‘A very clear disability discrimination situation’: ACLU and 11 Iowa families sue over state ban on school mask mandates

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The American Civil Liberties Union and the ACLU of Iowa filed a lawsuit in federal court on Friday, seeking to overturn the ban on school mask mandates Gov. Kim Reynolds signed into law earlier this year. The national ACLU and the Iowa affiliate were joined by Disability Rights Iowa and the Arc of Iowa, an advocacy organization for people with intellectual and development disabilities, in bringing the lawsuit on behalf of 11 families with children who are at heightened risk from COVID-19 because schools cannot mandate masks.

“Federal disability rights laws, the Americans with Disabilities Act and the Rehabilitation Act do not allow state or local entities to exclude students with disabilities, to offer lesser services or programs, or to fail to provide reasonable modifications in order to give them equal access to their education,” Susan Mizner, director of the ACLU’s Disability Rights Program, said during a news conference on Friday.

“For some of our families the lack of universal masking, as the CDC and most public health experts [have said], has made the school environment so dangerous that their children have effectively been excluded.”

The lawsuit names as defendants Gov. Kim Reynolds, Iowa Department of Education Director Ann Lebo and 10 school districts where the children of the 11 families attend school. The districts, including the Iowa City Community School District (ICCSD) and Des Moines Public Schools, have said they want to be able to require masks, as they did before Reynolds signed HF 847 (which included the school mask mandate ban) into law in May.

“The Iowa City School Board tasked its attorney with investigating a legal challenge to HF 847, who determined that the school district officials ‘just don’t have the tools we need right now other than simply defying the law.’ Superintendent Matt Degner said that while the school would continue to support CDC recommendations for universal indoor masking regardless of vaccination status, ‘per Iowa law . . . we cannot enforce that face coverings are worn in our buildings or on school grounds at this time,” according to the complaint filed in the U.S. District Court for the Southern District of Iowa.

ICCSD has already had 79 students and 12 members of staff test positive for the virus since the new school year began on Aug. 23, according to the district’s COVID-19 dashboard. Michelle Croft is one of the 11 plaintiffs in the lawsuit, on behalf of her child who attends Lemme Elementary School, who is too young to be vaccinated and has asthma and other medical conditions.

Another parent, Heather Lynn Preston, who has two children in public schools in Des Moines, spoke during the news conference.

“I know that a parent can’t protect their child from all things, but they have a responsibility to protect them from serious safety threats,” Preston said. “And for my son, going to school where not everyone is wearing masks puts him at a huge risk. Meanwhile, because of his needs, he needs to be learning in person.”

One of Preston’s sons is 11 years old and has Heterotaxy Syndrome, “an extremely rare condition where many organs in the body can be formed abnormally, in the wrong position, or even missing,” as the ACLU’s brief explains.

“It’s terrifying for a parent to have to worry every day about the physical safety of their child,” Preston said. “And to have to choose between their child keeping up their education, and their child becoming seriously ill and perhaps even dying.”

“That’s a choice no parent should have to make.”

Heather Lynn Preston, Sang Min and their children. — courtesy of the ACLU of Iowa

Reynolds and Lebo have already been named in a lawsuit filed in state court by Frances Parr of Council Bluffs on behalf of her two children who are too young to be vaccinated and attend public school, in an action asking a judge to require universal masking in schools. The federal lawsuit is separate from Parr’s lawsuit.

The Office of Civil Rights (OCR) of the U.S. Department of Education launched an investigation into whether Iowa’s prohibition on mask mandates in schools violates the rights of students with disabilities and other medical conditions.

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Asked about the OCR investigation during the news conference, Mizner noted that the investigation and the lawsuit are focused on the same issues.

“This is a very clear disability discrimination situation,” she said. “It’s unusual for the Department of Education to act this quickly in opening an investigation, but I credit it to just how urgent this situation is for students with disabilities.”

One of the other states being investigated by OCR over a school mask mandate ban is South Carolina, which is also being sued by ACLU and its state affiliate over its ban.

Reynolds has not yet issued a response to the lawsuit filed on Friday, but did respond to the OCR investigation earlier this week. The governor claimed the investigation is just an attempt by President Biden to “distract from his own failures.”

“In Iowa, we will continue to support individual liberty over government mandates,” Reynolds said in a statement on Tuesday.

During her news conference Thursday, the governor was asked twice about the ban on school mask mandates. Reynold gave lengthy, though somewhat incoherent, replies, although neither reply actually answered the questions beyond asserting that there is a law in Iowa against mask mandates.

The news conference ended abruptly after a reporter asked interim director of the Iowa Department of Public Health Kelly Garcia if she recommends students wear masks to school. Reynolds did not permit Garcia to answer.

Speaking to reporters after the news conference, Garcia declined to say if she would recommend students wear masks in schools, but did say, “As a parent, I send my children to school in masks every day and I’ve had that conversation with our healthcare provider and our teachers.”

“I don’t want my kids to be sick and I can’t afford for them to bring that home with a breakthrough.”