23-582-cv Doe v. Franklin Square Union Free Sch. Dist.
In the United States Court of Appeals For the Second Circuit ___________
August Term 2023 No. 23-582-cv
JANE DOE, ON BEHALF OF HERSELF AND HER MINOR CHILD SARAH DOE, Plaintiff-Appellant,
v.
FRANKLIN SQUARE UNION FREE SCHOOL DISTRICT, Defendant-Appellee. * ___________
ARGUED: JANUARY 9, 2024 DECIDED: APRIL 25, 2024 ___________
Before: LYNCH, NARDINI, and KAHN, Circuit Judges. ________________
Plaintiff-Appellant Jane Doe (“Doe”), on behalf of herself and her minor daughter (“Sarah”), appeals from the judgment of the United States District Court for the Eastern District of New York (Frederic Block, J.) dismissing her constitutional and statutory claims against Defendant-Appellee Franklin Square Union Free School District (“School District”). On appeal, Doe argues that the district court erred in concluding that the School District did not violate the Due Process Clause of the Fourteenth Amendment by refusing to grant Sarah an accommodation from a school mask mandate implemented in response to the
* The Clerk of Court is respectfully directed to amend the official case caption as set forth above. COVID-19 pandemic. Doe further argues that the district court erred in dismissing her claims under the Americans with Disabilities Act (“ADA”) and § 504 of the Rehabilitation Act because she failed to exhaust her administrative remedies under the Individuals with Disabilities Education Act (“IDEA”). We conclude that the School District did not violate Doe or Sarah’s constitutional rights by denying their request for an accommodation; however, we agree with Doe that she was not required to satisfy the exhaustion requirement of the IDEA and, accordingly, hold that the district court erred in dismissing Doe’s ADA and § 504 claims.
We therefore AFFIRM in part and REVERSE in part the judgment of the district court. We REMAND for further proceedings consistent with this opinion. ________________
SUJATA SIDHU GIBSON, Gibson Law Firm, PLLC, Ithaca, NY, for Plaintiff-Appellant.
CHELSEA WEISBORD (Adam I. Kleinberg, on the brief), Sokoloff Stern LLP, Carle Place, NY, for Defendant- Appellee.
________________
MARIA ARAÚJO KAHN, Circuit Judge:
During the COVID-19 pandemic, as schools reopened in the fall of 2020, the
Commissioner of the New York State Department of Health (“NYSDOH”)
implemented a regulation requiring preschool through 12th grade school students
and staff to wear masks. Plaintiff-Appellant Jane Doe (“Doe”) brought this action,
on behalf of herself and her minor daughter, Sarah Doe (“Sarah”), against
Defendant-Appellee Franklin Square Union Free School District (“School
District”), alleging that the School District violated the Due Process Clause of the
2 Fourteenth Amendment, the Americans with Disabilities Act (“ADA”), and § 504
of the Rehabilitation Act (“§ 504”) by refusing to grant Sarah an accommodation
from the school mask mandate for her asthma. The United States District Court
for the Eastern District of New York (Frederic Block, J.) dismissed Doe’s
constitutional claim after concluding that the School District’s conduct survived
rational basis review, and her federal statutory claims for failure to exhaust
administrative remedies under the Individuals with Disabilities Education Act
(“IDEA”). As explained below, we conclude that the School District’s denial of
Sarah’s accommodation request did not violate either Doe’s or Sarah’s
constitutional rights, and we therefore affirm the district court’s dismissal of Doe’s
constitutional claim. We disagree, however, with the district court’s dismissal of
Doe’s claims under the ADA and § 504 because we conclude that Doe was not
required to exhaust her administrative remedies under the IDEA. Accordingly,
we affirm in part and reverse in part the district court’s judgment in this case, and
we remand the case for further proceedings consistent with this opinion.
BACKGROUND
Beginning in the fall of 2020 and continuing throughout the early stages of
the COVID-19 pandemic, the NYSDOH issued a series of interim guidance
3 governing in-person instruction at schools. The first interim guidance, which was
issued on August 26, 2020, required all “students, faculty, staff, and other
individuals” at schools to wear “at least, an acceptable face covering,” App’x at
199, and permitted “exemptions of alternatives for those medically unable to wear
masks,” id. at 201. Later in the 2020–21 school year, on April 9, 2021, NYSDOH
issued an updated interim guidance to ensure its policies were “align[ed] . . . with
the most recent recommendations from the Centers [for] Disease Control and
Prevention (CDC).” Id. at 203. The updated interim guidance included a mask
mandate similar to that in the first interim guidance and permitted exemptions
from the school mask mandate for “[s]tudents who are unable to medically tolerate
a mask, including students where such mask would impair their physical health
or mental health.” Id. at 206. The School District was permitted to reopen for in-
person learning for the 2020–21 school year on the condition that it complied with
the mask mandate. Accordingly, it implemented a reopening plan that required
all individuals to wear face masks while on school premises.
Sarah, who attends a school in the School District, suffers from asthma,
which, according to Doe, prevents her from being able to medically tolerate
wearing a face mask. In her complaint, Doe alleged that she attempted to work
4 with the School District during the 2020–21 school year to secure a medical
exemption from the mask mandate for Sarah. Doe initially requested a partial
exemption from the mask mandate, which would allow Sarah to remove her mask
during physical activity, but that request was denied. Sarah’s asthmatic symptoms
then worsened. After additional, unsuccessful attempts by Doe to obtain an
accommodation for Sarah, Doe was advised to acquire a formal exemption letter
from a physician. Taking that advice, on April 27, 2021, Doe sent the School
District a note from Sarah’s treating physician indicating that Sarah had been
diagnosed with asthma and that she should be allowed to engage in physical
activity without a mask in order to prevent wheezing. In response, the District
Superintendent of Schools, Dr. Jared Bloom, called Doe and informed her that
Sarah’s exemption request had been denied, but that, as an alternative, Sarah could
request “mask breaks.” App’x at 149. Dr. Bloom noted "that the district had
adopted an official policy not to give any child a mask exemption.” Id. At Doe’s
request, Dr. Bloom followed up with a letter indicating that the School District was
denying Sarah’s medical exemption request based on the opinion of the School
District’s hired consultant, Dr. Ron Marino, who had reviewed the request and
5 spoken to Sarah’s doctor. Dr. Marino found that “the mask was not creating
difficulty with [Sarah’s] asthma.” Id. at 151.
Doe subsequently petitioned the School District to permit Sarah to attend
school remotely. When that request was unsuccessful, Doe requested that Sarah
be placed in a classroom with air conditioning and that she be allowed to wear a
face shield or mesh mask as opposed to a cloth mask. These accommodation
requests were also denied. On June 16, 2021, Doe sent a letter to the School District,
through counsel, stating that the School District’s policies violated Sarah’s
constitutional and statutory rights, and demanding an exemption from the mask
mandate for Sarah for the remainder of the 2020–21 school year as well as the
upcoming 2021–22 school year. The 2020–21 school year ended shortly thereafter.
Before the start of the 2021–22 school year, Doe inquired whether the
NYSDOH intended to reimpose the mask mandate for the upcoming school year
and was told “that guidance might be forthcoming.” App’x at 154. On August 24,
2021, Doe sought yet another exemption for Sarah from the mask mandate with a
certification from Sarah’s doctor that “she is not medically able to tolerate a mask.”
Id. In a letter dated September 2, 2021, the School District denied the exemption
sought by Doe based upon the recommendation of Dr. Marino. The School District
6 represented in that letter that Sarah’s classrooms would be air conditioned in the
2021–22 school year and stated that any failure by the School District to comply
with the NYSDOH’s regulations could result in fines being imposed by the
NYSDOH against the School District or Doe. On the same day, the NYSDOH
issued an interim guidance for the 2021–22 school year pursuant to 10 N.Y.C.R.R.
§ 2.60 and in accordance with CDC guidance. The NYSDOH interim guidance
required that “all students, personnel, teachers, administrators, contractors, and
visitors must wear masks at all times indoors, regardless of vaccination status”
and permitted exemptions for “[p]eople with medical or developmental
conditions that prevent them from wearing a mask.” App’x at 232.
On September 7, 2021, Doe filed a complaint against the School District
alleging various violations of her and Sarah’s constitutional and statutory rights.1
The next day, Doe moved for a temporary restraining order and preliminary
injunction prohibiting the School District from requiring masks for any student
who asserts a medical need to opt out of the school mask policies, or, alternatively,
from enforcing mask requirements for Sarah pending resolution of this matter.
1Doe’s complaint was also filed against the Commissioner of the NYSDOH; however, that individual is no longer a party to this appeal. 7 In a scheduling order filed on September 8, 2021, the district court denied
Doe’s motion for a temporary restraining order and set a briefing schedule for the
preliminary injunction motion. On September 15, 2021, the School District filed a
pre-motion letter indicating that it intended to move to dismiss the complaint
under Fed. R. Civ. P. 12(b)(1) and (6). The district court then held oral argument
on Doe’s motion for injunctive relief and the School District’s anticipated motion
to dismiss. By Memorandum and Order dated October 26, 2021, the district court
denied Doe’s motion for a preliminary injunction. See Doe v. Franklin Square Union
Free Sch. Dist. (“Doe I”), 568 F. Supp. 3d 270 (E.D.N.Y. 2021). As relevant here, in
denying the motion, the district court concluded that rational basis review applied
to the mask mandate because the mandate “[did] not impinge upon any
fundamental right.” Id. at 291. The district court, however, reserved decision on
whether Doe was entitled to preliminary injunctive relief on her state law claims.
Id. at 295. At the request of the parties, the district court continued the hearing to
November 3, 2021, to allow the parties to pursue settlement negotiations. Id. at
294.
On November 3, 2021, the parties reported that they had reached an
agreement wherein the School District agreed to allow Sarah to wear a mesh mask
8 at school. The same day, the district court entered an order stating that “[i]n light
of the parties[’] agreement regarding an accommodation, the [continued] hearing
. . . is canceled; the accommodation shall remain in effect unless vacated by the
Court.” App’x at 7.
Doe filed an amended complaint (the “Amended Complaint”) on January
20, 2022, alleging seven causes of action: (1) “declaratory judgment action based
upon federal preemption/violation of the Supremacy Clause” (“Count One”); (2)
“violation of plaintiff[’]s fundamental right to refuse medical interventions that
place the child at risk of harm as documented by a licensed physician[,] 42 U.S.C.
§ 1983” (“Count Two”); (3) “violation of New York State’s recognized common law
rights to refuse unwanted medical treatment and make medical decisions for one’s
children” (“Count Three”); (4) “declaring the mask mandate unconstitutional
under the United States Constitution and corresponding separation of powers
clause of the New York Constitution” (“Count Four”); (5) “violation of Title II of
the [ADA]—42 U.S.C. § 12101 et seq.—failure to provide reasonable
accommodations” (“Count Five”); (6) “violations of [§] 504 of the Rehabilitation
Act of 1973—29 U.S.C. § 794 et seq.” (“Count Six”); and (7) “violations of the New
York State Human Rights Law [(‘NYSHRL’)]” (“Count Seven”). App’x at 177–98.
9 The Amended Complaint contains allegations regarding the effectiveness of
the mesh mask accommodation provided to Sarah as a result of the settlement
negotiations. Doe alleges that with the mesh mask accommodation, Sarah “can
breathe a little better” and “is having fewer [asthma] attacks.” Id. at 176. But Doe
asserts that the mesh mask accommodation is insufficient because “Sarah still has
trouble breathing sometimes,” and “the mesh mask has caused her to develop
fungal rashes, causing her to miss school, or have to temporarily wear another
mask that caused more breathing problems.” Id. Thus, Doe claims that a full
exemption from the mask mandate is necessary for Sarah.
The School District moved to dismiss the Amended Complaint, arguing in
part that Doe’s requests for injunctive and declaratory relief were moot given that
the NYSDOH’s regulation requiring masks in schools had been lifted on March 2,
2022, and the School District had adopted a new, mask-optional policy. At the
district court’s request, the parties provided supplemental briefing on the issue of
whether Doe’s claims for injunctive and declaratory relief were mooted by the
repeal of the mask mandate.
On March 24, 2023, the district court issued a Memorandum and Order
granting the School District’s motion to dismiss the Amended Complaint in its
10 entirety. See Doe v. Franklin Square Union Free Sch. Dist. (“Doe II”), No. 21-cv-5012
(FB), 2023 WL 2632512 (E.D.N.Y. Mar. 24, 2023). The district court concluded that,
due to the lifting of the mask mandate, the Amended Complaint was “moot insofar
as it seeks declaratory and injunctive relief,” and therefore the court dismissed
Counts One and Four, which “state[d] no cognizable claim beyond declaratory
and injunctive relief.” Id. at *2. The district court also concluded that the Amended
Complaint did not plausibly allege a substantive due process violation because the
mask mandate did not infringe on a fundamental constitutional right. Id. at *3.
The court, therefore, dismissed Doe’s substantive due process claim (Count Two)
for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Id. As for Doe’s failure-
to-accommodate claims under the ADA (Count Five) and § 504 (Count Six), the
district court first concluded that the claims were limited to injuries suffered prior
to November 3, 2021, the date the School District granted the mesh mask
accommodation, because the accommodation had been “deemed acceptable by all
parties.” Id. The district court then concluded that the claims based on conduct
predating November 3, 2021, failed as a matter of law because Doe had not
exhausted her administrative remedies under the IDEA. Id. at *4. Finally, Doe’s
failure-to-accommodate claim under the NYSHRL (Count Seven) was dismissed
11 for her failure to satisfy the New York Education Law’s notice of claim
requirement, which stripped the court of subject matter jurisdiction over the claim.
Id. 2 This appeal followed.
On appeal, Doe challenges the district court’s dismissal of her substantive
due process claim and her claims under the ADA, § 504, and the NYSHRL (Counts
Two, Five, Six, and Seven). 3 Specifically, with respect to her constitutional claim,
Doe argues that the School District “infringed multiple well-established
fundamental rights in this case, and the [district] court should have applied strict
scrutiny” when considering the constitutionality of the School District’s
enforcement of the mask mandate. Appellant’s Br. at 28. She further argues that
even under rational basis review, dismissal was improper because the state lacks
any legitimate interest in denying what she refers to as “a necessary medical
accommodation from an experimental medical product”—the mask. Id. As to her
claims under the ADA and § 504, she argues that the district court erred in limiting
2 The district court also dismissed Doe’s New York State law claim for violation of her right to refuse unwanted medical treatment (Count Three) as abandoned because Doe failed to respond to the School District’s arguments in support of dismissal. See id. at *3.
3 Doe does not challenge the district court’s dismissal of Counts One, Three, and Four. Accordingly, she has abandoned those claims. See United States v. Joyner, 313 F.3d 40, 44 (2d Cir. 2002) (“It is well established that ‘an argument not raised on appeal is deemed abandoned’ and lost.” (quoting United States v. Babwah, 972 F.2d 30, 34 (2d Cir. 1992))).
12 her claims to the time period prior to the mesh mask accommodation because a
factual dispute exists as to whether the mesh mask was a reasonable
accommodation. She further argues that the district court erred in concluding that
she was required to satisfy the exhaustion requirements of the IDEA. And for her
claim under the NYSHRL, Doe argues that the Amended Complaint adequately
pleads that she met the notice of claim requirements under N.Y. Educ. Law §
3813(1).
DISCUSSION
We review dismissals pursuant to Fed. R. Evid. 12(b)(6) de novo. See Palin v.
New York Times Co., 940 F.3d 804, 809 (2d Cir. 2019). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We
must “accept as true all allegations in the complaint and draw all reasonable
inferences in favor of the non-moving party.” Vietnam Ass’n for Victims of Agent
Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir. 2008) (internal quotation marks
omitted). However, “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
13 I. CONSTITUTIONAL CLAIM
We turn first to Doe’s constitutional claim. Doe contends that the School
District’s actions in enforcing the mask mandate against Sarah violated the Due
Process Clause of the Fourteenth Amendment because they infringed on multiple
fundamental constitutional rights and fail to satisfy strict scrutiny. She further
argues that even if rational basis review applies, the School District’s conduct was
unconstitutional. The School District contends that we should affirm the district
court’s dismissal of Doe’s constitutional claims because the School District’s
actions did not implicate a fundamental constitutional right and easily satisfy
rational basis review. We agree with the School District.
A. Applicable Law
To determine whether a government action “infringes a substantive due
process right, we first ‘determine whether the asserted right is fundamental.’” Goe
v. Zucker, 43 F.4th 19, 30 (2d Cir. 2022) (quoting Leebaert v. Harrington, 332 F.3d 134,
140 (2d Cir. 2003)). “Rights are fundamental when they are . . . deeply rooted in
the Nation’s history and tradition.” Leebaert, 332 F.3d at 140 (internal quotation
marks omitted). Strict scrutiny review applies only when the government
infringes a “fundamental” right. Id. “Where the claimed right is not
14 fundamental,” we apply rational basis review, and the government action “need
only be reasonably related to a legitimate state objective.” 4 Immediato v. Rye Neck
Sch. Dist., 73 F.3d 454, 461 (2d Cir. 1996).
B. Does the School District’s mask mandate implicate a fundamental right?
Doe argues that the School District’s enforcement of the mask mandate
against Sarah infringed essentially three fundamental rights: (1) the right to a
medical exemption deriving from the right to self-preservation, (2) the right to
refuse medical treatment, and (3) the parental right to make medical decisions for
one’s own children. Doe claims that the district court erred in dismissing her
substantive due process claims because strict scrutiny, as opposed to rational basis
review, applies to the School District’s implementation and enforcement of the
mask mandate. We disagree.
1. Right to a medical exemption
4 We note that the district court grappled with whether to apply a “shocks the conscience” standard, see Rochin v. California, 342 U.S. 165 (1952), as opposed to the modern tripartite standard of constitutional scrutiny. See Doe I, 568 F. Supp 3d at 274–75. On appeal, both parties assume that the School District’s actions should be evaluated under the tripartite standard. See Appellant’s Br. at 44–66 (arguing that strict scrutiny rather than rational basis review should apply); Appellee’s Br. at 47 (arguing that the district court correctly applied rational basis review). We thus apply that framework here. We do not decide whether, under Goe v. Zucker, the School District’s application of the mandate, which is at issue here rather than the mandate itself, is properly reviewed under the “shocks the conscience” test.
15 Doe first argues that the School District infringed Sarah’s right to self-
preservation by declining to accommodate her request for a medical exemption.
This argument stems from the idea that “a sufficient medical exemption [is] a
constitutional prerequisite to any valid public health law.” Appellant’s Br. at 46–
47 (citing Jacobson v. Massachusetts, 197 U.S. 11, 36–39 (1905)). Given that the mask
mandate at issue in the present case undisputedly contains a medical exemption, 5
Doe specifically argues that Sarah has a fundamental constitutional right to a
medical exemption from the relevant mask mandate based exclusively on her
physician’s recommendation. Put simply, Doe challenges not the absence of a
medical exemption from the mask mandate (since the mandate contains such an
exemption), but the method that the School District used in determining whether
to grant such an exemption to Sarah.
We have not previously considered whether a student has a fundamental
right to a medical exemption from a mask mandate imposed during the COVID-
19 pandemic based solely on a treating physician’s recommendation. We have,
however, concluded that no such fundamental right exists in the context of school
immunization requirements. See Zucker, 43 F.4th at 31–32. In Zucker, the plaintiffs
5See 10 N.Y.C.R.R. § 2.60(a) (Aug. 27, 2021) (requiring compliance with the mask mandate in schools only by those "over age two and able to medically tolerate a face-covering”). 16 sought an exemption from a mandatory school immunization policy—which
permitted medical exemptions in certain circumstances—based “solely on the
recommendation -- or say-so -- of a child’s treating physician.” Id. at 31. The
school denied the plaintiffs’ requests for exemption. Id. at 27. In rejecting the
plaintiffs’ claim that the policy infringed on their fundamental right to a medical
exemption from the school policy, among other rights, id. at 30, we recognized that
the requirement under the policy that a physician certify that a student “has a
medical contraindication or precaution to a specific immunization consistent with
[CDC] guidance or other nationally recognized evidence-based standard of care,”
ensures that exemptions comply with “evidence-based national standards” and
are not made “in conclusory fashion or for non-medical reasons,” id. at 31 (internal
quotation marks omitted).
Zucker’s reasoning applies with equal force to Doe’s request for an
exemption from the school mask mandate policy based solely on her physician’s
recommendation. It is not unreasonable for a school policy to require that requests
for a medical exemption be reviewed by the school’s physician, particularly when
the policy is designed to protect the health of all students and staff. More
generally, it is reasonable for the government to condition the application of a
17 medical exemption to a public health mask mandate on a determination that the
individual seeking the exemption would, in fact, be harmed by wearing a mask.
The plaintiff offers no persuasive authority to support her suggestion that an
individual is entitled to a medical exemption whenever that individual can
identify a licensed medical provider who will support her request.
Doe’s reliance on several abortion cases does not alter our analysis. See
Appellant’s Br. at 48 (citing first Stenberg v. Carhart, 530 U.S. 914 (2000); and then
Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320 (2006)). In those cases,
the Supreme Court held that the lack of an adequate medical exemption to an
abortion restriction placed an undue burden on a woman’s fundamental right to
the procedure. See, e.g., Stenberg, 530 U.S. at 937. As the district court correctly
noted below, the Supreme Court’s recognition of such a right in those cases does
not compel the conclusion “that there is a standalone fundamental right to have
one’s own physician determine the need for compliance with every public health
measure.” Doe I, 568 F. Supp. 3d at 290. In the abortion cases to which Doe cites,
the Supreme Court framed the right at issue in terms of deeply intimate and
personal medical decisions related to the termination of a pregnancy. By contrast,
the mask mandate at issue here is evaluated more properly as a matter of public
18 health and requires the weighing of the effect on the patient with the potential
harm to society as a whole. In the context of a mask mandate, as in the case of a
more intrusive vaccination policy, there is no fundamental right to a medical
exemption based exclusively on the recommendation of a plaintiff’s physician. See
Zucker, 43 F.4th at 31 (“[N]o court has ever held that there is a right to a medical
exemption from immunization based solely on the recommendation of a
physician. Nor has any court held that such a right is ‘implicit in the concept of
ordered liberty, or deeply rooted in this Nation’s history and tradition.’” (quoting
Leebaert, 332 F.3d at 140)).
2. Right to refuse medical treatment
Doe next argues that the School District’s enforcement of the mask mandate
infringed upon Sarah’s right to refuse unwanted medical treatment. This
argument requires us to consider whether the wearing of a mask qualifies as
medical treatment. We agree with the district court that “[w]hile the [m]ask
[m]andate was obviously intended as a health measure, it no more requires a
‘medical treatment’ than laws requiring shoes in public places or helmets while
riding a motorcycle.” Doe I, 568 F. Supp. 3d at 290 (citations omitted). The alleged
“restraint” at issue here—a face covering to help slow the spread of a disease that
19 has killed hundreds of thousands in this nation alone—is neither a medical
treatment nor a restraint so onerous as to merit heightened constitutional scrutiny.
Indeed, courts in other Circuits that have considered the issue have similarly
concluded that wearing a mask is not appropriately considered a “medical
treatment.” See Health Freedom Def. Fund, Inc. v. City of Hailey, 590 F. Supp. 3d 1253,
1266 (D. Idaho 2022) (“[T]he wearing of a cloth (or even medical grade) face
covering is not medical treatment. It is not an intrusion on the body.”); Zinman v.
Nova Se. Univ., Inc., No. 21-cv-60723 (RAR) (JMS), 2021 WL 4025722, at *17 (S.D.
Fla. Aug. 30, 2021) (“With respect to Plaintiff’s bodily intrusion and medical
treatment contentions, such characterizations are implausible. A mask
requirement does not plausibly qualify as a ‘compulsory bodily intrusion.’
Wearing a mask on the outer surface of one’s face to cover one’s nose and mouth
does not ‘intrude’ within one’s body.” (footnote omitted)), report and
recommendation adopted sub nom. Zinman v. Nova Se. Univ., No. 21-cv-60723 (RAR)
(JMS), 2021 WL 4226028 (S.D. Fla. Sept. 15, 2021), aff’d sub nom. Zinman v. Nova Se.
Univ., Inc., No. 21-13476, 2023 WL 2669904 (11th Cir. Mar. 29, 2023); Forbes v. Cnty.
of San Diego, No. 20-cv-00998 (BAS) (JLB), 2021 WL 843175, at *8 (S.D. Cal. Mar. 4,
2021) (“The Court also doubts that requiring people to wear a mask qualifies as
20 ‘medical treatment’ within the meaning of the Due Process Clause.”). We agree
that a requirement to wear a mask does not constitute a “medical treatment.”
Finally, we note that even if we were to assume that the wearing of a mask
constitutes a medical treatment, the School District did not infringe any
fundamental right to refuse such a treatment in this case. In We The Patriots USA,
Inc. v. Hochul, we explained that “[b]oth this Court and the Supreme Court have
consistently recognized that the Constitution embodies no fundamental right that
in and of itself would render vaccine requirements imposed in the public interest,
in the face of a public health emergency, unconstitutional.” 17 F.4th 266, 293 (2d
Cir. 2021) (per curiam) (citing Jacobson, 197 U.S. at 25–31, 37). There, we examined
rights similar to those Doe asserts in the present case, including the right to
“medical freedom” and “bodily autonomy,” and found that a rule requiring
certain health care employees to be vaccinated against COVID-19 did not infringe
any such right. Id. at 293 & n.35.
The logic animating We The Patriots applies with equal force to the mask
mandate, which was imposed for the same public safety reasons as the vaccine
mandate at issue in that case. There, we found that “an individual’s liberty interest
in declining an unwanted [] vaccine was outweighed . . . by the State’s interest in
21 preventing disease.” Id. (internal quotation marks omitted). So too here. In the
face of such an unprecedented public health emergency, an individual’s desire to
refuse to wear a face covering is outweighed by New York’s interest in
safeguarding public health and preventing the spread of COVID-19. We therefore
hold that wearing a mask does not constitute “medical treatment,” and, even if it
did, the School District did not infringe any fundamental right to refuse medical
treatment by denying Doe’s request for an exemption to the mask mandate for
Sarah. 6
3. Parents’ right to make medical or educational decisions for their children
Doe’s argument that the School District’s enforcement of the mask mandate
violated her parental rights is also unavailing. The Supreme Court has
“recognized the fundamental right of parents to make decisions concerning the
care, custody, and control of their children,” Troxel v. Granville, 530 U.S. 57, 66
6 To the extent that Doe attempts to argue that the School District infringed any related medical decision-making right, including any “right to bodily integrity,” “right to be free of coercion in deciding whether to take an experimental medical product,” or “right to make medical decisions in accordance with one’s chosen physician’s best medical judgment,” Appellant’s Br. 50, those attempts fail. Again, Doe relies exclusively on authorities that are too far afield of this case to suggest that the School District infringed any fundamental right in denying Doe’s request for an exemption to the mask mandate. See, e.g., Doe v. Bolton, 410 U.S. 179 (1973) (abortion); Union Pacific R. Co. v. Botsford, 141 U.S. 250 (1891) (court-ordered surgical examination of a plaintiff in a civil lawsuit); Abdullahi v. Pfizer, Inc., 562 F.3d 163 (2d Cir. 2009) (Alien Tort Statute case involving involuntary testing of antibiotics on children). 22 (2000), but parents “have no constitutional right to provide their children with . . .
education unfettered by reasonable government regulation,” Immediato, 73 F.3d at
461 (quoting Runyon v. McCrary, 427 U.S. 160, 178 (1976)); see also Zucker, 43 F.4th
at 31 (“While the right to an education is an important right, it is not a
‘fundamental right’ such as to require strict scrutiny review.”).
Doe has not identified, and the Court is not aware of, any cases standing for
the proposition that school masking requirements violate the right of parents to
raise their children. Although parents possess the right to make decisions
regarding the upbringing of their children, see Troxel, 530 U.S. at 66, Doe has not
shown that any such right is infringed by a school district denying a medical
exemption from a public health measure based solely on the recommendation of a
child’s physician. As with the other rights addressed above, the cases on which
Doe relies are readily distinguishable from this one. See, e.g., Parham v. J.R., 442
U.S. 584, 603 (1979) (state-administered institutional mental health care for
children); Wallis v. Spencer, 202 F.3d 1126, 1141 (9th Cir. 2000) (investigatory
physical examinations of children).
23 In sum, we hold that Doe has not shown that the School District infringed
any of Sarah’s or Doe’s fundamental rights by denying Sarah a medical exemption
to the mask mandate.
C. Does the School District’s mask mandate survive rational basis review?
With no fundamental constitutional right at stake, we apply rational basis
review, rather than strict scrutiny. See Zucker, 43 F.4th at 30. Under rational basis
review, the challenged government action is afforded a strong presumption of
validity and need only be reasonably related to a legitimate state objective to
survive. See Heller v. Doe, 509 U.S. 312, 319 (1993) (“[A] classification neither
involving fundamental rights nor proceeding along suspect lines is accorded a
strong presumption of validity.”). Government action fails under rational basis
review only when it “rests on grounds wholly irrelevant to the achievement of the
State’s objective.” Id. at 324 (internal quotation marks omitted).
Here, the School District’s application of the NYSDOH’s mask mandate to
Sarah survives rational basis review because it was reasonably related to a
legitimate state objective: ensuring the health and safety of all students, teachers,
and visitors on school grounds by curbing the spread of COVID-19. It is well
settled that public health is a legitimate state interest. See Jacobson v. Massachusetts,
24 197 U.S. 11, 27 (1905) (“[A] community has the right to protect itself against an
epidemic of disease which threatens the safety of its members.”); Freedom Holdings,
Inc. v. Cuomo, 624 F.3d 38, 45 n.8 (2d Cir. 2010) (“promoting public health” is a
legitimate state interest (internal quotation marks omitted)); see also Kane v. De
Blasio, 19 F.4th 152, 166 (2d Cir. 2021) (holding that New York City’s mandatory
vaccination requirement for teachers “plainly satisfies” rational basis review).
Further, the School District’s enforcement of the mandate against Sarah was
reasonably related to that legitimate interest. The School District could have
rationally determined that granting Sarah an exemption would have endangered
the health of other students and faculty within the district. It also could have
rationally determined that Sarah could medically tolerate a mask since the School
District’s consulting physician determined as much after conferring with Sarah’s
physician.
Accordingly, we agree with the district court that the School District’s
enforcement of the mask mandate in the present case was reasonably related to a
legitimate state objective and satisfies rational basis review. We affirm the
judgment of the district court dismissing Doe’s constitutional claim.
II. ADA AND § 504 CLAIMS
25 In Counts Five and Six, Doe alleges that the School District violated the ADA
and § 504 of the Rehabilitation Act by failing to reasonably accommodate Sarah’s
disability. 7 Claims brought under Title II of the ADA and § 504 of the
Rehabilitation Act are considered together, since the standards adopted by the
statutes are nearly identical. See McElwee v. Cnty. of Orange, 700 F.3d 635, 640 (2d
Cir. 2012). Doe must show that “(1) [Sarah] is a qualified individual with a
disability; (2) the [School District] is subject to one of the Acts; and (3) [Sarah] was
denied the opportunity to participate in or benefit from the [School District’s]
services, programs, or activities, or was otherwise discriminated against by the
[School District] because of [her] disability.” Id. Under either statute, a
defendant’s failure to make a reasonable accommodation to allow a plaintiff with
a disability to access the public service in question is considered discrimination.
Id.
Here, the district court first held that Doe’s request for an accommodation
from the mask mandate was satisfied by the parties’ November 3, 2021, agreement
that Sarah could wear a mesh mask, as opposed to a cloth mask, at school. The
7The district court did not reach the question of whether Sarah had a disability under the ADA or § 504 and instead resolved her federal statutory claims on other grounds. Accordingly, for purposes of this discussion, we assume without deciding that Sarah has a qualifying disability. 26 court assessed that the agreement, which was “deemed acceptable by all parties,”
cut off claims for damages arising after the mesh mask accommodation was
reached. Doe II, 2023 WL 2632512, at *3. Therefore, the court concluded that Doe
could seek damages only for the School District’s failure to grant an
accommodation before November 3, 2021. Id. The court further held, however,
that any such claim for damages was prohibited because Doe failed to exhaust her
administrative remedies under the IDEA. Id. at *4. Doe argues that the district
court erred in arriving at both of these conclusions. We agree.
A. Limitation of damages claims
In concluding that damages are not available to Doe for injuries allegedly
sustained after November 3, 2021, the district court implicitly held that the mesh
mask accommodation was “reasonable” for purposes of Doe’s disabilities claims.
See U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 400 (2002) (“An ineffective
‘modification’ or ‘adjustment’ will not accommodate a disabled individual’s
limitations.”).
Our court has held that “the determination of whether a particular
[accommodation] is ‘reasonable’ involves a fact-specific, case-by-case inquiry that
considers, among other factors, the effectiveness of the [accommodation] in light
27 of the nature of the disability in question.” Mary Jo Co. v. N.Y. State & Loc. Ret. Sys.,
707 F.3d 144, 153 (2d Cir. 2013) (internal quotation marks omitted). Indeed, the
“[r]easonableness analysis is ‘highly fact-specific’ . . . [and] cannot be determined
on the pleadings [where] the relevant factors are numerous and balancing them
requires a full evidentiary record.” Austin v. Town of Farmington, 826 F.3d 622, 630
(2d Cir. 2016) (quoting Hovsons, Inc. v. Twp. of Brick, 89 F.3d 1096, 1104 (3d Cir.
1996)).
The mesh mask accommodation offered to Sarah was not per se reasonable
simply because she agreed to it at the outset. Doe alleged that after the
accommodation was implemented, it became clear that the mesh mask was not
effective for Sarah. According to Doe, even with the mesh mask “Sarah still has
trouble breathing sometimes,” and the mesh mask caused Sarah to develop fungal
rashes, which, in turn, caused her to miss school or temporarily wear another type
of mask that exacerbated her issues with breathing. App’x at 176. Accepting these
allegations as true, as we must at the motion to dismiss stage, Doe plausibly alleges
that the mesh mask accommodation was not effective. 8 As such, we cannot
8 We do not hold that the offered accommodation was unreasonable as a matter of law. We rule only that the district court erred in determining that it was reasonable as a matter of law at the pleading stage. 28 conclude that the School District afforded Sarah a plainly reasonable
accommodation. Therefore, we reverse the district court’s judgment insofar as it
cut off Doe’s claims for damages after November 3, 2021, and remand the case for
further proceedings on this issue.
B. Exhaustion under the IDEA
Claims brought under the ADA and Rehabilitation Act are subject to the
exhaustion requirements of the IDEA when they seek relief that would also be
available under the IDEA. See Fry v. Napoleon Cmty. Sch., 580 U.S. 154, 165 (2017);
20 U.S.C. § 1415(l) (stating that “[n]othing [under the IDEA] shall be construed to
restrict or limit the . . . remedies” available under, inter alia, the ADA and the
Rehabilitation Act, “except that before the filing of a civil action under such laws
seeking relief that is also available under [the IDEA],” plaintiffs must exhaust their
remedies under the IDEA). “[E]xhaustion is not necessary[, however,] when the
gravamen of the plaintiff’s suit is something other than the denial of the IDEA’s
core guarantee—what the Act calls a ‘free appropriate public education
[(“FAPE”)].’” Fry, 580 U.S. at 158 (quoting 20 U.S.C. § 1412(a)(1)(A)). FAPE
“means, inter alia, ‘special education and related services that . . . have been
provided at public expense, under public supervision and direction, and without
29 charge’; that ‘meet the standards of the State educational agency’; and that ‘include
an appropriate preschool, elementary school, or secondary school education in the
State involved.’” A.R. v. Conn. State Bd. of Educ., 5 F.4th 155, 157 (2d Cir. 2021)
(quoting 20 U.S.C. § 1401(9)). The district court held that “[b]ecause the gravamen
of Doe’s suit is the denial of free appropriate public education, the IDEA
exhaustion requirement applies to her ADA and Rehabilitation Act claims.” Doe
II, 2023 WL 2632512, at *4. We disagree.
To determine whether a suit complains of a denial of a FAPE, “a court
should look to the substance, or gravamen, of the plaintiff’s complaint.” Fry, 580
U.S. at 165. The Supreme Court articulated the following “pair of hypothetical
questions” to guide the inquiry:
First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school—say, a public theater or library? And second, could an adult at the school—say, an employee or visitor—have pressed essentially the same grievance? When the answer to those questions is yes, a complaint that does not expressly allege the denial of a FAPE is also unlikely to be truly about that subject; after all, in those other situations there is no FAPE obligation and yet the same basic suit could go forward.
Fry, 580 U.S. at 171.
30 In determining the gravamen of Doe’s claim, the School District urges us to
look to the allegation in Doe’s Amended Complaint that “[t]he failure to
accommodate Sarah’s disability has deprived Sarah of her right to an education as
a person with a disability.” App’x at 196. Because she alleges as much, the School
District argues that Doe cannot now contend that she could have brought her
disability claim if the underlying conduct had occurred at a different public facility
or that an adult at the school could have pressed the same grievance. But the mere
allegation that Sarah was deprived “of her right to an education as a person with
a disability,” id., alone, is insufficient to demonstrate that the gravamen of the
Amended Complaint concerns the denial of a FAPE. As the Supreme Court
instructed in Fry, the examination of a plaintiff’s complaint “should consider
substance, not surface. The use (or non-use) of particular labels and terms is not
what matters.” Fry, 580 U.S. at 169.
Here, a thorough reading of Doe’s Amended Complaint makes clear that
she is seeking a remedy for the School District’s alleged failure to accommodate
Sarah’s medical needs under the ADA and § 504. Just because the alleged conduct
arose in a school setting does not automatically transform Doe’s objection to that
conduct into a claim of a denial of a FAPE. Applying the two-part test in Fry, it is
31 clear that Doe could have brought this same lawsuit against any public facility she
sought to enter that had a mask requirement. Likewise, an adult accessing the
school could have pressed the same grievance as the mask mandate applied to any
individual (including, among others, teachers, contractors, or visitors) on school
premises.
The claim here is akin to the hypothetical posed in Fry, whereby “a
wheelchair-bound child sues his school for discrimination under Title II . . .
because the building lacks access ramps.” Id. at 171. Although, as the Supreme
Court noted, this claim could have “educational consequences” as a result of the
child’s inability to enter the school, the denial of a FAPE would not be the
gravamen of such a claim. Id. at 172. That is because “the child could file the same
basic complaint if a municipal library or theater had no ramps” and “an employee
or visitor could bring a mostly identical complaint against the school.” Id. That
logic applies with equal force here. While Sarah’s education may have been
disrupted by her alleged inability to tolerate a face mask, her real complaint is one
of disability-based discrimination, grounded in the School District’s refusal to
provide a reasonable accommodation.
32 The School District also argues that exhaustion was required because Doe is
seeking the type of equitable relief available under the IDEA. Doe counters that
her claims are not subject to the IDEA exhaustion requirements because she now
seeks only damages, which is not a form of relief available under the IDEA. In
interpreting 20 U.S.C. § 1415(l), which extends the IDEA exhaustion requirements
to cover claims under the ADA and Rehabilitation Act seeking relief available
under the IDEA, we previously have “decline[d] to excuse appellants from the
[IDEA] exhaustion requirement merely because in their suit they seek, inter alia,
pecuniary damages, a remedy unavailable under the IDEA.” Cave v. E. Meadow
Union Free Sch. Dist., 514 F.3d 240, 247 (2d Cir. 2008); see also Taylor v. Vermont Dep’t
of Educ., 313 F.3d 768, 789 (2d Cir. 2002) (“A plaintiff cannot evade the IDEA’s
exhaustion requirement simply by framing his or her action as one for monetary
relief.”); Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 488
(2d Cir. 2002) (“The fact that [plaintiff] seeks damages, in addition to relief that is
available under the IDEA, does not enable her to sidestep the exhaustion
requirements of the IDEA.”). But the Supreme Court clarified in Luna Perez v.
Sturgis Public Schools that suits seeking damages under another federal law are not
subject to the IDEA exhaustion requirements. 598 U.S. 142, 147–48 (2023). This is
33 because, the Supreme Court reasoned, § 1415(l) “applies only to suits that ‘see[k]
relief . . . also available under’ IDEA” and compensatory damages are unavailable
under the IDEA. Id. at 147. In light of the inconsistency between this Supreme
Court decision and our precedent holding that suits seeking damages may be
subject to the IDEA exhaustion requirements, we must conclude that such
precedent is “no longer good law.” Wojchowski v. Daines, 498 F.3d 99, 109 (2d Cir.
2007); accord In re Arab Bank, PLC Alien Tort Statute Litig., 808 F.3d 144, 154–55 (2d
Cir. 2015), as amended (Dec. 17, 2015), aff’d sub nom. Jesner v. Arab Bank, PLC, 584 U.S.
241 (2018).
Applying Luna Perez here, we conclude that Doe’s suit is not subject to the
IDEA exhaustion requirements. Doe sought equitable relief and damages in her
Amended Complaint. However, Doe’s claims for equitable relief became moot
upon the lifting of the mask mandate. Accordingly, the only claims remaining are
for damages. Because damages are not available under the IDEA, Doe was not
required to satisfy the statute’s exhaustion requirement. 9 For those reasons, we
9 To the extent that the School District argues that the IDEA exhaustion requirements nevertheless apply to all of Doe’s ADA and Rehabilitation Act claims because Doe sought equitable relief at one point during the litigation, we disagree. In Luna Perez, the Supreme Court explained that “a plaintiff who files an ADA action seeking both damages and the sort of equitable relief IDEA provides may find his request for equitable relief barred or deferred if he has yet to exhaust” his remedies under the IDEA. 598 U.S. at 150. Thus, where, as here, a plaintiff seeks
34 reverse the district court’s judgment on Counts Five and Six and remand for
further proceedings on those claims.
III. NYSHRL CLAIM
Doe argues that the district court erred by dismissing her NYSHRL claim
for lack of subject matter jurisdiction based on her purported failure to meet the
notice of claim requirement under N.Y. Educ. Law § 3813(1). Doe contends that
she sufficiently alleged that she satisfied the notice requirement, pointing to
allegations about two letters that counsel sent to the School District on June 16,
2021, and August 24, 2021. But Doe did not raise that argument below. She has
therefore forfeited her argument about the NYSHRL claim, and we decline to
exercise our discretion to consider it for the first time on appeal. See Katel Ltd. Liab.
Co. v. AT&T Corp., 607 F.3d 60, 68 (2d Cir. 2010). Thus, we affirm the district court’s
dismissal of the NYSHRL claim.
CONCLUSION
We have considered the parties’ remaining arguments and find them to be
without merit. For the reasons set forth above, we AFFIRM in part and REVERSE
both damages and equitable relief, the failure to exhaust remedies under the IDEA bars (or defers) only the equitable relief portion of the suit, not the damages portion as well. It follows that, once the equitable claims have become moot, there is no exhaustion bar to the continued pursuit of the damages claim. 35 in part the judgment of the district court and remand for further proceedings
consistent with this opinion.