December 7, 2021

By Attorney Miriam Van Heukelem

On May 20, 2021, Iowa law was amended to generally prohibit schools from adopting, implementing, or enforcing mask rules for employees, students, or visitors, “unless…required by…any other provision of law.” See Iowa Code § 280.31. No guidance was issued prior to December 1 by the State of Iowa to assist schools with compliance with or interpretation of section 280.31. On September 13, 2021, a Temporary Restraining Order was entered by the U.S. District Court for the Southern District of Iowa in the case of Arc of Iowa et al. v. Governor Reynolds et al., preventing the State of Iowa from enforcing section 280.31. This TRO, now a preliminary injunction, remains in effect, but has been appealed to the Eighth Circuit Court of Appeals. Oral argument was heard in this matter on November 18, 2021, and the parties are now awaiting a ruling from the Court, which could come at any time. Click here to read our prior client alert on this topic.  
In the meantime, a number of parents from school districts and AEAs around the state filed IDEA State Complaints with the Iowa Department of Education, arguing that Iowa Code section 280.31 violated their children’s right to a Free Appropriate Public Education in the Least Restrictive Environment, by preventing schools from implementing mask requirements for students, employees, and visitors.
On December 1, 2021, the Iowa Department of Education (the “Department”) released a decision on the legal issues raised by these complaints. Please note that this is not a decision or ruling about the validity of the Preliminary Injunction in the Arc of Iowa lawsuit. In this December 1 DE ruling, the Iowa Department of Education concluded that, where a student requires masking as a support service because of disability, the school district would be “required by law” to implement this masking requirement. Thus, even if the Preliminary Injunction in the Arc of Iowa lawsuit were to be reversed by the Eighth Circuit on appeal, the State of Iowa would not view school districts implementing mask requirements consistent with the Department’s December 1 decision to be in violation of Iowa Code section 280.31. To the contrary, the Department’s ruling indicates that schools that fail to implement mask requirements consistent with the Department’s December 1 decision may be violating individual student rights under the IDEA. 
Some key highlights from the ruling include: 

  • “A state law that would attempt to limit an IEP Team’s ability to require some form of masking around an individual child runs the risk of running afoul of the IDEA.”  
  • However, the Department clearly does not view the IDEA as creating the right/obligation of school districts to adopt universal mask requirements, if or when the Arc of Iowa Preliminary Injunction is lifted: “In making the decision to require masks or cloth face coverings to support a child with a disability and that child’s access to a FAPE, any decision must be individualized based on the child’s data and the school’s circumstances. A one-size approach to implementing masks for children with disabilities is just as legally intolerable as not allowing any mask requirements for children with disabilities.”  
  • In considering whether an individual child’s data and the school’s circumstances warrant some mask requirement, “the IEP Team must start with less restrictive alternatives. Specifically, the extent of the masking requirement must be directly related to the extent that it is necessary for a FAPE in the least restrictive environment.”   

This will ultimately be a decision for IEP teams, who must consider the following: 

  • IEP team decisions must be based on the child’s data, the school’s circumstances, and peer reviewed research to the extent practicable. 
  • “[A]n IEP Team is not bound by a parent demand. The IEP Team must consider the parent’s demand but must grant it only if the demand is necessary for a FAPE.” If a request is rejected, a Prior Written Notice must be issued, and the IDEA’s procedural safeguards apply. 
  • “[A] physician statement is not binding. It is entitled to respectful consideration; however, IEP Teams make special education decisions, not private medical providers.”  
  • The IEP Team must base its decision based on child-specific and school-specific data, as well as “peer-reviewed research to the extent practicable.”   

If the IEP team determines that masks are necessary to provide a FAPE in the LRE, they can require employees and other students to mask around the student, as long as the requirement is individualized based on the needs of the student with a disability and directly related to the extent masks are necessary to protect the student’s right to receive a FAPE in the least restrictive environment. As with other decisions of the IEP team about services necessary to provide a student with a disability with a FAPE in the least restrictive environment, school boards and AEAs do not have the authority to reverse or negate the decision of the IEP team. 
The Department closes by noting that the Complainants’ request for universal district-wide masking is not supported by the IDEA. However, the DE notes that the U.S. Department of Education’s non-binding guidance documents “seem to acknowledge that universal masking is a best practice.” If your District has adopted some form of across-the-board mask requirement, the Iowa Department of Education’s decision does not affect that standard mask requirement as long as the Arc of Iowa Preliminary Injunction remains in place. We will provide an update as soon as the Eighth Circuit issues its ruling. 
We know these are difficult issues to work through. Please contact a member of the Ahlers & Cooney Education Law Practice Group  with any questions. 

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