Althea Cole: Are mask mandates a reasonable accommodation? It's complicated

Mar. 3—It may seem surprising to some that just shy of four years after the COVID-19 pandemic reached Iowa, one of its most controversial mitigation strategies, mandatory face coverings, still is being litigated. But as recently as this year, mask mandates are still being argued in federal court.

Last Tuesday, a panel from the U.S. Court of Appeals for the Eighth Circuit ruled that parents of 10 Iowa schoolchildren with significant health issues and an advocacy organization for people with developmental and intellectual disabilities do not have standing to sue to block enforcement Iowa's 2021 law prohibiting mask mandates in schools.

Writing for the panel, Justice Ralph Erickson stated that even if the plaintiffs could show that they had been injured by the state's prohibition of mask mandates, they could not establish that the injury could be traced to the actions of Gov. Reynolds or the Iowa Department of Education.

In the suit, which was originally filed in 2021, The Arc of Iowa and the parents alleged that Iowa's new prohibition of mask mandates in schools violated their civil rights under federal statues including the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. In September 2021, U.S. District Court Judge Robert Pratt issued a preliminary action enjoining the law from enforcement. On appeal in early 2022, the Eighth Circuit determined that the injunction was too broad and ordered the case back to the District Court for action tailored only to schools attended by the plaintiffs' children.

After a rehearing in May 2022, a panel from the Eighth Circuit vacated the preliminary injunction against the mask mandate prohibition as moot, stating that the current conditions of COVID-19 were vastly different compared to when the District Court first addressed the case. But in a written opinion, Justice Jane Kelly pointed out that the section of Iowa Code that prohibits mask mandates in schools still "explicitly includes an exception when 'any other provision of law' requires face coverings."

Other provisions of law surely include the ADA, and Kelly emphasized in her opinion that "schools are equipped to determine on an individualized, case-by-case basis ... whether a mask requirement for certain people or places in the school building is a reasonable accommodation under the ADA ..."

What a paradox this whole thing suddenly seems — 10 families, an advocacy organization, and the governor all went to court to argue whether mask mandates should be allowed or prohibited in Iowa schools. All the while, the same law on which their arguments center seemly indicates a pretty important carve-out for mask mandates — if, that is, mask mandates are truly a reasonable accommodation under the ADA.

That's a question I've actually been pondering for two and half years now, ever since Judge Pratt first enjoined Iowa's mask mandate prohibition from enforcement: Are mask mandates truly a reasonable accommodation under disability law?

Even to your friendly neighborhood opinion writer, known to many readers as opposed to mandatory masking, it's complicated. "Reasonable" is the very line between what a person seeking an accommodation should and should not be entitled to. That standard applies for anyone who falls under a recognized protected class under state and/or federal law, including Yours Truly.

I was entitled to reasonable accommodation decades ago as a disabled public school student using an assistive device to walk. One such accommodation allowed me to arrive to class five minutes after the bell without being considered tardy. That was a tremendous blessing for this kid in pain traversing what was at the time the state's largest school building while awaiting double knee replacement surgery. I will always be grateful for such accommodations.

If missing the first five minutes of class became a problem, though, my only other likely option was to be pushed in a wheelchair, an affront to the self-conscious disabled teenager's ego. But what else could the school do? They couldn't just rearrange class schedules and room assignments and put all of my classes in one room — you can't stick 75 ninth-graders with musical instruments just anywhere for concert band class. Doing so would substantially alter the way the school provided music education, thus removing the "reasonable" element from the accommodation.

To understand what meets the definition of "reasonable," it's best to consider what would not. An accommodation would not be reasonable if it posed a direct threat to the health or safety of others; if it substantially changed the essential elements of the curriculum or substantially altered the way the school provided services; or if it posed an undue financial or administrative burden on the school.

For a student with severe food allergies or other dietary restrictions, a reasonable accommodation could mean requiring allergy-friendly mealtime options and additional food prep safety procedures. But what if a student or their family sought an accommodation requiring that the institution serve only gluten-free, nut-free, dairy-free meatless foods to the whole student body? That type of specialty food would impose a significant financial burden on the district (and not just for the cost to dispose of 95% of it.) Thus, the accommodation wouldn't be reasonable.

Reasonable accommodations aren't limited to disability. For a student of the Seventh-Day Adventist faith who observes the Sabbath from sundown on Friday to sundown on Saturday, a religious accommodation might include being excused from a Saturday afternoon music performance or sporting match. But what if the student or their family demanded that the school schedule all class-related and extracurricular activities outside of SDA-observed Sabbath times? That surely would not be reasonable — it would pose a huge administrative burden.

So when it comes to accommodating students' health needs via mask mandates (which have been subject to doubts over their efficacy from the beginning,) what's reasonable and what's not?

In smaller settings, there's probably room for a mandate. If a student's education plan involves time with an aide or two outside a full classroom, requiring masks for that small group seems to fit the general standard of reasonable accommodation for health risks. It wouldn't pose a threat to the health or safety of others. It wouldn't change any essential elements of the school's obligation to educate students or substantially alter the manner in which the school provides education services. Nor would it cause an undue financial or administrative burden.

But requiring a whole classroom of up to 30 students — or worse, an entire school building with hundreds of them — to mask up for the sake of accommodating one, two or a small handful of students? That does not strike me as reasonable. Not when the same instrument sought as a disability-related accommodation for one student presents a disability-related hindrance to another.

I will reiterate as often as necessary some of the different conditions that make it difficult for kids — anyone, really — to tolerate masks: Anxiety. Autism. ADHD. Allergies. Asthma. And some that don't begin with the letter A: Skin conditions. Claustrophobia. Chronic headaches. Hearing loss, for which masks prove intolerable to the hard of hearing when everyone else is wearing them.

For students with any one of those conditions or others, being forced to wear a mask could result in a form of direct harm. If wearing a mask prompts panic or rage in students with behavior disorders, one might argue that being forced to wear a mask could jeopardize their safety.

Many have understood all along that not everyone can be expected to comply with a mask mandate. Others have acquiesced to this understanding now that time has gone by and people are able to consider the morbidity and mortality of COVID-19 in context with the strain that COVID policy has put on society — especially in children under 18 — in terms of things like economic disruptions, social struggles and learning loss — which affected our youngest citizens the most severely.

Still, there exist those who exclaim that refusing to wear a mask in public is tantamount to manslaughter. As long as they continue to insist that people who refuse to wear masks are causing deaths that were totally preventable, those who know that's bunk must continue to say so.

The court case over Iowa's mask mandate ban is likely finished for good. The Eighth Circuit vacated the District Court's previous injunction and dismissed the suit, and Arc of Iowa Executive Director Doug Cunningham indicated that it was unlikely the group would appeal to the Supreme Court.

Does that mean that the issue of mask mandates in schools has been settled? It doesn't seem like it. And should we have occasion to visit the issue again, will answers come easily? Probably not.

One thing is arguably clear, though: the world will likely never be fully eradicated of COVID-19. We must learn to live with its existence in our lives. Iowa, like the rest of the country and the world, is now in a much different place as a state and as a people than we were when we first committed to "two weeks to slow the spread." And I hope we never go back.

(319) 398-8266; althea.cole@thegazette.com

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