Parents of Children with Disabilities Obtain Conflicting Standing Rulings in the Fourth and Eighth Circuits While Challenging State Mask-Mandate Bans in Schools

Two circuits reach different results on standing to bring an injunctive action against the governors of states that banned local school districts from imposing COVID-19 pandemic mask-mandates for students and staff.

In both cases, parents and associations challenged the state-level bans under federal statutory law: the Americans with Disabilities Act (ADA) and the Section 504 of the Rehabilitation Act. Plaintiffs alleged that children with severe conditions—such as respiratory illnesses and developmental disabilities—which placed them at heightened risk from COVID-19 infection were entitled to preliminary injunctions enjoining enforcement of the mask bans. They argued mask-mandates were reasonable accommodations under the federal disabilities laws that allowed such students to attend school.

In Disability Rights South Carolina v. McMaster, No. 21-2070 (4th Cir. Jan. 25, 2022), the state legislature prohibited the use of state funds by local school districts “to require that its students and/or employees wear a facemask at any of its education facilities” (the Proviso). Two local school districts that sought to impose mandates brought actions in state court challenging the validity and scope of the Proviso but lost: Wilson ex rel. State v. City of Columbia, 863 S.E.2d 456 (S.C. 2021) and Richland Cnty. Sch. Dist. 2 v. Lucas, 862 S.E.2d 920 (S.C. 2021).

Meanwhile, a group of private plaintiffs representing students with disabilities brought a federal lawsuit alleging that the Proviso was invalid under the federal constitutional Supremacy Clause because they conflicted with the federal ADA and Rehabilitation Act. The suit named state Attorney General Wilson, Governor McMaster, Superintendent of Education Spearman, and seven local school districts.

“Several weeks after the Supreme Court of South Carolina issued its opinion in Wilson, and two days before it issued its opinion in Richland, the district court in this case granted Appellees’ request for a preliminary injunction and enjoined the named defendants from enforcing the Proviso. [Governor] McMaster and [Attorney General] Wilson (collectively, ‘Appellants’) — but none of the other named defendants — timely appealed the district court’s order.”

The Fourth Circuit panel, 2-1, holds that the parents and organizations have no standing to sue the governor and attorney general. While accepting for purposes of appeal that the plaintiffs alleged an injury, i.e., “increase[ed] the risk that their . . . children will contract COVID-19, denying their children meaningful access to in-person education, and causing them to enroll their children in private schools that are not subject to the Proviso,” the panel majority holds that the case does meet the traceability and redressability prongs of the standing analysis.

The panel majority holds that the two Appellants “have not taken any action enforcing the Proviso relative to Appellees — and Appellees do not assert that they plan to.” Although the governor advocated for and signed the Proviso into law, “his general duty to execute state laws” does not make him a proper defendant. “When a defendant has no role in enforcing the law at issue, it follows that the plaintiff’s injury allegedly caused by that law is not traceable to the defendant.”

Meanwhile, although the Attorney General did have specific authority to enforce the Proviso and had done so in the City of Columbia case, “Appellees have . . . not alleged that any of the districts where their children attend school have rescinded a mask mandate pursuant to a threat from Wilson that he would seek to enforce the Proviso to void that mask mandate.”

For the same reasons, the panel majority holds that there is a lack of redressability. “As we have already explained, McMaster has no responsibility for enforcing the Proviso, so such an order would have no effect on his conduct. And Wilson has neither implemented nor threatened to implement his enforcement authority against the districts where Appellees’ children attend school, so it is  wholly speculative that proscribing his ability to enforce the Proviso would cause the school districts where Appellees’ children attend school to impose mask mandates and thereby enable Appellees’ children to return to classes in person.”

The reality on the ground is that relatively few school districts sough to impose mask-mandates anyway, “suggest[ing] that the Proviso—and Wilson’s onetime enforcement of it against a municipality where none of Appellees’ children attend school—is not the significant barrier to universal masking in the schools Appellees’ children attend that Appellees contend it is.” Moreover, if a school district were determined to impose such a mandate in defiance of the Proviso, the panel holds following the South Carolina Supreme Court decisions that they could supposedly do so consistent with the Proviso if they found federal or local funding.

In dissent, Judge Wynn would have found standing. Unlike the panel majority and the South Carolina Supreme Court, the dissent would hold that the Proviso was a flat-ban on mask-mandate, not just on state-funded bans: “there remains reason to doubt that school districts will be able to partition their funding streams in a way that avoids legal liability, which creates a predictable chilling effect on school districts that might otherwise consider implementing mask mandates.”

It also would have found that the Appellants had power to enforce that ban. Indeed, according to the dissent, Appellants “McMaster and Wilson have spent months telling the public, school districts, state courts, and federal courts that the Proviso leaves school districts with no choice: they cannot impose mask mandates, period. McMaster and Wilson have also forcefully argued that any attempt to work around the Proviso by using federal and local funds must fail, since it would be virtually impossible to enforce any mandate without spending a penny of state funds.” Appellants had taken (arguably inconsistent) positions in litigation that they did have the power as state constitutional officers to enforce the ban. “But “[i]n the end, McMaster and Wilson never account for the predictable chilling effect that the Proviso, its enforcement by them, and their own statements have had on curbing school mask mandates.”

Meanwhile, in The Arc of Iowa v. Reynolds, No. 21-3268 (8th Cir. Jan. 25, 2022), another split panel affirms an injunction over a standing challenge. There, the law was a flat-out ban. “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.” As in the Fourth Circuit case, the district court enjoined enforcement of the law as it conflicted with federal law, with Governor Reynolds and  Director of the Iowa Department of Education Lebo named as two of the defendants.

The Eighth Circuit, again 2-1, upholds the injunction. The panel majority first finds standing. It holds that the parents established an injury, a point that the defendants conceded. “Plaintiffs documented that Section 280.31’s ban on mask requirements forces them to forgo critical educational opportunities, including in-person learning with their peers . . . . Remote learning in many school districts also does not provide ‘even nominally equivalent educational services’ to in-class education . . . . Other Plaintiffs demonstrated a substantial risk of bodily harm, which independently satisfies the injury requirement.”

The panel majority also finds traceability. “Here, Plaintiffs’ schools’ decision to stop requiring students and staff to wear masks on school grounds were a predictable effect of the enforcement of Section 280.31 threatened by Defendants Reynolds and Lebo. These Defendants interpret the law to completely prohibit schools from requiring anyone wear masks on their property and interpret federal law to never require masks in schools. The Iowa Department of Education, which Defendant Lebo heads, has threatened violators of the law with referral to the State Board of Education, which even can take control of districts and strip them of accreditation.”

Finally, the panel majority holds that there is redressability. “First, the facts showed that many schools, including Plaintiffs’, stopped their mask requirements only when Section 280.31 became effective. This establishes causation and the strong inference that enjoining Section 280.31 will lead these schools to return to some form of mask requirements. Second, some of Plaintiffs’ schools previously had mask requirements for people around their children to ensure their safety. This suggests the schools recognized the need to accommodate Plaintiffs’ disabilities and, if the ADA or [Rehabilitation Act] require some masking, that schools will implement mask requirements to avoid violating federal disability law. Third, when the district court entered the preliminary injunction, 24 different Iowa school districts implemented mask requirements, affecting roughly 30% of Iowa students.”

(The panel majority also held that the plaintiffs were not required to exhaust administrative remedies under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq., on which point the dissent by Judge Erickson diverged.)

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