A series of nearly identical lawsuits were filed against mask-optional districts, alleging discrimination against medically vulnerable students.
A fledgling legal effort to force school districts across Pennsylvania to reinstate mask mandates on the grounds that not requiring face coverings is tantamount to discrimination against medically-vulnerable children appears to be fizzling in the courts.
Last week, Judge Thomas Ambro with the Third Circuit Court of Appeals dismissed complaints from parents and students seeking to require mask-wearing in their Pittsburgh-area school districts. Covid-19 cases have dropped considerably in the last month, and because of that “the absence of a live controversy renders this matter moot,” Ambro wrote in a March 1 order.
Ambro remanded the lawsuits against the Upper Saint Clair and North Allegheny school districts back to the district court to be dismissed without prejudice.
Upper Saint Clair and North Allegheny are two of at least nine school districts across Pennsylvania that have been sued by lawyers arguing that not requiring masks in their classrooms is a violation of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, a civil-rights law prohibiting discrimination on the basis of disability. The lawsuits, all filed on behalf of unnamed students with disabilities, claim that not requiring universal masking forces parents of “medically fragile” children to make a “shockingly unfair or unjust decision of deciding whether to pull their children out of in-person learning, causing mental harm and havoc on the child and family, or face the quantifiably increased risk of physical harm caused by exposure to severe illness or death as a result of COVID-19.”
In six of the nine cases, the district judges sided with the school districts, and denied the plaintiffs’ requests for temporary restraining orders to prevent the districts from implementing mask-optional policies. Parents who spoke to National Review last month said they believe the nearly-identical lawsuits are part of a coordinated effort to make an end-run around a December state Supreme Court ruling, which seemingly empowered local school boards to make masking decisions for their districts.
“I don’t think it’s working at all,” said Michael Lebiedzinski, a Philadelphia-area parent who has been closely tracking the cases. “Who knows where they go after this, but it’s been loss after loss after loss, legally, and scientifically, and medically.”
However, at least one Pennsylvania school district is still required to mandate masks for its students. In late January, U.S. District Judge Wendy Beetlestone granted a restraining order against the Perkiomen Valley School District, requiring the district to revert to its strict masking policy. Last month, Beetlestone granted a preliminary injunction against the district.
In late-February, on the heels of the U.S. Center for Disease Control and Prevention relaxing its masking guidance, the district filed a motion with the court, requesting Beetlestone modify her ruling and dissolve her previous order. The district cited drastically reduced Covid-19 cases, incidence rates, and hospitalizations in urging Beetlestone to immediately lift the injunction. The district also noted that dozens of other neighboring school districts and parochial schools have established mask-optional policies.
The Third Circuit Court of Appeals this week declined to take summary action in the Perkiomen Valley case based on the revised CDC guidance, and instead directed the district court to handle the school district’s motion. The two sides in the dispute have been unable to reach a settlement.
Pennsylvania is not the only state where lawyers have filed ADA lawsuits to force school districts to mandate masks; parents in Iowa, South Carolina, Tennessee, Texas, and Virginia have used similar tactics.
Last week, a group of more than 100 disability advocacy organizations, sent a letter to CDC Director Rochelle Walensky urging the CDC to revise its guidance and to once again recommend that “everyone wear N-95s or the highest quality masks available in indoor public settings including schools.” The letter was posted on the website of Little Lobbyists, a lobbying group for children with complex medical needs and disabilities.
The new CDC guidance doesn’t address the needs of disabled people, older adults, children with disabilities, and children under five who aren’t eligible for Covid vaccines, and “places us, and our friends and families in danger,” according to the letter.
“Only once case counts and transmission rates have dropped and universal vaccines are available will the pandemic end,” the letter says. “Until that time, all individuals, including people with disabilities, have a right to fully participate in their communities without putting their health and lives at risk.”