Governor's own words helped sink mask mandate ban in court

A federal court confirmed on October 8 that Iowa cannot enforce the state’s ban on mask mandates in public schools, pending resolution of a lawsuit filed by the ACLU of Iowa on behalf of a disability advocacy group and eleven parents of children with disabilities.

U.S. District Court Senior Judge Robert Pratt’s preliminary injunction follows a temporary restraining order he issued and extended last month, putting the law on hold. About two dozen Iowa school districts, including most of the largest, have since reimposed mask mandates, affecting more than 150,000 students.

The state immediately appealed Pratt’s ruling to the Eighth Circuit U.S. Court of Appeals. In a written statement, Reynolds said, “We will never stop fighting for the rights of parents to decide what is best for their children and to uphold state laws enacted by our elected legislators. We will defend the rights and liberties afforded to all American citizens protected by our constitution.” 

The governor’s bluster is not consistent with the state’s own legal arguments, which have not asserted the Iowa or U.S. constitutions establish any right not to wear masks, or to have one’s children remain unmasked at school.

The irony is that Reynolds’ own public statements have bolstered the plaintiffs’ case against the law Republicans rushed to enact in May.

MASK MANDATE AS “REASONABLE MODIFICATION” FOR A SAFE EDUCATION

The ARC of Iowa and families of children with serious health conditions contended that the ban on school mask mandates violates three provisions of federal law: Title II of the Americans with Disabilities Act of 1990, section 504 of the Rehabilitation Act of 1973, and the American Rescue Plan of 2021 (the latest federal COVID-19 relief package). They sued Reynolds, Iowa Department of Education Director Ann Lebo, and the ten public school districts where the children are enrolled. All of those districts required face coverings for students and staff inside school buildings before Reynolds signed the mask mandate ban.

The ADA prohibits “[e]xcluding children from the public-school classroom because of a disability.” It requires that public services, programs, and activities be “readily accessible” to students with disabilities, and be offered in “the most integrated setting appropriate to the needs of qualified individuals with disabilities.” The Rehabilitation Act prohibits discrimination against students with disabilities and requires that students be able to receive a “free appropriate public education.”

The lawsuit noted that the highly transmissible Delta variant has caused an explosion of COVID-19 cases in children in Iowa and nationally. Judge Pratt’s preliminary injunction cited evidence showing that “Several schools in Iowa have reported more positive cases in the first few weeks of school than during the entire previous academic year.”

Children with disabilities are at greater risk of severe health consequences from coronavirus infections, and are also among the most adversely affected by last year’s shift to remote learning models. Therefore, the District Court agreed, plaintiffs would suffer “irreparable harm” if state law were left in effect pending resolution of the lawsuit. Their children would be forced to either risk serious illness or death if infected at school, or lose access to educational opportunities by staying home.

Leading public health and medical authorities recommend universal masking in schools to reduce spread of COVID-19. Federal law requires “reasonable modifications” to provide equal access to school programs and services for students with disabilities. However, Iowa’s new state law (known as House File 847 or Iowa Code Section 280.31) prevents schools from implementing a mask mandate to make in-person school safe for vulnerable children.

The District Court agreed that “Iowa Code section 280.31 seems to conflict with the ADA and section 504 of the Rehabilitation Act because it excludes disabled children from participating in and denies them the benefits of public schools’ programs, services, and activities to which they are entitled.” Since federal law prevails over conflicting state law, the court determined that plaintiffs were likely to succeed on the merits of their claims.

Whereas Reynolds has vowed to “defend the rights and liberties afforded to any American citizen protected by our constitution,” attorneys for the state have not pointed to any provision in the Iowa Constitution or U.S. Constitution that establish a right to go unmasked in public school buildings.

Instead, the state’s briefs opposing a temporary restraining order and a preliminary injunction have followed a different track. First, they took the counter-intuitive position that there’s no need to block enforcement of code section 280.31, because the law already gives schools the authority “to comply with any requirement of federal law.”

Next, they have claimed enjoining the law won’t address the alleged irreparable harms to students with disabilities, because enacting a mask mandate would involve subsequent action by independent school boards.

In addition, the state denies that the ADA or Rehabilitation Act require universal mask mandates in schools or require schools to have the discretion to implement such mandates. In fact, they say wearing masks interferes with the education of some children with disabilities.

Furthermore, the state claims a mask mandate is not a “reasonable modification” and imposes “an undue administrative burden or a fundamental alternation in the nature of the State’s education program.”

State briefs have also argued the law does not single out anyone with disabilities, but merely “establishes a uniform nondiscriminatory policy” banning mandatory face coverings in schools.

Finally, the state has said it would cause “confusion” to block enforcement of the state law and let school districts return to setting their own policies on face coverings.

“WE WILL NEVER STOP FIGHTING”

When Republicans passed House File 847 on the final day of the legislature’s 2021 session, they believed they were banning schools from requiring masks. A late-night news release from the governor’s office quoted Reynolds as saying “the state of Iowa is putting parents back in control of their child’s education.” So it was surprising to read in the state’s briefs that the law supposedly doesn’t prevent schools from imposing mask mandates, if such a policy is required under federal law.

The plaintiffs’ court filing highlighted many occasions when Reynolds said the law would stop schools from requiring face coverings. In a July 27 news release, the governor said she was “proud that we recently put new laws in place that will protect Iowans against unnecessary government mandates in our schools.” Speaking to reporters on August 19, Reynolds promised to “hold strong,” going to court if necessary, to prevent federal action requiring masks in schools. Officials in the Department of Education raised the prospect of citing school districts for noncompliance if they didn’t follow the state law.

When the Biden administration announced efforts to increase COVID-19 mitigation practices in schools, Reynolds declared in an August 30 news release,

As I’ve said all along, I believe and trust in Iowans to make the best health decisions for themselves and their families. Iowa’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 Iowa, we will continue to support individual liberty over government mandates.

And at a September 2 news conference, the governor cut off a question to Iowa Department of Public Health Director Kelly Garcia about whether Garcia would recommend that Iowa students wear masks at school. “It doesn’t really matter, because it’s law at this point,” Reynolds said.

Judge Pratt noted in last month’s temporary restraining order, “Governor Reynolds has indicated she intends to ‘hold strong’ and vigorously enforce section 280.31 this fall.”

The preliminary injunction issued last week observed, “It was not until after the Court entered the [temporary restraining order] that schools understood they could adopt mask mandates.” A footnote added that the state’s argument about the law allowing districts to require masks “flies in the face in Governor Reynolds’s public statements that she would ‘hold strong’ and vigorously enforce section 280.31.”

No doubt the plaintiffs’ brief to the Eighth Circuit Court of Appeals will mention the governor’s October 8 news release, with its pledge that “We will never stop fighting for the rights of parents to decide what is best for their children and to uphold state laws enacted by our elected legislators.”

“THEY STILL HAVE OPTIONS TO DO SOME ONLINE LEARNING”

Beginning in the summer of 2020, Reynolds repeatedly spoke about the importance of getting Iowa children back to school in person. School districts were required to provide at least 50 percent in-person instruction at the beginning of the last academic year. But during the fall of 2020, the governor worked behind the scenes with parents seeking to force their school districts to abandon hybrid learning models. Returning to full-time, in-person instruction was the theme of one of her news conferences last December.

Soon after the 2021 legislative session convened, Republican lawmakers approved a bill requiring school districts to offer 100 percent in-person schooling to any parent who preferred that option. Upon signing that bill in late January, Reynolds said, “Sadly, the biggest risk to our students is their continued absence from school.”

However, the governor has expressed little empathy for families whose children would be endangered by spending all day surrounded by unmasked classmates.

During an August interview, she said of parents who want kids to be masked at school, “they still have options to do some online learning.” When a question about kids with chronic health issues came up at the governor’s September 2 news conference, Reynolds began her response by saying, “So we have an online option […].”

The ACLU quoted some of those remarks in their lawsuit, and Pratt cited them when issuing his temporary restraining order in September.

Defendants appear to be failing to permit schools from administering programs, services, and activities in the “most integrated setting” appropriate to the needs of qualified disabled students. When Defendant Reynolds suggested that children who feel unsafe in Iowa’s schools because of the mask mandate ban could instead engage in “some online learning,” ECF No. 1 at 16, that effectively leaves disabled children with not only an inferior service but unnecessarily segregated from their peers.

As for the idea that the state law doesn’t single out children with disabilities, the judge wrote in his order granting an injunction,

Although it is true that the enactment of section 280.31 prohibits school districts from implementing universal mask mandates to protect their students, it is because of Plaintiffs’ children’s disabilities that they are excluded from participation in or denied the benefits of the children’s schools’ programs, services, or activities by not being able to engage in in-person learning, which is especially crucial for children with disabilities. See ECF No. 48-4 ¶¶ 17–23. Moreover, as determined above, universal masking policies are a reasonable modification, which public schools are required to provide.9

On a related note, during the September 10 hearing on plaintiffs’ request for a temporary restraining order, ACLU attorney Susan Mizner (the director of the organization’s disability rights program) pointed out that not all Iowa school districts offered an online option for the current school year. Those that did are providing mostly pre-recorded classes, with no interaction with a teacher or classmates. Federal law forbids segregating students with disabilities from educational opportunities available to their peers. Plus, kids with disabilities often need the in-person direct interaction even more than typical-needs students do, Mizner said.

Pratt addressed declarations the state submitted from several parents who said their children cannot wear masks at school for “medical, behavioral, or other reasons.”

These parents’ concerns are valid. Their children’s education is important. But the relief Plaintiffs seek in this case—and that the Court grants in issuing a preliminary injunction—does not require universal mask mandates in schools and certainly not without exception. Most, if not all, schools with universal masking policies provide medical exemptions for children and staff.

WHO CAUSED “CONFUSION” FOR SCHOOLS?

Attorneys for the state argued that a “preliminary injunction—like the temporary restraining order currently in place—would continue to upset the status quo rather maintain it.” Glossing over the spike in COVID-19 cases among children in August and September, the state painted a rosy picture: “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.”

Putting the law on hold “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,” the state argued.

Judge Pratt was unmoved.

The Iowa Legislature and Defendant Reynolds caused confusion when they enacted section 280.31 in the middle of the night with only two weeks remaining in the school year. Up until that point, local school districts were able to utilize their discretion to determine what was best for their students. Defendants have failed to present any evidence that enjoining their enforcement of section 280.31 has caused any confusion. And even if it has, any confusion that is caused by returning discretion to the school districts as it was for most of last year, even if only temporary, is minimal and does not weigh in favor of denying Plaintiffs’ request for a preliminary injunction.

The Attorney General’s office showed real chutzpah by claiming it would be too confusing for the court to allow school districts to set their own mask policies. Most new Iowa laws take effect on July 1, but at Reynolds’ request, Republicans wrote the mask mandate ban to take effect immediately after the governor signed the bill, and rushed it to her office after midnight the same night it was approved.

Top photo of Governor Kim Reynolds first posted on Facebook by the Webster County Republican Central Committee on October 10.

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