Federal Disability Law Likely Requires Schools to Mandate Masks

when children "at heightened risk of severe injury or death from COVID-19" are present, holds the U.S. Court of Appeals for the Eighth Circuit.

From Arc of Iowa v. Reynolds, decided today by the Eighth Circuit (Judges Duane Benton and Jane Kelly):

Plaintiffs, the Arc of Iowa and Iowa parents whose children have serious disabilities that place them at heightened risk of severe injury or death from COVID-19, sued to enjoin enforcement of Iowa's law prohibiting mask requirements in schools…. Plaintiffs are entitled to a preliminary injunction because mask requirements are reasonable accommodations required by federal disability law to protect the rights of Plaintiffs' children….

In early 2020, many schools and school districts in Iowa moved to remote learning in response to the COVID-19 pandemic. When they later reopened for in-person classes, the Iowa Department of Education recommended mask-wearing at  schools, and many districts imposed broad mask mandates. On May 20, 2021, Iowa Governor Kim Reynolds signed into law Iowa Code Section 280.31, prohibiting schools and school districts from requiring anyone wear masks on school grounds unless otherwise required by law. In response, all Iowa schools and school districts with mask mandates ended them….

Plaintiffs are likely to succeed on the merits because mask requirements constitute a reasonable modification and schools' failure to provide this accommodation likely violates the [Rehabilitation Act]. Section 504 of the Rehabilitation Act states, "No otherwise qualified individual with a disability in the United States … shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."

"[P]ublic entities discriminate in violation of the Rehabilitation Act if they do not make reasonable accommodations to ensure meaningful access to their programs." For a failure-to-accommodate claim under the RA, a plaintiff must show that (1) she is a qualified individual with a disability, (2) the defendant receives federal funding, and (3) the defendant failed to make a reasonable modification to accommodate her disability. "[A]n accommodation is unreasonable if it either imposes undue financial or administrative burdens, or requires a fundamental alteration in the nature of the program." …

Plaintiffs' requested accommodation—that schools require some others wear masks—is reasonable. It does not constitute a "fundamental alteration" of the nature of schools' educational programs. Before Section 280.31 was enacted, the Iowa Department of Education maintained "guidance on face coverings … in line with CDC" recommendations, and "defer[red] to local districts" on how to conduct school activities. After the district court enjoined Defendants' enforcement, Iowa public schools enrolling "approximately 30% of students in Iowa" imposed mask requirements. Similarly, most of the schools that Plaintiffs attend imposed mask requirements, at least as necessary around Plaintiffs, before Section 280.31 was enacted and reimposed mask requirements after the law was enjoined.

Where these schools can, did, and do impose mask requirements, continuing to maintain some mask requirements does not constitute a "fundamental alteration." Further, Defendants have not produced any evidence that mask requirements would create a significant financial or administrative burden.

Requiring masks also is not an unreasonable infringement on third parties' rights. First, this argument is undercut by the fact that some Iowa schools have already imposed the requirement. Second, the Eighth Circuit has found reasonable a modification that imposed on third parties without injuring their health. See Buckles v. First Data Res., Inc. (8th Cir. 1999) (finding employer's accommodations of employee's condition that resulted in sinus attacks from environmental irritants "were reasonable," including ban on "the use of nail polish in his department"). Third, schools and the State routinely impose similar requirements, including protective headwear, and immunization. See Iowa Code §§ 280.10, 280.11 (requiring eye and ear protection in some classes); id. § 139A.8(2) (prohibiting enrollment in "elementary or secondary school in Iowa without evidence of adequate immunizations" against various communicable diseases). Because Plaintiffs' requested accommodation is reasonable, they are likely to succeed on their Rehabilitation Act claim.

Because Section 504 of the RA likely requires mask wearing as a reasonable accommodation for plaintiffs' disabilities, this Court need not consider how [the American Rescue Plan Act of 2021] or Title II of the ADA applies to Plaintiffs' claims….

The district court, however, did not tailor the present injunction to remedy Plaintiffs' harms…. By barring Defendants … from enforcing Section 280.31 in all contexts, the court prevented them from enforcing Iowa's law against schools that encounter no one with disabilities that require masks as a reasonable accommodation. This sweeps broader than the relief necessary to remedy Plaintiffs' injuries and is an abuse of discretion….

Judge Ralph Erickson dissented on procedural grounds.