
Elected by the constituents of lowa’s 4 Congressional District as National Delegate to the 2016 DNC in Philadelphia, PA in July 2016.
2016 IOWA CAUCUS FELLOW FOR SECRETARY HILLARY CLINTON January — February 2016
Grassroots organizer in lowa. Organized events w/ Sec Clinton, President Clinton, Rep Giffords, Cecile Richards, & other celebrity supporters.
HARVARD 5 REUNION, CLASS OF 2009 August 2013-June 2014
Co-Chair Harvard University, Boston, MA, USA
Selected by committee of peers to co-organize & host 5" reunion. Highest 5" year reunion attendance & fundraising in Harvard’s history.
HARVARD SCHOOL OF PUBLIC HEALTH STUDENT GOVERNMENT September 2012 — June 2013
MPH Co-Representative, Student Representative to the Admissions Committee Harvard University, Boston, MA, USA
Elected by peers. Worked on curriculum & admissions criteria reform, student advocacy issues. Member of admissions deliberations.
UNIVERSITY OF IOWA COLLEGE OF MEDICINE STUDENT GOVERNMENT May 2010-May 2012
Executive Council for Grad/Professional Students; Activities Committee Chair; Diversity Committee Iowa City, IA, USA
Elected by peers. Helped to address diversity and cultural competency issues via hosting events and helping with curriculum changes.
AMERICORPS STUDENT LEADERS IN SERVICE October 2007-June 2008
Student Leader Harvard University, Cambridge, MA, USA
Underwent special trainings with select group of other Harvard campus leaders in public service. Public service scholarship recipient.
PEER HEALTH EXCHANGE Boston, MA, USA
Co-Coordinator and Co-Founder on the Harvard Campus; Health Educator March 2006-June 2009
Co-founded organization’s branch at Harvard and Boston. Trained 50 college students to teach comprehensive health curriculum in
socioeconomically disadvantaged high schools in Boston. Reached >600 students annually between 2006-2009.
HARVARD MODEL CONGRESS September 2005-June 2009
Executive Board Member Boston, MA and San Francisco, CA, USA; Athens, Greece; Bangkok, Thailand
Organized and presided over committees at four annual conferences for high school students from around the world. Taught students about
domestic and international political and judicial processes via government simulations and direct mentoring in high schools.
HARVARD UNDERGRADUATE COUNCIL September 2005 — September 2006
Student Representative Harvard University, Cambridge, MA, USA
Elected by peers to the Harvard student government. Worked jointly with Dean’s office for curricular reform and student advocacy.
Srinivas —Page 3
PLAINTIFFS' APPENDIX 054
Case 4:21-cv-00264-RP-HCA Document 3-2 Filed 09/03/21 Page 16 of 16
IOWA STATE BOARD OF EDUCATION May 2003-May 2005
Board Member Des Moines, IA, USA
Selected and appointed by former Governor Tom Vilsack as first student member on the board. Re-appointed for second term. Responsible for
reflecting student opinion and making decisions regarding the education laws and policies throughout the state.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
SELECTED PUBLICATIONS/POLICY PAPERS (*denotes first authors)
*Srinivas ML, Shim H, Jones DL, et al (2021). “The importance of data accuracy and transparency for policy-making during a public
health crisis: a case study in the state of Iowa.” Accepted to IDWeek, October 2021, with publication in OFID.
*Srinivas ML, Yang EJ, Lin FC, Tang W, Tucker JD (2021). “Impact of Defunding Family Planning Health Centers on Gonorrhea and
Chlamydia Cases in Iowa: A Longitudinal Spatiotemporal Analysis of 2000 to 2018.” Oral Presentation at IUSTI’s STI & HIV World
Congress 2021, Virtual and Berlin, Germany, Jul 2021.
Gonsalves L, Hunter EC, Tucker JD, Srinivas ML, Giatu E, Mercer CH, Bajos N, Collins D (2021). “Cognitive Testing of a Survey
Instrument to Assess Sexual Practices, Behaviours,, and Health Outcomes: a Multi-country Study Protocol.” Reproductive Health. In
press.
*Grialva R, *Makhlouf MD, *Srinivas, ML, *Lopez G. “An equitable distribution of COVID-19 vaccine must include noncitizens.”
The Hill, 26 Jan 2021. https://thehill.com/blogs/congress-blog/healthcare/535901-an-equitable-distribution-of-covid-19-vaccine-must-
include
*Srinivas ML, *Ritchwood TD et al. (2021). “Social innovation in sexual health: a scoping review to end the HIV epidemic.” Sexual
Health, 2021 Mar; 18(1):5-12. doi: 10.1071/SH20030
*Kpokiri EE, *Wu D, *Srinivas ML, et al. (2021). “Development of an international sexual and reproductive health survey instrument:
results from a pilot WHO/HRP consultative Delphi process.” Sexually Transmitted Infections. In press.
*Srinivas ML, Yang EJ, et al. (2020) “Impact of defunding family planning health centers on sexually transmitted infection rates.”
Presented at [DWeek, Oct. 2020, Philadelphia, PA, USA.
*Srinivas, Megan L. “We Don't Have the Data We Need to Reopen Iowa.” Des Moines Register, 30 Apr. 2020,
reopen-iowa/3048415001/.
*Srinivas, Megan L. “Rural America Is Not Ready for COVID-19.” Des Moines Register, 2020,
www.desmoinesregister.com/story/opinion/columnists/2020/04/07/rural-america-not-ready-covid-19/2952724001/.
*Srinivas, ML et al.. (2020) “Social innovation in diagnostics: three case studies.” Infectious Diseases of Poverty. 9(1):20. dot:
10.1186/s40249-020-0633-6.
*Lachiewicz AM and Srinivas, ML. (2019) “Varicella-zoster virus post-exposure management and prophylaxis: A review.” Preventive
Medicine Reports. doi: 10.1016/}.pmedr.2019.101016.
*DeFelice, DS, Srinivas, ML, Wobker, SE, and Parr, JB. (2018) “Going bone deep: osseous Rosai-Dorfman Disease in an adult with
recurrent, culture-negative osteomyelitis.” Case Reports in Infectious Diseases, vol 2018. doi: 10.1155/2018/6151738
“Gun Violence as a Public Health Crisis.” (2016) — co-wrote and co-lead the effort to pass the resolution establishing the AMA policy
on gun violence in June 2016.
*Srinivas, Megan L. (2015): “Mycophenolate-Induced Disseminated TB in a PPD-Negative Patient.” American College of Physicians
2015 National Meeting Poster Competition, Boston, MA, USA. — 1* place winning poster in National Competition.
*Srinivas, Megan L. (2009): “Evolution and Malaria: A Battle for Survival” — Thomas T. Hoopes award-winning thesis on evolution
of drug-resistance in malaria. Bound and available in the Harvard University library system.
*Kunkle, RA.,Nicholson, EM, Lebepe-Mazur, S, Orcutt, DL, Srinivas, ML, et al., (2008): “Western-blot Detection of PrP** in
Archived Paraffin-Embedded Brainstem from Scrapie-affected Sheep.” Journal of Veterinary Diagnostics. 20(4): pp. 522-526.
*Srinivas, Megan L., (2007): “Development and Standardization of a Novel Approach to Detect the Transmissible Spongiform
Encephalopathic Prion Content in Paraffin-Embedded Tissues,” Proceedings of the 25" National Army Science Conference.
*Bussey, M., *Klapper, J., and *Srinivas, M., (2005): “Isolation, Purification, and Identification of the Structure of the TrpST42
Peptide Chain of gp41 in HIV-1,” Sci Reports, 37" Intl Summer Sci Inst, Weizmann Inst Science, Rehovot, Israel. pp B11:1-6.
*Srinivas M.L. (2003): “Analysis of the Influence of Education on Household Food Security in Rural Africa” — John Chrystal Award-
winning thesis on research conducted while at the International Center of Insect Physiology and Ecology, Kenya.
Srinivas —Page 4
PLAINTIFFS' APPENDIX 055
Exhibit F
PLAINTIFFS' APPENDIX 056
Case 4:21-cv-00264-RP-SBJ Document 28-1 Filed 09/10/21 Page1of1
EXHIBIT A
HOLLAND, MICHAEL, RAIBER & SITTIG PLC
Attorneys at Law
123 North Linn Street, Suite 300
Iowa City, lowa 52245
319-354-0331
www.icialawyers.com
C. Joseph Holland Crystal Raiber
jholland@icialaw.com craiber@icialaw.com
Robert Michael Erek Sittig
rmichael@icialaw.com esittig@icialaw.com
September 10, 2021
RE: The ARC of Iowa et al. vs. Kim Reynolds, in her official capacity as
Governor of Iowa et al.
United State District Court
Southern District of Iowa Case No. 4:21-CV-00264
Our Firm is counsel to the lowa City Community School District by
appointment and employment by the Board of Directors pursuant to Section 279.37
of the Code of Iowa (2021). On behalf of the lowa City Community School District
Iam able to represent to the Court the following:
The Iowa City Community School District has no objection or
resistance to the Court granting a Temporary Restraining Order and
joining enforcement of Section 280.31 of the Code of Iowa (2021).
If the Court does enter that Temporary Restraining Order the Board of
Directors of the lowa City Community School District is prepared to
meet as soon as possible to consider a mask requirement in the District
in alignment with the provisions of a Temporary Restraining Order.
I have been authorized by the Iowa City Community School District, acting
through its Superintendent, to provide this statement for the benefit of the Court.
Respectfully submitted,
C. Joseph Holland
CJH:ses
PLAINTIFFS' APPENDIX 057
Exhibit G
PLAINTIFFS' APPENDIX 058
Des Moines Register
lowa COVID hospitalizations highest
since January, 25% increase since last
week to nearly 500
Nick Coltrain
Des Moines Register
Published 1:05 p.m. CT Aug. 26, 2021 | Updated 4:52 p.m. CT Aug. 26, 2021
The number of people hospitalized with COVID-19 in Iowa rose 25% since last week, to
nearly 500 people, according to Iowa Department of Public Health data released late
Wednesday.
State data shows 498 people were hospitalized with COVID-19 on Aug. 25. Of them, 133
people were in the intensive care unit. It's a steep increase from a summer lull that saw fewer
than 50 people hospitalized with COVID-19 two months ago.
It's the most COVID-19 patients in Iowa's hospitals since January, when the state was on
a months-long decline after a November surge that threatened to overwhelm health care
facilities. The first time Iowa neared 500 people simultaneously hospitalized with COVID-
19 was Oct. 19 — about a month before the November peak of 1,500 COVID-19 patients.
The current surge shows no signs of waning. State data shows an average of more than 1,000
new COVID-19 cases daily over the last week, another increase of 25% over the 814 average
daily new cases the week before.
More: CDC recommends masks in all 99 counties as COVID-19, delta variant surge across
Iowa
More than half of the new cases, 56%, are people younger than 40, and 17% are younger than
17. Those age groups also have the lowest vaccination rates.
The update on COVID-19 in the state comes days after the end of the Iowa State Fair, and its
1 million attendees over 11 days, and at the start of school throughout the state.
PLAINTIFFS' APPENDIX 059
Dr. Ravi Vemuri, an infectious disease specialist at MercyOne Des Moines Medical Center,
noted just under half of Iowans are fully vaccinated. Scientific models show each person
infected with the delta variant can infect up to six or seven others — more than double the
transmissibility of the world-changing original strain of coronavirus.
“The next 14 days are going to be telling just how much transmission happened (at the fair)
as people perhaps come down with infections," Vemuri said. "And then another seven to 10
days after that, we'll see how many of them end up in the hospital. So for the next 21 days,
were kind of holding our breath and hoping for the best, and hopefully we won’t surge
beyond what we're already surging now.”
‘A surge of the unvaccinated’
Statewide, 79% of hospital patients with a primary COVID-19 diagnosis are not vaccinated
against the disease, and it rises to 86% among ICU patients, according to the Iowa
Department of Public Health.
That alone is proof the vaccines work, Vemuri said. He called it a "surge of the
unvaccinated."
“Had we had a higher percentage of the population vaccinated than we had, we may have
avoided this delta surge," Vemuri said. "Or even if we had one, it would be amongst fully
vaccinated individuals and we wouldn’t have all the hospitalizations and all the excess deaths
that we’re seeing now.”
Nearly all of the so-called breakthrough cases of COVID-19 that required hospitalization at
MercyOne's Des Moines-area facilities involved people with weak immune systems, Vemuri
said. Breakthrough cases are when a person becomes sick despite being fully vaccinated.
Many of the breakthrough cases involve older people, Vemuri and UnityPoint Health Nurse
Epidemiologist Carrie O'Brien said. That's because older people typically have weaker
immune systems that come with age, and don't generally take to vaccines as well as younger
people.
More: Des Moines' sewage is carrying twice as much coronavirus as it did two weeks ago,
tests show
People 60 and older are also the most vaccinated age demographic in the state, meaning
there's a higher pool of people for breakthrough cases. Older Iowans were targeted for the
its efficacy appears to be waning. Those initial efforts are credited with subduing the winter
surge.
About half of all Iowans, 48.6%, are fully vaccinated, though it varies by age demographic.
The state's vaccination rates by age are:
30% of 12- to 15-year-olds
37% of 16- to 17-year-olds
39% of 18- to 19-year-olds
40% of 20- to 29-year-olds
49% of 30- to 39-year-olds
56% of 40- to 49-year-olds
62% of 50- to 59-year-olds
73% of 60- to 64-year-olds
82% of people 65 and older
The lower vaccinations rates among younger Iowans are skewing patient demographics
younger, O'Brien said, especially compared to early in the pandemic, when COVID-19 ripped
through Iowa's elderly population.
At UnityPoint, the average age of an unvaccinated patient is 52; the average age of a fully
vaccinated patient is 72. About 74.2% of UnityPoint's COVID-19 admissions over the past six
weeks have been unvaccinated, she said.
"When we really started off with COVID, the vast majority of the people seemed like they
were much more elderly that we were having as hospitalizations," O'Brien said. "Now, that’s
not the case. We’re seeing a much, much younger population that is hospitalized with
COVID. And again, it’s a lot of our unvaccinated population.”
COVID vaccinations slow again
The COVID-19 vaccines, which are free and available without an appointment at many Iowa
pharmacies, are effective at keeping people from catching the coronavirus and, if they do
catch it, keeping viral loads lower, effectively minimizing its ability to spread and keeping the
worst symptoms of COVID-19 at bay. In short, it gives a strong layer of protection against
COVID-19 to both the individual and the community.
Getting vaccinated is all the more important with in-person school starting, with children
12 aren't eligible to receive the vaccine.
Even though children don't generally endure severe cases of COVID-19 — there are no
children currently hospitalized with COVID-19, according to the state — they can still spread
the virus that causes it, O'Brien said.
More: Bublé, Taylor, Incubus to require proof of COVID vaccination, negative test for Des
Moines concerts
The number of COVID-19 vaccinations administered in Iowa also dropped off this week after
a brief uptick earlier in the month. About 18,500 Iowans received their first dose of vaccine
over the prior week, versus more than 22,000 the week before and 21,500 the week before
that.
In a news release, Iowa Department of Public Health interim Director Kelly Garcia urged
Iowans to get vaccinated, and noted that the Pfizer vaccine is now fully approved by the Food
and Drug Administration.
“We have many tools we need to keep ourselves and our loved ones safe and the single most
important tool we have is the vaccine, which is highly effective at preventing serious illness,
hospitalization and death," Garcia said in a statement. "For anyone who was waiting for the
assurance of full FDA authorization, I urge you to schedule your appointment today."
In the release, the department credited the vaccination campaign with keeping the state from
again seeing the same hospitalization rates as in November, when more than 1,500 people
with COVID-19 were hospitalized in Iowa at the same time.
Nick Coltrain is a politics and data reporter for the Register. Reach him
at ncoltrain@registermedia.com or at 515-284-8361.
PLAINTIFFS' APPENDIX 062
Exhibit H
PLAINTIFFS' APPENDIX 063
Des Moines Register
HEALTH
Children make up nearly a quarter of new
COVID-19 cases in lowa
Tim Webber
Des Moines Register
Published 3:42 p.m. CT Sept. 1, 2021 | Updated 8:56 a.m. CT Sept. 2, 2021
Nearly a quarter of all new COVID-19 cases in Iowa are children, state data released
Wednesday shows.
Of the 8,308 new cases reported by the Iowa Department of Public Health, 22% were
kids — a staggering rate considering historical trends. Typically, kids have made up just 12%
of new cases on average.
The sharp increase in pediatric cases comes as school resumes across the state.
Since the start of the school year, Des Moines Public Schools have reported 128 total COVID-
19 cases among staff and students, as of Wednesday. Students account for 82 of those cases.
The 8,308 new reported cases across the state average out to 1,187 per day during the past
week, the highest that number has been since mid-January.
After increasing through most of August, the rate of vaccine doses administered declined for
the second week in a row, even after the Pfizer vaccine won full FDA approval. The state
reported about 16,200 Iowans receiving the first dose of any vaccine in the past week, down
from about 18,500 in the week prior.
More:Amid COVID surge, Des Moines hospitals reimpose visitor restrictions
The state on Wednesday reported a total of 408,390 coronavirus cases in Iowa since the start
of the pandemic.
The state also reported 39 additional deaths from COVID-19 during the past week. There
have been 6,307 confirmed COVID-19 deaths in Iowa.
PLAINTIFFS' APPENDIX 064
A total of 1,551,098 Iowans, or 49% of Iowa's population, were fully vaccinated as of
Wednesday, having received either both doses of a two-dose sequence or one dose of a
single-dose vaccine. Another 119,775 Iowans, or 4%, were partially vaccinated with the first
dose of a two-dose sequence.
Read more on COVID-19 in Iowa:
Track the COVID-19 vaccine rollout in Iowa with these graphics
80% of Iowa's COVID patients are unvaccinated, new data shows
Top U.S. health leader urges Iowans to get COVID shots to protect everyone
The latest COVID-19 numbers in lowa
The latest data, as of 2 p.m. Wednesday, Sept. 1, compared to the previous Wednesday.
Confirmed cases: 408,390, an increase of 8,308
Deaths: 6,307, an increase of 39
Total tested: 1,912,356
Total recovered: 376,954
Statewide 14-day positivity rate: 8.6%
More: COVID-19 hospitalizations in Iowa reach levels last seen in January
How many lowans are hospitalized with COVID-19?
Hospitalizations: 524, up from 498 one week ago
Patients in ICU: 143, up from 133
Patients on ventilators: 66, up from 51
How many people in Polk and Dallas counties are vaccinated?
In Polk County, 291,237 people, or 59% of residents, have received at least one dose of the
vaccine. 266,594 (54%) are fully vaccinated, an increase of 3,338 (0.7 percentage points)
since last week.
In Dallas County, 54,919 people, or 59% of residents, have received at least one dose; 50,746
(54%) are fully vaccinated, an increase of 615 (0.7 percentage points).
PLAINTIFFS' APPENDIX 065
The five counties in Iowa with the highest percentage of their population fully vaccinated as
of Sept. 1 are Johnson (60%), Linn (56%), Boone (55%), Dubuque (54%) and Polk (54%)
counties.
For a county-by-county look at the vaccination rollout, see our COVID-19 vaccine tracker,
which is updated weekly.
More:Iowa paying $1.7 million to Utah company for new phase of Test Iowa
PLAINTIFFS' APPENDIX 066
Exhibit I
PLAINTIFFS' APPENDIX 067
Des Moines Register
Can lowa schools defy the state's COVID
mask ban like Florida and Texas schools
are?
lan Richardson
Des Moines Register
Published 3:00 p.m. CT Aug. 16, 2021 | Updated 3:40 p.m. CT Aug. 18, 2021
Iowa school districts and their administrators could face repercussions if they follow the lead
of the U.S. schools that are requiring students to wear facial coverings in violation of state
bans on mask mandates, according to the state's education department.
Iowa school districts haven't publicly shared plans to defy the new state law that prevents
schools, cities and counties from having mask requirements. But the law, which Iowa Gov.
Kim Reynolds signed after midnight on the final day of this year's legislative session, has
sparked an outcry among some parents, educators and medical experts as the delta variant
drives up Iowa's coronavirus case numbers and hospitalizations.
"Because the variant has shown an increase — a dramatic increase in several of our counties
across the state — it would be very timely for the governor to make a proclamation that
would allow school districts to make decisions for themselves," said Mike Beranek, president
of the Iowa State Education Association.
Iowa is among eight states that prohibit districts from putting in place universal masking
mandates inside school buildings, according to the Pew Charitable Trusts.
While the new law bars school administrators and board members from imposing mandates,
it does not prevent the governor from doing so.
> More: As COVID surges and families fret, Iowa schools take different tacks as new school
year starts
But Reynolds, a Republican who has been critical of the new CDC guidance on masking, has
so far signaled she likely won't give schools that option. In a statement to the Des Moines
PLAINTIFFS' APPENDIX 068
Register, she said she trusts Iowans to make decisions for themselves and their own families.
And Reynolds told KCRG-TV in an interview that she would need to see more data on the
effectiveness of school mask mandates before making changes.
"I think we just want to make sure that we're looking at all of the data, that we're taking
everything into account," she said. "Right now, we're not seeing that transfer into
hospitalizations with children. But we monitor the data every single day, and we'll continue
to monitor the data every day, and we'll respond accordingly."
Schools that break lowa law could face penalties from state
board
The new law banning local mask requirements, House File 847, does not outline specific
penalties for school districts that violate it. But school districts and their leaders could face
general consequences for violating state law.
Iowa Department of Education spokesperson Heather Doe said that school districts that
choose not to follow the ban could receive a citation for noncompliance. Schools that do not
correct those citations "in a timely manner" would be referred to the State Board of
Education, she said.
Doe did not answer follow-up questions about the possible penalties, but the lengthy
noncompliance enforcement process laid out in Iowa Code allows the state to assume more
oversight over a school district, and districts could ultimately risk losing accreditation.
The Iowa Board of Educational Examiners, which has the power to impose licensure
penalties on school leaders, could be a separate avenue of discipline. That process has
already played out once during the past year on a COVID-related matter after Des Moines
Public Schools resisted a state requirement to hold at least 50% of its classes in person at the
beginning of the fall semester. The district instead started the first two weeks of the
last school year online without a state waiver.
> More: From mask recommendations to online options, here's how Iowa schools are
preparing for school to start
The Iowa Board of Educational Examiners heard a case against Superintendent Tom Ahart
but decided not to take away his license, instead opting to issue a letter of reprimand. The
letter was a symbolic slap on the wrist that acknowledged Ahart's motives to keep children
Des Moines Public Schools’ decision last year also prompted some of Iowa's Republican
legislators to introduce multiple pieces of legislation earlier this year that would have
penalized the district.
One bill would have retroactively expanded the grounds for stripping superintendents of
their licenses to explicitly include offering primarily remote learning without a waiver. A
separate bill outlining additional funding for school districts would have excluded Des
Moines Public Schools due to its noncompliance with state law at the beginning of the year.
Neither bill became law.
House Minority Leader Jennifer Konfrst, D-Windsor Heights, told reporters Tuesday that
she believes Republicans sent a message that will deter schools from taking similar action
this year.
"I think that some school districts are going to be pretty reticent to do that again because (of)
what they've seen as retaliation by the majority party in the Legislature," she said.
Frustration mounts for some people in states banning
mandates
In Iowa and across the country, school years are starting as the delta variant of the
coronavirus continues to spread in Iowa, and as children under 12 remain unable to be
vaccinated. As of Wednesday afternoon, Centers for Disease Control and Prevention data
showed all but four of Iowa's 99 counties with either "substantial" or "high" community
transmission of the virus.
The CDC's website cites studies showing that multi-layer cloth masks are effective in blocking
exhaled respiratory droplets that can spread the virus, and that schools have seen success in
limiting transmission by using layered prevention strategies, including mask use.
Dozens gathered at the Iowa Capitol Wednesday morning to protest the ban and call on the
state's Republican leaders to allow school districts to require masks in order to follow new
CDC guidelines that recommend mask wearing in school settings, even among the
vaccinated.
President Joe Biden last week voiced frustration with governors that have blocked local mask
mandates, singling out Florida and Texas, whose governors have signed executive orders that
include a ban on mask requirements in schools.
PLAINTIFFS' APPENDIX 070
"I say to these governors, 'Please help," he said. "If you aren't going to help, at least get out of
the way of the people who are trying to do the right thing. Use your power to save lives.”
Some Florida school districts have decided to ignore Republican Gov. Ron DeSantis’
executive order by requiring masks. In Texas, some of the state's largest school districts are
also defying a similar order by Republican Gov. Greg Abbott.
In Arkansas, the state's Republican governor, Asa Hutchinson, has said he regrets signing a
law in April that bans mask mandates. A judge has temporarily blocked the law.
But Republican leaders in Iowa have stood by the state's law after the CDC updated its
guidance.
Senate Majority Leader Jack Whitver said late last month that Iowans "have all the tools they
need, including an effective vaccine, to manage their own health care related to COVID-19,"
and that "they are ready to move forward with their choices."
Reynolds told KCRG that cases appeared to spread over the winter regardless of whether
states had mask mandates or not.
"Pretty much the whole map of the United States was burning down red in November and
December," she said. "There was no variation between the states that had locked down, the
states that have remained open, the states that have implemented mask mandates and those
that hadn’t."
Ian Richardson covers the Iowa Statehouse for the Des Moines Register. Reach him at
irichardson@registermedia.com, at 515-284-8254, or on Twitter at @DMRIanR.
PLAINTIFFS' APPENDIX 071
Exhibit J
PLAINTIFFS' APPENDIX 072
Flag US = IA
StatusFull Full
»
Monday, August 30, 2021
DES MOINES - Gov. Reynolds released the following statement today in response to a new
letter we received from President Biden’s Administration:
“lowa was able to reopen schools safely and responsibly over a year ago. President Biden and
his team know this, yet they’ve decided to pick a political fight with a handful of governors to
distract from his own failures - Afghanistan, the border, inflation, and more.
“As l|’ve said all along, | believe and trust in lowans to make the best health decisions for
themselves and their families. lowa’s democratically elected legislature endorsed that view as
well when they passed a law to support a parent’s right to decide what’s best for their own
children. In lowa, we will continue to support individual liberty over government mandates.”
PLAINTIFFS' APPENDIX 073
Exhibit kK
PLAINTIFFS' APPENDIX 074
DECLARATION OF MICHELLE CROFT
COMES NOW, Michelle Croft and pursuant to 28 U.S.C. § 1746, declares under penalty
of perjury that the following is true and correct:
1. My name is Michelle Croft, and I am over 18 years old and have personal knowledge of
the facts as stated herein.
2. The attached email is a true and correct copy of the email that I received from the lowa
City School District regarding my child.
I swear under penalty of perjury under the laws of the United States that the foregoing is true
and correct to the best of my knowledge.
Dates this 15‘ day of July 2022, at Iowa City, Iowa.
Michelle Croft, Plaintiff
PLAINTIFFS' APPENDIX 075
From: lowa City Community Schools <noreply@iowacityschools.org>
Date: Fri, May 27, 2022 at 11:57 AM
Subject: COVID-19 Health & Safety Update
To: lowa City Community School District Recipients <recipients@iowacityschools.parentlink.net>
Dear Families and Staff,
Our District has continued to track COVID-19 rates in our schools and in our county while also working
closely with Johnson County Public Health and local health experts regarding appropriate COVID-19
safety protocols. Unfortunately, the Johnson County COVID-19 transmission level has again shifted
into the “high” category.
As a reminder, our District continues to follow our health and safety guidelines, which are adjusted
based on the county transmission level. Due to this shift into the “high” transmission category, we
encourage you to wear a mask indoors when appropriate, practice social distancing when possible, and
stay home when sick as these continue to be effective COVID-19 health and safety measures. On May
16, the U.S. Court of Appeals for the 8th Circuit ruled that school districts cannot universally require face
masks to be worn; however, we continue to strongly encourage their use when COVID-19 transmission
rates are high in our community. In addition, it is recommended to get vaccinated (and boosted) if you
are eligible.
We recognize that we are three days from the end of the school year. Many celebrations are taking
place today and next week throughout the District. We will allow students to gather in mixed classroom
cohorts for these celebrations. In addition, we are going to continue to allow visitors and volunteers into
buildings through the last day of school. We strongly encourage all students, staff, and visitors to wear a
mask while in a school building or while attending graduation ceremonies.
These health and safety precautions play a critical role in controlling the spread of COVID-19 within our
community and protecting those that are most vulnerable to the virus. We appreciate your support and
collaboration in keeping our community safe.
Sincerely,
Matt Degner
Superintendent
lowa City Community School District
Messages from the District are sent in English, Arabic, French, Spanish, and Swahili based on the
language preference for communication that is designated by parents in Infinite Campus. Messages may
be distributed through multiple channels, including e-mail, phone, text message, mobile app, district and
school websites, and social media. Many of these channels offer multiple language options for users.
Through collaboration with our Principals, Teachers, Student & Family Advocates, and Cultural Liaisons,
messages may also be distributed through additional channels such as WhatsApp and Remind.
PLAINTIFFS' APPENDIX 076
Exhibit L
PLAINTIFFS' APPENDIX 077
No. 21-3268
IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
THE ARC OF IOWA et al.,
Plaintiffs—Appellees,
VS.
KIM REYNOLDS, in her official capacity
as Governor of lowa; ANN LEBO, in her official capacity
as Director of the lowa Department of Education,
Defendants—Appellants,
ANKENY COMMUNITY SCHOOL DISTRICT et al.,
Defendants.
Appeal from the United States District Court
for the Southern District of lowa
APPELLANTS’ BRIEF
THOMAS J. MILLER SAMUEL P. LANGHOLZ
Attorney General of Iowa Assistant Solicitor General
1305 E. Walnut Street
JEFFREY 8S. THOMPSON Des Moines, lowa 50319
Solicitor General (515) 281-5164
(515) 281-4209 (fax)
sam.langholz@ag.lowa.gov
ATTORNEYS FOR APPELLANTS
PLAINTIFFS' APPENDIX 078
Appellate Case: 21-3268 Page: 1 Date Filed: 10/19/2021 Entry ID: 5088857
issue since the pandemic began. House Video, Consideration
of H.F. 847 (May 19, 2021, at 6:35:32, 7:11:50 PM), available
at https://perma.cc/BD9B-2FZ6. In response to questioning
from opponents about the possibility of new, more dangerous
variants needing mask mandates, see, e.g., id. at 6:15:35 PM,
he repeatedly explained that the Governor has the authority
to impose mandates if she decides they become necessary. See
id. at 6:18:50, 6:26:30; 7:09:50 PM. And there was even dis-
cussion about the exception permitting schools to impose
mask mandates when required by other law—with opponents
criticizing the inclusion of such a broad exception. See id. at
6:15:50.
Section 280.31 contains no enforcement provisions. But
a school that violates the statute—like any school law—could
eventually be subject to loss of accreditation or other action by
the State Board of Education if the violation is not remedied.
See Iowa Code § 256.11(10)—(12). Similarly, a school adminis-
trator that disregards the statute could be subject to profes-
sional licensure discipline by the Iowa Board of Educational
Examiners. See lowa Code § 272.2(4); Iowa Admin. Code r.
282-25.3(6)(m).
Plaintiffs are eleven parents of children in Iowa public
school districts and one nonprofit organization—The Arc of
PLAINTIFES' PPPENDIX 079
Appellate Case: 21-3268 Page:12 Date Filed: 10/19/2021 Entry ID: 5088857
SUMMARY OF THE ARGUMENT
The district court preliminarily enjoined enforcement of Iowa
Code section 280.31, which generally prohibits schools from man-
dating the wearing of masks on school property. The court agreed
with Plaintiffs that they were likely to succeed on their novel claims
that this statute violates title II of the ADA and section 504 of the
Rehabilitation Act. But the district court abused its discretion in
eranting this extraordinary remedy because its conclusion was
based on several errors of law.
First, the injunction is unnecessary. Section 280.31 permits
schools to impose to mandate the wearing of masks if it “1s required
by... any other provision of law.” The statute thus doesn’t prevent
schools from complying with the ADA and section 504. And Plain-
tiffs don’t suffer any injury from section 280.31 that is protected
those federal statutes.
Second, the injunction is insufficient. Even if failing to have a
universal mask mandate in schools violates federal law, enjoining
enforcement of section 280.31 doesn’t provide Plaintiffs such a man-
date. That remains an independent decision of the local schools.
Plaintiffs thus lack standing.
Third, the district court improperly overlooked Plaintiffs’ fail-
ure to exhaust their administrative remedies under the Individuals
Appellate Case: 21-3268 Page:18 Date Filed: 10/19/2021 Entry ID: 5088857
A. Plaintiffs are not harmed by section 280.31
because it permits schools to mandate facial
coverings when required by federal law.
Section 280.31 doesn’t prohibit any actions of a school where
“the facial covering ... 1s required by ... any other provision of
law.” Act of May 20, 2021 (H.F. 847), ch. 189, 2021 Iowa Act § 28 (to
be codified at lowa Code § 280.31). So even if Plaintiffs are correct
that federal law requires some masks in schools, section 280.31
doesn’t prohibit it. No injunction of the statute’s enforcement is re-
quired. A school already has it within its power to comply with any
requirement of federal law.
To be sure, as discussed in Part III, the State disputes that
the ADA or the Rehabilitation Act 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 fed-
eral law before the district court enjoined section 280.31.
Yet the district court enjoined Governor Reynolds and Direc-
tor Lebo “from enforcing lowa Code section 280.31 banning local
public school districts from utilizing their discretion to mandate
masks for students, staff, teachers, and members of the public.”
PLAINTIEFS'ARPENDIX 081
Appellate Case: 21-3268 Page:23 Date Filed: 10/19/2021 Entry ID: 5088857
If Plaintiffs are correct that universal mask mandates in
schools are required by federal disability law, then section 280.31
doesn’t stand in the way of their desired mandates. Their quarrel
would be with their schools. Now, a school may well disagree that
federal law requires a mask mandate. Or the school may fear that
it will be subject to enforcement action by the State and not want
to risk waiting until then to find out if the State is correct in its
interpretation of federal disability law. Plaintiffs might be able to
request some relief other than the granted injunction to seek reso-
lution of these disputes. But enjoining section 280.31 1s a mismatch.
An unnecessary injunction, relying primarily on evidence of
possible confusion over the text of a statute, is particularly prob-
lematic when it is a federal injunction against a state statute. See
Dixon, 950 F.3d at 1056 (vacating injunction for failure to properly
consider “whether a preliminary injunction served the public inter-
est 1n comity between the state and federal judiciaries’”). ““Few pub-
lic interests have a higher claim upon the discretion of a federal
chancellor than the avoidance of needless friction with state poll-
cies.” Id. (quoting R.R. Comm’n of Tex. V. Pullman Co., 312 U.S.
496, 500 (1941)); see also id. (“[F]ederal courts must be constantly
mindful of the special delicacy of the adjustment to be preserved
between federal equitable power and State administration of its
own law.” (quoting Rizzo v. Goode, 423 U.S. 362, 378 (1976))).
Appellate Case: 21-3268 Page:25 Date Filed: 10/19/2021 Entry ID: 5088857
of the Rehabilitation Act. Add. 20.5 The court reasoned that “section
280.31 seems to conflict with the ADA and section 504 of the Reha-
bilitation Act because it excludes disabled children from participat-
ing in and denies them the benefits of public schools’ programs, ser-
vices, and activities to which they are entitled.” Add. 20. But nei-
ther the ADA nor the Rehabilitation Act require universal mask
mandates in schools or requires schools to have the discretion to
implement such mandates.
A. Section 280.31’s prohibition on schools imposing
universal mask mandates is a neutral and
nondiscriminatory policy that does not violate
federal law.
Courts typically analyze disability discrimination claims un-
der 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 de-
nied the benefits of a program, activity, or services by reason of that
disability.” Jd. (citing 42 U.S.C. § 12132; 29 U.S.C. § 794(a)). And
5 Plaintiffs also brought a claim that the American Rescue Plan
Act of 2021 (“ARPA”), agency guidance, and a letter from the Sec-
retary of Education conflict with and supersede Iowa Code section
280.31. App. 42—44 4/4] 95-102. The district court didn’t rely on this
claim in issuing its preliminary injunction. Add. 15 n.7.
PLAINTIEES'A@PENDIX 083
Appellate Case: 21-3268 Page:39 Date Filed: 10/19/2021 Entry ID: 5088857
under both, when the denial occurs because of a neutral nondis-
criminatory 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 plaintiffs “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 unre-
lated to disabilities or misperceptions about them.” Jd. (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).
This Court has thus held that following a policy that all stu-
dents 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 dis-
tricts—not a duly enacted statute setting statewide education pol-
icy that is entitled to even greater respect.
Section 280.31 establishes a uniform nondiscriminatory pol-
icy that—unless required by other law or a specific instructional or
educational purpose—local schools cannot require students, em-
PLAINTIFFS’ ARRENDIX 084
Appellate Case: 21-3268 Page:40 Date Filed: 10/19/2021 Entry ID: 5088857
ployees, or visitors to wear face coverings. There’s been no sugges-
tion that the statute was adopted to single out individuals with dis-
abilities. And it imposes no restriction on individuals—whether dis-
abled or not—at all. To be clear, all students, employees, and visi-
tors remain free to wear face coverings or take any other health
precautions they (or their parents) choose. The statute is mainly an
allocation of decision-making authority between the State and local
government, disconnected from students with 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 lowa Code §§ 135.144(8), 29C.6.
The alleged denial of Plaintiffs’ desired universal mask man-
dates 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 lowa’s democratic process.®
6 This argument—like the alternative arguments in subsections
B and C— defeats all of Plaintiffs’ ADA and section 504 claims be-
cause they negate the required statutory element of being denied a
benefit because of a disability. See Davis, 138 F.3d at 756. These
PLAINTIEES' APPENDIX 085
Appellate Case: 21-3268 Page: 41 Date Filed: 10/19/2021 Entry ID: 5088857
B. A universal mask mandate in a school is not a
reasonable modification and other reasonable
modifcations exist.
In granting the preliminary injunction, the Court held that
schools are required to make “reasonable modifications” and that
“universal masking policies are a reasonable modification, which
public schools are required to provide.” Add. 16, 20. But this Court
has not decided “whether the failure to make reasonable modifica-
tions 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; cf. CVS Pharmacy, Inc.
v. Doe, No. 20-1374 (U.S. July 2, 2021) (granting certiorari on ques-
tion, which will be argued on December 7, 2021, whether a private
cause of action exists for disparate-impact disability discrimination
claim under section 504); Alexander v. Sandoval, 532 U.S. 275, 284-
86 (2001) (holding that similar Title VI does not create private
cause of action for disparate-impact discrimination claims). So
Plaintiffs can hardly be likely to succeed on a claim where the law
is unsettled.
same arguments were made in the district court. App. 318-24.
While the State didn’t dispute that Plaintiffs’ children are qualified
individuals with disabilities, the State thus disputed the rest of
Plaintiffs’ claims. Nothing in the State’s briefing limited its argu-
ment to only a claim based on denying a reasonable modification.
The district court erred in concluding otherwise. Add. 16 & n.8.
PLAINTIFES' APPENDIX 086
Appellate Case: 21-3268 Page:42 Date Filed: 10/19/2021 Entry ID: 5088857
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 alter-
nation in the nature of the State’s education program is not reason-
able. See Davis, 138 F.3d at 757 (holding that request to deviate
from medication policy wasn’t reasonable because 1t would “impose
undue financial and administrative burdens on the district by re-
quiring 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 972-738 (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 fun-
damental 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 funda-
mentally alter the nature of the educational program established
PLAINTIFFS’ APPENDIX 087
Appellate Case: 21-3268 Page:43 Date Filed: 10/19/2021 Entry ID: 5088857
by the State. Modifying the policy to give schools discretion would
void the Legislature’s policy decision to take the highly contentious
and emotional issue of masks in schools from the responsibility of
local schools so that local leadership could devote their time to other
important concerns. This fundamentally alters lowa’s education
program as set in section 280.31. And imposing a universal mask
mandate would impose the administrative and potential financial
and legal burdens of enforcing a mask mandate on all students, dis-
tracting teachers and school administrators from their educational
duties.
A universal mask mandate is also not a reasonable modifica-
tion because it infringes on the rights of third parties—other stu-
dents, employees, and visitors. In the employment context, this
Court has repeatedly recognized that ADA doesn’t require “accom-
modations 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 Re-
sources, Inc., 176 F.3d 1098, 1100—02 (8th Cir. 1999) (rejecting “ir-
ritant-free work environment” as a reasonable accommodation for
employee with severe sensitivity to strong smells); Mason v. Frank,
382 F.3d 315, 819 (8th Cir. 1994) (holding that an accommodation
isn’t reasonable if it “would violate the rights of other employees
PLAINTIFES' APPENDIX 088
Appellate Case: 21-3268 Page:44 Date Filed: 10/19/2021 Entry ID: 5088857
under a legitimate collective bargaining agreement’). Plaintiffs’ de-
sired 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 inter-
ests on both sides of the debate. Imposing a universal mask man-
date 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 wear-
ing masks.” App. 338 4 6; App. 337 §] 9-10. It can also harm disa-
bled students with anxiety. App. 336 4] 4-6. And those who strug-
gle with speech and pronunciation. App. 337 4 11. And those with
asthma. App. 337 §§ 7-8. And those with severe and painful sen-
sory processing issues. App. 340-41 4 4-6, 12 (describing how
wearing a mask feels like skin is “on fire or poked with sharp nee-
dles” creating “a ‘traffic jam’ 1n her brain and she essentially be-
comes ‘paralyzed’ in that moment). And those who are deaf. App.
357-62.
The Legislature thus could have reasonably been concerned
about balancing all these competing interests, includes the possible
negative educational and social consequences. See World Health
PLAINTIFFS’ AR RENDIX 089
Appellate Case: 21-3268 Page:45 Date Filed: 10/19/2021 Entry ID: 5088857
Organization, Advice on the Use of Masks for Children in the Com-
munity 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 feasibil-
ity and discomfort, as well as social and communication concerns’).
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 the discretion of local schools. And modifying
this decision to permit (or require) universal mandates is a funda-
mental alternation and undue burden of the State’s policy choices.
It’s not reasonable.
Plaintiffs could seek other modifications that would be rea-
sonable. 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
PLAINTIFFS’ #@PENDIX 090
Appellate Case: 21-3268 Page:46 Date Filed: 10/19/2021 Entry ID: 5088857
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 modifi-
cations, but the schools aren’t providing or following through on the
agreement.’ For example, one parent sought an accommodation in
advance of the school year that her son’s teacher wear a mask when
she was working one-on-one with him. App. 118 4 9. But after a
week of school, her son told her that his teacher wasn’t wearing a
mask when interacting with him one-on-one. App. 118. § 10; see
also App. 115 § 18 (requesting that teacher mask and permit stu-
dent to leave class early to avoid crowded halls); App. 95 § 10 (re-
questing small groups working with child to be voluntarily
masked); App. 110 § 10 (requesting voluntarily masking around
child, a smaller classroom, and social distancing). 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 the court’s preliminary injunction.
7 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).
PLAINTIEFS' APPENDIX 091
Appellate Case: 21-3268 Page:47 Date Filed: 10/19/2021 Entry ID: 5088857
C. Acontrary interpretation of federal disability law
would raise constitutional concerns.
“[Ajny 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, 1851 (1977) (Rehnquist, J., in chambers); see also
Rounds, 530 F.3d at 732-383.
But education and protection of the public health are 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. Servus., 141 8. Ct. 2485, 2489 (2021). Nothing in the text of
either the ADA or section 504 suggests, let alone clearly states, that
it authorizes these disability discrimination statutes authorize this
injunction’s intrusion into the State’s authority to set education and
public health policy. Plaintiffs’ novel interpretation that a State en-
gages in disability discrimination if it chooses to generally ban un1-
versal mask mandates should be rejected to avoid this constitu-
tional concern.
To the extent that Plaintiffs can cabin their interpretation of
the statutes to only require that schools have discretion to consider
mask mandates, the constitutional concerns are even greater.
Appellate Case: 21-3268 Page:48 Date Filed: 10/19/2021 Entry ID: 5088857
There is even less of a federal interest in merely dictating the allo-
cation of authority between the State and local governments about
masks. And under the Tenth Amendment, the federal government
cannot intrude on the State’s power to structure its internal divi-
sion of governmental power to school districts. See Hunter v. Pitts-
burgh, 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.”); see also U.S. Const. amend. X (“The powers
not delegated to the United States by the Constitution, nor prohib-
ited by it to the States, are reserved to the States respectively, or to
the people.”). Such a constitutional problem should also be avoided.
CONCLUSION
The district court abused its discretion 1n granting a prelimi-
nary injunction against enforcement of Iowa Code section 280.31.
Governor Reynolds and Director Lebo respectfully request that this
Court vacate the preliminary injunction in an expedited decision
and order the issuance of the mandate forthwith.
Respectfully submitted,
THOMAS J. MILLER
Attorney General of Iowa
JEFFREY S. THOMPSON
Solicitor General
PLAINTIFFS’ #@PENDIX 093
Appellate Case: 21-3268 Page:49 Date Filed: 10/19/2021 Entry ID: 5088857
/s/ Samuel P. Langholz
SAMUEL P. LANGHOLZ
Assistant Solicitor General
1305 E. Walnut Street
Des Moines, lowa 50319
(515) 281-5164
(515) 281-4209 (fax)
jeffrey.thompson@ag.iowa.gov
ATTORNEYS FOR
APPELLANTS
Appellate Case: 21-3268 Page:50 Date Filed: 10/19/2021 Entry ID: 5088857
CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitation of Fed. R.
App. P. 32(a)(7)(B) because, excluding the parts of the brief ex-
empted by Fed. R. App. P. 32(f), this document contains 10,390
words. It also complies with the typeface requirements of Fed. R.
App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P.
32(a)(6) because this brief has been prepared in a proportionally
spaced typeface using Microsoft Word in 14-point Century School-
book font. And as required by 8th Cir. R. 28A(h), the brief and ad-
dendum have been scanned for viruses and are virus-free.
/s/ Samuel P. Langholz
Assistant Solicitor General
CERTIFICATE OF SERVICE
The undersigned certifies that on the 18th day of October,
2021, this brief was electronically filed with the Clerk of Court us-
ing the CM/ECF system, which will serve all counsel of record.
/s/ Samuel P. Langholz
Assistant Solicitor General
PLAINTIEES'\PPENDIX 095
Appellate Case: 21-3268 Page: 51 Date Filed: 10/19/2021 Entry ID: 5088857
Exhibit M
PLAINTIFFS' APPENDIX 096
Case 4:21-cv-00264-RP-SBJ Document 42 Filed 09/21/21 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
STANDARD FOR PRELIMINARY INJUNCTION 0. ec eecnennnntneeneeeeeeees A
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. ...........ccccccccsescccceseccecueeeeceeeecceeeecceaeseceseeceeaeeeceaaeeeees 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..........cceccccccccssccceseceeesceeeceeeceueeees 9
A. Federal disability law doesn’t require schools to impose—or to
have the discretion to impose—universal mask mandate6g...............06 9
1. Section 280.31’s prohibition on school districts adopting
universal mask mandates is a neutral nondiscriminatory
POLICY. ...eecccecccceeccceseccesecceececeecceeeeccuuccceneceeeeceuuceeeueseaeeceseeeaneceueeees 9
2. A universal mask mandate in schools is not a reasonable
modification and other reasonable modifications exist.......... 11
PLAINTIFFS' APPENDIX 097
Case 4:21-cv-00264-RP-SBJ Document 42 Filed 09/21/21 Page 2 of 26
3. Plaintiffs failed to exhaust their administrative remedies
under the IDEA... ecccccccesseecceceeseeeeeseesseeseseeeeseeseeseeeees 15
B. ARPA doesn’t require schools to impose—or have the discretion to
impose—universal mask Mandates. .........ccccccssecccceseeceeeescceaeeceeeeceeaes 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 Lowa..........cccccccesccccessccccseeccceeeceeaescceaeseceseneceeeeeceesseeeesseeeceeeeseesaeeees 23
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. 189, 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, lowa 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
PLAINTIFFS' APPENDIX 098
Case 4:21-cv-00264-RP-SBJ Document 42 Filed 09/21/21 Page 3 of 26
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,
PLAINTIFFS' APPENDIX 099
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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.!
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.8d 940, 946 (7th Cir. 2006);
Nutrasweet Co. v. Vit-Mar Enters., 112 F.8d 689, 692—94 (8d Cir. 1997).
_4-
PLAINTIFFS' APPENDIX 100
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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; (8) 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.” Jd. 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
eranting 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.” Jd. at 733.
_5-
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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. 189, 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
PLAINTIFFS' APPENDIX 102
Case 4:21-cv-00264-RP-SBJ Document 42 Filed 09/21/21 Page 7 of 26
school. Mem. of Authorities in Support of Mtn. for PI & TRO, Doc. 17, at 18-14. 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 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
_7-
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Case 4:21-cv-00264-RP-SBJ Document 42 Filed 09/21/21 Page 8 of 26
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/MG38B-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 lowa (Sept.
16, 2021), https://perma.cc/PR5H-VWXE; Taj Simmons, Waukee School Board Votes
in Opposition of Mask Mandate Within the District, WHO 18 (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.
PLAINTIFFS' APPENDIX 104
Case 4:21-cv-00264-RP-SBJ Document 42 Filed 09/21/21 Page 9 of 26
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.8d 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.” /d. (citing
PLAINTIFFS' APPENDIX 105
Case 4:21-cv-00264-RP-SBJ Document 42 Filed 09/21/21 Page 10 of 26
42 U.S.C. § 12182; 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.” Jd. (cleaned up);
see also Timothy H. v. Cedar Rapids Cmty. Sch. Dist., 178 F.8d 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
-10-
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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 Plaintiffs desired universal mask mandates in their
children’s schools, and their further alleged denial of education, 1s 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 lowa’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
-1ll1-
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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, 929-80 (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.8d 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) 4// 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. 4 11. And those with asthma. Givens Dec.
4] 7-8. And those with severe and painful sensory processing issues. See Parker Dec.
(attached) 4] 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.
-14-
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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.? See Preston Dec., Doc. 3-11, § 18; Geest Dec.,
Doc. 3-12, 9] 9-12; Roise Dec., Doc. 3-5, § 10; Devereaux Dec., Doc. 3-10, 4 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., 187 8. 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).
PLAINTIFFS' APPENDIX 111
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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 8§ 256B.2(2), 256B.4, 256B.6; Iowa Admin. Code r. 281-
41.321—.828 (LEP 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 [DEA—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()); see also Fry, 187 8. 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, 13878. 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
eravamen—of the plaintiffs 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
999
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. 4159 (“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. 4 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. 4 1 (alleging schools cannot comply with section 280.31 and still provide “equal
access to their education”); id. 4 2 (alleging student risk harm to health or harm to
“their education and development’); 4/[/ 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
eranting relief under the IDEA. Exhaustion was required.
_17-
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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, 1387 8S. 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, [J 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, 185 Stat 4, § 2001(e)(1), G). 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)(1); “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
geuidance 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.? 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.
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.
- 20 -
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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. Jd. “By insisting that Congress speak with a clear
voice, we enable the States to exercise their choice knowingly, cognizant of the
21 -
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consequences of their participation.” Id.; see also South Dakota v. Dole, 483 U.S. 208,
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 Dept 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 uv.
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. 21A28, 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.®
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. 189, 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 8. 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/D9NB-
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.
“[Alny 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. 1845, 1851 (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.¢
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.
_ 25 -
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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:
L] U.S. Mail [] Email
L] Hand Delivery L] Overnight Courier
[] Federal Express [] Other
XX) CM/ECF
Signature: /s/ Samuel P. Langholz
- 2G -
PLAINTIFFS' APPENDIX 122
Exhibit N
PLAINTIFFS' APPENDIX 123
Case 4:21-cv-00264-RP-HCA Document 3-3 Filed 09/03/21 Page 1of4
DECLARATION OF JONATHAN CRAIG
COMES NOW, Johnathan Craig and pursuant to 28 U.S.C. § 1746, declares under
penalty of perjury that the following is true and correct:
1.
My name is Johnathan Craig, and I am over 18 years old. I have personal knowledge of
the facts as stated herein.
I am the father of E.C., who is five years old and is in kindergarten and has been
diagnosed with Down’s syndrome, chronic seizures, and chronic respiratory problems.
See Exhibit A (Letter from Doctor Lisa Menzies). These conditions put her at higher risk
for severe complications if she were to become infected with COVID-19. E.C. is ina
wheelchair and is nonverbal.
I am also the father of J.C., who is eleven years old and is in fifth grade and has been
diagnosed with sickle cell anemia and functional asplenia and has a compromised
immune system. See Exhibit B (Letter from Doctor Lisa Menzies). These conditions put
him at higher risk for severe complications if he were to become infected with COVID-
19.
I also have two other children who are not disabled and do not have health conditions that
put them at greater risk for severe complications should they contract COVID-19—A.C.,
who is eight years old and in third grade, and A.C., who is five years old and in
kindergarten.
Because all my children are under the age of twelve, they are not eligible to receive any
of the currently authorized COVID-19 vaccines.
PLAINTIFFS' APPENDIX 124
Case 4:21-cv-00264-RP-HCA Document 3-3 Filed 09/03/21 Page 2 of 4
6. Last year, my children attended school at the Urbandale School District. We have moved
to Waterloo in Black Hawk County, Iowa, and this year they would be attending the
Waterloo School District.
7. My children, E.C. and J.C., receive disability supports, services, and accommodations,
and J.C. has a 504 plan.
8, The medical provider for my children recommends having J.C. do remote learning due to
his medical complexities and a lack of mask or vaccine mandate in school. See Exhibit B
(Letter from Doctor Lisa Menzies). For E.C., my children’s medical provider
recommends having her do distance learning at this time, considering the “high risk of
severe complications from infection with SARS-CoV-2 infection” due to being “a
medically complex child” and the lack of a vaccine for her age group. See Exhibit A
(Letter from Doctor Lisa Menzies). For my children with no medical conditions, the
children’s doctor recommends that they do remote learning as well due to the siblings’
medical complexities, the lack of a mask mandate or vaccine mandate at school, and the
current level of the Delta variant of COVID-19 and the increased infectivity and severity
of disease seen in children related to the variant. See Exhibits C and D (Letters from
Doctor Lisa Menzies).
9. The Waterloo School District for the upcoming school year is offering a 100% remote
learning option. The remote learning option does not provide the necessary supports,
services, and accommodations for my disabled children, including direct instruction and
socialization with peers.
10, My child, J.C., utilized the 100% remote option last year. My child struggled to get the
academic help he needed and suffered in terms of his emotional and mental health, He
PLAINTIFFS' APPENDIX 125
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also fell behind in both reading and math. My child, E.C., attended neither in-person nor
100% online learning last year and was held back due to her health issues and the
challenges online learning presented. In-person instruction provides the best mode of
instruction for my children’s needs.
11. Last year, the Waterloo School District had a mask mandate until the mask mandate ban
went into effect. Once the ban went into effect, most teachers and students no longer
wore masks.
12. Since the start of school, most teachers and students are not wearing masks at school.
There is no social distancing in the classrooms or in the lunchroom.
13. As of August 30, 2021, the Waterloo School District’s COVID-19 dashboard shows 12
students and 6 teachers are positive for COVID-19 in all elementary schools. The
dashboard shows that 59 students and less than 6 teachers are quarantining due to
exposure to someone who tested positive for COVID-19 in all elementary schools.
14. For this school year, we have made the difficult decision to again keep our children at
home and do remote learning. I work both in-person and remotely while my wife is
staying home with the children to assist with online learning. Like last year, J.C. does not
have the socialization he needs with online learning and has difficulty focusing for long
periods of time. I fear he may fall further behind this year. Although E.C. has been
issued a school computer, she has been unable do to online learning due to the extent of
her disabilities.
15. My wife and I have been forced to choose between our children’s education and their
health,
PLAINTIFFS' APPENDIX 126
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16. I am seeking to have HF847 blocked so that my school will be able to require universal
masking as necessary to meet its obligations to my children.
I swear under penalty of perjury under the laws of the United States that the foregoing is
true and correct to the best of my knowledge.
Dates this 3: day of September 2021, at Waterloo, lowa.
VG
Jonatlfah Craig, Plaintiff
PLAINTIFFS' APPENDIX 127
Case 4:21-cv-00264-RP-HCA Document 3-4 Filed 09/03/21 Page 1 of 2
D ARATI F MELISSA
COMES NOW, Melissa Hadden and pursuant to 28 U.S.C. § 1746, declares under
penalty of perjury that the following is true and correct:
My name is Melissa Hadden, and I am over 18 years old. I have personal knowledge of
the facts as stated herein.
I am the mother of V.M.H., who is 3 years old and is in preschool and has been
diagnosed with heart disease, periventricular leukomalacia, autism, cerebral palsy,
cortical digital impairments, and optic nerve hypoplasia. My child is at risk of severe
illness should she contract COVID-19.
Because my child is under the age of 12, my child not eligible to receive any of the
currently authorized Covid-19 vaccines.
My child attends school at the Council Bluffs School District. We live in Pottawattamie
County, lowa.
The doctor for my child has recommended for medical reasons that it would be best for
her not to attend school in person; if services can be offered one-on-one or remotely, that
would be reasonable. See Exhibit A (Letter from Doctor Jamie Drake).
The Council Bluffs School District for the upcoming school year is offering a 100%
remote learning option; however, the online option is not available for preschool students.
My child, V.M.H., went to preschool i
Case 4:21-cv-00264-RP-HCA Document 3-4 Filed 09/03/21 Page 2 of 2
none of my child’s teachers wore masks and very few children in the school were
wearing masks.
9. At the parents’ night on August 19, 2021, and the back-to-school night on August 20", no
teachers, staff, or students were wearing masks.
10. Since the start of school, no teachers, staff members, or students are wearing masks at the
school. The students are not socially distanced in the classroom.
11. For this school year, I have made the difficult decision to send my child to in-person
school. The school district is not offering online learning for children in preschool. I
work in-person part-time. Homeschooling is not an option for our family.
12. I am diabetic, which makes me more susceptible to Covid-19 if my child were to become
infected at school and bring it home.
13. As a result of lowa’s law, my child is having to take unnecessary risks to her health in
order to get an education.
14. I am seeking to have HF847 blocked so that my school will be able to require universal
masking as necessary to meet its obligations to my child.
I swear under penalty of perjury under the laws of the United States that the foregoing is
true and correct to the best of my knowledge.
Dates this 2-day of September 2021, at Council Bluffs, lowa.
Case 4:21-cv-00264-RP-HCA Document 3-5 Filed 09/03/21 Page 1of3
DECLARATION OF CARISSA FROYUM ROISE
COMES NOW, Carissa Froyum Roise and pursuant to 28 U.S.C. § 1746, declares under
penalty of perjury that the following is true and correct:
1. My name is Carissa Froyum Roise, and I am over 18 years old and have personal
knowledge of the facts as stated herein.
2. Iam amember of the ARC of Iowa.
3. Iam the mother of H.J.F.R., who is 10 years old and in fifth grade and has congenital
central hypoventilation syndrome, which causes problems with breathing and requires
him to use a ventilator when sleeping and sometimes during the day. These conditions
put him at higher risk for severe complications if he were to become infected with
COVID-19.
4. also have two other children who are not disabled and do not have health conditions that
make the them at risk of severe illness from COVID-19—I.W.F.R. who is 12 years old
and in seventh grade, and L.C.F.R., who is 8 years old and in third grade.
_ 3. Because my children are under the age of 12, my children are not eligible to receive any
of the currently authorized COVID-19 vaccines.
6. My children attend school at the Denver School District. We live in Bremer County,
Iowa.
7. My child, H.J.F.R., receives disability supports, services, and accommodations and
requires a one-on-one nurse.
8. The Denver School District had a remote option last year. The Denver School District
for the upcoming school year is not offering a 100% remote learning option. Students
PLAINTIFFS' APPENDIX 130
10.
11.
Case 4:21-cv-00264-RP-HCA Document 3-5 Filed 09/03/21 Page 2 of 3
with extreme medical conditions need to contact the principal for next steps regarding a
medically fragile child’s educational plan for the upcoming school year.
My children went to school in person last year because the school had a mask mandate in
place. When the masked mandate ban went into effect, my children stopped attending
school for the last two weeks because it was too dangerous to go to school with
unmasked students, teachers, and staff considering H.J.F. R.’s medical conditions. We
didn’t want to put H.J.F.R. directly at risk by sending him to school, and we worried the
other two children, if they went to school, could bring home the virus. In-person
instruction provides the best mode of instruction for my child H.J.F.R.’s needs.
At a recent meeting, H.J.F.R.’s health plan was amended to include having small groups
of persons working with my child, H.J.F.R., be voluntarily masked; however, the district
cannot guarantee that all persons working with or coming into contact with my son be
masked. My child’s wearing a mask while masks are optional for staff, teachers, and
children at school is not enough to protect my medically fragile child. He needs all staff,
teachers, and children at the school to wear masks.
At back-to-school night on August 19, 2021, between 90 to 95% of persons were
unmasked, including teachers, staff, parents, and students. School started on August 23,
2021, and only 4 or 5 children out of 20 to 25 children, including H.J.F.R., were wearing
masks in H.J.F.R.’s classroom. Some of H.J.F.R.’s teachers are wearing masks, and
some were not. The children and teachers in H.J.F.R.’s class are not socially distancing.
For L.C.F.R.’s classroom, only about 2 out of 17 children were wearing masks. In
terms of lunch, the students are back to eating in the lunchroom unmasked and not
socially distanced.
PLAINTIFFS' APPENDIX 131
Case 4:21-cv-00264-RP-HCA Document 3-5 Filed 09/03/21 Page 3 of 3
12. I was notified after school had started that there are 9 positive cases of COVID-19 with
staff and students.
13. For this school year, we have made the difficult decision to send our children back to in-
person school. The district is no longer offering an online learning option this year. Both
my husband and I work full-time. Therefore, homeschooling is not an option for our
family.
14. Because of Iowa’s law, my child is having to take unnecessary risks to his health in order
to get an education.
15. Iam seeking to have HF847 blocked so that my school will be able to require universal
masking as necessary to meet its obligations to my child,
I swear under penalty of perjury under the laws of the United States that the foregoing is
true and correct to the best of my knowledge.
Dates this a" day of September 2021, at Denver, Iowa.
Carissa Froyum Roise/ Plaintiff
PLAINTIFFS' APPENDIX 132
DECLARATION OF ERIN VERCANDE
COMES NOW, Erin Vercande an ‘s FS
; | and pursuant to 28 U.S.C. § 1746, decl :
rf Oi ares under penalty of perjury
that the following ts true and correct:
|. My name is Erin Vercande, I am a resident of Decorah, lowa, and | am over 18 years old
| have personal knowledge of the facts as stated herein.
> Tam the mother of three children, S.V., C.V., and R.V. who attend school in the Decorah
— *
School District.
3 Tamamember of the Arc lowa.
4. S,V. is ten years old and should be enrolled in the fourth grade at Decorah Middle School.
6 R.V. is three years old and 1s enrolled in preschool at Little Farmers Pre-school.
7 Because my children are under the age twelve, they are not eligible to receive any of the
currently authorized COVID-19 vaccines.
g S.\. has a brain injury, cerebral palsy, and a history of strokes and epilepsy.
9 The CDC has identified strokes and cerebrovascular diseases as risk factors for severe
illness from COVID-19.
ated to his medical condition,
10. S.V. has a Health Plan that covers his many special needs rel
out the school day. (See Attached Exhibit A).
including transfers through
specialists have ‘nformed me that because of his underlying
11. S.V.’s treating doctors and
s if he contracts COVID-19. (See
medical conditions, he 1s at risk for severe complication
‘ndicated that he may also experience
Attached Exhibits B and C). His neurologist has also
e severe seizures and further brain damage ‘f he contracts COVID-1°.
to return to school safely, ¢
mor
Exhibit C). His doctors have stated that for S.V.
him should observe strict COVID-19 safety protocols and wear a mask indoors. (See
Attached Exhibit B and C),
1)? Recause of S.V.’s medical and cognitive issues, and the fact that he is nonverbal, he cannot
follow instructions easily, It is much more difficult for him to adhere to current mitigation
strategies, such as wearing a mask, handwashing independently, or social distancing, so it
is even more important that others wear a mask and follow CDC guidelines around him.
13. Last year we had our children enrolled in person because the school provided S.V. with the
necessary accommodations to remain safe. including that all staff were required to be
masked.
14.1 have had phone calls with the principal and superintendent to seek these same
accommodations for this school year, but my requests have been denied.
15. | am faced with an impossible choice between my child’s safety and education. Because
the school is not providing necessary modifications, I have had to make the extremely
difficult decision to pull S.V. out of school to avoid sending
environment, which would be a very
against the recommendations of his doctors and the CDC.
16. My husband and I are terrified of sending our children back to school, especially with all
of S.V.’s health complications. We have really struggled with the decision, but we do not
feel like we have any option.
| idance
17. I believe that if everyone was wearing a mask and the school was following the gu
and recommendations from the CDC, my children would be safe in school
, } iversal
Tam seeking to have HF847/ blocked so that my school will be able to require UNIV
masking as necessary to meet its obligations to my child.
PLAINTIFFS' APPENDIX 134
Case 4:21-cv-00264-RP-HCA Document 3-7 Filed 09/03/21 Page1of3
DECLARATION OF LISA HARDISTY SITHONNORATH
COMES NOW, Lisa Hardisty Sithonnorath and pursuant to 28 U.S.C. § 1746, declares under
penalty of perjury that the following is true and correct:
My name Lisa Hardisty Sithonnorath, | am a resident of Des Moines, lowa. and | am over
18 years old. | have personal knowledge of the facts as stated herein.
Lam the mother of two children who attend Jefferson Elementary School in the Des Moines
Public Schools.
J.S. is seven years old and is enrolled in the second grade.
A.S. is five years old and is enrolled in kindergarten.
Because my children are under the age of twelve, they are not eligible to receive any of the
currently authorized COVID-19 vaccines.
A.S. is diagnosed with Down syndrome, hypothyroidism and has a previous history of viral
induced asthma.
The CDC has identified these conditions as risk factors for severe illness ftom COVID-19.
A.S, has had an assistant who is assigned to help her with medical and cognitive issues
from her Down syndrome.
As a pediatric doctor myself, | am aware of the risks of complications from COVID-19 for
my child with Down syndrome.
_A.S.’s treating doctor has also informed me that my child is at risk for severe complications
if she contracts a COVID-19 infection. According to her doctors, to decrease her risk,
everyone around her should observe strict COVID-19 safety protocols and wear a mask
indoors. (See Attached Exhibit A).
PLAINTIFFS' APPENDIX 136
Case 4:21-cv-00264-RP-HCA Document 3-7 Filed 09/03/21 Page 2 of 3
LI.
14.
Because of A.S."s medical and cognitive issues, she will mimic behavior and cannot follow
instructions easily. It is much more difficult for her to adhere to current mitigation
strategies, such as wearing a mask. handwashing independently, or social distancing. so it
is even more important that others wear a mask and follow CDC guidelines around her.
. Last year A.S. was enrolled in the remote option and I witnessed serious negative
consequences to the point that I had to hire an assistant who would come home and work
with A.S. throughout the day for individualized instruction. This person is no longer
available to assist us with A.S.,’ remote learning, and it is difficult to find someone who
could help with all of A.S. needs.
. A.S. could not access education through virtual instruction because children with Down
syndrome tend to be visual and hands on rather than verbal learners and have difficulty
with focusing for long periods of time, and unfortunately, visual instruction is near
impossible to accommodate for a student with Down syndrome in a remote setting. A.S.
has regressed in several areas, even with significant parental involvement in both
curriculum development and dedicated learning time.
A.S. also experienced significant expressive communication regression since she did not
have everyday access to her peers at school.
This year Des Moines Public Schools is offering an online program through Edgenuity.
This online program is pre-recorded and self-taught, and does not provide the necessary
supports, services, and accommodations, including direct instruction for child with
disabilities.
. Because of A.S.’s individualized needs, this fall we believe it important to send our
children back to school in person.
PLAINTIFFS' APPENDIX 137
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17.1 am very anxious about sending my children to school for in person instruction and the
thought that they might contract COVID-19. especially with A.S.°s medical history.
18. My son, J.S. has also been anxious about getting COVID-19 at school and exposing others
in our household.
19. We also have a medically fragile family. | have asthma, which puts me at risk for severe
ilIness from COVID-19 if our children were to bring it home from their school. My husband
is a former smoker which also places him in the high-risk category.
20. | believe that if evervone was wearing a mask and the school was following the guidance
and recommendations from the CDC, my children would be safe in school.
21. My child is having to take greater risks — and unnecessary risks — to get her education
than other students. | think this unfair.
22.1 am seeking to have HF847 blocked so that my school will be able to require universal
masking as necessary to meet its obligations to my child.
| 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 os day of September 2021, at Des
3
PLAINTIFFS' APPENDIX 138
Case 4:21-cv-00264-RP-HCA Document 3-8 Filed 09/03/21 Page 1of3
DECLARATION OF REBEKAH STEWART
COMES NOW, Rebekah Stewart and pursuant to 28 U.S.C. § 1746, declares under
penalty of perjury that the following is true and correct:
I.
My name is Rebekah Stewart, and I am over 18 years old. I have personal knowledge of
the facts as stated herein.
I am a member of the ARC of Iowa.
E.M.S. is 10 years old and entering 4" grade and has Williams Syndrome, which is a
genetic condition that results in slow growth, heart problems, gastrointestinal issues, and
learning disabilities. If she needs anesthesia due to a medical issue, she would be at
increased danger of going into cardiac arrest.
Because my child has heart problems, she meets the CDC guidelines for children who are
at risk for severe complications if infected with COVID-19.
I also have two other children who are not disabled and do not have health conditions that
make the child at risk of serious illness from COVID-19—E.M.S., who is 7 years old and
in 1* grade, and L.J.S., who is 2 and a half years old.
Because my children are under the age of 12, my children are not eligible to receive any
of the currently authorized Covid-19 vaccines.
My children attend school at the Linn Mar School District. We live in Linn County,
lowa.
. The Linn-Mar School District for the upcoming school year is offering a 100% remote
learning option for K-12 students through a third-party vendor, called Edmentum. For K-
5 students, Edmentum uses pre-recorded videos as opposed to live teacher instruction and
requires a student to be able to self-pace and relies heavily on parental guidance. The
PLAINTIFFS' APPENDIX 139
10.
11.
12.
13.
Case 4:21-cv-00264-RP-HCA Document 3-8 Filed 09/03/21 Page 2 of 3
remote learning option does not provide the necessary supports, services, and
accommodations for my disabled child, including direct instruction and socialization with
peers.
E.M.S. used the 100% online learning option last year; that program had live instruction.
She was unable to keep focused, struggled with lack of socialization with peers, and had
an increase in behavior problems. My child remained at baseline and did not make gains
in her learning. In-person instruction provides the best mode of instruction for my child’s
needs.
Last year the Linn Mar School District had a mask mandate until the mask mandate ban
went into effect. Once the ban went into effect, most teachers wore masks, but most
students did not wear masks.
For this school year, we have made the difficult decision to send E.M.S. back to in-
person school. Online learning this year poses a hardship for the family. My husband
and I work hybrid where we are required to work in-person at times and sometimes
remotely. The district’s remote option this year does not include live teacher instruction
and requires my daughter to be able to self-pace, which will be a challenge for her, and
would require us to assist her more with her learning, which will be a challenge for us
due to our work situations because we cannot work from home full-time.
I believe that if everyone was wearing a mask and the school was following the guidance
and recommendations from the CDC, my children would be safe in school.
As a result of Iowa’s law, my child is having to take unnecessary risks to her health in
order to get an education.
PLAINTIFFS' APPENDIX 140
Case 4:21-cv-00264-RP-HCA Document 3-8 Filed 09/03/21 Page 3of3
14. I am seeking to have HF847 blocked so that my school will be able to require universal
masking as necessary to meet its obligations to my child.
I swear under penalty of perjury under the laws of the United States that the foregoing is
true and correct to the best of my knowledge.
/)
Dates this x day of September 2021, at Cedar Rapids, Iowa.
PLAINTIFFS' APPENDIX 141
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
THE ARC OF IOWA etal.,
Case No. 4:21-cv-264
Plaintiffs,
SUPPLEMENTAL DECLARATION
KIM REYNOLDS et al., OF HEATHER LYNN PRESTON
Defendants.
COMES NOW, Heather Lynn Preston and pursuant to 28 U.S.C. § 1746, declares under
penalty of perjury that the following is true and correct:
Following this Court’s decision granting the temporary restraining order, the Des Moines
school board met to review their masking policy.
On September 14, 2021, the Board voted to implement a district wide mask mandate in the
Des Moines Public Schools (“DMPS”).
The DMPS mask mandate includes all students, staff, and visitors, regardless of
vaccination status, and was effective as of September 15, 2021.
I am glad the Board took this important step to protect children, like S.P. and M.P., who
are at high risk of severe illness or complications from COVID-19.
It is also reassuring that the teachers are enforcing proper mask wearing which makes me
feel that my children are safe in school and gives me peace of mind.
My children also feel much safer being in school with masks.
Until now S.P. has avoided any after school activities and clubs to minimize his «<:* of
infection. With universal masking in place, he feels much safer and will now be «=: to
attend these after school activities.
PLAINTIFFS' APPENDIX 142
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8 With universal masking in place, I feel much safer sending my children to school in person.
My children no longer having to take greater — and unnecessary risks- than other Students
to get their education.
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? By of September 2021, at Des Moines, Iowa.
Heather Lynn Preston, Plaintiff
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.
Date: 9/26/2021
/s/Rita Bettis Austen
Rita Bettis Austen
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DECLARATION OF AMANDA DEVEREAUX
COMES NOW, Amanda Devereaux and pursuant to 28 U.S.C. § 1746, declares under
penalty of perjury that the following is true and correct:
1. My name is Amanda Devereaux, and I am over 18 years old. I have personal knowledge
of the facts as stated herein.
2. [amamember of the ARC of Iowa.
3. Tam the mother of P.D., who is 5 years old and in kindergarten and has symptomatic
congenital cytomegalorvirus, polymicrogyria, epilepsy, feeding delay, expressive and
language delay, nonverbal, hearing loss, gross and fine motor skill delays, and uses a
feeding tube. P.D. was born with a brain malformation, which was caused intellectual
and developmental delays to the extent that she operates at a 1-year-old level.
4. Talso have another child, A.D., who is not disabled and has no health conditions, who is
9 years old and in 3" grade.
5. Because my children are under the age of 12, they are not eligible to receive any of the
currently authorized Covid-19 vaccines.
6. My children attend school at the Ankeny School District. We live in Polk County, Iowa.
7. P.D.’s medical provider Doctor Mark Schleiss, is a pediatrician at the University of
Minnesota and specializes in infectious diseases. See Exhibit A (Letter from Doctor
Mark Schleiss). Because of P.D.’s diagnosis of symptomatic congenital
cytomegalovirus, Dr. Schleiss states that P.D. 1) is at higher risk for serious and fatal
COVID-19 disease, 2) has an immune system that is affected by the condition, and 3)
should not be forced to stay at home and be deprived of learning. See Exhibit A (Letter
from Doctor Mark Schleiss). In addition, Dr. Schleiss has said that unless all students are
PLAINTIFFS' APPENDIX 144
Case 4:21-cv-00264-RP-HCA Document 3-10 Filed 09/03/21 Page 2 of 4
10.
wearing masks it is not safe for P.D.at school during the COVID-19 pandemic. See
Exhibit A (Letter from Dr. Schleiss). Dr. Schleiss has also emphasized that there is no
evidence that mask wearing has any negative impact on a child’s well-being. See Exhibit
A (Letter from Dr. Schleiss),
The Ankeny Schoo! District for the upcoming school year is offering a 100% remote
learning option for elementary school aged students through a third-party vendor, called
Edgenuity. Edgenuity uses pre-recorded videos; there is no live teacher instruction and
students must be able to self-pace. This remote learning option does not provide the
necessary supports, services, and accommodations P.D. needs, including direct
instruction and socialization with peers. In-person instruction provides the best mode of
instruction for P.D., given her needs.
P.D. attended school in-person last year because the Ankeny School District required
masks. When the mask mandate ban went into effect for schools, I kept P.D. in school
only because the persons working with her voluntarily wore masks, but I pulled A.D. out
of in-person school because it was no longer safe considering the lack of a mask mandate
and his sibling’s medical conditions.
I reached out to the Ankeny School District about my concerns about masking at the
school. The district agreed that persons at the school would be voluntarily masked while
doing special education services with P.D. for 2 ‘4 hours a day for 4 days a week. P.D.
would be in a smaller classroom and be socially distanced from other students. The
district will not be able to do core curriculum at school due to not being able to require all
students to wear masks; therefore, my husband and I would be responsible for doing core
instruction at home. We do not think us doing core instruction for P.D. at home is best
PLAINTIFFS' APPENDIX 145
Case 4:21.cv-00 OA Rett Document 3-10 Filed P03/e1 Page 3 of 4
for her education. We only agrecd to provide core instruction al home because
school is not a safe environment for P.D. without mask requirements. If the
district were able to require masks, we believe P.D. should be getting her core
instruction at school. We arc not equipped to modify kindergarten curriculum for
our child with an intcllectual disability at home, and we both work full-time
remotely, which makes providing the core instruction more difficult.
11. At the meet the teacher night before the beginning of school this year, teachers were
wearing masks, but only about 5% of parents and students were wearing masks.
12. As of August 31, 2021, the Ankeny School District’s Covid-19 dashboard shows 7
staff and 15 students district wide have tested positive for Covid-19.
13. For this school year, we have made the difficult decision to send P.D. to in-person
school and have A.D. do online learning to lessen the risk that A.D. is exposed to
COVID-19 and brings it home. We can’t keep P.D. home because for her online
learning is not an option; she can’t self-pace while doing Edginuity given her
multiple health conditions and developmental delays. My husband and I work
full-time remotely and so we can’t pick up the instruction.
14. My husband has ulcerative colitis and takes medication that suppresses his immune
system, which makes him more susceptible to Covid-19 if our children were to
become infected at school and bring it home.
15. I believe that if everyone was wearing a mask and the school was following the
guidance and recommendations from the CDC, P.D. would be safe in school.
16. As a result of Iowa’s law, my child is having to take unnecessary risks to her health
PLAINTIFFS' APPENDIX 146
in order to get an education.
Case 4:21-cv-00264-RP-HCA Document 3-10 Filed 09/03/21 Page 4 of 4
17.1 am seeking to have HF847 blocked so that my school will be able to require universal
masking as necessary to meet its obligations to my child.
I swear under penalty of perjury under the laws of the United States that the foregoing is
true and correct to the best of my knowledge.
Dates this wheay of September 2021, at Ankeny, Iowa.
ee Devereaux, Plaintiff (
PLAINTIFFS' APPENDIX 147
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DECLARATION OF HEATHER LYNN PRESTON
COMES NOW, Heather Lynn Preston and pursuant to 28 U.S.C, § 1746, declares under
penalty of perjury that the following is true and correct:
|. My name is Heather Lynn Preston, and I am a resident of Des Moines, Iowa. lam over 18
years old and have personal knowledge of the facts as stated herein.
1 am the mother of M.P. and S.P. who are eleven years old and are both in the sixth grade
at Meredith Middle School in the Des Moines Public Schools.
3. Because my children are both under the age of twelve, they are not eligible to receive any
of the currently authorized COVID-19 vaccines.
4. MP. is diagnosed with Heterotaxy. Heterotaxy is an extremely rare condition where many
organs in the body can be formed abnormally, in the wrong position, or are even missing.
5. MP. has several medical complications because of his Heterotaxy, including significant
heart defects (right atrial isomerism - bilateral right-sidedness), unbalanced complete
atrioventricular septal defect (AVSD) with left ventricular dominance and right ventricular
hypoplasia, D-transposition of the great arteries, pulmonary valve stenosis and twin AV
node tachycardia), a lung defect (two right lungs) and an absent spleen.
6. The CDC has identified chronic heart and lung conditions such as the ones M.P. has as risk
factors for severe illness from COVID-19.
7, M.P. has a 504 Plan to monitor his health conditions while at school. (See Attached Exhibit
A).
8. S.P. has been diagnosed with hypertension due to small kidneys, seizures, and a range of
other disabilities, including ADHD.
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9 The CDC has identified chronic kidney disease as risk factor for severe illness from
COVID-19.
10. S.P. has a 504 plan to address these medical concems at school. (See Attached Exhibit B).
11. M.P.’s doctor has informed me that it is extremely dangerous for him to return to school
without such precautions as following the recommended CDC guidelines of mandatory
masking and regular testing in schools. According to his doctor, in order to decrease his
risk, everyone around him should observe strict COVID-19 safety protocols and wear a
mask indoors. (See Attached Exhibit C).
12, Last year both my children were enrolled in the remote learning option. I witnessed serious
negative consequences. They both struggled greatly with mental health as well as
academics with the online program. They did not receive the services they require virtually.
13. MP has regressed in several areas, even with significant parental involvement in both
curriculum development and dedicated learning time. M.P faced issues with learning online
because of his ADHD since he did not have everyday access to his peers in a classroom
setting. With M.P.’s medical needs, remote education is not feasible as he requires
individualized attention, and his needs would not be met through online programing where
an instructor is not present.
14. S.P. faced mental health issues that were exacerbated by the online learning where he was
isolated from his peers.
15. Des Moines Public Schools is offering a remote learning option through a third-party
provider, Edgenuity. This online program is largely pre-recorded and self-taught, and does
not provide the necessary supports, services, and accommodations for my disabled
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children, Furthermore, in order to assist them with this online program, either my husband
or L would have to quit our jobs to teach them.
16. We have no option but to send them back to school this fall.
17, | have emailed teachers for both my children with requests to keep them safe, distanced.
18. I sought accommodations for M.P., which are in M.P.'s 504 plan, such as asking the teacher
to mask and allowing M.P. to leave class five minutes early to avoid the crowded hallways.
However, M.P. returned to in school Jeaming last week and has told me his teachers are
not following these accommodations.
19. 1 am extremely nervous about M.P. returning to school for in person instruction and the
thought that he might contract COVID-19. Recently, due to this stress, I have had difficulty
sleeping and have experienced debilitating spells of anxicty. I don’t know if] am doing the
right thing, but I feel as though I have no choice in the matter.
20. M.P. is extremely scared to return to school; he is very afraid of getting sick and potentially
dying.
21. §.P. has had heightened spells of anxiety and fear with his own return to school, but also
fear of what might happen to his brother if he is exposed.
92. We also have a medically fragile family. I have Type II diabetes, which puts me at risk for
severe illness if ] were to get COVID-19 from my children.
23. | believe that if everyone was wearing a mask and the school was following the guidance
and recommendations from the CDC, my children would be safe in school.
24.1 am seeking to have HF847 blocked so that my school will be able to require universal
masking as necessary to meet its obligations to my children.
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1 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 | y day of September 2021, at Des Moines, Iowa.
er Lynn Preston, Plaintiff
eee
PLAINTIFFS' APPENDIX 151 ;
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DECLARATION OF CHARMAINE ALEXANDER
COMES NOW, Charmaine Alexander and pursuant to 28 U.S.C. § 1746, declares under penalty
of perjury that the following is true and correct:
1. My name Charmaine Alexander, I am a resident of Urbandale, Iowa, and I am over 18
years old. I have personal knowledge of the facts as stated herein.
2. Iam the mother of two children, C.B. who is eleven years old and C.A. who is three years
old.
3. C.B.is enrolled in the sixth grade at Summit Middle School in the Johnston Community
School District.
4. Because my children are under the age of twelve, they are not eligible to receive any of the
currently authorized COVID-19 vaccines.
5. C.B. has asthma, which the CDC has identified as putting him at risk of severe illness from
COVID-19.
6. C.B. has a 504 plan to address his asthma as well as his attention deficit hyperactivity
disorder (ADHD). (See Attached Exhibit A).
7. C.B.’s treating doctor has informed me that my child is at risk for severe complications if
he contracts a COVID-19 infection.
8. Last year C.B. was enrolled in the remote option. While that had some difficulties, at least
I knew my child was safe. If the school offered a remote option, I would enroll him through
that for this year again.
9. However, the Johnston Community School District is not offering online or remote options
this year, so I have no choice but to send C.B. back to school in person.
1
PLAINTIFFS' APPENDIX 152
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10. I feel like I cannot keep my own child safe. I am very anxious about sending C.B. to school
for in person instruction given the risks if he contracts COVID-19, especially with his
medical history.
11. After his first week in person, I am even more concerned, because C.B. has reported that a
vast majority of teachers and other students are not wearing masks in the classrooms.
12. C.B. has been anxious about getting COVID-19 because others in his school are not
masking, and he is afraid he would get others in our home sick.
13. There have already been at least six positive cases at the middle school, that Iam aware of.
However, they only notify parents if their child’s specific classroom has a positive case, so
we do not even have sufficient information to keep our children safe.
14. We also have a medically fragile family. I have asthma, which puts me at risk for severe
illness from COVID-19.
15. I believe that if everyone was wearing a mask and the school was following the guidance
and recommendations from the CDC, my child would be safe in school.
16. My child is having to take greater risks — and unnecessary risks — to get his education
than other students. I think this unfair.
17. | am seeking to have HF847 blocked so that my school will be able to require universal
masking as necessary to meet its obligations to my child.
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 z day of September 2021, at Urbandale, Iowa.
Charmaine Aléxander
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PLAINTIFFS' APPENDIX 153
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
THE ARC OF IOWA et al.,
Case No. 4:21-cv-264
Plaintiffs,
V.
SUPPLEMENTAL DECLARATION
KIM REYNOLDS et al., OF CHARMAINE ALEXANDER
Defendants.
COMES NOW, Charmaine Alexander and pursuant to 28 U.S.C. § 1746, declares under penalty
of perjury that the following is true and correct:
1.
Following this Court’s decision granting the temporary restraining order, the Johnston
school board met to review their masking policy.
On September 21, 2021, the Board voted to implement a district wide universal mask
mandate.
The mandate includes all students, staff, and visitors, regardless of vaccination status, and
was effective as of September 23, 2021.
I am glad the Board took this important step to protect children, like C.B., who are at high
risk of severe illness or complications from COVID-19.
Prior to this mandate, C.B. was one of a few students who wore a mask at school, this
made him feel anxious and distracted from his schoolwork. Now he will feel more
comfortable masking at school, and this will also allow him to focus on his education
while at school.
1
PLAINTIFFS' APPENDIX 154
6. With universal masking in place, I feel much safer sending my child to school in person.
My child is no longer having to take greater — and unnecessary risks- than other students
to get his education.
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 __ day of September/2021, f
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.
Date: 9/26/2021
/s/Rita Bettis Austen
Rita Bettis Austen
2
PLAINTIFFS' APPENDIX 155
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
THE ARC OF IOWA etal.
KIM REYNOLDS et al..
Case No, 4:21-cev-264
Plaintiffs,
SUPPLEMENTAL DECLARATION
OF LISA HARDISTY
SITHONNORATH
Defendants.
COMES NOW. Lisa Hardisty Sithonnorath and pursuant to 28 U.S.C. § 1746, declares under
penalty of perjury that the following is true and correct:
Following this Court’s decision granting the temporary restraining order, the Des Moines
school board met to review their masking policy.
On September 14, 2021, the Board voted to implement a district wide mask mandate in the
Des Moines Public Schools (“DMPS”).
The DMPS mask mandate includes all students, staff, and visitors, regardless of
vaccination status, and was effective as of September 15, 2021.
1 am glad the Board took this important step to protect children, like A.S., who are at high
risk of severe illness or complications from COVID-19.
Because of A.S.’s medical and cognitive issues, she often mimics behavior and cannot
follow instructions easily. With universal masking, A.S. feels more comfortable wearing a
mask in school. When she sees other students and staff wearing masks it is easier for her
to mimic those behaviors, as she can follow guidelines better when others are doing so as
well
PLAINTIFFS' APPENDIX 156
6. Ihave also been informed that the teachers are enforcing proper masking in the classrooms,
which is reassuring.
7. With universal masking in place, | feel a sense of relief, and believe that my child is much
safer returning to school in person. My child is no longer having to take greater — and
unnecessary risks- than other students to get her education.
| 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 ‘LD aay of September 2021, at Des
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.
Date: 9/26/2021
/s/Rita Bettis Austen
Rita Bettis Austen
PLAINTIFFS' APPENDIX 157
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
THE ARC OF IOWA etal.,
Case No. 4:21-cv-264
Plaintiffs,
SUPPLEMENTAL DECLARATION
KIM REYNOLDS et al., OF HEATHER LYNN PRESTON
Defendants.
COMES NOW, Heather Lynn Preston and pursuant to 28 U.S.C. § 1746, declares under
penalty of perjury that the following is true and correct:
Following this Court’s decision granting the temporary restraining order, the Des Moines
school board met to review their masking policy.
On September 14, 2021, the Board voted to implement a district wide mask mandate in the
Des Moines Public Schools (“DMPS”).
The DMPS mask mandate includes all students, staff, and visitors, regardless of
vaccination status, and was effective as of September 15, 2021.
I am glad the Board took this important step to protect children, like S.P. and M.P., who
are at high risk of severe illness or complications from COVID-19.
It is also reassuring that the teachers are enforcing proper mask wearing which makes me
feel that my children are safe in school and gives me peace of mind.
My children also feel much safer being in school with masks.
Until now S.P. has avoided any after school activities and clubs to minimize his «<:* of
infection. With universal masking in place, he feels much safer and will now be «=: to
attend these after school activities.
PLAINTIFFS' APPENDIX 158
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8 With universal masking in place, I feel much safer sending my children to school in person.
My children no longer having to take greater — and unnecessary risks- than other Students
to get their education.
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? By of September 2021, at Des Moines, Iowa.
Heather Lynn Preston, Plaintiff
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.
Date: 9/26/2021
/s/Rita Bettis Austen
Rita Bettis Austen
PLAINTIFFS' APPENDIX 159 ;
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THE ARC OF IOWA et al.,
KIM REYNOLDS et al.,
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
Plainti;
v. intiffs, Case No. 4:21-cv-264
SUPPLEMENTAL DECLARATION OF
MELISSA HADDEN
Defendants.
SUPPLEMENTAL DECLARATION OF MELISSA HADDEN
COMES NOW, Melissa Hadden and pursuant to 28 U.S.C. § 1746, declares under
penalty of perjury that the following is true and correct:
1.
My name is Melissa Hadden, and I am over 18 years old. I have personal knowledge of
the facts as stated herein.
Before the judge issued the temporary restraining order banning enforcement of HF 847,
my child, V.M.H., was exposed to COVID-19. Another student in my child’s classroom
tested positive for COVID-19. No teacher or student in my child’s classroom was
wearing a mask. As a result of my child’s direct exposure to COVID-19 at school, I was
forced to quarantine my child at home starting August 31, 2021. My child’s doctor
recommends that one-on-one or home learning is safest at this time due to my child’s
medical conditions, my child’s increased susceptibility to COVID-19, and the increased
rate of spread of COVID-19 in my community.
Since the judge issued the temporary restraining order banning enforcement of HF 847,
the Council Bluffs School District my child, V.M.H., attends school on September 14,
2021, communicated that it “expect{s] all students, staff and visitors to wear masks at
PLAINTIFFS' APPENDIX 160
school during school hours when physical distanci ing is not possible” effective on
September 15, 2021.
4. I am currently working with the school on a plan for my child to return to school,
specifically additional accommodations that would make it safer for her to attend school.
3s In the meantime, my child will return to in person learning for her special education
coursework after the school day has ended and will work with a teacher who is masked.
I swear under penalty of perjury under the laws of the United States that the foregoing is
true and correct to the best of my knowledge.
Dates this O10 day of September 2021, at Council Bluffs, Iowa.
Melissa Hadten, Plaintiff
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.
Date: 9/26/2021
/s/Rita Bettis Austen
Rita Bettis Austen
PLAINTIFFS' APPENDIX 161
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
Vv.
KIM REYNOLDS et al., SUPPLEMENTAL DECLARATION OF
REBEKAH STEWART
Defendants.
COMES NOW, Rebekah Stewart and pursuant to 28 U.S.C. § 1746, declares under
penalty of perjury that the following is true and correct:
l.
My name is Rebekah Stewart, and I am over 18 years old. I have personal knowledge of
the facts as stated herein.
Since the judge issued the temporary restraining order banning enforcement of HF 847,
the Linn-Mar School District where my child, E.M.S., attends school passed a mask
mandate on September 16, 2021. The mandate applies to pre-K through 6" grade
students and was effective starting on September 20, 2021. The mandate is scheduled to
expire 60 days after the COVID-19 vaccine is available for children ages 5 to 11 years
old. There is an exemption for students with medical conditions if there is a signed note
by the doctor submitted to the school principal.
The school district is also being flexible about families who want to open enroll in the
district or switching between online and in-person learning platforms.
My child feels much better being in school where all students and teachers wear masks.
My child has sensory issues with wearing masks and can go outside the school for mask
wearing breaks. My child feels safe and accommodated by the school in this regard.
PLAINTIFFS' APPENDIX 162
5. While I think there should have been a mask mandate for all grade levels, I am pleased
that the school district took this important step to protect children like my child who are
at high risk of severe illness or complications from COVID-19.
6. With universal masking in place, I feel much safer sending my child to school in person.
My child is no longer having to take greater—and unnecessary risks—than other students
to get an education.
I swear under penalty of perjury under the laws of the United States that the foregoing is
true and correct to the best of my knowledge.
Dates this 1! day of September 2021, at Cedar Rapids, Iowa.
“Rebekah Stewart, Plaintiff
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.
Date: 9/26/2021
/s/Rita Bettis Austen
PLAIN RRStARRENDIX 163
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
THE ARC OF IOWA et al.,
Case No. 4:21-cv-264
Plaintiffs,
v.
SUPPLEMENTAL DECLARATION
KIM REYNOLDS et al., OF LIDIJA GEEST
Defendants.
COMES NOW, Lidija Geest and pursuant to 28 U.S.C. § 1746, declares under penalty of perjury
that the following is true and correct:
l.
Following this Court’s decision granting the temporary restraining order, the Davenport
Community school board held a special meeting on September 16, 2021.
The Board voted in favor of a district wide mask mandate.
The Davenport Community Schools District mask mandate includes all students, staff, and
visitors, regardless of vaccination status.
The mask mandate was effective as of September 20, 2021.
If students don’t bring a mask with them to school, teachers are required to provide them
with masks. If a student still refuses to wear a mask, they may be sent home.
I am glad the Board took this important step to protect children, like K.G., who are at high
risk of severe illness or complications from COVID-19.
K.G. has told me that his teacher now wears a mask and has also corrected children who
were not properly wearing a mask.
| am especially glad that the school nurse is now required to wear a mask as she administers
K.G.’s inhaler.
PLAINTIFFS' APPENDIX 164
9. K.G. is also very relieved that he is no longer one of only two students in his class wearing
a mask.
10. With universal masking in place, ! feel much safer sending my child to school in person.
My child is no longer having to take greater — and unnecessary risks- than other students
to get his education.
| 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] day of September 2021, at Davenport, Iowa.
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.
Date: 9/26/2021
/s/Rita Bettis Austen
Rita Bettis Austen
PLAINTIFFS' APPENDIX 165
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 et al., SUPPLEMENTAL DECLARATION OF
AMANDA DEVEREAUX
Defendants.
COMES NOW, Amanda Devereaux and pursuant to 28 U.S.C. § 1746, declares under
penalty of perjury that the following is true and correct:
1. My name is Amanda Devereaux, and I am over 18 years old. I have personal knowledge
of the facts as stated herein.
2. Since the judge issued the temporary restraining order banning enforcement of HF 847,
the Ankeny School District my child, P.D., attends school passed a mask mandate on
September 21, 2021. The mandate applies to all students, teachers, and staff and was
effective starting on September 23, 2021. The school district has exemptions for students
with medical conditions and for students with genuine and sincere religious beliefs.
Medical documentation can be submitted in support of a medical exemption. If no
medical documentation is submitted with an exemption request, the district reserves the
right to ask for additional medical documentation to verify the student’s health condition
and its impact on the mask requirement.
3. Prior to the mask mandate, few children besides my child wore masks at school. I feel
more comfortable now that all children at school are required to wear masks.
PLAINTIFFS' APPENDIX 166
4. Iam pleased that the school district took this important step to protect children like my
child who are at high risk of severe illness or complications from COVID-19.
5. With universal masking in place, I feel much safer sending my child to school in person.
My child is no longer having to take greater—and unnecessary risks—than other students
to get an education.
I swear under penalty of perjury under the laws of the United States that the foregoing is
true and correct to the best of my knowledge.
Dates this mM day of September 2021, at Ankeny, Iowa.
Amanda Devereaux, Plaintiff
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.
Date: 9/26/2021
/s/Rita Bettis Austen
Rita Bettis Austen
PLAINTIFFS' APPENDIX 167
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
Vv.
KIM REYNOLDS et al., SUPPLEMENTAL DECLARATION OF
MICHELLE CROFT
Defendants.
COMES NOW, Michelle Croft and pursuant to 28 U.S.C. § 1746, declares under penalty
of perjury that the following is true and correct:
tJ
wo
My name is Michelle Croft, and I am over 18 years old. I have personal knowledge of
the facts as stated herein.
Since the judge issued the temporary restraining order banning enforcement of HF 847,
the lowa City School District my child, J.J.B., attends school passed a mask mandate on
September 14, 2021. The mandate applies to all students, teachers, and staff and was
effective starting September 15, 2021. There is an exception for students with certain
medical conditions who can fill out and submit a form and a doctor's note to the school
nurse. If granted, those students can wear a face shield instead of a face mask.
My child feels much better being in school where all students and teachers wear masks.
I am pleased that the school district took this important step to protect children like my
child who are at high risk of severe illness or complications from COVID-19.
With universal masking in place, I feel much safer sending my child to school in person.
My child is no longer having to take greater—and unnecessary risks—than other students
to get an education.
PLAINTIFFS' APPENDIX 168
| swear under penalty of perjury under the laws of the United States that the foregoing is true
and correct to the best of my knowledge.
Dates this_2\ day of September 2021, at lowa City, Iowa.
Michelle Croft, Plaintiff ”
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.
Date: 9/26/2021
/s/Rita Bettis Austen
Rita Bettis Austen
PLAINTIFFS' APPENDIX 169
Exhibit O
PLAINTIFFS' APPENDIX 170
Case 4:21-cv-00264-RP-HCA Document 37 Filed 09/17/21 Page 1 of 55
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
CENTRAL DIVISION
THE ARC OF IOWA, et al.,
Plaintiffs,
vs. : Case No. 4:21-cv-264
KIM REYNOLDS, In her : TRANSCRIPT OF HEARING ON MOTION
Official Capacity as : FOR TEMPORARY RESTRAINING ORDER
Governor of Iowa, et al.,
Defendants.
Courtroom 455, Fourth Floor
U.S. Courthouse
123 East Walnut Street
Des Moines, Iowa
Friday, September 10, 2021
9:59 a.m.
BEFORE: THE HONORABLE ROBERT W. PRATT, Senior Judge
TONYA R. GERKE, CSR, RDR, CRR
United States Courthouse
123 East Walnut Street, Room 197
Des Moines, Iowa 50309
PLAINTIFFS' APPENDIX 171
Case 4:21-cv-00264-RP-HCA Document 37 Filed 09/17/21 Page 2 of 55
APPEARANCES:
For the Plaintiff:
For State Defendants:
For the School District
Defendants:
(Except Iowa City CSD)
JOHN ARAK FREEDMAN, ESQ.
Arnold & Porter LLP
601 Massachusetts Avenue Northwest
Washington, D.C. 20001
JIM T. DUFF, ESQ.
Duff Law Firm, P.L.C.
The Galleria
4090 Westown Parkway, Suite 102
West Des Moines, IA 50266
LEAH DENISE PATTON, ESQ.
ACLU of Iowa Foundation
505 Fifth Avenue, Suite 808
Des Moines, IA 50309
CATHERINE ELLIZABETH JOHNSON, ESQ
CYNTHIA ANN MILLER, ESQ.
Disability Rights Iowa
666 Walnut Street, Suite 1140
Des Moines, IA 50309
SAMUEL P. LANGHOLZ, ESQ.
Assistant Iowa Attorney General
1305 East Walnut Street
Des Moines, IA 50319
KRISTY M. LATTA, ESQ.
Ahlers & Cooney, P.C.
100 Court Avenue, Suite 600
Des Moines, IA 50309
PLAINTIFFS' APPENDIX 172
Case 4:21-cv-00264-RP-HCA Document 37 Filed 09/17/21 Page 26 of 55
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preliminary injunction and that really when you're looking at
whether a TRO should be granted, we're looking at the harm just
in this interim time period between when you would otherwise
have the opportunity to rule on a temporary injunction.
You know, stepping back just a bit, I think it's
helpful to remember that this is now the third year that Iowa's
students have been affected by the COVID-19 pandemic. The
federal government, the state government, school districts, and
parents have all been faced with challenging decisions trying to
navigate that, and we're here today now talking about one
provision of House File 847, you know, section 280.31, that is,
you know, the latest attempt to resolve some of those issues for
the benefit of Iowa students, and there's certainly, like all
the decisions through the last three years, strong opinions on
all of those sides, but it's not a basis for granting the
temporary restraining order.
I want to kind of address a preliminary issue that
struck me as I was listening to the discussion and the specific
request here, and there's -- there was talk of enjoining
enforcement of House File 847, and although that's the short
term that's sort of been used throughout the plaintiffs' briefs,
that's a large bill. So an injunction enjoining House File 847
would -- regardless of any other basis would be overly broad and
Significant. My understanding from plaintiffs' briefing and
discussion is that they're concerned about one section of that
PLAINTIFFS' APPENDIX 173
Case 4:21-cv-00264-RP-HCA Document 37 Filed 09/17/21 Page 27 of 55
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bill which is now, you Know, Iowa Code section 280.31.
THE COURT: Right. And I noted that as well. Because
as you just pointed out, 65(d)(1)(C) says -- and it's entitled
Contents and Scope of Every Injunction and Restraining Order.
It says, (C), Describe in reasonable detail -- and not by
referring to the complaint or other document -- the act or acts
restrained or required. So your point is that as you understand
the request, they're requesting only that the ban of a local
school district's being able to impose a mask mandate be
enjoined.
MR. LANGHOLZ: Correct. That's correct.
THE COURT: And if that's not the case -- excuse me
for interrupting. And if that's not the case, Mr. Freedman is
going to tell me in rebuttal that I got it wrong.
MR. LANGHOLZ: That's correct. And the State cites,
you know, at the beginning of our introduction on page 2, you
know, what we believe iS a proper citation, you know, of that
act and what section, you know, ultimately is codified at
section 280.31. And we understand -- you know, and it sounded
like there was no change in that position today that the request
is to enjoin Governor Reynolds and Director Lebo from enforcing
that provision, and this request, you know, whether at a TRO or
preliminary injunction, is neither necessary nor sufficient to
remedy the alleged harms of plaintiffs.
As Your Honor just discussed with counsel, section
PLAINTIFFS' APPENDIX 174
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280.31 contains an explicit exception that allows mandates of
face coverings when required by any other provision of law.
That includes federal law. There was, in fact, a discussion,
you know, about this provision during the debates on the House
floor. You know, the legislators expressed some confusion about
what -- you know, how broad that could be; it wasn't fully
acknowledged, you know, kind of an acknowledgment. In fact, one
of the opponents, Representative Bohannan, was raising
perhaps -- this was a concern perhaps because how do we know
what sort of exceptions could come in there, but nonetheless,
you know, that's the law that was passed.
THE COURT: Did that include a discussion of the State
prohibition against discrimination regarding the disabled, or
was that just -- was the discussion of the legislature just
limited to the federal law?
MR. LANGHOLZ: It was -- it was a discussion of this
provision --
THE COURT: Okay.
MR. LANGHOLZ: -- recognizing that there's an
exception for other provisions of law and raising questions.
You know, that could be, you know, any number of things, you
know, legislators that were complaining, you know, that they had
only had a short period of time to -- to consider and hadn't
fully thought through all of the provisions of law that might be
implicated in that regard.
PLAINTIFFS' APPENDIX 175
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THE COURT: So does the CDC order requiring masks on
school buses fall within that exception?
MR. LANGHOLZ: The State has given guidance, I
believe -- and I think that's outside the scope of any claim
here but has -- has given guidance that that is a -- a mandate
that's required that this statute does not prohibit --
THE COURT: Okay.
MR. LANGHOLZ: And as the Court points out as well, I
mean -- you know, as a matter of law, you know, leaving aside
this injunction, you know, with the Supremacy Clause, regardless
of whether or not there's a savings clause in the statute, I --
governmental entities, private citizens are required to follow
federal law as a matter of the Supremacy Clause regardless of
whether the statute acknowledged it. But when we're talking
about an injunction and whether it's necessary to take that
extraordinary relief or the even more extraordinary relief of a
temporary restraining order while we're sorting things out, the
fact that there's a savings clause and that that allows mask
requirements without an injunction, if it is required by -- by
federal law, you know, is significant for the question before
the Court here today.
And I want to -- the Court and plaintiffs expressed
some confusion about, you know, what the State's position is is
contradictory to some of the public statements, and I want to be
absolutely clear that the State defendants do not agree that
PLAINTIFFS' APPENDIX 176
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 participants in this case are registered CM/ECF users and will served by the CM/ECF
system.
Date: July 1, 2022
/s/Rita Bettis Austen
Rita Bettis Austen
File and source
- File
- gov.uscourts.iasd.77124.88.3.pdf
- Size
- 10,875,471 bytes
- SHA-256
- e7adbaf4ff05cadab94ab3ced2e5c62e56eb397850749e00628960fe2871864d
- Our copy
- gov.uscourts.iasd.77124.88.3.pdf
- Original
- archive.org