Iowa asks appeals court to uphold ban on mask mandates in schools

(CN) — The state of Iowa urged the Eighth Circuit on Thursday to reverse a federal judge’s decision to block enforcement of a state law that forbids local districts from mandating masks in schools.

The GOP-controlled Iowa Legislature passed the school mask mandate ban late in the 2021 legislative session and it took immediate effect when Republican Governor Kim Reynolds signed it into law. Covid-19 cases were on the wane at that point, but cases began rising again with the delta variant when classes resumed in the fall.

A disability rights group and parents of children with disabilities sued to block enforcement of the law in September, and a month later a federal judge in Des Moines granted them a preliminary injunction.

Now the state is appealing to the Eighth Circuit to dissolve the injunction, which it calls an “intrusion into the state of Iowa’s education and public health domain.”

A three-judge panel of the St. Louis-based appeals court expedited the appeal. Oral arguments were heard in Omaha on Thursday by U.S. Circuit Judges Jane Kelly, Ralph Erickson and Duane Benton, appointed by Barack Obama, Donald Trump and George W. Bush, respectively.

After several spirited exchanges between judges and lawyers for both sides, it appeared that at least Benton seemed to favor a narrower injunction addressing specific schools with students with disabilities, or simply an order directing the state to abide by federal disability law.

In its appeal, Iowa argues that the plaintiffs are not harmed by the state law because it does not prevent schools from complying federal law, such as the Americans With Disabilities Act, and because the injunction does not guarantee a universal mask mandate because mask policies would be set by individual school districts.

Iowa’s law says public or state-accredited non-public schools “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 school property “unless the facial covering is necessary for a specific extracurricular or instructional purpose” or for “any other provision of law.”

In their complaint filed in Des Moines federal court, disability rights group Arc of Iowa and 11 parents of 13 children with disabilities – including asthma, Down syndrome, cerebral palsy, heart defects, lung conditions, sickle cell anemia, and weakened immune systems – assert that the statute violates Title II of the Disabilities Act and section 504 of the Rehabilitation Act. Those statutes say that no person by reason of a disability shall be denied the benefits of “services, programs, or activities of a public entity” or an activity receiving federal financial assistance.

The state law, the plaintiffs argue, puts both schools and parents of children with disabilities in a dilemma: whether to send their kids to school at risk to their health or "keep them at home at the expense of their education and development.”

In Thursday’s hearing, Benton asked whether a narrower injunction could focus on the statute’s exception where it is not enforced if it conflicts with “any other provision of law,” including the Americans with Disabilities Act.

“Assuming that the ADA applies to schools,” the judge said, “why doesn’t the ‘any other provision of law’ clause mean that they win? They have to win this case.”

In response, Iowa Assistant Solicitor General Sam Langholz said: “That’s not the case that’s been brought here. They have brought an injunction preventing the governor and the director of education from enforcing this statute and stopping it completely, stopping things that are outside the scope of federal disability law.”

The plaintiffs’ lawyer, Elisabeth Theodore of Arnold & Porter, said a narrower injunction may not be enough.

“If the injunction said you cannot enforce the law against any school district that has decided that masking is an accommodation for students with disabilities, perhaps you could narrow it to do that,” she said. “I would want to know what the narrower injunction would say. A narrower injunction that says you have to follow the ‘any other provision of law’ savings clause would not do the trick here.”

An amicus brief was filed with the Eighth Circuit by the American Academy of Pediatrics in support of the plaintiffs-appellees.

The parents and the Arc of Iowa are represented by the American Civil Liberties Union of Iowa and the Arnold & Porter law firm.

"No parent should be asked to choose between the safety and health of their child and their child’s ability to go to school with their fellow classmates, but that’s exactly the position that this law put parents in across Iowa," said Rita Bettis Austin, ACLU of Iowa legal director, in a statement after Thursday’s hearing.

She added, “Today we asked the court to affirm the district court’s crucial injunction, which allowed schools across Iowa to take basic public health measures to protect their students who have disabilities, including underlying conditions, that make them more vulnerable to severe illness or death from Covid-19. Banning the possibility that schools may require masks in the middle of a pandemic discriminates against these school children with disabilities.”

A spokesman for Governor Reynolds did not respond to a request for comment Thursday.

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