Parents told NR the lawsuits are a coordinated effort to get around a Pennsylvania court ruling empowering school boards to make masking decisions.
On the heels of a Pennsylvania Supreme Court ruling that put the kibosh on a statewide school masking mandate, lawyers in the Keystone State are trying a new tack to reinstate a classroom mask requirement — suing individual school districts in federal court on the grounds that they are failing to protect medically vulnerable students.
Over the last month, at least four nearly identical lawsuits have been filed in Pittsburgh- and Philadelphia-area school districts that recently made masks optional, accusing them of violating 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.”
The lawsuits note that both the U.S. Centers for Disease Control and Prevention and the American Academy of Pediatrics recommend masking students in schools. The lawsuits claim that board votes to end masking requirements were done “arbitrarily and capriciously.”
Parents who spoke to National Review said they believe the lawsuits are a coordinated effort to make an end-run around the December state Supreme Court ruling, which seemingly empowered local school boards to make masking decisions for their districts. The ADA lawsuits add to the confusion about which governmental body, if any, has the ultimate authority to determine if masks will be required in Pennsylvania schools.
“I think what these plaintiffs are saying is that the school board does not have the authority (to make masks optional),” said Michael Lebiedzinski, a parent in the Philadelphia area who has been following the cases. Lebiedzinski’s school district has not been sued, but a neighboring district, Perkiomen Valley, has.
“I fully expect parents in our district to be approached by the attorney around here to sue our district to keep the mask mandate in place using the same argument,” Lebiedzinski said.
J. Chadwick Schnee, one of the lawyers who successfully fought the state mask mandate, called the ADA lawsuits a “clever strategy.” Essentially, he said, the lawsuits contend that universal masking is the only reasonable accommodation to protect medically vulnerable students from the coronavirus — upgrading air-filtration systems, adding plexiglass dividers between desks, requiring social distancing, and providing medically vulnerable students with KN95 masks don’t cut it.
“The ultimate end game is to get a ruling from a Pennsylvania federal court or Third Circuit federal court that says, ‘Yes, universal masking is a reasonable accommodation, and therefore school, if you don’t require universal masking, you’re in violation of the ADA, and the Section 504 of the Rehabilitation Act as well,’” Schnee told National Review. That could prompt school districts across the state to again require masks.
So far, the federal judges have disagreed over the cases. Last month, a U.S. district judge approved a temporary restraining order, requiring that full masking resume in the North Allegheny School District, near Pittsburgh. But judges refused to grant temporary restraining orders, requiring a return to universal masking, in the Upper St. Clair School District, near Pittsburgh, and in the Springfield School District, near Philadelphia.
In a 32-page opinion, U.S. District Judge William Stickman IV ruled that local school boards are the ultimate authority in terms of masking policy, and granting a temporary restraining order in the case would “damage the independence and authority of the school board,” according to a report in the Pittsburgh Post-Gazette. “Prudential judgements about policy are left to the people through their elected officials.”
The judge in the Perkiomen Valley case granted a temporary restraining order in late January and on Monday ordered that the district return to its previous policy, which required full masking of students and staff during school hours, “until further order of the Court.”
The Third Circuit Court of Appeals already has agreed to hear appeals in the consolidated Pittsburgh cases in March. The Philadelphia cases would likely be added if they, too, are appealed. The Pittsburgh-area cases were filed by attorney Kenneth Behrend, while the Philadelphia-area cases were filed by attorney Carmen De Gisi. Behrend filed a similar lawsuit last fall against the Delaware Valley School District, near Scranton, Pennsylvania.
Danielle Durie, a parent who pulled her two children out of Perkiomen Valley schools because of the district’s previous mask mandate, said she was heavily involved in the school-board election last fall, in part because of her opposition to universal masking requirements.
Republicans flipped the board in November. In December, after the Pennsylvania Supreme Court struck down the statewide mask mandate imposed by Governor Tom Wolf’s administration, the Perkiomen Valley board voted to end their district’s mask mandate and to instead institute a policy of “strongly recommending” masks after Christmas break. The board extended the mandate until late January, due to the rapid spread of the Omicron variant. The ADA lawsuit in Perkiomen Valley was filed just before the new mask policy went into effect.
“Parents were pissed. They were obviously very upset,” Durie said of the lawsuit and Judge Wendy Beetlestone’s ruling reinstating the district’s mask mandate. The residents of Perkiomen Valley elected their school board, in part, to take action on masks, she said.
“The federal government can’t come in and overtake local government,” Durie said, adding that she hopes that Perkiomen Valley district leaders appeal the judge’s Monday ruling.
Jason Saylor, the Perkiomen Valley school board president, declined to comment on the local case, but said he is troubled generally by the rulings that erode school-board authority.
“School districts are now losing their legislative right to vote, which they were told they had,” Saylor said. “If the school board has the right to have a mask mandate, that then means they also have the same right to afford students to have strongly recommended measures.”
Schnee, the lawyer who has fought state mask mandates, said the same legal argument that the plaintiffs are making could also be used to reject masks for the benefit of students who are hearing-impaired or who have speech-pathology issues. Those students often rely on lip reading and can’t do that if everyone is wearing a mask and their mouths are obscured.
“Your reasonable accommodation in the instance of a child with speech-pathology issues or a hearing disability, you can sue the school district and say the reasonable accommodation you need to provide is that no one should be allowed to wear a mask; my teacher can’t wear a mask, and my peers can’t wear a mask,” Schnee said.
The ADA lawsuits come as Omicron cases are receding nationally, and as Democratic governors in some deep-blue states are announcing the end of their statewide school mask mandates. New Jersey governor Philip Murphy announced this week that he would end his state’s K-12 public school mask mandate, effective mid-March. Delaware’s school mask mandate is set to expire at the end of March. Connecticut is ending its school mask mandate by the end of February, according to the New York Times. New York governor Kathy Hochul said she is still evaluating school masking requirements in her state.
Read the Perkiomen Valley lawsuit here.
Read the North Allegheny lawsuit here.
Read the Upper St. Clair lawsuit here.
Read the Springfield lawsuit here.