A judge in a federal class-action lawsuit brought against the Perkiomen Valley School District in the wake of its lifting of a mask mandate in school buildings has issued a restraining order requiring the mask mandate be reinstated Thursday through Feb. 8.
As a result, “all students, staff, and visitors are required to wear masks when in our school buildings or as part of extracurricular activities, participating or spectating,” Superintendent Barbara Russell wrote in a letter sent home to parents Wednesday morning.
“The mask requirement extends to any committee meetings, community education classes, and all activities being held in our school buildings. If your child has a district-approved mask exemption, it will continue to be honored,” Russell wrote.
The lawsuit was filed Jan. 21 by Lafayette Hill attorney Carmen A. DeGisi on behalf of the unnamed parents of an unnamed student at Perkiomen Valley “and a class of similarly situated disabled children who are at severe risk of illness and injury due to their disabilities.”
According to the filing, the Perkiomen Valley School Board voted 5-4 on Dec. 13, 2021, to “arbitrarily permit optional masking” in school buildings without regard to the transmission rate of the COVID-19 virus in the county or the local community.
On Jan. 2, the board voted 7-2 to extend the mask mandate to Jan. 21. Board member Rowan Keenan voted no and Board President Jason Saylor abstained.
“The board’s vote neither accounts for the fact that transmission rate of infection from COVID-19 was still in the ‘High’ category on Jan. 2, 2022, and that it continues to dramatically increase because of omicron, nor that universal masking is essential to the prevention of the spread of this airborne disease,” DeGisi wrote.
“According to the Special Education Data Report for 2020-2021 school year, disabled students designated as ‘Other Health Impairment’ comprise 20.3% of the 5,319 students in the district, or 1,080 students,” according to the filing.
“The board’s vote fails to account for the fact that there are as many as 1,080 children in the school district who are medically fragile disabled students who require the protection afforded by universal masking to reduce the risk of spread of COVID-19 and to enable them to have access to the school buildings for in-person instruction,” the lawsuit asserted.
“The board’s vote permitting optional masking forces the parents of medically fragile school children with disabilities to make the 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,” wrote DeGisi.
As a result, he argued, the decision to make masking optional is a violation of the Americans with Disabilities Act, more commonly referred to as the ADA.
On Tuesday, U.S. District Judge Wendy Beetlestone granted DeGisi’s request for a temporary restraining order requiring masks to be mandated again until Feb. 8, according to a report by PATCH.
The order was granted due to the fact that there is a substantial likelihood that the plaintiffs will succeed on the merits in the case and suffer “irreparable harm, including exposure to present and existential threats to health and safety, increased risk of serious bodily injury and/or death, and lost instructional time in the absence of a temporary restraining order.”
DeGisi described that as “boilerplate language. That’s the standard that has to be met to issue the temporary injunction.”
Nevertheless, DeGisi said his clients “were very concerned about the vote lifting a masking policy that had been in place since August, so they were certainly heartened by this first ruling.”
He said a hearing on whether to maintain or lift the injunction is scheduled for Feb. 4 and he has to file his briefs on the matter by Friday.
In addition to the Perkiomen Valley case, there are similar cases on school district mask mandates in Allegheny County brought against the Upper St. Clair School District and the North Allegheny School District.
On Sunday, Judge Thomas Ambro of the U.S. 3rd Circuit Court of Appeals issued an emergency order keeping the masking policy in place in Upper St. Clair. That reversed a ruling Friday “by U.S. District Judge William Stickman IV that rejected the emergency motion. Judge Stickman had said granting the restraining order would ‘damage the independence and authority’ of the school board, which voted Jan. 10 to make masks optional,” The Pittsburgh Post-Gazette reported.
On the other hand, “Judge Stickman’s ruling was the opposite of one by a colleague on the bench, U.S. District Judge Marilyn Horan, in a nearly identical case involving masks in the North Allegheny School District. The same lawyer, Ken Behrend, filed both lawsuits on behalf of a small group of ‘medically fragile’ students to force the districts to return to universal masking because of the spike in infection rates,” the Post-Gazette reported.
“Judge Horan had granted a restraining order and everyone in the North Allegheny District has been wearing masks as of last Monday. In that case, the school board had voted in December to make masks optional,” the paper reported.
DeGisi acknowledged that rulings in those cases could affect his case, or not at all, depending on how narrowly the judges in those cases rule, and what arguments the lawyers involved present.
“This is certainly high-speed law and I think there are probably a lot of people who have a little bit of whiplash today,” he said.
And that includes parents, teachers, staff, and students, as well as lawyers. Russell’s letter home to parents Wednesday acknowledged that, beginning with “thank you for your flexibility and adaptability as we moved through another transition this week in regards to masks strongly recommended.” She ended with “we recognize this is yet another change and appreciate your understanding.”
It’s unclear how long the case, and the question of masks in Perkiomen Valley Schools, will remain open. DeGisi said the judge could lift, or extend the order after the Feb. 4 hearing, but also noted there is nothing that requires her to make a ruling before the Feb. 8 deadline expires.
Several school board solicitors in area districts have explained to their board members that the Pennsylvania Supreme Court’s overturning of the statewide mask mandate in December had to do with an incorrect procedure being followed, not the Constitutional authority to implement it
DeGisi noted that although the issue of masking in schools is a relatively new matter, the ADA and Rehabilitation Act are settled law.
Perkiomen Valley is represented by the mega-law firm Fox Rothschild, which represents multiple school districts in eastern Pennsylvania. Its lawyers have declined, as is common policy, to comment on the case.
Outside the legal considerations of the matter are the political ones, i.e. recent school board elections and new boards reversing the masking policy of previous boards. The change in Perkiomen Valley “can only be attributed to the results of the school board election,” said DeGisi.
The heated emotions which have characterized the debate on this matter, nationally and in Perkiomen Valley, are one of the primary reasons his clients have chosen to remain anonymous, he said.
