The Davenport Community School District would have faced legal jeopardy unless it enacted a mask mandate, its lawyers told school board members before they passed a district-wide policy to begin wearing masks next week.
The board's decision, passed on a 5-2 vote Thursday night, was based at least in part on U.S. Centers for Disease Control and Prevention guidelines that say all people should wear a mask indoors in areas of high COVID-19 transmission. Hospital ICUs have been near capacity in the Quad-Cities for weeks, and cases among children are on the rise.
But concerns over a pending lawsuit was also a major concern for school board members during their debate.
Iowa schools were barred from mandating masks by Republican Gov. Kim Reynolds until last week, when a federal judge halted the ban pending a new lawsuit on behalf of parents in several Iowa communities, including Davenport. The suit’s plaintiffs contend the state law discriminates against students with disabilities that make them more susceptible to COVID-19. The law effectively excludes these students from public schools and denies them equal access to education in violation of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act, say the plaintiffs.
During Thursday's board meeting, Mikkie Schiltz, an attorney with Lane & Waterman, the Davenport district’s legal counsel, told the board that there could be further legal ramifications for the district without a mandate in place: The federal temporary restraining order speaks broadly to the risks students face without a mandate in place.
“By not doing a mask mandate, there’s some risk that the people that are already involved in the litigation against Davenport schools and the other schools would go further in the litigation and sue the district for not protecting those students with disabilities,” Schiltz said.
The risk is broader than just that posed by the existing suit, Schiltz said.
“Even without this injunction, there’s some risk of litigation from individuals with disabilities, or others, not being protected at school from exposure to COVID and then becoming sick from that, or not being able to attend school at all because of recommendations from physicians,” Schiltz said.
She said, however, that the hold on the state law could end at any time as the federal case progresses.
There was extensive debate and commentary from the board members during the roughly 30-minute-long meeting, including about liability. The meeting was recorded and is available in its entirety on the district's YouTube page.
Board member Kent Paustian said during discussions that the district has a $25,000 deductible on its liability insurance.
“So pretty much any time we have litigation come against us, it’s costing us $25,000,” he said.
Board member Jamie Snyder said before the final vote that there were several comments about other area school districts waiting to see how the suit plays out.
He said the district could put the mandate in place, then the restraining order could end on Monday.
“At least in the meantime, we are taking the responsible steps to help ward this district off from future litigation and to compare us to other surrounding districts isn’t really fair right now because they are not specifically mentioned in this litigation as we are,” he said.
In the end, the vote to adopt a mandate was 5-2 with all board members present. Bruce Potts and Kent Paustian voted against the measure. Linda Hayes, the board vice president, participated remotely.
"Tomorrow (Friday) we're going to continue to highly encourage families, students and staff to wear masks, but this will give our families time to talk to their students, it'll give us over the weekend to gather masks, have conversations that are necessary and then the mandate will go in full effect on Monday," Davenport Superintendent TJ Schneckloth said after the vote.
Schneckloth said school days under the mandate will look like they did at the end of the previous school year.
"When you're indoors, wear a mask, when you're outdoors, we're not going to have masks," he said.
There was no public comment period during the meeting and only a handful of people attended in the audience, but the district asked for public comment online from Wednesday until shortly before Thursday's meeting began.
"We had over 3,500 responses that board members were able to see," Dan Gosa, school board president, said.
It gave the board a sense of the opinions within the community, he said. The board also had to factor in the health and safety of the students in the buildings. There are children not old enough to get the vaccine.
Should they contract COVID-19, they could be out for a couple of weeks, which is a significant learning loss for them, Gosa said.
"We had to make sure we're providing a safe learning environment for them," he said.