Douglas Cnty. Sch. Dist. Re-1, C.B. v. Douglas Cnty. Health Dep't, Civil Action No. 21-cv-02818-JLK

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: Kane, SENIOR UNITED STATES DISTRICT JUDGE
• Citation: 568 F.Supp.3d 1158
• Parties: DOUGLAS COUNTY SCHOOL DISTRICT RE-1, C.B., by and through his parent and next friend, E.B., A.R., by and through his parent and next friend, L.R., J.G., by and through his parent and next friend, K.G., B.A., by and through her parent and next friend, J.A., M.M., by and through her parent and next friend, K.M., D.B., by and through his parent and next friend, J.B., R.P., by and through her parent and next friend, B.H., D.W., by and through his parent and next friend, G.W., A.L., by and through his guardian and next friend, C.L., Plaintiffs, v. DOUGLAS COUNTY HEALTH DEPARTMENT, Douglas County Board of Health, Defendants.
• Docket Number: Civil Action No. 21-cv-02818-JLK
• Decision Date: 26 October 2021

568 F.Supp.3d 1158

DOUGLAS COUNTY SCHOOL DISTRICT RE-1, C.B., by and through his parent and next friend, E.B., A.R., by and through his parent and next friend, L.R., J.G., by and through his parent and next friend, K.G., B.A., by and through her parent and next friend, J.A., M.M., by and through her parent and next friend, K.M., D.B., by and through his parent and next friend, J.B., R.P., by and through her parent and next friend, B.H., D.W., by and through his parent and next friend, G.W., A.L., by and through his guardian and next friend, C.L., Plaintiffs,
v.
DOUGLAS COUNTY HEALTH DEPARTMENT, Douglas County Board of Health, Defendants.

Civil Action No. 21-cv-02818-JLK

United States District Court, D. Colorado.

Signed October 26, 2021

568 F.Supp.3d 1160

John Felix Peters, Elliott Vallen Hood, Caplan & Earnest LLC, Boulder, CO, for Plaintiffs.

Kelly Dunnaway, Douglas County Attorney's Office, Castle Rock, CO, Shelly C. Thompson, Burns Figa & Will P.C., Greenwood Village, CO, for Defendants.

ORDER GRANTING MOTION FOR TEMPORARY RESTRAINING ORDER

Kane, SENIOR UNITED STATES DISTRICT JUDGE

On October 8, 2021, Defendants Douglas County Health Department (the "Health Department") and Douglas County Board

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of Health (the "Board of Health") issued a COVID-19 related Public Health Order that had the effect of loosening mask and quarantine requirements for public school students in Douglas County, Colorado (the "Public Health Order"). Plaintiffs in this case are the Douglas County School District ("the School District") and nine School District students (the "Student Plaintiffs") with disabilities within the meaning of the Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12131 et seq. , and Section 504 of the Rehabilitation Act of 1973 (" Section 504"), 29 U.S.C. § 794. Plaintiffs allege the Public Health Order conflicts with the ADA and Section 504 and is therefore void and unenforceable. Due to the urgency of the circumstances, Plaintiffs have requested issuance of an order temporarily restraining enforcement of the Public Health Order pursuant to Federal Rule of Civil Procedure 65. See Mot. for TRO & Prelim. Inj. (ECF No. 3). Having reviewed the parties’ briefs and exhibits and having heard the testimony of witnesses,¹ I find the risk of irreparable harm to Plaintiffs is significant and they have sufficiently demonstrated that the Public Health Order denies Student Plaintiffs reasonable accommodations in the form of science-backed masking and quarantine requirements. Thus, I conclude Plaintiffs have met their burden and issue the requested temporary restraining order.

I. FACTUAL BACKGROUND

COVID-19 is an infectious disease caused by SARS-CoV-2, a virus first discovered in December 2019. Basics of COVID-19 , Ctrs. For Disease Control & Prevention (CDC), https://www.cdc.gov/coronavirus/2019-ncov/your-health/about-covid-19/basics-covid-19.html (last visited October 26, 2021). The virus exploded into a global pandemic that has infected approximately 49.5 million people in the United States. Beuther Decl. at 4, ECF No. 3-2. The Summer of 2021 brought some relief from the COVID-19 pandemic with incidence rates reaching low points across the state by July, after vaccines became widely available. See Colorado COVID-19 Incidence , Colorado Dep't of Public Health and Env't (CDPHE), https://cdphe-data.shinyapps.io/twoweek_incidence (last visited October 26, 2021).

The Student Plaintiffs have disabilities such as cystic fibrosis, autism, epilepsy, and type 1 diabetes that place them at great risk of health complications if they contract COVID-19. When they returned to school on August 9, 2021, the School District recommended mask wearing, but only a quarter of School District students wore them. Wise Decl. ¶ 9, ECF No. 3-17. At that time, the School District had a policy in place to manage communicable diseases in accordance with the guidance of the Colorado Department of Public Health and Environment (the "CDPHE") or the Tri-County Health Department (the "TCHD"), which was the public health agency for three counties in Colorado including Douglas County. The virus continued to mutate and by the last week of September 2021, the Delta variant of SARS-CoV-2 accounted for 100% of COVID cases in Colorado. Fish Decl. at 4, ECF No. 3-3. The Delta variant is more than twice as contagious as previous variants. Delta Variant: What We Know About the Science , CDC https://www.cdc.gov/coronavirus/2019-ncov/variants/delta-variant.html

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(last visited October 26, 2021).

As the Delta variant was on the rise, the School District initiated a mask mandate for all students in preschool through sixth grade beginning August 23, 2021. See Wise Decl. ¶ 5. The following week, the TCHD issued a public health order directing all individuals aged two and older to wear masks in any indoor school setting, with limited exceptions when medically necessary. Id. ¶ 6. As a result, from September 1, 2021, through October 8, 2021, approximately 97% of students wore masks indoors. Wise Declaration ¶ 10.

Dissatisfied with the guidance of the TCHD and the CDPHE, the Douglas County Board of County Commissioners voted to withdraw from the TCHD and create the Douglas County Health Department on September 7, 2021. The Board of County Commissioners appointed six members to the Board of Health, and the Board of Health then issued its first public health order—the Public Health Order at issue here—effective as of Saturday, October 9, 2021. The Public Health Order states, inter alia , that:

(1) Children can be exempt from any Douglas County mask mandate if they submit "a written declaration signed by the parent or guardian of the child, requesting to be exempted from the requirement ... due to the negative impact on that individual's physical and/or mental health."

(2) "No Individual in Douglas County, regardless of age, shall be required to quarantine because of exposure to a known COVID-19 positive case unless the exposure is associated with a known [o]utbreak."

Public Health Order at 2, ECF No. 3-1. This Order is in direct conflict with CDPHE guidance. Within the first week after the Public Health Order was issued, 4,500 parents submitted written declarations exempting Douglas County School District students from the mask requirement. Id. ¶ 13. Over 500 School District staff members also exempted themselves from wearing masks while indoors. Id.

Plaintiffs contend the Public Health Order discriminates against students with disabilities because it prevents the School District from granting reasonable accommodations necessary to provide them with meaningful access to the School District's programs and services in violation of the ADA and Section 504.

II. LEGAL STANDARD

Four factors are relevant to a motion for a temporary restraining order: (1) whether plaintiffs are likely to succeed on the merits; (2) whether plaintiffs will suffer irreparable injury if the injunction is denied; (3) whether the threatened injury to the plaintiffs outweighs the injury the opposing parties will suffer under the injunction; and (4) whether the injunction would be adverse to the public interest. Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC , 562 F.3d 1067, 1070 (10th Cir. 2009). Because defendants are government entities, the third and fourth factor merge. Nken v. Holder , 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009). A temporary restraining order preserves the status quo ante to prevent irreparable harm until a court can make a final decision on the merits. Fed. R. Civ. P. 65(b) ; see also Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Loc. No. 70 of Alameda Cty. , 415 U.S. 423, 439, 94 S.Ct. 1113 (1974). It is "an extraordinary remedy never awarded as of right." Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (quoting

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Munaf v. Geren , 553 U.S. 674, 689-90, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008) ).

III. DISCUSSION

Defendants assert the temporary restraining order should not be issued for three reasons: (1) the School District lacks standing to raise claims under the ADA and Section 504 ; (2) the Student Plaintiffs have failed to exhaust their administrative remedies under the Individuals with Disabilities Education Act (the "IDEA"), 20 U.S.C. § 1400 et seq. ; and (3) Plaintiffs have not shown that a temporary restraining order is justified because they are unlikely to succeed on the merits of their claims, they are not likely to suffer irreparable harm, and the relief they have requested is not in the public interest. As described below, I disagree with their assessment on all three grounds.

1. Standing

"To establish standing, Plaintiffs must show (1) an injury in fact, (2) a causal connection between the injury and the challenged act, and (3) a likelihood that the injury will be redressed by a favorable decision." New Mexico v. Dep't of Interior , 854 F.3d 1207, 1214–15...