Defendants’ Motions To
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Plaintiffs' response to the school district defendants' motions to dismiss in The Arc of Iowa, et al. v. Kim Reynolds, in her official capacity as Governor of Iowa, et al., Case No. 4:21-cv-264, in the U.S. District Court for the Southern District of Iowa. It was filed August 15, 2022 as Document 105. The brief responds to the motions filed at ECF 96, ECF 97 and ECF 98 and asks the court to deny them. It argues that the case is not moot because plaintiffs retain live claims for declaratory relief concerning Iowa Code § 280.31, and that the Eighth Circuit's ruling addressed only the preliminary injunction. It also argues that the school districts are indispensable parties under Fed. R. Civ. P. 19(a), citing E.T. v. Paxton. Counsel signing include the ACLU of Iowa, Disability Rights Iowa and Arnold & Porter Kaye Scholer LLP.
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Case 4:21-cv-00264-RP-HCA Document 105 Filed 08/15/22 Page 1 of 11
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF IOWA
THE ARC OF IOWA; CHARMAINE
ALEXANDER, individually and on behalf of
C.B., a minor; JONATHAN CRAIG,
individually and on behalf of E.C. and J.C.,
minors; MICHELLE CROFT, individually and
on behalf of J.J.B., a minor; AMANDA
DEVEREAUX, individually and on behalf of
P.D., a minor; CARISSA FROYUM ROISE, Case No. 4:21-cv-264
individually and on behalf of H.J.F.R., a minor;
LIDIJA GEEST, individually and on behalf of
K.G., a minor; MELISSA HADDEN,
individually and on behalf of V.M.H., a minor;
HEATHER LYNN PRESTON, individually
and on behalf of M.P. and S.P, minors; LISA
HARDISTY SITHONNORATH, individually
and on behalf of A.S., a minor; REBEKAH
STEWART, individually and on behalf of PLAINTIFFS’ RESPONSE TO
SCHOOL DISTRICT
E.M.S., a minor; and ERIN VERCANDE,
DEFENDANTS’ MOTIONS TO
individually and on behalf of S.V., a minor,
DISMISS
Plaintiffs,
v.
KIM REYNOLDS, in her official capacity as
Governor of Iowa; ANN LEBO, in her official
capacity as Director of the Iowa Department of
Education; ANKENY COMMUNITY
SCHOOL DISTRICT; COUNCIL BLUFFS
COMMUNITY SCHOOL DISTRICT;
DAVENPORT COMMUNITY SCHOOL
DISTRICT; DECORAH COMMUNITY
SCHOOL DISTRICT; DENVER
COMMUNITY SCHOOL DISTRICT; DES
MOINES PUBLIC SCHOOLS; IOWA CITY
COMMUNITY SCHOOL DISTRICT;
JOHNSTON COMMUNITY SCHOOL
DISTRICT; LINN MAR COMMUNITY
SCHOOL DISTRICT; and WATERLOO
COMMUNITY SCHOOL DISTRICT,
Defendants.
i
Case 4:21-cv-00264-RP-HCA Document 105 Filed 08/15/22 Page 2 of 11
TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................................ ii
TABLE OF AUTHORITIES ......................................................................................................... iii
INTRODUCTION .......................................................................................................................... 1
ARGUMENT .................................................................................................................................. 2
I. PLAINTIFFS CONTINUE TO HAVE AN ACTIVE CASE AGAINST SCHOOL
DISTRICT DEFENDANTS. ....................................................................................................... 2
II. THE DISTRICTS ARE INDISPENSABLE PARTIES. ..................................................... 5
CONCLUSION ............................................................................................................................... 6
CERTIFICATE OF SERVICE ....................................................................................................... 8
ii
Case 4:21-cv-00264-RP-HCA Document 105 Filed 08/15/22 Page 3 of 11
TABLE OF AUTHORITIES
Cases
Doe No. 1 v. Reed,
697 F.3d 1235 (9th Cir. 2012) ..................................................................................................... 3
Doe v. Nixon,
716 F.3d 1041 (8th Cir. 2013) ................................................................................................. 2, 3
Dolls, Inc. v. City of Coralville,
425 F. Supp. 2d. 958 (S.D. Iowa 2006) ....................................................................................... 2
E.T. v. Paxton
2022 WL 2914732, No. 21-51083 (5th Cir. July 25, 2022) ........................................................ 6
McGehee v. Neb. Dep't of Corr. Servs.,
987 F.3d 785 (8th Cir. 2021) ....................................................................................................... 3
Or. Nat. Res. Council v. U.S. Bureau of Land Mgmt.,
470 F.3d 818 (9th Cir. 2006) ....................................................................................................... 4
Rural Water System No. 1 v. City of Sioux Ctr.,
967 F. Supp. 1483 (N.D. Iowa 1997) .......................................................................................... 3
Spirit Lake Tribe v. N.D.,
262 F.3d 732 (8th Cir. 2001) ....................................................................................................... 5
Sykes v. Hengel,
220 F.R.D. 593 (S.D. Iowa 2004) ............................................................................................... 5
Rules
Fed. R. Civ. P. 19(a) ....................................................................................................................... 5
iii
Case 4:21-cv-00264-RP-HCA Document 105 Filed 08/15/22 Page 4 of 11
INTRODUCTION
The circumstances of this unprecedented health crisis have certainly changed over the
nearly two and one-half years since the World Health Organization declared the spread of
COVID-19 a pandemic. They will continue to evolve in the future. But the core of this case has
not: Some students with disabilities, including Plaintiffs, continue to face increased risks of
serious health consequences from contracting COVID-19, and the schools they attend must have
the authority to implement policies through the reasonable modification process consistent with
the Americans with Disabilities Act and the Rehabilitation Act. School District Defendants 1
conflate changed circumstances with the elimination of injury. But as set forth in detail in the
opposition to State Defendants’ motion to dismiss, Plaintiffs and many other students with
disabilities are still at risk. See generally Pls. Resp. to State’s Mot. to Dismiss/ECF 95.
This case is not moot. Plaintiffs have a live controversy that can be resolved with
declaratory relief and the School District Defendants are indeed indispensable parties. For the
reasons set forth below and in Opposition to State Defendants Motion to Dismiss, incorporated
here, this Court should deny School District Defendants’ motions to dismiss.
1 This brief responds to the Motion to Dismiss filed by the Ankeny Community School District,
Davenport Community School District, Decorah Community School District, Denver
Community School District, Des Moines Public Schools, Johnston Community School District,
Linn Mar Community School District, and Waterloo Community Schools (ECF 96); the Motion
to Dismiss and Motion for Joinder filed by Council Bluffs Community Schools (ECF 97); and
the Motion for Partial Joinder filed by Iowa City Community School District (ECF 98). Because
of the shared arguments and motions for joinder, this brief refers throughout to “School District
Defendants.”
1
Case 4:21-cv-00264-RP-HCA Document 105 Filed 08/15/22 Page 5 of 11
ARGUMENT
I. PLAINTIFFS CONTINUE TO HAVE AN ACTIVE CASE AGAINST
SCHOOL DISTRICT DEFENDANTS.
A case is moot “if it can be said with assurance that there is no reasonable expectation
that the violation will recur or if interim relief or events have completely and irrevocably
eradicated the effects of the alleged violation.” Doe v. Nixon, 716 F.3d 1041, 1051 (8th Cir.
2013). In contrast to standing, mootness “depends on the state of the record at time of review, not
at the time an action is commenced.” Dolls, Inc. v. City of Coralville, 425 F. Supp. 2d. 958, 985
(S.D. Iowa 2006).
Since the time when Plaintiffs commenced this action, the circumstances of the COVID-
19 pandemic have changed markedly. Thanks to these changed circumstances, some students
with disabilities in Iowa, for now, are able to attend school safely without masking policies.
Others, including some individual Plaintiffs and members of The Arc of Iowa, cannot. These
Plaintiffs still face significant health consequences if they contract COVID-19, and no
intervening “events have completely and irrevocably eradicated” the public health dangers they
face. Doe v. Nixon, 716 F.3d 1041, 1051 (8th Cir. 2013). Plaintiffs have filed declarations from
the physicians for Plaintiffs E.C., M.P., and H.J.F.R., who determined that masking is still
necessary for these Plaintiffs to have equal access to their educations. ECF 88-3, at 3-19; 95-1, at
2-14 (describing high risk for severe complications and medical problems like needed ventilatory
support if the child becomes infected with COVID-19). The parents of these individuals face
tremendous uncertainty whether a request for reasonable modification or accommodation will be
fairly heard and considered by Defendant School Districts given State Defendants’ threats to
enforce Section 280.31. In other words, individual Plaintiffs and members of Plaintiff The Arc of
Iowa have live claims for declaratory relief now.
2
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Moreover, this is not a case where the “‘alleged future harm’” is “‘so remote and
speculative that there is no tangible prejudice to the existing interests of the parties’” to render
the action “‘[a] moot case.’” McGehee v. Neb. Dep't of Corr. Servs., 987 F.3d 785, 788 (8th Cir.
2021) (quoting Doe No. 1 v. Reed, 697 F.3d 1235, 1239 (9th Cir. 2012)). This future risk to
Plaintiffs is concrete and not speculative: Past waves of the pandemic have varied in their
virulence but have increased dramatically in their transmissibility. Future waves of the pandemic
may even increase the need for masking among high-risk students with disabilities, and this
hardly unrealistic prospect shows the need for legal clarity regarding the ability to seek masking
requirements if necessary and as a reasonable modification under federal law. Schools need the
flexibility to make this determination, which is something State Defendants opposed at the time
the Complaint was filed (through their threatened enforcement of Section 280.31) and remain
opposed to, as stated in their recent legal filings. See ECF 95, at 16-18. Given the mutating
nature of the worst public health crisis in a century, School District Defendants simply cannot
offer an “assurance that there is no reasonable expectation that the violation will recur” even for
students who can safely attend school now. Nixon, 716 F.3d at 1051. See also Rural Water Sys.
No. 1 v. City of Sioux Ctr., 967 F. Supp. 1483, 1509 (N.D. Iowa 1997) (observing there was a
live and substantial controversy over a governmental policy that had “violated or may in the
future violate” a statute because “[t]here have been, and for the foreseeable future are likely to
be, disputes” that a declaratory judgment could resolve).
School District Defendants contend in their motion that “[w]ithout the same
circumstances that existed when the Complaint was filed, Plaintiffs are essentially asking this
Court for an advisory opinion on the scope of Iowa Code Section 280.31.” ECF 96, at 3. But
Plaintiffs do not need to show that the “same circumstances” exist at the time when the
3
Case 4:21-cv-00264-RP-HCA Document 105 Filed 08/15/22 Page 7 of 11
Complaint was filed; doing so would foreclose litigating most cases that involve ongoing and
developing issues. Instead, Plaintiffs must demonstrate that this Court can grant effective relief
in an ongoing controversy. See Or. Nat. Res. Council v. U.S. Bureau of Land Mgmt., 470 F.3d
818, 820 (9th Cir. 2006) (“In deciding a mootness issue, ‘the question is not whether the precise
relief sought at the time the application for an injunction was filed is still available. The question
is whether there can be any effective relief.’”).
Here, Plaintiffs seek a targeted declaration that will give students with disabilities
certainty over their rights that will end a live and ongoing dispute between the parties. If a
student with a disability were to file a new complaint, it would request the same form of relief
and be motivated by overlapping and analogous circumstances. And declaratory judgments are,
by definition, not advisory opinions. Clarifying the scope of Plaintiffs’ rights would resolve a
concrete controversy.
School District Defendants also overread the Eighth Circuit’s order. The Eighth Circuit
plainly stated that “[t]he issues surrounding the preliminary injunction are moot because the
current conditions differ vastly from those prevailing when the district court addressed it.” Arc of
Iowa, 33 F.4th at 1044 (emphasis added). Nothing in the Eighth Circuit’s order addresses
Plaintiffs’ claims for declaratory relief, which have not been adjudicated by this Court or any
other. A ruling on one type of relief does not extinguish the viability of claims on which a court
has not ruled. Indeed, the Eighth Circuit explicitly made clear that its determination regarding
preliminary injunctive relief did not extend to the merits of the underlying action or extinguish
forms of relief not at issue. Id. at 1045 (“This Court takes no position on the merits of Plaintiffs’
claims, which are left for future decision.”).
4
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II. THE DISTRICTS ARE INDISPENSABLE PARTIES.
A party is indispensable and must be joined in an action if the district court “cannot
accord complete relief” in that party's absence. Fed. R. Civ. P. 19(a)(1)(A). Joinder of “all
materially interested parties to a single lawsuit . . . .[ serves] to protect interested parties and
avoid waste of judicial resources.” Sykes v. Hengel, 220 F.R.D. 593, 596 (S.D. Iowa 2004)
(citation omitted). To determine whether a party is indispensable, courts use a practical, fact-
based inquiry based on the particulars of the case. “Whether a person is ‘indispensable’—that is,
whether a particular lawsuit must be dismissed in the absence of that person, can only be
determined in the context of particular litigation.” Spirit Lake Tribe v. N.D., 262 F.3d 732, 746
(8th Cir. 2001).
This litigation requires joinder of the School District Defendants. To ban mask mandates,
Iowa legislators specifically restricted what school districts can do. The statute singles out the
“board of directors of a school district” and the superintendent or chief administering officer of a
“school district” from adopting mask mandates. 2021 Iowa Acts ch. 139, § 28 (codified at Iowa
Code § 280.31). School districts are the regulated party in question and remain a necessary party
to afford relief. This is evident from the past history of this case: All ten of the School District
Defendants had masking requirements before the passage of Section 280.31; nine of them
rescinded their masking requirements after Section 280.31 passed and the State Defendants
threatened enforcement; eight of them adopted some form of masking requirement following this
Court’s entry of a TRO prohibiting State Defendants from enforcing Section 280.31. Order
Granting Prelim. Inj./ECF 60, at 7; TRO/ECF 32, at 17. Finally, the declaratory relief Plaintiffs
seek directly controls the response by School District Defendants to Plaintiffs’ and Plaintiffs’
members current and future requests for reasonable modifications by providing that “Section
280.31 cannot be cited as a basis to deny a student's request for reasonable modification or
5
Case 4:21-cv-00264-RP-HCA Document 105 Filed 08/15/22 Page 9 of 11
accommodation that includes requiring others to wear mask.” Pl. Mot. for Summ. J./ECF 88, at
2.
The Fifth Circuit’s recent order in E.T. v. Paxton confirms the indispensability of school
districts. In finding the Texas plaintiffs did not have redressability based on the unique
considerations in the case, that court observed that the Texas “[p]laintiffs chose not to sue their
school districts,” leaving them with “unfettered choice” to “drop their mask mandates at any
time.” No. 21-51083, 2022 WL 2914732 (5th Cir. July 25, 2022) at *7. The Fifth Circuit noted
that even if it affirmed the district court’s permanent injunction against the Texas Attorney
General, “the school districts could drop . . . their mask mandates anyway” because they had not
been sued, “expos[ing] plaintiffs to the exact same risks they otherwise impute to [the Texas
mask mandate ban], and no amount of equitable relief against the Attorney General will redress
anything.” Id. Here, as in Texas, school districts must be joined to create the possibility of
redress.
CONCLUSION
For the foregoing reasons, the School District Defendants’ motions to dismiss should be
denied.
Respectfully submitted,
AMERICAN CIVIL LIBERTIES UNION OF IOWA
/s/ Rita Bettis Austen
Rita Bettis Austen, AT0011558
Shefali Aurora, AT0012874
Leah Patton, AT0006022
ACLU of Iowa Foundation Inc.
505 Fifth Avenue, Suite 901
Des Moines, IA 50309-2316
6
Case 4:21-cv-00264-RP-HCA Document 105 Filed 08/15/22 Page 10 of 11
Telephone: 515-243-3988
Facsimile: 515-243-8506
rita.bettis@aclu-ia.org
shefali.aurora@aclu-ia.org
leah.patton@aclu-ia.org
DISABILITY RIGHTS IOWA
Cynthia A. Miller (AT0005382)
Catherine Johnson (AT0004006)
666 Walnut Street, Suite 1440
Des Moines, IA 50309
T: (515) 278-2502
E: cmiller@driowa.org
E: cjohnson@driowa.org
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
Louise Melling*
125 Broad St.
New York, NY 10004
T: (212) 549-2637
E: lmelling@aclu.org
Susan Mizner*
39 Drumm Street
San Francisco, CA 94111
T: (415) 343-0781
E: smizner@aclu.org
ARNOLD & PORTER KAYE SCHOLER LLP
John A. Freedman*
601 Massachusetts Ave, NW
Washington, DC 20001
T: 202.942.5316
E: john.freedman@arnoldporter.com
*Admitted pro hac vice
THE ARC
Shira Wakschlag*
The Arc of the United States
1825 K Street, NW, Suite 1200
Washington, DC 20006
Telephone: 202-534-3708
7
Case 4:21-cv-00264-RP-HCA Document 105 Filed 08/15/22 Page 11 of 11
Facsimile: 202-534-3731
E: wakschlag@thearc.org
*pro hac vice admission pending
DUFF LAW FIRM, PLC
Thomas J. Duff
The Galleria
4090 Westown Pkwy, Suite 102
West Des Moines, Iowa 50266
Telephone: (515) 224-4999
Fax: (515) 327-5401
E : tom@tdufflaw.com
Attorneys for the Plaintiffs
Dated: August 15, 2022
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: August 15, 2022
/s/Rita Bettis Austen
Rita Bettis Austen
8
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