State concedes masks needed around some students with disabilities

The Iowa Department of Education has conceded that facial coverings may be required in some school settings to ensure students with disabilities have equal access to educational opportunities.

In a December 1 order distributed to Area Education Agencies, agency officials determined that the federal Individuals with Disabilities Education Act (IDEA) allows schools to make an exception to a state law that generally bans mask mandates, if a student’s Individualized Education Programs (IEP) team finds masking is needed for that child to receive the education federal law guarantees.

However, the department’s order said the IDEA does not require public schools to adopt district-wide mask mandates.

“ANY OTHER PROVISION OF LAW”

Here’s the full text of the order, signed by the Iowa Department of Education’s general counsel Thomas Mayes, State Director of Special Education Barbara Guy, and Deputy Director Amy Williamson. The department drafted the document in response to complaints parents filed this fall under the IDEA. The parents (not named in the order) contended that the state law banning school mask mandates, known as House File 847 or Iowa Code section 280.31, violates federal law on education for children with disabilities.

The order quotes the relevant portion of House File 847:

NEW SECTION. 280.31 Facial coverings. 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.

The agency’s analysis revolves around those final words: “The question is whether the IDEA is ‘any other provision of law’ that would allow an exception to section 280.31. After full consideration, the Department concludes it is and it does.”

Attorneys for the state have argued in federal court that there is no need to block enforcement of the mask mandate ban, because schools already have the authority “to comply with any requirement of federal law.” During hearings before a U.S. District Court in September and the Eighth Circuit Court of Appeals in November, Assistant Attorney General Sam Langholz repeatedly referenced the phrase “any other provision of law” as evidence that school districts would retain such flexibility, even if House File 847 remained in effect.

But Langholz never conceded that federal disabilities law “actually requires” mask mandates. The Iowa Department of Education’s order acknowledges that in some circumstances, schools may need to require masking to comply with federal law.

STATE LAW OR POLICY “MUST YIELD” TO FEDERAL LAW

The department’s order explains that the State of Iowa “is bound by the IDEA’s requirements” because it accepts a federal grant under that statute. The IDEA guarantees all children with disabilities “a free appropriate public education,” with reasonable “program modifications” to give any child an equal opportunity to make academic progress and “to participate in extracurricular and other nonacademic activities.”

Furthermore, “Children with disabilities are entitled to education in the least restrictive environment.” (Usually that means keeping them in regular classrooms, not putting them in segregated programs.) Under decades-old precedents cited in the order, a child’s IEP Team “determines what is necessary” for that child to receive a free appropriate public education. “A school board does not have the authority to override or modify an IEP Team’s decision,” and “If a state law or policy conflicts with the IDEA, it must yield.”

The state education department has jurisdiction to investigate complaints relating to alleged IDEA violations, but does not handle complaints stemming from possible violations of other federal laws.

“FORCED CHOICE” WOULD CREATE A “LEGALLY INTOLERABLE” RISK

The order notes that under the IDEA, IEP teams have “the authority to determine whether and the extent to which a requirement for masks or cloth face coverings is necessary for a child to receive” a free appropriate public education. “A state law that would attempt to limit an IEP Team’s ability to require some form of masking around an individual child runs the risk of running afoul of the IDEA assurances the State has made, see 20 U.S.C. § 1412(a), and must yield to the IDEA” if the state law would deny a child educational opportunities.

Governor Kim Reynolds has repeatedly said parents seeking mask mandates to keep their child safe have the option of choosing online learning. Iowa Department of Public Health leaders have similarly portrayed masks as a choice parents may make for their own vulnerable children, but not a policy that should apply to everyone in a classroom.

The education department’s order breaks new ground, because for the first time, the state admits families cannot be forced to choose between protecting a child from exposure to COVID-19 and having that child learn at school. (emphasis added)

In considering the interaction between the IDEA and House File 847, the Department is concerned that application of House File 847 without regard to the “or any other provision of law” safety valve, might lead to a forced choice between in-person instruction without masks and virtual instruction without masks. While virtual instruction may be necessary for a FAPE [free appropriate public education] and may be a particular child’s LRE [least restrictive environment], it does not follow that virtual instruction is the LRE and provides a FAPE for all children who need some form of masking. This forced choice runs the risk of depriving children with disabilities of, among other things, IDEA-required special education and support and related services, see 34 C.F.R. § 300.320(a), of education in the LRE, see id. § 300.114, of an equal opportunity to participate in extracurricular and nonacademic activities and services, see id. § 300.107, and of access to a full range of program options, see id. § 300.110. This risk is legally intolerable. Accord Return to School Roadmap, 79 IDELR 232, at C-10.

MASK MANDATES TO BE “INDIVIDUALIZED BASED ON THE CHILD’S DATA”

The order is careful not to suggest that Iowa schools need to require masks for all children. Rather, “In making the decision to require masks or cloth face coverings to support a child with a disability and that child’s access to a FAPE, any decision must be individualized based on the child’s data and the school’s circumstances. A one-size approach to implementing masks for children with disabilities is just as legally intolerable as not allowing any mask requirements for children with disabilities.”

To that end, the order says IEP Teams “must start with less restrictive alternatives,” and “the extent of the masking requirement must be directly related to the extent that it is necessary” to provide a given child with education and related services.

As with any IEP request, teams are “not bound by a parent demand.” Nor is a physician’s statement “binding” when a mask mandate has been requested, the agency’s order states.

In considering a request for a mask requirement, the IEP Team must base its decision based on child-specific and school-specific data, as well as “peer-reviewed research to the extent practicable.” […]

If an IEP Team decides that some form of mask requirement is necessary for a FAPE, it may require students and staff to wear masks around the child.

School districts cannot “override” an IEP Team’s decision, but they can use a process outlined in the IDEA “to challenge the decision.”

ORDER DOES NOT REQUIRE DISTRICT-WIDE MASK MANDATES

The agency confirmed parents’ complaints over the fact that their child’s IEP Team did not consider requiring masks around the child as a reasonable modification to ensure access to education.

But it did not find in favor of the parents’ demands for “universal, district-wide mask requirements. There is nothing in the IDEA that would impose that requirement.” While the U.S. Department of Education has said “universal masking is a best practice,” the state Department of Education will not confirm IDEA complaints “based solely upon a failure to do a best or recommended practice.”

“CORRECTIVE ACTION” NOT CONTINGENT ON OUTCOME OF FEDERAL LAWSUIT

Plaintiffs who challenged House File 847 cited provisions of other federal laws: the Americans with Disabilities Act and the Rehabilitation Act of 1973. U.S. District Court Judge Robert Pratt found their arguments persuasive. When he enjoined Iowa’s mask mandate ban in September, he found the state law “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.”

About two dozen Iowa school districts reimposed policies requiring face coverings in some or all school buildings after Pratt issued the injunction. The state appealed that ruling to the Eighth Circuit Court of Appeals, which heard arguments in mid-November and may publish its decision any day.

Whether the appeals court leaves the injunction in place, modifies it, or rescinds it will not affect the state agency’s order issued this week.

In reaching this decision, the Department is mindful of current litigation challenging House File 847 and an order from the Centers for Disease Control and Prevention regarding masking on school buses. Those matters have statutory underpinnings that are different from the IDEA and they do not change the analysis in this decision.

In other words, even if the Eighth Circuit panel lets the state’s mask mandate ban go back into effect, families will be able to request that schools require face coverings for students and staff as needed to ensure access for individual children with disabilities.

The Iowa Department of Education ordered “corrective action” to address the IDEA violations at hand. For each child whose parents filed a complaint with the state, IEP teams “shall meet to determine whether some form of masking is required” to allow that student to receive a free appropriate public education. “If so, the IEP Team will require such masking and consider whether the child is owed compensatory education due to the failure to require masking.”

The order doesn’t name the schools or districts that must take those steps, which “shall be completed” within 45 days of December 1. It also does not clarify whether parents need to initiate the IEP process to demand mask mandates as an accommodation for their own child. Staff for the Iowa Department of Education and the governor’s office did not immediately respond to Bleeding Heartland’s inquiries.

It appears that all Iowa school districts are subject to the order, which states Area Education Agencies “shall distribute this decision to each superintendent within its boundaries and to all regional administrators or facilitators.” I’m seeking to confirm and will update this post as needed.

Top image: Students at Edmunds Elementary in Des Moines on February 17, 2021. Photo published on the Des Moines Public Schools’ Flickr feed.

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