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`Case 5:21-cv-00300-H Document 1 Filed 12/10/21 Page 1 of 71 PageID 1Case 5:21-cv-00300-H Document 1 Filed 12/10/21 Page 1 of 71 PageID 1
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF TEXAS
`LUBBOCK DIVISION
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`STATE OF TEXAS and
`LUBBOCK INDEPENDENT SCHOOL
`DISTRICT,
`Plaintiff,
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`v.
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`CIVIL ACTION NO. 5:21-CV-300
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`§§
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`
`XAVIER BECERRA, in his official
`capacity as Secretary of Health and
`Human Services; UNITED STATES
`DEPARTMENT OF HEALTH AND
`HUMAN SERVICES; JOOYUEN
`CHANG, in her official capacity as
`Principal Deputy Assistant Secretary;
`ADMINISTRATION FOR CHILDREN
`AND FAMILIES; KATIE HAMM, in
`her official capacity as Deputy Assistant
`Secretary for Early Childhood
`Development; OFFICE OF EARLY
`CHILDHOOD DEVELOPMENT;
`BERNADINE FUTRELL, in her official
`capacity as Director of the Office of Head
`Start; OFFICE OF HEAD START; and
`JOSEPH R. BIDEN, in his official
`capacity as President of the United
`States,
`Defendants.
`
`
`
`
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`1.
`
`ORIGINAL COMPLAINT
`
`
`INTRODUCTION
`
`I.
`
`Plaintiffs bring this action to challenge Defendants’ Interim Final Rule with Comment, 86
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`Fed. Reg. 68,052 (November 30, 2021), entitled “Vaccine and Mask Requirements To Mitigate
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`

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`the Spread of COVID-19 in Head Start Programs” (hereinafter “Interim Final Rule”) (attached
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`as Exhibit 1).
`
`2.
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`The Interim Final Rule imposes an unprecedented Vaccine Mandate on Head Start staff,
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`volunteers, and contractors throughout the nation. It also imposes an unprecedented Mask
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`Mandate on children two years of age and older who attend Head Start, as well as any individual in
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`a Head Start facility—such as parents picking up or dropping off their children.
`
`A.
`
`The Head Start Program
`
`3.
`
`Head Start is a federal grant program that provides funding to school districts, nonprofits,
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`and other community educational providers. Head Start programs promote the school readiness
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`of infants, toddlers, and preschool-aged children from low-income families. Head Start Programs,
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`Office of Head Start (Nov. 3, 2020), https://www.acf.hhs.gov/ohs/about/head-start.
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`4.
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`Head Start programs are available at no cost to children ages birth to 5 from low-income
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`families. Id. Families and children experiencing homelessness, and children in the foster care
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`system are also eligible. Id. Preschool students whose attendance is funded via Head Start grant
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`funding are often in preschool classrooms with other students whose attendance is funded by either
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`state funds, district funds, or parent tuition. See Declaration of Lubbock ISD Superintendent Dr.
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`Kathy Rollo, attached as Exhibit 3.
`
`5.
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`Head Start programs deliver services through 1,600 agencies in local communities, and
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`provide services to more than a million children every year, in every U.S. state and territory. Id.
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`6.
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`The purpose of Head Start is to “promote the school readiness of low-income children by
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`enhancing their cognitive, social, and emotional development—(1) in a learning environment that
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`supports children’s growth in language, literacy, mathematics, science, social and emotional
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`2
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`functioning, creative arts, physical skills, and approaches to learning; and (2) through the provision
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`to low-income children and their families of health, educational, nutritional, social, and other
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`services that are determined, based on family needs assessments, to be necessary.” 42 U.S.C.
`
`§ 9831.
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`7.
`
`The Office of Head Start provides grants to Head Start agencies in Texas and throughout
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`the country. Head Start programs are operated by several types of entities, including independent
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`school districts. Staff employed by Head Start programs are not federal employees.
`
`8.
`
`According to the United States Department of Health and Human Services’ Tracking
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`Accountability in Government Grants System website, HHS awarded a total of $842,280,184 in
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`grants to Texas Head Start programs in fiscal year 2021. Exhibit 2.
`
`B.
`
`The Head Start Interim Final Rule
`
`9.
`
`On November 30, 2021, after months of choosing to encourage Head Start employees and
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`volunteers to receive the COVID-19 vaccination, Defendants, at the direction of President Biden,
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`moved the goalposts and issued the Interim Final Rule, which contains a Vaccine Mandate and
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`Mask Mandate.1
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`10.
`
`The Vaccine Mandate forces local Head Start programs, including the programs operated
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`by Texas Tech University and the Lubbock Independent School District (“LISD”), to choose
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`between either cancelling the program or forcing their staff, contractors, and volunteers to comply
`
`
`1 See, e.g., “Tips for Talking to Head Start Families and Staff About the COVID-19 Vaccines”
`(dated March 24, 2021), https://eclkc.ohs.acf.hhs.gov/publication/tips-talking-head-start-
`families-staff-about-covid-19-vaccines.
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`3
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`with an illegal federal mandate that violates their constitutional rights, while dealing with the
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`inevitable fallout from the resulting resignations that will damage the program.2
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`11.
`
`The Mask Mandate forces Americans with children in Head Start to choose between
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`complying with the illegal mandate and allowing staff to force their children to wear masks, or
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`withdrawing their children from the program. As Defendants admit, enforcing the Mask Mandate
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`on toddlers will require frequent staff physical intervention: “It should be noted that like all new
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`skills, children will need to be taught the proper way to put a mask on and keep a mask on. While
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`children are adaptable, they are still in the early stages of development and may need reminders
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`and reinforcements to comply with this new practice.” 86 Fed. Reg. at 68,060. Time spent
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`reminding and reinforcing toddlers to wear masks is time away from enhancing their cognitive,
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`social, and emotional development— to say nothing of the detrimental effect mask wearing has on
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`that very cognitive, social, and emotional development. Presumably, head start programs will have
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`to discharge toddlers who are unable or unwilling to comply with the Mask Mandate from the
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`program or risk their continued receipt of Head Start financial assistance.
`
`
`2 Declaration of Lubbock ISD Superintendent Dr. Kathy Rollo, attached as Exhibit 3 (“If LISD
`complies with these new requirements, it has the potential for a mass exodus of Pre K staff.”);
`Declaration of Vice Chancellor and General Counsel of the Texas Tech University System, Eric
`Bentley, attached as Exhibit 4 (“Staff must be fully vaccinated by January 2022 to remain employed
`with the Head Start program.”); see also Elisabeth Waldon, ‘What is on your radar?’ Gov. Whitmer
`meets with Howard City leaders to hear their thoughts, concerns, The Daily News, Dec. 7, 2021,
`https://www.thedailynews.cc/articles/what-is-on-your-radar/ (Michigan Governor Gretchen
`Whitmer stating her opposition to vaccine mandates because “I know that if that mandate
`happens, we’re going to lose state employees. That’s why I haven’t proposed a mandate at the
`state level. Some states have. We have not, we’re waiting to see what happens in court”); Andrea
`Johnson, Head Start must close classrooms, fire staff due to federal COVID-19 vaccine mandate, Minot
`Daily News, Dec. 10, 2021, https://www.minotdailynews.com/news/local-news/2021/12/head-
`start-must-close-classrooms-fire-staff-due-to-federal-covid-19-vaccine-mandate/.
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`4
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`12. Moreover, the Mask Mandate requires anyone at a Head Start program—including parents
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`visiting, dropping their children off, or picking them up—to wear masks.
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`13.
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`14.
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`C.
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`15.
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`The Vaccine Mandate applies even if an individual has natural immunity.
`
`The Mask Mandates applies even if an individual has natural immunity or is vaccinated.
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`The Biden Administration’s Infringement on State Rights
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`The State of Texas and the LISD have sought to protect individual rights while also
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`encouraging and promoting effective public health techniques to combat the spread of COVID-19.
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`Disregarding Texas’s plan to stop the spread of COVID-19, the federal government, however, has
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`launched a coordinated effort to decide for itself whether and when Americans must receive the
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`vaccine.
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`16.
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`Instead of deferring to the States’ expertise to address the specifics of their state needs and
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`unique populations, President Biden has chosen to unlawfully take matters into his own hands. In
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`fact, after months of saying the federal government could not mandate vaccines, President Biden
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`announced that his “patience was wearing thin” with Americans who choose not to receive the
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`COVID-19 vaccine.3 He even went so far as to single out Texas as an obstacle to be removed
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`because of its stance in favor of individual liberty. Speaking about Texas Governor, Greg Abbott,
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`President Biden threatened that “[i]f they’ll not help—if these governors won’t help us beat the
`
`
`3 Joseph Biden, Remarks by President Biden on Fighting the Covid-19 Pandemic (Sept. 9, 2021),
`https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/09/09/remarks-by-
`president-biden-on-fighting-the-covid-19-pandemic-3/.
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`5
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`pandemic, I’ll use my power as President to get them out of the way.”4 And yet, then-President-
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`Elect Biden previously vowed not to demand any mandatory vaccinations.5
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`17.
`
`Our Constitution provides for a federal government of limited powers. The Constitution
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`does not grant the federal government general police powers to dictate every facet of its citizens’
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`lives. Defendants’ disregard for the limits that the Constitution and federal statutes impose is
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`nothing short of a dramatic infringement upon individual liberties, principles of federalism and
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`separation of powers, and the rule of law.
`
`D.
`
`18.
`
`The Interim Final Rule is Irrational
`
`The decision to mandate vaccinations for all Head Start staff, contractors, and volunteers,
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`and masks for all Head Start staff, contractors, volunteers, and children was uninformed, illogical,
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`and without statutory authority. Congress never authorized Defendants (under the guise of
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`promulgating “program performance standards”) to mandate vaccinations for Head Start staff,
`
`contractors, and volunteers or masking for children, their parents, staff, contractors, and
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`volunteers.
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`19.
`
`In their rush to push out the Vaccine Mandate and the Mask Mandate, and notwithstanding
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`its lack of statutory authority, Defendants failed to follow the statutorily mandated notice-and-
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`comment rulemaking procedures.
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`20.
`
`In contrast to mandating vaccinations for Head Start staff and masks for children attending
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`Head Start, the President has made no effort to mandate vaccinations or masking in our nation’s
`
`
`
`4 Id.
`5 Jacob Jarvis, Fact Check: Did Joe Biden Reject Idea of Mandatory Vaccines in December 2020?,
`Newsweek, Sept. 10, 2021, https://www.newsweek.com/fact-check-joe-biden-no-vaccines-
`mandatory-december-2020-1627774.
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`6
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`K through 12 schools, even though he claims, “We know how to keep students safe in schools by
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`taking the right steps to prevent transmission—including getting all staff and eligible students
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`vaccinated, implementing universal indoor masking, maintaining physical distancing, improving
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`ventilation, and performing regular screening testing for students and school staff.”6 Instead, he
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`passes the buck and tepidly “calls for Governors to require vaccinations for teachers and school
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`staff.”7 Under the Interim Final Rule, governors do not have the same option for Head Start staff
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`in their states.
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`21.
`
`President Biden does not even enforce his own vaccine mandate for federal employees. The
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`mandate required all federal employees—even those who work from home—to be vaccinated by
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`November 22, 2021. After that date passed, the federal government “updated” its “mandate”
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`and allowed federal employees an unspecified additional amount of time to “demonstrate progress
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`towards becoming vaccinated.” And added an additional out by providing that the “Operational
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`needs of agencies and the circumstances affecting a particular employee may warrant departure
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`from these guidelines if necessary.”8 Thus, the federal government does not enforce its vaccine
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`mandate against its own employees, yet demands that Head Start staff, contractors, and
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`volunteers, who are not federal employees, be vaccinated or face termination. This is arbitrary and
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`capricious.
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`E.
`
`The Biden Administration’s Other Attempts to Mandate Vaccines have Failed
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`22. Defendants’ Head Start mandate is one of several mandates President Biden has attempted
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`to impose on many Americans (but not federal employees). Defendants call these mandates
`
`
`6 https://www.whitehouse.gov/covidplan/ (last visited Dec. 5, 2021).
`7 Id.
`8 https://www.saferfederalworkforce.gov/faq/vaccinations/ (last visited Dec. 5, 2021).
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`7
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`“elements of a national strategy to combat COVID-19.” 86 Fed. Reg. at 68,069. Other “elements”
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`are OSHA’s vaccine mandate to employers with 100 or more employees, CMS’s vaccine mandate
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`for workers in most health care settings that receive Medicare or Medicaid reimbursement, and
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`the vaccine mandate for federal contractors. Federal courts have stayed all three of these other
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`“elements” as exceeding statutory authority (and should stay the Head Start mandate too).
`
`23.
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`Even one American being forced by their government to receive a vaccine that they do not
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`want out of fear of losing their job is an irreparable injury and a stain on Defendants’ records. But
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`the broader implications of these unlawful vaccine mandates, if they are not stopped, portend a
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`dark future for the economy and the American way of life.
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`24. Defendants’ Vaccine Mandate and Mask Mandate for Head Start is unlawful, and
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`Defendants should be enjoined from implementing it.
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`II.
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`PARTIES
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`25.
`
`Plaintiff the State of Texas is a sovereign State of the United States and brings this suit to
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`vindicate its sovereign and quasi-sovereign interests and on behalf of its citizens parens patriae.
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`26.
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`Plaintiff Lubbock Independent School District (“LISD” or “the District”) is a public
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`school district operating in Lubbock County, Texas. LISD is a political subdivision and derives its
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`legal status from Article VII of the Constitution of the State of Texas and from the Texas Education
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`Code as passed and amended by the Legislature of Texas. LISD offers a full range of educational
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`opportunities to public school students and their families in Lubbock County and operates a Head
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`Start program within its preschool offerings. LISD has requested the Attorney General of Texas
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`to represent it in this matter by adopting a Board Resolution to that effect in its December 9, 2021
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`meeting. See Tex. Educ. Code § 11.151(e).
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`8
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`27. Defendant Xavier Becerra is Secretary of HHS. He is sued in his official capacity.
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`28. Defendant United States Department of Health and Human Services (HHS) is a cabinet-
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`level executive branch department of the United States.
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`29. Defendant JooYuen Chang
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`is the Principal Deputy Assistant Secretary of the
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`Administration for Children and Families. She is sued in her official capacity.
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`30. Defendant the Administration for Children and Families is a Division of HHS.
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`31. Defendant Katie Hamm is Deputy Assistant Secretary for Early Childhood Development,
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`Office of Early Childhood Development. She is sued in her official capacity.
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`32. Defendant the Office of Early Childhood Development is an office of the Administration
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`for Children and Families.
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`33. Defendant Bernadine Futrell is the Director of the Office of Head Start. She is sued in her
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`official capacity.
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`34. Defendant Office of Head Start is an office of the Office of Early Childhood Development,
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`and is the office within HHS responsible for the Head Start program.
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`35. Defendant Joseph R. Biden is President of the United States. He is sued in his official
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`capacity.
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`III.
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`JURISDICTION AND VENUE
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`36.
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`This Court has jurisdiction under 5 U.S.C. §§ 702 and 703 and 28 U.S.C. §§ 1331, 1346,
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`and 1361, under the United States Constitution, and pursuant to the Court’s equitable powers.
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`37.
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`The Court is authorized to award the requested declaratory and injunctive relief under
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`5 U.S.C. §§ 702 and 706 and 28 U.S.C. §§ 1361, 2201, and 2202.
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`38.
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`Venue is proper within this District under 28 U.S.C. § 1391(c)(2).
`
`9
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`IV.
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`LEGAL BACKGROUND
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`A.
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`Statutes
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`39. Defendants assert that the Interim Final Rule is authorized “under the authority granted
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`to the Secretary by … 42 U.S.C. 9836a(a)(1)(C)–(E)), (D) and (,) [sic],” 86 Fed. Reg. at 68,052,
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`which it also refers to as “42 U.S.C. 9836a§ 9836a(a)(1)(C),(D), (E) [sic].” 86 Fed. Reg. at
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`68,053. Plaintiff assumes that the asserted statutory authority is 42 U.S.C. § 9836a(a)(1)(C), (D)
`
`and (E).
`
`40.
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`But Defendants have never before claimed that these sections authorize the federal
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`government to interpose itself between Head Start staff and their health care decisions, much less
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`to mandate vaccination for all Head Start employees. Nor have Defendants ever claimed that those
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`sections authorize it to direct children who attend Head Start to wear a mask or perform any similar
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`actions in the name of health.
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`41.
`
`That is for good reason: Congress has never supplied the Secretary with such sweeping
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`authority. 42 U.S.C. § 9836a(a)(1)(C), (D), and (E) reads:
`
`(a) Standards
`
`(1) Content of standards
`
`
`
`
`
`The Secretary shall modify, as necessary, program performance standards by
`regulation applicable to Head Start agencies and programs under this
`subchapter, including—
`
`(C) administrative and financial management standards;
`
`(D) standards relating to the condition and location of facilities (including
`indoor air quality assessment standards, where appropriate) for such
`agencies, and programs, including regulations that require that the
`facilities used by Head Start agencies (including Early Head Start
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`agencies and any delegate agencies) for regularly scheduled center-based
`and combination program option classroom activities—
`
`(i)
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`shall meet or exceed State and local requirements concerning
`licensing for such facilities; and
`
`
`(ii) shall be accessible by State and local authorities for purposes of
`monitoring and ensuring compliance, unless State or local laws
`prohibit such access; and
`
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`(E) such other standards as the Secretary finds to be appropriate.
`
`42.
`
`If a Head Start program fails to meet statutory or regulatory standards, the Secretary of
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`HHS shall require the program to correct the deficiency within 90 days, or immediately if the
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`Secretary finds that the deficiency threatens the health or safety of staff or program participants,
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`and to initiate proceedings to terminate program unless the it corrects the deficiency. 42 U.S.C.
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`§ 9836a(e).
`
`43.
`
`42 U.S.C. § 9836a(a)(2) places limitations on how HHS may modify program performance
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`standards. It reads:
`
`(2) Considerations regarding standards
`
`In developing any modifications to standards required under paragraph (1), the
`Secretary shall—
`
`(A) consult with experts in the fields of child development, early childhood
`education, child health care, family services (including linguistically and
`culturally appropriate services to non-English speaking children and their
`families), administration, and financial management, and with persons
`with experience in the operation of Head Start programs;
`
`
`(B) take into consideration—
`
`(i) past experience with use of the standards in effect under this
`subchapter on December 12, 2007;
`
`
`(ii) changes over the period since October 27, 1998,
`in the
`circumstances and problems typically facing children and families
`served by Head Start agencies;
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`(iii) recommendations from the study on Developmental Outcomes and
`Assessments for Young Children by the National Academy of
`Sciences, consistent with section 9844(j) of this title;
`
`
`(iv) developments concerning research-based practices with respect to
`early childhood education and development, children with
`disabilities, homeless children, children in foster care, and family
`services, and best practices with respect to program administration
`and financial management;
`
`
`(v) projected needs of an expanding Head Start program;
`
`(vi) guidelines and standards that promote child health services and
`physical development, including participation in outdoor activity
`that supports children’s motor development and overall health and
`nutrition;
`
`
`(vii) changes in the characteristics of the population of children who are
`eligible to participate in Head Start programs, including country of
`origin, language background, and family structure of such children,
`and changes in the population and number of such children who are
`in foster care or are homeless children;
`
`
`(viii) mechanisms to ensure that children participating in Head Start
`programs make a successful transition to the schools that the
`children will be attending;
`
`
`(ix) the need
`regular
`to maintain
`for Head Start agencies
`communications with parents,
`including conducting periodic
`meetings to discuss the progress of individual children in Head Start
`programs; and
`
`
`(x)
`
`
`
`(C)
`
`(i)
`
`
`(ii)
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`the unique challenges faced by individual programs, including those
`programs that are seasonal or short term and those programs that
`serve rural populations;
`
`review and revise as necessary the standards in effect under this
`subsection; and
`
`ensure that any such revisions in the standards will not result in
`the elimination of or any reduction in quality, scope, or types of
`health, educational, parental involvement, nutritional, social, or
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`other services required to be provided under such standards as in
`effect on December 12, 2007; and
`
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`(D) consult with Indian tribes, including Alaska Natives, experts in Indian,
`including Alaska Native, early childhood education and development,
`linguists, and the National Indian Head Start Directors Association on the
`review and promulgation of standards under paragraph (1) (including
`standards for language acquisition and school readiness).
`
`B.
`
`44.
`
`Regulations
`
`Before November 30, 2021, Head Start rules (45 C.F.R. § 1302.93) governed staff health
`
`only to the following limited extent:
`
`§ 1302.93 Staff health and wellness.
`
`(a) A program must ensure each staff member has an initial health examination and a
`periodic re-examination as recommended by their health care provider in accordance
`with state, tribal, or local requirements, that include screeners or tests for
`communicable diseases, as appropriate. The program must ensure staff do not, because
`of communicable diseases, pose a significant risk to the health or safety of others in the
`program that cannot be eliminated or reduced by reasonable accommodation, in
`accordance with the Americans with Disabilities Act and section 504 of the
`Rehabilitation Act.
`
`
`(b) A program must make mental health and wellness information available to staff
`regarding health issues that may affect their job performance, and must provide
`regularly scheduled opportunities to learn about mental health, wellness, and health
`education.
`
`45.
`
`The Interim Final Rule adds paragraphs (a)(1) and (2):
`
`(1) All staff, and those contractors whose activities involve contact with or providing
`direct services to children and families, must be fully vaccinated for COVID-19,
`other than those employees:
`
`
`
`(i) For whom a vaccine is medically contraindicated;
`
`(ii) For whom medical necessity requires a delay in vaccination; or
`
`(iii) Who are legally entitled to an accommodation with regard to the COVID-
`19 vaccination requirements based on an applicable Federal law.
`
`
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`13
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`(2) Those granted an accommodation outlined in paragraph (a)(1) of this section
`must undergo SARS-COV-2 testing for current infection at least weekly with
`those who have negative test results to remain in the classroom or working
`directly with children. Those with positive test results must be immediately
`excluded from the facility, so they are away from children and staff until they are
`determined to no longer be infectious.
`
`86 Fed. Reg. at 68,101.
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`46.
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`The new paragraphs require staff and contractors to be vaccinated, and to get tested weekly
`
`if granted an accommodation against being vaccinated. No such requirement existed in the prior
`
`version.
`
`47.
`
`Before November 30, 2021, Head Start rules (45 C.F.R. § 1302.94(a)) governed volunteer
`
`health only to the following limited extent:
`
`(a) A program must ensure regular volunteers have been screened for appropriate
`communicable diseases in accordance with state, tribal or local laws. In the absence of
`state, tribal or local law, the Health Services Advisory Committee must be consulted
`regarding the need for such screenings.
`
`48.
`
`But now the Interim Final Rule revises paragraph (a) to read as follows:
`
`(a) A program must ensure volunteers have been screened for appropriate communicable
`diseases in accordance with state, tribal or local laws. In the absence of state, tribal, or
`local law, the Health Services Advisory Committee must be consulted regarding the
`need for such screenings.
`
`
`
`
`
`
`
`(1) All volunteers in classrooms or working directly with children other than their
`own must be fully vaccinated for COVID-19, other than those volunteers:
`
`(i) For whom a vaccine is medically contraindicated;
`
`(ii) For whom medical necessity requires a delay in vaccination; or
`
`(iii) Who are legally entitled to an accommodation with regard to the COVID-
`19 vaccination requirements based on an applicable Federal law.
`
`(2) Those granted an accommodation outlined in paragraph (a)(1) of this section
`must undergo SARS-CoV-2 testing for current infection at least weekly with
`those who have negative test results to remain in the classroom or work directly
`with children. Those with positive test results must be immediately excluded
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`from the facility, so they are away from children and staff until they are
`determined to no longer be infectious.
`
`86 Fed. Reg. at 68,101.
`
`49.
`
`The new paragraphs require volunteers to be vaccinated, and to get tested weekly if granted
`
`an accommodation against being vaccinated. No such requirement existed in the prior version.
`
`50.
`
`Before November 30, 2021, Head Start rules (45 C.F.R. § 1302.47(b)(5)) governed child
`
`safety only to the following limited extent:
`
`(5) Safety practices. All staff and consultants follow appropriate practices to keep
`children safe during all activities, including, at a minimum:
`
`
`
`(i) Reporting of suspected or known child abuse and neglect, including that
`staff comply with applicable federal, state, local, and tribal laws;
`
`
`(ii) Safe sleep practices, including ensuring that all sleeping arrangements for
`children under 18 months of age use firm mattresses or cots, as appropriate,
`and for children under 12 months, soft bedding materials or toys must not
`be used;
`
`
`(iii) Appropriate indoor and outdoor supervision of children at all times;
`
`(iv) Only releasing children to an authorized adult, and;
`
`(v) All standards of conduct described in § 1302.90(c).9
`
`51.
`
`The Interim Final Rule adds paragraph (b)(5)(vi) to read as follows:
`
`(vi) Masking, using masks recommended by CDC, for all individuals 2 years of
`age or older when there are two or more individuals in a vehicle owned,
`leased, or arranged by the Head Start program; indoors in a setting when
`Head Start services are provided; and for those not fully vaccinated,
`outdoors in crowded settings or during activities that involve sustained close
`contact with other people, except:
`
`
`
`(A) Children or adults when they are either eating or drinking;
`
`
`
`9 45 C.F.R. § 1302.90(c) requires staff, consultants, contractors, and volunteers to address
`appropriate implement positive strategies to support children’s well-being and prevent and
`address challenging behavior and to not maltreat or endanger the health or safety of children.
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`(B) Children when they are napping;
`
`(C) When a person cannot wear a mask, or cannot safely wear a mask,
`because of a disability as defined by the Americans with Disabilities
`Act; or
`
`
`(D) When a child’s health care provider advises an alternative face
`covering to accommodate the child’s special health care needs.
`
`86 Fed. Reg. at 68,101.
`
`52.
`
`53.
`
`The new paragraph requires masking. No such requirement existed in the prior version.
`
`Paragraph (vi) applies to all “individuals 2 years of age or older” who are “indoors in a
`
`setting when Head Start services are provided” and “outdoors in crowded settings or during
`
`activities that involve sustained close contact with other people” According to the Interim Final
`
`Rule, “The Office of Head Start notes that being outdoors with children inherently includes
`
`sustained close contact for the purposes of caring for and supervising children.” 86 Fed. Reg. at
`
`68,060. Thus, the Mask Mandate appears to also apply to parents who enter a Head Start facility
`
`(either when dropping off or picking up their child or at any other time) and to parents are outside
`
`with their children (either when dropping them off, picking them up, or at any other time), since
`
`being outside with children “inherently includes sustained close contact.”
`
`V.
`
`FACTUAL BACKGROUND
`
`The Biden Administration Response to COVID-19.
`
`As Defendants acknowledge, the Administration for Children and Families “initially
`
`
`
`54.
`
`chose, among other actions, to allow Head Start programs to decide whether or not to require staff
`
`vaccination rather than require vaccination.” 86 Fed. Reg. at 68,054.
`
`55.
`
`Similarly, before September 2021, the President’s consistent position had been that the
`
`federal government lacks the authority Defendants are now claiming to possess. For example, on
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`July 23, 2021, the White House acknowledg