By Phillip Sitter, Des Moines Register
The American Civil Liberties Union of Iowa is asking several school districts that have dropped their mask mandates — including those in the Des Moines metro area — to immediately reinstate them, or potentially face lawsuits to get them to comply with federal law.
ACLU of Iowa announced Friday that it has sent eight of 10 school districts involved in a federal lawsuit against the state’s ban on mask mandates letters “informing the schools that they are in violation of the Jan. 25 ruling by the U.S. Court of Appeals for the Eighth Circuit.”
In that Jan. 25 decision, the court ruled that the previous statewide injunction against Iowa’s law prohibiting schools from having mask mandates was overly broad. However, even though the injunction needed to be more narrowly tailored to the schools and districts attended by the children of the plaintiffs — the disability rights group Arc of Iowa and a group of parents of students with disabilities — the court also ruled that the state’s ban could not be enforced where masks are required to accommodate students with disabilities.
The state’s ban on mask mandates by schools, cities and counties was enacted into law in May. The lawsuit against Gov. Kim Reynolds, the Iowa Department of Education and the 10 school districts was filed in September, arguing that masks are necessary to accommodate children at higher risk for COVID-19 under the Americans with Disabilities Act and the Rehabilitation Act.
Out of the 10 districts that are party to the lawsuit — Ankeny, Council Bluffs, Davenport, Decorah, Denver, Des Moines, Iowa City, Johnston, Linn-Mar and Waterloo — Des Moines and Iowa City kept their mask mandates after the Jan. 25 ruling, so the ACLU of Iowa did not send those two districts letters Friday, according to the organization’s news release.
The letters ACLU of Iowa did send to schools’ legal counselors request that schools respond within a week, and if they don’t, plaintiffs “will consider further action, including litigation, to ensure your obligations under federal civil rights statutes are being met.”
For now, Rita Bettis Austen — ACLU of Iowa’s legal director — said during a news conference that the organization is reaching out in good faith, and Bettis Austen would not further specify any legal strategy regarding the eight districts.
Why Iowa school districts dropped their mask mandates
School districts across Iowa have eased their mask mandates for a variety of reasons since November.
Ankeny, Decorah, Johnston and Linn-Mar had partly or fully ended their mask mandates before the court’s ruling.
Both Ankeny and Johnston dropped their mandate after contentious school board elections.
Council Bluffs dropped its mandate this week but cited a downward trend in COVID-19 cases and not the court ruling for doing so, according to local newspaper The Daily Nonpareil.
Davenport and Waterloo lifted their mask mandates because of the Jan. 25 court ruling, according to local media reports and district announcements.
The letters sent to Ankeny and Johnston specifically note elementary and middle school students in the districts who live with congenital neurological conditions or moderate to severe asthma. The children’s doctors have advised their parents that they should be surrounded by masked students and staff at their schools in order to be less likely to catch COVID-19, according to the letters.
The ACLU of Iowa requests in the letters that mask mandates be reinstated at the specific schools attended by the students, but also “to begin the process of requiring masking in schools across the entire district” because the organization finds it difficult to imagine the other schools don’t have any other students with disabilities that put them at higher risk of COVID-19.
Having information about those disabilities on record is enough notice to have to be thinking about masking as a reasonable accommodation to protect students’ equal access to education under federal law, according to ACLU of Iowa.
Spokespersons for Ankeny and Johnston said their districts would not be immediately commenting or would have to wait until their attorneys processed the information.
ACLU wants all Iowa schools to have masking policies to comply with federal law
Other Iowa districts that had mask mandates but are not party to the lawsuit also dropped their mandates after the Jan. 25 ruling, including Ames, Burlington, Cedar Rapids, Urbandale and West Des Moines.
“Those schools are ignoring the fact that the court also said that the Iowa law prohibiting mask requirements includes an exception for schools to require masks when needed in order to comply with federal disability rights laws,” Bettis Austen said in Friday’s news release.
“We hope that they will change course. If they don’t, all options are on the table for us,” Bettis Austen said.
The Iowa Attorney General’s Office announced its intentions to appeal the Jan. 25 court decision, but said the current injunction against state law would remain in place for the time being and that the state would not resume enforcing its ban on mandates until the case returns to district court, something officials do not anticipate happening until at least Feb. 15.
Bettis Austen said the governor’s choice to end the state’s emergency declarations put in place at the start of the pandemic “has no impact on the obligations that schools have in Iowa to protect students who have these disabilities that make them vulnerable to severe illness from COVID.”
Bettis Austen said that in the future, the Centers for Disease Control and Prevention may no longer say in its guidance that schools should use masks to protect people, “but it is the case now, and the governor’s proclamation doesn’t change that at all.”
The CDC continues to recommend that all students ages 2 years-old and older, staff, teachers and visitors to K-12 schools wear masks indoors, regardless of vaccination status.