Arc Iowa v. Reynolds

• Decision Date: 13 September 2021
• Docket Number: 4:21-cv-00264
• Citation: 559 F.Supp.3d 861
• Parties: The ARC OF IOWA; Charmaine Alexander, Individually and on Behalf of C.B.; Johnathan Craig, Individually and on Behalf of E.C. and J.C.; Michelle Croft, Individually and on Behalf of J.J.B. ; Amanda Devereaux, Individually and on Behalf of P.D.; Carissa Froyum Roise, Individually and on Behalf of H.J.F.R. ; Lidija Geest, Individually and on Behalf of K.G.; Melissa Hadden, Individually and on Behalf of V.M.H.; Heather Lynn Preston, Individually and on Behalf of M.P. and S.P.; Lisa Hardisty Sithonnorath, Individually and on Behalf of A.S.; Rebekah Stewart, Individually on Behalf of E.M.S.; Erin Vercande, Individually and on Behalf of S.V., 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 ; Waterloo Community School District, Defendants
• Court: U.S. District Court — Southern District of Iowa

559 F.Supp.3d 861

The ARC OF IOWA; Charmaine Alexander, Individually and on Behalf of C.B.; Johnathan Craig, Individually and on Behalf of E.C. and J.C.; Michelle Croft, Individually and on Behalf of J.J.B. ; Amanda Devereaux, Individually and on Behalf of P.D.; Carissa Froyum Roise, Individually and on Behalf of H.J.F.R. ; Lidija Geest, Individually and on Behalf of K.G.; Melissa Hadden, Individually and on Behalf of V.M.H.; Heather Lynn Preston, Individually and on Behalf of M.P. and S.P.; Lisa Hardisty Sithonnorath, Individually and on Behalf of A.S.; Rebekah Stewart, Individually on Behalf of E.M.S.; Erin Vercande, Individually and on Behalf of S.V., 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 ; Waterloo Community School District, Defendants

4:21-cv-00264

United States District Court, S.D. Iowa, Central Division.

Signed September 13, 2021

Rita N. Bettis Austen, Leah Denise Patton, Shefali Aurora, ACLU of Iowa Foundation, Catherine Ellizabeth Johnson, Cynthia Ann Miller, Disability Rights Iowa, Des Moines, IA, Jim T. Duff, Thomas J. Duff, Duff Law Firm, P.L.C., West Des Moines, IA, John Arak Freedman, Pro Hac Vice, Arnold & Porter LLP, Shira Wakschlag, Pro Hac Vice, The Arc of the United States, Washington, DC, for Plaintiffs The Arc of Iowa, Charmaine Alexander, Johnathan Craig, Michelle Croft, Amanda Devereaux, Carissa Froyum Roise, Lidija Geest, Melissa Hadden, Heather Lynn Preston, Lisa Hardisty Sithonnorath.

Rita N. Bettis Austen, ACLU of Iowa Foundation, Catherine Ellizabeth Johnson, Disability Rights Iowa, Des Moines, IA, for Plaintiff Rebekah Stewart.

ORDER GRANTING PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER

ROBERT W. PRATT, UNITED STATES DISTRICT JUDGE

Before the Court is Plaintiffs’ Complaint for Declaratory and Injunctive Relief against All Defendants, and Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction (TRO Motion), both filed on September 3, 2021. ECF Nos. 1, 3. Defendants Kim Reynolds and Ann Lebo filed a Response to Plaintiffs’ TRO Motion on September 9, 2021. ECF No. 21. On September 10, 2021, the Court held a hearing on the TRO Motion. See ECF No. 27. Following the hearing, Plaintiffs filed a Supplement to their TRO Motion. ECF No. 28. The matter is fully submitted.

I. INTRODUCTION

It has been almost forty years since the U.S. Supreme Court recognized that, regardless of citizenship status, denying school-aged children a free public education violates the U.S. Constitution. Plyler v. Doe , 457 U.S. 202, 230–31, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982). In Plyler , Justice Brennan described the importance of protecting the most vulnerable class of society—innocent children—who "can affect neither their parents’ conduct nor their own status." Id. at 220, 102 S.Ct. 2382 (quoting Trimble v. Gordon , 430 U.S. 762, 770, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977) ). Forcing children to bear the brunt of societal discord "is illogical and unjust."

Id. (quoting Weber v. Aetna Cas. & Surety Co. , 406 U.S. 164, 175, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972) ). Equal access to "education provides the basic tools by which individuals might lead economically productive lives to the benefit of us all." Id. at 221, 102 S.Ct. 2382. Denying a group of children "the means to absorb the values and skills upon which our social order rests" is a "significant social cost[ ] borne by our Nation." Id. As Justice Brennan indicated, we can look to Brown v. Board of Education , 347 U.S. 483, 493, 74 S.Ct. 686, 98 L.Ed. 873 (1954), for the proposition that "education is perhaps the most important function of state and local governments.... [I]t is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity ... is a right which must be made available to all on equal terms." Id. at 222–23, 102 S.Ct. 2382.

II. FACTUAL AND PROCEDURAL BACKGROUND

In their TRO Motion, Plaintiffs seek to immediately enjoin Defendants from enforcing Iowa's mask mandate ban that prohibits Iowa school districts from adopting, implementing, and enforcing a universal mask mandate. Plaintiffs want Iowa school districts to have the opportunity to comply with federal law and ensure that each child receives an education in the least-restrictive and the most-integrated environment—without jeopardizing their lives or safety. The Iowa mask mandate ban provides that school districts "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 ... property." Iowa Code § 280.31. The provision bans universal mask mandates indoors unless school district authorities determine masks must be worn for "specific extracurricular or instructional purpose[s]" or a mask is otherwise required by law. Id. Plaintiffs thus claim that section 280.31 violates the civil rights of disabled or immunocompromised children under Title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12132, and section 504 of the Rehabilitation Act of 1973, § 794(a). Plaintiffs further claim section 280.31 is preempted by the ADA, the Rehabilitation Act, and the American Rescue Plan Act of 2021 (ARPA), Pub. L. No. 117-2, 135 Stat. 4 (2021). Because Plaintiffs cannot access reasonable protection from the threat of exposure to SARS-CoV-2—the virus that causes COVID-19—they allege that only immediate restraint of the mask mandate ban will eliminate this violation of the children's civil rights.

A. Ongoing COVID-19 Risks

Despite the introduction of vaccines earlier this year, COVID-19 continues to spread. Since August 2021, the State of Iowa has seen a dramatic increase in COVID-19 cases, particularly among the unvaccinated, driven by the spread of the highly contagious Delta variant. ECF No. 1 at 9–10. In the first week of September 2021 alone, over 8,100 new cases were reported in Iowa. Iowa COVID-19 Summary , COVID-19 in Iowa (Sept. 7, 2021), https://coronavirus.iowa.gov. This is an increase from a month ago in August when there were just "over 7,000 new cases" in one week. ECF No. 1 at 9. Iowa is quickly reaching pre-vaccination levels in daily positive tests and hospitalization rates because the "Delta variant is at least twice as transmissible as previous variants." ECF No. 3-1 ¶ 11.¹ And despite what some may think, children of all ages can and do contract and transmit SARS-CoV-2. ECF No. 3-2 ¶¶ 19, 21. "According to the American Academy of Pediatrics (AAP), ‘the Delta variant has created a new and pressing risk to children and adolescents across this country’ and pediatric cases of COVID-19 have been ‘skyrocketing.’ " ECF No. 17 at 2 (quoting Letter from American Academy of Pediatrics to Acting FDA Commissioner Janet Woodcock (Aug. 5, 2021), https://downloads.aap.org/DOFA/AAP% 20Letter% 20to% 20FDA% 20on% 20Timeline% 20for% 20Authorization% 20of% 20COVID-19% 20Vaccine% 20for% 20Children_08_05_21.pdf).

Since July, the AAP has recorded around 3,500 new COVID-19 cases among Iowa school-aged children. ECF No. 1 at 10; see also ECF No. 3-2 ¶ 14 ("Data released August 31 shows 22% of new cases in Iowa last week, after one week of school for many, are in school-age children."). "[I]t is becoming increasingly apparent that the Delta variant of COVID-19 is very contagious and causing more symptomatic illness in children." ECF No. 11 at 41. The current level of the Delta variant in Iowa has increased the infection rate and severity of infection. ECF Nos. 11 at 16; 17 at 3–4. Some public schools in Iowa are experiencing COVID-19 infection rates at upwards of sixty percent that of last year's total for the entire school year. ECF No. 28 at 2–4. Defendant Des Moines Public Schools report a positive infection rate already at twenty-five percent of all positive cases last year. Id. at 2–3. Defendant Linn-Mar Community School District similarly reports it has already reached thirty percent of the total infection rate of last year. Id. at 4. Defendant Waterloo Community School District reports a positive infection rate at more than sixty percent of last year's total. Id. Defendant Iowa City Community School District reports positive cases have more than doubled in one week in September. Id. at 3. And this school year has only been in session for a few weeks. The number of children hospitalized due to COVID-19 is also on the rise. ECF No. 3-1 ¶ 12.

Children are susceptible to post-infection complications of COVID-19, namely Multisystem Inflammatory Syndrome in Children (MIS-C) and "Long COVID." ECF No. 3-1 ¶¶ 20, 21. Children who suffer from MIS-C "often require continuous infusions of medications that help their heart beat strong enough to maintain life." Id. ¶ 20. Long COVID entails "symptoms remain[ing] months after an initial COVID diagnosis," id. ¶ 21, such as "chronically disabling fatigue, headache, difficulty concentrating, insomnia and other multisystemic symptoms," ECF No. 3-2 ¶ 22. Long COVID can occur even in children who had a mild illness. ECF No. 3-2 ¶ 22.

Some children, like Plaintiffs, are at greater risk of severe illness than others. The Centers for Disease Control and Prevention (CDC) has listed several factors that identify people at higher risk of severe illness or death from COVID-19. See ECF No. 1 at 11. The CDC's research "suggests that children with medical complexity, with genetic, neurologic, metabolic conditions, or with congenital heart disease

might be at increased risk for severe illness from COVID-19." ECF No. 17 at...