L.E. v. Superintendent of Cobb County School District

USCA11 Case: 21-13980    Document: 53-1      Date Filed: 12/16/2022    Page: 1 of 15




                                                              [PUBLISH]
                                    In the
                 United States Court of Appeals
                         For the Eleventh Circuit

                           ____________________

                                 No. 21-13980
                           ____________________

        L.E.,
        By and through their parent and
        next friend, Sara Cavorley,
        B.B.,
        A minor, by and through their parent and
        next friend, Elizabeth Baird,
        A.Z.,
        A minor, by and through their parent and
        next friend, Jessica Zeigler,
        C.S.,
        A minor, by and through their parent and
        next friend, Tarasha Shirley,
                                                     Plaintiffs-Appellants,
        versus
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        2                         Opinion of the Court                    21-13980

        SUPERINTENDENT OF COBB COUNTY SCHOOL DISTRICT,
        RANDY SCAMIHORN,
        DAVID BANKS,
        DAVID CHASTAIN,
        BRAD WHEELER,
        In their official capacity as members of
        the Cobb County School Board,
        COBB COUNTY SCHOOL DISTRICT, et al.,
                                                          Defendants-Appellees.


                               ____________________

                    Appeal from the United States District Court
                       for the Northern District of Georgia
                       D.C. Docket No. 1:21-cv-04076-TCB
                             ____________________

        Before WILSON, JILL PRYOR, Circuit Judges, and RUIZ, * District
        Judge.
        WILSON, Circuit Judge:
              Plaintiffs-Appellants L.E., B.B., A.Z., and C.S., are students
        who have respiratory disabilities (“Students”). They appeal the de-
        nial of their motion for a temporary restraining order and


        * Honorable Rodolfo A. Ruiz II, United States District Judge for the Southern
        District of Florida, sitting by designation.
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        21-13980                Opinion of the Court                         3

        preliminary injunction. The Students sued Defendants-Appellees
        the Superintendent of the Cobb County School District, individual
        members of the Cobb County School Board, and the Cobb County
        School District (collectively, “CCSD”), in the wake of the COVID-
        19 pandemic. The Students claim that CCSD’s refusal to provide
        reasonable accommodations for access to in-person schooling con-
        stitutes a violation of Title II of the Americans with Disabilities Act
        (“ADA”) and Section 504 of the Rehabilitation Act (“Section 504”).
              After careful review and with the benefit of oral argument,
        we hold this claim presents a live controversy that survives moot-
        ness and the district court erred in its review of the Students’ dis-
        crimination claims.
                                         I.
                Each of the Students attends a Cobb County school and has
        a disability recognized by both the ADA and Section 504. As a re-
        sult of the global COVID-19 pandemic, CCSD enacted a 2020–2021
        COVID-19 policy that included masking requirements, social dis-
        tancing, frequent cleaning and sanitizing of classrooms, and strict
        quarantine requirements. In the spring and summer of 2021, all
        Cobb County students were given the option to attend school ei-
        ther virtually or in-person for the 2021-2022 school year. The Stu-
        dents chose to attend school in-person based on CCSD’s assurances
        that the district would follow the Centers for Disease Control and
        Prevention (“CDC”) guidelines and that the safety procedures in
        the 2020–2021 COVID-19 policy would remain in place.
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        4                      Opinion of the Court                 21-13980

                However, after the Students elected to attend school in-per-
        son but before the 2021-2022 school year began, CCSD ended
        many of the COVID-19 safeguards previously imposed. The new
        policy no longer included mandatory masking, did not mandate
        COVID-19 vaccinations for students or staff, and lessened the quar-
        antine and social distancing requirements. As a result, the Stu-
        dents’ parents removed them from in-person schooling and filed
        this lawsuit. They alleged that unless CCSD reimplemented cer-
        tain safety measures, the Students would be unable to attend in-
        person school and would suffer irreparable harm. The Students
        filed a motion for a temporary restraining order and preliminary
        injunction with their complaint. The district court denied the mo-
        tion, and the Students timely appealed.
                                         II.
              The denial of a preliminary injunction “rests within the
        sound discretion of the district court.” Cunningham v. Adams, 808
        F.2d 815, 819 (11th Cir. 1987). We will reverse only if the district
        court abused its discretion or if the denial is contrary to a rule of
        equity. Id. Underlying findings of fact are reviewed for clear error,
        and legal conclusions are reviewed de novo. Transcon. Gas Pipe
        Line Co. v. 6.04 Acres, 910 F.3d 1130, 1163 (11th Cir. 2018).
               To obtain a preliminary injunction, a movant must show (1)
        a substantial likelihood that it will ultimately prevail on the merits
        of the underlying case; (2) that the movant will suffer irreparable
        injury unless the injunction issues; (3) that the threatened injury to
        the movant outweighs whatever damage the proposed injunction
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        21-13980                Opinion of the Court                          5

        may cause the opposing party; and (4) that if issued, the injunction
        would not be adverse to the public interest. Osmose, Inc. v. Vi-
        ance, LLC, 612 F.3d 1298, 1307 (11th Cir. 2010). Preliminary in-
        junctions are considered “drastic remed[ies],” and the moving
        party must satisfy the burden of persuasion as to all four elements.
        Davidoff & CIE, S.A. v. PLD Int’l Corp., 263 F.3d 1297, 1300 (11th
        Cir. 2001).
                                          III.
              We begin by addressing CCSD’s assertion that this appeal is
        moot due to changes in the COVID-19 landscape before turning to
        the merits of the Students’ appeal.
                                    A. Mootness
                CCSD claims this appeal is moot because the CDC COVID-
        19 guidelines no longer recommend mandatory masking, and the
        Students argued for a mask mandate at the motions hearing. Be-
        cause the Constitution limits the jurisdiction of federal courts to
        live cases and controversies, we must first determine whether this
        case is justiciable.
               Article III of the Constitution requires “a case or controversy
        to exist at all times during the litigation.” Keister v. Bell, 29 F.4th
        1239, 1250 (11th Cir. 2022) (cleaned up). “[A] case is moot when it
        no longer presents a live controversy with respect to which the
        court can give meaningful relief.” De La Teja v. United States, 321
        F.3d 1357, 1362 (11th Cir. 2003). “If events that occur subsequent
        to the filing of a lawsuit or an appeal deprive the court of the ability
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        6                      Opinion of the Court                 21-13980

        to give the plaintiff or appellant meaningful relief, then the case is
        moot and must be dismissed.” Al Najjar v. Ashcroft, 273 F.3d 1330,
        1335–36 (11th Cir. 2001) (per curiam). If a case becomes moot
        while on appeal, this court will not consider the merits presented,
        “but instead vacate[s] the judgments below with directions to dis-
        miss even if a controversy did exist at the time the district court
        rendered its decision.” Coal. for the Abolition of Marijuana Prohi-
        bition v. City of Atlanta, 219 F.3d 1301, 1309–10 (11th Cir. 2000).
               The Students’ prayer for relief in their motion for prelimi-
        nary injunction and temporary restraining order saves this case
        from mootness. The Students ask the court to “[o]rder Defendants
        to develop and implement policies, practices, procedures, and pro-
        tocols for a multilayered COVID-19 mitigation strategy that fol-
        lows CDC guidelines for COVID-19 Prevention in K-12 Schools
        and maintain consistency with the CDC guidelines in the event of
        subsequent changes, so that Plaintiffs can attend in-person
        school[.]” The CDC guidelines have changed, as the motion antic-
        ipated, but CCSD’s policies remain at odds with the current guide-
        lines.
               At the time the district court denied the motion, the CDC
        guidelines required masking in all schools. Since then, however,
        the CDC has updated its guidance. At the time the parties briefed
        this appeal, the CDC recommended that schools base their mask-
        ing policy on the corresponding COVID-19 risk-level in the com-
        munity where the school district sits. See Transcript for CDC Me-
        dia Telebriefing: Update on COVID-19, Centers for Disease
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        21-13980               Opinion of the Court                        7

        Control       and       Prevention        (Feb.    25,       2022),
        https://www.cdc.gov/media/releases/2022/t0225-covid-19-up-
        date.html (“Since July 2021, CDC recommended universal masking
        in schools, no matter what level of impact COVID 19 was having
        on the community. With this update, CDC will now only recom-
        mend universal masking in communities at the high level.”). If the
        district was at a “low” or “medium” risk level, the CDC recom-
        mended a mask-optional policy. At the time of this appeal, Cobb
        County was at a “low” risk level, and its COVID-19 policy reflected
        a mask-optional approach.
               CCSD maintains that this appeal is moot because the Stu-
        dents sought mandatory masking at the motions hearing. Since the
        CDC guidelines no longer require a mask mandate, CCSD con-
        tends that an order forcing them to follow CDC guidance would
        not grant effectual relief. We disagree. This argument ignores cru-
        cial facts in the record that illuminate the Students’ actual re-
        quested relief.
               Specifically, CCSD relies on the arguments put forth in the
        motions hearing to support its claim that the Students are asking
        solely for a mask mandate. In that same hearing, however, CCSD
        undoubtedly stated that the Students sought additional relief:
        “[The Students] are asking this Court for more than just a mask
        mandate. They are asking this Court to order the district to strictly
        comply with each and every one of the CDC’s recommendations.”
        Part of those recommendations include (both now and at the time
        of the hearing) guidance for schools on how to accommodate
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        8                          Opinion of the Court                       21-13980

        students with disabilities. The Students argue that CCSD ignored
        those recommendations and continues to disregard CDC guidance
        in this respect. Therefore, this remains a live controversy. A judg-
        ment in their favor would grant the Students meaningful relief by
        requiring CCSD to follow the guidance on accommodating stu-
        dents with disabilities under the ADA and Section 504 as it is up-
        dated—a practice the Students claim CCSD refuses to do. 1 Thus,
        this claim remains a live controversy.


        1 CCSD asks us to follow the Third Circuit’s reasoning in Doe 1 v. Upper Saint
        Clair Sch. Dist., No. 22-1141, 2022 WL 2951467 (3d Cir. Mar. 1, 2022) to find
        this appeal moot. After reviewing the docket and assigning the appropriate
        context, we decline to follow the Third Circuit because the facts are materially
        distinguishable.
                  In Upper Saint Clair, the court compelled supplemental briefing on
        why the pending appeal—an appeal from the grant of a temporary restraining
        order forcing a school district to impose mandatory masking—was not moot
        in light of new CDC guidelines only recommending mandatory masking at
        high risk levels. Order, Doc. 26 at 1, Doe 1 v. North Allegheny Sch. Dist., No.
        22-1160 (3d Cir. Feb. 25, 2022) (consolidated with Upper Saint Clair, see Doc.
        9). Plaintiffs sought mandatory masking “for as long as the risk level is classi-
        fied as ‘substantial’ or ‘high.’” Id. Though not explicitly stated by the Third
        Circuit, we conclude that the prayer for relief in that case was conditioned on
        the community’s level of risk. Since the health landscape had drastically im-
        proved by the time the appellate court heard the case, such that the county
        was no longer at the required level of risk, the court found the claim moot.
        See Upper Saint Clair, 2022 WL 2951467 at *1 (“[W]e agree with the parties
        that . . . this matter is moot[.]”).
               In contrast, here the Students’ prayer for relief is not conditioned on
        the community’s risk level. Instead, it anticipates subsequent changes in CDC
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        21-13980                   Opinion of the Court                               9

                     B. Substantial Likelihood of Success on the Merits

                The district court denied the Students’ motion, finding they
        did not demonstrate substantial likelihood of success on the merits
        under a failure to accommodate or disparate treatment theory of
        discrimination. The Students contend that the district court
        abused its discretion in evaluating whether their ADA and Section
        504 claims had a substantial likelihood of success on the merits be-
        cause the district court reframed the scope of the “service, program
        or activity” the Students seek and did not consider each of the Stu-
        dents’ theories of discrimination.2 To succeed on either claim, the
        Students must show three elements: (1) that they are “qualified in-
        dividual[s] with . . . disabilit[ies];” (2) that they were “excluded
        from participation in or denied the benefits of a public entity’s ser-
        vices, programs, or activities, or [were] otherwise discriminated
        against by the public entity;” and (3) “that the exclusion, denial of
        benefit, or discrimination was by reason of the [plaintiffs’] disa-
        bilit[ies].” Am. Ass’n of People with Disabilities v. Harris, 647 F.3d
        1093, 1101 (11th Cir. 2011).
              The district court held the Students are unlikely to establish
        the second element listed above because there are two distinct


        guidance and requests CCSD adhere to the guidelines as they change, no mat-
        ter the level of risk.
        2 ADA and Section 504 claims are governed by the same legal standard. J.S.,
        III ex rel. J.S. Jr. v. Houston Cnty. Bd. of Educ., 877 F.3d 979, 985 (11th Cir.
        2017) (per curiam).
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        10                        Opinion of the Court                    21-13980

        categories of disability discrimination claims under the ADA—
        failure to accommodate and disparate treatment—and the Stu-
        dents’ arguments fall short of proving either. In so holding, the
        district court did not consider the Students’ unjustified isolation
        claim under Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999).
        Rather, the district court held that the Students’ attempt to allege
        disparate treatment was not persuasive because CCSD’s policy was
        facially neutral. The district court rejected the Students’ assertion
        that additional restrictions were necessary to reasonably accom-
        modate them and provide meaningful access to in-person school-
        ing. Instead, it adopted CCSD’s view that the school district’s
        COVID-19 policy and, specifically, the availability of virtual school-
        ing, sufficiently accommodated the Students’ disabilities and pro-
        vided them with meaningful access to education. The district court
        found that while the Students may prefer stricter policies, CCSD is
        not required to provide them; what is required is simply meaning-
        ful access to education. L.E. v. Ragsdale, 568 F. Supp. 3d 1364, 1369
        (N.D. Ga. 2021). 3
                                1. Reasonable Accommodation
              On appeal, the Students argue that the district court imper-
        missibly broadened their claim and redefined the scope of the pro-
        gram at issue in this case. We agree. The district court erred by
        misconstruing the Students’ argument as a right to education


        3 Chris Ragsdale is the Superintendent of the Cobb County School District and
        a named defendant in the proceedings below.
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        21-13980                 Opinion of the Court                          11

        generally, despite the record clearly establishing that the Students
        are alleging a denial of access to in-person education—a specific
        “service, program, or activity” that CCSD provides to all students.
               The Supreme Court instructs courts to focus on narrow pro-
        grams and benefits offered by a public entity when evaluating
        claims under the ADA and Section 504. See Alexander v. Choate,
        469 U.S. 287, 301 & n.21 (1985) (citing the government’s statement
        that “[a]ntidiscrimination legislation can obviously be emptied of
        meaning if every discriminatory policy is ‘collapsed’ into one’s def-
        inition of what is the relevant benefit”). In addition to the record
        below plainly establishing that the Students seek in-person educa-
        tion, CCSD also conceded at the motions hearing that they under-
        stand the complaint to request access to in-person education, ra-
        ther than education generally. 4 Given the Supreme Court’s direc-
        tion and the parties’ agreement on the relevant claim, we hold that
        the district court abused its discretion by misconstruing the scope
        of the program at issue.
               Nevertheless, CCSD maintains that the district court was
        correct because a public entity need only provide a reasonable ac-
        commodation—not the Students’ preferred or requested accom-
        modation. See Stewart v. Happy Herman’s Cheshire Bridge, Inc.,
        117 F.3d 1278, 1285–86 (11th Cir. 1997). Because CCSD made a
        virtual schooling opportunity available, they argue, they have


        4 Further, CCSD confirmed at oral argument that it must provide reasonable
        accommodations for access to in-person schooling.
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        12                        Opinion of the Court                      21-13980

        adequately provided the accommodations necessary to ameliorate
        a disability’s effect of preventing meaningful access to the benefits
        of, or participation in, the program at issue. CCSD’s argument
        fails, however, because the district court did not analyze the correct
        “program at issue.” The Students allege that CCSD refuses to con-
        sider reasonable accommodations to allow them access to in-per-
        son classes, not just education generally. The district court did not
        consider whether virtual schooling can constitute a reasonable ac-
        commodation to provide the benefits of in-person schooling. The
        district court stopped short of the operative question, instead de-
        ciding that “[s]o long as Plaintiffs are offered meaningful access to
        education—and the Court finds that they have been—Defendants
        have adequately accommodated Plaintiffs . . . .” Ragsdale, 568 F.
        Supp. 3d at 1369.
               To prevent the antidiscrimination legislation from being
        emptied of its meaning through broad definitions of the program
        at issue, we are compelled to reverse. 5 The district court’s re-defi-
        nition of the public program was an abuse of discretion. On re-
        mand, the district court must analyze whether virtual schooling is
        a reasonable accommodation for in-person schooling, not educa-
        tion in general. And if it is not, the district court must consider



        5 See, e.g., Nat’l Fed’n of the Blind v. Lamone, 813 F.3d 494, 503–05 (4th Cir.
        2016) (finding that because a specific method of voting was available to every-
        one, that method of voting, not voting in general, was the “appropriate object
        of scrutiny for compliance with the ADA and [Section 504]”).
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        21-13980                Opinion of the Court                        13

        whether the multi-layered approach to COVID-19 precautions the
        Students seek constitutes a reasonable accommodation.
                                2. Unjustified Isolation

                The Students also argue that the district court abused its dis-
        cretion in holding that the Students must show either failure to ac-
        commodate or disparate treatment, without acknowledging the
        Students’ discriminatory isolation theory under Olmstead. Relat-
        edly, the Students argue that the district court wrongly concluded
        that a facially neutral, uniformly applied policy cannot form the ba-
        sis of a discrimination claim. We agree.
               The Supreme Court, in Olmstead, held that “unjustified iso-
        lation” is “properly regarded as discrimination based on disability.”
        527 U.S. 581, 597 (1999). That is because such isolation “perpetu-
        ates unwarranted assumptions that persons so isolated are incapa-
        ble or unworthy of participating in community life.” Id. at 600. An
        Olmstead isolation claim is separate and distinct from a disparate
        treatment or failure to accommodate theory. In other words, the
        Students need not show disparate treatment to be successful on the
        merits of their Olmstead isolation claim.
               Additionally, facially neutral, uniformly applied policies can
        give rise to discrimination claims without evidence of disparate
        treatment. The Supreme Court has explained that disability dis-
        crimination “was perceived by Congress to be most often the prod-
        uct, not of invidious animus, but rather of thoughtlessness and in-
        difference – of benign neglect.” Choate, 469 U.S. at 295. The
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        14                     Opinion of the Court                21-13980

        various forms of discrimination against disabled individuals are fre-
        quently facially neutral, but nevertheless effectuate discrimination
        against disabled people.
                Accordingly, the district court erred in holding the Students
        must show a substantial likelihood of success on the merits on a
        disparate treatment claim. Because the Students also bring their
        ADA and Section 504 claims under an Olmstead theory of unjusti-
        fied isolation, on remand, the district court must also analyze the
        Students’ likelihood of success on the merits under this theory.
                                        IV.

                The Students’ claim is not moot because their prayer for re-
        lief seeks an order requiring CCSD to comply with CDC guidelines
        for COVID-19 precautions in schools. The CDC guidance recom-
        mends that schools “must make reasonable modifications or ac-
        commodations when necessary to ensure that all students, includ-
        ing those with disabilities, are able to access in person learning”—
        recommendations the Students allege that CCSD continues to ig-
        nore. Operational Guidance for K-12 Schools and Early Care and
        Education Programs to Support Safe In-Person Learning, Centers
        for Disease Control and Prevention (Oct. 5, 2022),
        https://www.cdc.gov/coronavirus/2019-ncov/commu-
        nity/schools-childcare/k-12-childcare-guidance.html. (emphasis
        added). Additionally, the district court abused its discretion in re-
        defining the scope of the program for which the Students are seek-
        ing accommodations and failing to consider the Students’
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        21-13980             Opinion of the Court                    15

        unjustified isolation theory. Accordingly, we REVERSE and
        REMAND for analysis under the correct scope: access to the bene-
        fits provided by in-person schooling.
              REVERSED and REMANDED.